EXHIBIT 4.3
________________________________________________________________________________
EMPRESS RIVER CASINO FINANCE CORPORATION
ISSUER
AND
THE GUARANTORS NAMED HEREIN
AND
FIRST TRUST NATIONAL ASSOCIATION
TRUSTEE
____________________
INDENTURE
Dated as of April 1, 1994
____________________
$150,000,000
10 3/4% Senior Notes due 2002
________________________________________________________________________________
CROSS - REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
------- -------
310 (a) (1)........................................................... 8.10
(a) (2)........................................................... 8.10
(a) (3)........................................................... N.A.
(a) (4)........................................................... N.A.
(a) (5)........................................................... 8.10
(b) ........................................................... 8.8;
........................................................... 8.10;
........................................................... 14.2
(c) ........................................................... N.A.
311 (a) ........................................................... 8.11
(b) ........................................................... 8.11
(c) ........................................................... N.A.
312 (a) ........................................................... 2.5
(b) ........................................................... 14.3
(c) ........................................................... 14.3
313 (a) ........................................................... 8.6
(b) (1)........................................................... 8.6
(b) (2)........................................................... 8.6
(c) ........................................................... 8.6;
........................................................... 14.2
(d) ........................................................... 8.6
314 (a) ........................................................... 5.8;
........................................................... 14.2
(b) ........................................................... 4.2
(c) (1)........................................................... 2.2;
........................................................... 8.2;
........................................................... 14.4
(c) (2)........................................................... 8.2;
........................................................... 14.4
(c) (3)........................................................... 4.2
(d) ........................................................... 4.4
(e) ........................................................... 14.5
(f) ........................................................... N.A.
315 (a) ........................................................... 8.1
(b) ........................................................... 8.5;
........................................................... 8.6;
........................................................... 14.2
(c) ........................................................... 8.1 (a)
(d) ........................................................... 2.8;
........................................................... 7.12;
........................................................... 8.1
(e) ........................................................... 7.13
316 (a) (last sentence)............................................... 2.9
(a) (1) (A)....................................................... 7.11
(a) (1) (B)....................................................... 7.12
(a) (2)........................................................... N.A.
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TIA INDENTURE
SECTION SECTION
------- -------
(b) ........................................................... 7.7;
........................................................... 7.8
317 (a) (1)........................................................... 7.3
(a) (2)........................................................... 7.4
(b) ........................................................... 2.4
318 (d) ........................................................... 14.1
_________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITION AND INCORPORATION BY REFERENCE..................... 1
Section 1.1 Definitions................................................ 1
Section 1.2 Incorporation by Reference of TIA.......................... 26
Section 1.3 Rules of Construction...................................... 26
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating............................................ 27
Section 2.2 Execution and Authentication............................... 27
Section 2.3 Registrar and Paying Agent................................. 28
Section 2.4 Paying Agent to Hold Assets in Trust....................... 29
Section 2.5 Securityholder Lists....................................... 29
Section 2.6 Transfer................................................... 30
Section 2.7 Replacement Securities..................................... 30
Section 2.8 Outstanding Securities..................................... 31
Section 2.9 Treasury Securities........................................ 31
Section 2.10 Temporary Securities....................................... 31
Section 2.11 Cancellation............................................... 32
Section 2.12 Defaulted Interest......................................... 32
ARTICLE III
REDEMPTION
Section 3.1 Right of Redemption........................................ 32
Section 3.2 Redemption Pursuant to Gaming Laws......................... 33
Section 3.3 Notices to Trustee......................................... 33
Section 3.4 Selection of Securities to Be Redeemed..................... 34
Section 3.5 Notice of Redemption....................................... 34
Section 3.6 Effect of Notice of Redemption............................. 35
Section 3.7 Deposit of Redemption Price................................ 36
Section 3.8 Securities Redeemed in Part................................ 36
ARTICLE IV
SECURITY
Section 4.1 Security Interest.......................................... 37
Section 4.2 Recording; Opinions of Counsel............................. 37
Section 4.3 Guarantor Loan Agreement and Collateral Accounts........... 38
Section 4.4 Certain Releases of Collateral............................. 39
Section 4.5 Payment of Expenses........................................ 40
Section 4.6 Suits to Protect the Collateral............................ 40
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Section 4.7 Trustee's Duties........................................... 40
ATRICLE V
COVENANTS
Section 5.1 Payment of Securities...................................... 41
Section 5.2 Maintenance of Office or Agency............................ 41
Section 5.3 Limitation on Restricted Payments.......................... 42
Section 5.4 Corporate Existence........................................ 44
Section 5.5 Payment of Taxes and Other Claims.......................... 45
Section 5.6 Maintenance of Insurance................................... 45
Section 5.7 Compliance Certificate; Notice of Default.................. 45
Section 5.8 Reports.................................................... 46
Section 5.9 Waiver of Stay, Extension or Usury Laws.................... 46
Section 5.10 Limitation on Transactions with Affiliates................. 47
Section 5.11 Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital
Stock.................................................... 47
Section 5.12 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries...................... 49
Section 5.13 Limitation on Liens........................................ 49
Section 5.14 Limitation on Sales of Assets and Subsidiary
Stock; Event of Loss..................................... 50
Section 5.15 Limitation on Use of Proceeds.............................. 54
Section 5.16 Construction and Licensure................................. 55
Section 5.17 Limitation on Liens of Business............................ 59
Section 5.18 Limitation on Status as Investment Company................. 59
Section 5.19 Limitation on Sales and Issuances of
Capital Stock by Subsidiaries............................ 59
Section 5.20 Limitation on Sale of a Guarantor.......................... 59
Section 5.21 Ownership of the Company................................... 63
Section 5.22 Future Guarantors.......................................... 63
ARTICLE VI
SUCCESSOR CORPORATION
Section 6.1 Limitation on Merger, Sale or Consolidation................ 63
Section 6.2 Successor Corporation Substitued........................... 64
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default.......................................... 64
Section 7.2 Acceleration of Maturity Date; Rescission
and Annulment............................................ 66
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Section 7.3 Collection of Indebtedness and Suits for
Enforcement by Trustee................................... 68
Section 7.4 Trustee May File Proofs of Claim........................... 68
Section 7.5 Trustee May Enforce Claims Without Possession
of Securities............................................ 69
Section 7.6 Priorities................................................. 70
Section 7.7 Limitation on Suits........................................ 70
Section 7.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest.......................... 71
Section 7.9 Rights and Remedies Cumulative............................. 71
Section 7.10 Delay or Omission Not Waiver............................... 72
Section 7.11 Control by Holders......................................... 72
Section 7.12 Waiver of Past Default..................................... 72
Section 7.13 Undertaking for Costs...................................... 73
Section 7.14 Restoration of Rights and Remedies......................... 73
ARTICLE VIII
TRUSTEE
Section 8.1 Duties of Trustee.......................................... 74
Section 8.2 Rights of Trustee.......................................... 75
Section 8.3 Individual Rights of Trustee............................... 76
Section 8.4 Trustee's Disclaimer....................................... 76
Section 8.5 Notice of Default.......................................... 76
Section 8.6 Reports by Trustee to Holders.............................. 77
Section 8.7 Compensation and Imdemnity................................. 77
Section 8.8 Replacement of Trustee..................................... 78
Section 8.9 Successor Trustee by Merger, Etc........................... 79
Section 8.10 Eligibility; Disqualification.............................. 79
Section 8.11 Preferential Collection of Claims against Company.......... 79
ARTICLE IX
SATISFACTION AND DISCHARGE;
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 9.1 Option to Effect Legal Defeasance or
Covenant Defeasance...................................... 80
Section 9.2 Legal Defeasance and Discharge............................. 80
Section 9.3 Covenant Defeasance........................................ 80
Sectio 9.4 Conditions to Legal Defeasance and Covenant
Defeasance............................................... 81
Section 9.5 Deposited U.S. Leagal Tender and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions................................. 83
Section 9.6 Application of Trust Assets................................ 83
Section 9.7 Repayment to the Company................................... 84
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Section 9.8 Reinstatement.............................................. 84
Section 9.9 Termination of Obligations upon Cancellation of
the Securities........................................... 85
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.1 Supplemental Indentures Without Consent of
Holders.................................................. 85
Section 10.2 Amendments, Supplemental Indentures and Waivers
With Consent of Holders.................................. 86
Section 10.3 Compliance with TIA........................................ 88
Section 10.4 Revocation and Effect of Consents.......................... 88
Section 10.5 Notation on or Exchange of Securities...................... 89
Section 10.6 Trustee to Sign Amendments, Etc............................ 89
ARTICLE XI
MEETINGS OF SECURITYHOLDERS
Section 11.1 Purposes for Which Meetings May Be Called.................. 89
Section 11.2 Manner of Calling Meetings................................. 90
Section 11.3 Call of Meetings by Company or Holders..................... 90
Section 11.4 Who May Attend and Vote at Meetings........................ 91
Section 11.5 Regulations May Be Made by Trustee; Conduct
of the Meeting; Voting Rights; Adjourment................ 91
Section 11.6 Voting at the Meeting and Record to be Kept................ 92
Section 11.7 Exercise of Rights of Trustee or
Securityholders May Not Be Hindered or
Delayed by Call of Meeting............................... 92
ARTICLE XII
RIGHT TO REQUIRE REPURCHASE UPON CHANGE OF CONTROL
Section 12.1 Repurchase of Securities at Option of the
Holder Upon Change of Control............................ 93
ARTICLE XIII
GUARANTY
Section 13.1 Guaranty................................................... 96
Section 13.2 Execution and Delivery of Guaranty......................... 98
Section 13.3 Future Guarantors.......................................... 98
Section 13.4 Certain Bankruptcy Events.................................. 98
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Section 13.5 Release of Certain Guarantors.............................. 99
ARTICLE XIV
MISCELLANEOUS
Section 14.1 TIA Controls............................................... 99
Section 14.2 Notices.................................................... 99
Section 14.3 Communications by Holders with Other Holders............... 100
Section 14.4 Certificate and Opinion as to Conditions
Precedent................................................ 100
Section 14.5 Statements Required in Certificate or Opinion.............. 101
Section 14.6 Rules by Trustee, Paying Agent, Registrar.................. 101
Section 14.7 Legal Holidays............................................. 101
Section 14.8 Governing Law.............................................. 101
Section 14.9 No Adverse Interpretation of Other Agreements.............. 102
Section 14.10 No Recourse against Others................................. 102
Section 14.11 Successors................................................. 102
Section 14.12 Duplicate Originals........................................ 102
Section 14.13 Severability............................................... 103
Section 14.14 Table of Contents, Headings, Etc........................... 103
vii
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Guaranty
viii
INDENTURE, dated as of April 1, 1994, among Empress River Casino
Finance Corporation, a Delaware corporation (the "Company"), the Guarantors
referred to below and First Trust National Association, a national association,
as Trustee.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's 10
3/4% Senior Notes due 2002:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Acceleration Notice" shall have the meaning specified in Section 7.2.
"Acceptance Amount" shall have the meaning specified in Section 5.14.
"Accumulated Amount" shall have the meaning specified in Section 5.14.
"Acquired Indebtedness" with respect to a person means Indebtedness of
another person existing at the time such person becomes a Subsidiary of the
subject person or is merged or consolidated into or with the subject person or
one of its Subsidiaries, and not incurred in connection with or in anticipation
of, such merger or consolidation or of such person becoming a Subsidiary of such
subject person.
"Acquisition" means the purchase or other acquisition of any person or
substantially all the assets of any person by any other person, whether by
purchase, merger, consolidation or other transfer, and whether or not for
consideration.
"Additional Guarantor" means any corporation which is engaged in a
Related Business, provided that (i) no less than a majority of the shares of
Capital Stock of such Additional Guarantor are owned by Excluded Persons (or
100% by the Parent Guarantor after an Initial Public Equity offering) and no
less than a majority of the members of the Board of Directors of such Additional
Guarantor are directors of Empress; and (ii) such Additional Guarantor expressly
agrees by supplemental indenture to be bound by all of the obligations to which
the Guarantors are bound under the Notes and the Indenture.
"Adjusted Combined Net Income" means Combined Net Income, minus 100%
of the amount of any writedowns, writeoffs, or
1
negative extraordinary charges not otherwise reflected in Combined Net Income
during such period.
"Adjusted Consolidated Net Income" means Consolidated Net Income,
minus 100% of the amount of writedowns, writeoffs, or negative extraordinary
charges not otherwise reflected in Consolidated Net Income during such period.
"Affiliate" means (i) any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
of the Guarantors, (ii) with respect to any Guarantor, so long as such Guarantor
is an S Corporation, any director or stockholder of such Guarantor, (iii) any
spouse, immediate family member, or other relative who has the same principal
residence of any person described in clause (i) or (ii) above, and (iv) any
trust in which any person described in clause (i) or (ii) above has a beneficial
interest. For purposes of this definition, the term "control" means (a) the
power to direct the management and policies of a person, directly or through one
or more intermediaries, whether through the ownership of voting securities, by
contract, or otherwise, or (b) the beneficial ownership of 10% or more of any
class of voting Capital Stock of a person (on a fully diluted basis) or of
warrants or other rights to acquire such class of Capital Stock (whether or not
presently exercisable).
"Affiliate Transaction" shall have the meaning specified in Section
5.10.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Approvals" means all material approvals, licenses (including Gaming
Licenses), permits, authorizations, findings and other filings necessary under
applicable Gaming Laws.
"Asset Sale" shall have the meaning specified in Section 5.14.
"Asset Sale Offer" shall have the meaning specified in Section 5.14.
"Asset Sale Offer Amount" shall have the meaning specified in Section
5.14.
"Asset Sale Offer Period" shall have the meaning specified in Section
5.14.
"Asset Sale Offer Price" shall have the meaning specified in Section
5.14.
2
"Asset Sale Purchase Date" shall have the meaning specified in Section
5.14.
"Asset Sale Put Date" shall have the meaning specified in Section
5.14.
"Average Life" means, as of the date of determination, with respect to
any security or instrument, the quotient obtained by dividing (i) the sum of the
products of the number of years from the date of determination to the date of
each successive scheduled principal (or redemption) payment of such security or
instrument multiplied by the amount of each such respective principal (or
redemption) payment by (ii) the sum of all such principal (or redemption)
payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"beneficial owner" for purposes of the definition of Change of Control
has the meaning attributed to it in Rules 13d-3 and 13d-5 under the Exchange
Act, whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
"Board of Directors" means, with respect to any person, the Board of
Directors of such person or any committee of the Board of Directors of such
person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such person.
"Board Resolution" means, with respect to any person, a duly adopted
resolution of the Board of Directors of such person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Capitalized Lease Obligation" means obligations under a lease,
entered into on or after the Issue Date, that are required to be capitalized for
financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligations shall be the capitalized amount of
such obligations, as determined in accordance with GAAP.
3
"Cash" means U.S. Legal Tender or U.S. Government Obligations.
"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 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 and (iii) investments in
money market funds substantially all of whose assets comprise securities of the
types described in clauses (i) and (ii) above.
"Casino" means a gaming establishment owned or operated by a Guarantor
or any of its Subsidiaries, and containing at least 200 slot machines or at
least 15 gaming tables, or containing at least 10,000 square feet dedicated to
the operation of games of chance, and any hotel, building, restaurant, theater,
parking facilities, retail shops, land, equipment and other property or asset
directly ancillary thereto or used in connection therewith.
"Casino Offer Amount" shall have the meaning specified in Section
5.16.
"Casino Offer Period" shall have the meaning specified in Section
5.16.
"Casino Offer Payment Date" shall have the meaning specified in
Section 5.16.
"Casino Offer Price" shall have the meaning specified in Section 5.16.
"Casino Offer Put Date" shall have the meaning specified in Section
5.16.
"Casino Purchase Offer" shall have the meaning specified in Section
5.16.
"Change of Control" means (i) any merger or consolidation of, or any
sale, transfer or other conveyance, whether direct or indirect, of all or
substantially all of the assets of, Empress (or, if applicable, the Parent
Guarantor) in each case on a consolidated basis, in one transaction or a series
of related transactions, if, immediately after giving effect to such
transaction, any "person" or "group" (as such terms are used for
4
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable), other than Excluded Persons, is or becomes the "beneficial owner,"
directly or indirectly, of more than 40% of the aggregate voting power normally
entitled to vote in the election of directors of the transferee; (ii) the time
that 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), other than
Excluded Persons, is or becomes the "beneficial owner," directly or indirectly,
of more than 40% of the aggregate voting power of all classes of Capital Stock
then outstanding of Empress (or, if applicable, the Parent Guarantor) normally
entitled to vote in elections of directors; or (iii) during any period of 12
consecutive months after the Issue Date, individuals who at the beginning of any
such 12-month period constituted the Board of Directors of Empress (or, if
applicable, the Parent Guarantor) (together with any new directors whose
election by such Board or whose nomination for election by the shareholders of
Empress was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period of whose
election or nomination for election was previously so approved), cease for any
reason to constitute a majority of the Board of Directors of Empress (or, if
applicable, the Parent Guarantor) then in office.
"Change of Control Offer" shall have the meaning specified in Section
12.1.
"Change of Control Offer Period" shall have the meaning specified in
Section 12.1.
"Change of Control Offer Price" shall have the meaning specified in
Section 12.1.
"Change of Control Payment Date" shall have the meaning specified in
Section 12.1.
"Change of Control Put Date" shall have the meaning specified in
Section 12.1.
"Collateral" means the funds held in the Xxxxxxx Empress Collateral
Account, pursuant to the Xxxxxxx Empress Disbursement Agreement, and the Xxxxxxx
Leasing Collateral Account, pursuant to the Xxxxxxx Leasing Disbursement
Agreement, and the Mirror Notes.
"Collateral Agent" shall have the meaning specified in Section 4.4.
"Combined EBITDA" means the combined Consolidated EBITDA of the
Guarantors, adjusted to eliminate (only to the extent included in computing such
EBITDA and without duplication) any inter-Guarantor transactions, so as to
reflect EBITDA as if
5
all of the Guarantors had been a consolidated entity measured in accordance with
GAAP.
"Combined Fixed Charge Coverage Ratio" on any date of determination
(the "Transaction Date") means, the ratio, on a pro forma basis, of (a) the
aggregate amount of Combined EBITDA attributable to continuing operations and
businesses (exclusive of amounts attributable to operations and businesses
permanently discontinued or disposed of) for the Reference Period to (b) the
aggregate Combined Fixed Charges (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of, but only to
the extent that the obligations giving rise to such Consolidated Fixed Charges
would no longer be obligations contributing to Consolidated Fixed Charges
subsequent to the Transaction Date) during the Reference Period or subsequent to
the Reference Period and on or prior to the Transaction Date shall be assumed to
have occurred on the first say of the Reference Period; (ii) transactions giving
rise to the need to calculate the Combined Fixed Charge Coverage Ratio shall be
assumed to have occurred on the first day of the Reference Period; (iii) the
incurrence of any Indebtedness or issuance of any Disqualified Capital Stock
during the Reference Period; (iii) the incurrence of any Indebtedness or
issuance of any Disqualified Capital Stock during the Reference Period or
subsequent to the Reference Period and on or prior to the relevant Transaction
Date (and the application of the proceeds therefrom to the extent used to
refinance or retire other Indebtedness) shall be assumed to have occurred on the
first day of such Reference Period; and (iv) the Consolidated Fixed Charges
attributable to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be computed
on a pro forma basis as if the average rate in effect from the beginning of the
Reference Period to the relevant Transaction Date had been the applicable rate
for the entire period, unless such Person or any of its Subsidiaries is a party
to an Interest Swap Obligation (which shall remain in effect for the 12-month
period immediately following the Transaction Date) that has the effect of fixing
the interest rate on the date of computation in which case such rate (whether
higher or lower) shall be used.
"Combined Fixed Charges" means the combined Consolidated Fixed Charges
of the Guarantors, adjusted to eliminate any inter-Guarantor transactions so as
to reflect combined Consolidated Fixed Charges as if all of the Guarantors had
been a consolidated entity, measured in accordance with GAAP.
"Combined Net Income" means the combined Consolidated Net Income of
the Guarantors, adjusted to eliminate (only to extent included in computing such
net income (or loss) without duplication) any inter-Guarantor transactions so as
to reflect Combined Net Income as if all of the Guarantors had been a
consolidated entity measured in accordance with GAAP.
6
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means such
successor.
"Company Request" means a written request of the Company or a
Guarantor, as the case may be, in the form of an Officers' Certificate.
"Consolidated Depreciation and Amortization Expense" for any person
means the total depreciation and amortization for such person and its
Consolidated Subsidiaries, as determined in accordance with GAAP.
"Consolidated EBITDA" means, with respect to any person, for any
period, the Consolidated Net Income of such person for such period adjusted to
add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of (i) Consolidated
Income Tax Expense, (ii) Consolidated Depreciation and Amortization Expense and
(iii) Consolidated Fixed Charges.
"Consolidated Fixed Charges" of any person means, for any period, the
aggregate amount (without duplication) of (a) interest expensed or capitalized,
paid, accrued, or scheduled to be paid or accrued in accordance with GAAP
(including, in accordance with the following sentence, interest attributable to
Capitalized Lease Obligations) during such period in respect of all
Indebtedness of such person and its Consolidated Subsidiaries including (i)
original issue discount and non-cash interest payments or accruals on any
Indebtedness; (ii) the interest portion of all deferred payment obligations,
calculated in accordance with GAAP; and (iii) all commissions, discounts and
other fees and charges owed with respect to bankers' acceptance financings and
currency and Interest Swap Obligations, in each case to the extent attributable
to such period and determined on a consolidated basis in accordance with GAAP;
(b) one-third of the rental expense for such period attributable to operating
leases of such person and its Consolidated Subsidiaries; and (c) the amount of
dividends payable by such person or any of its Consolidated Subsidiaries in
respect of Disqualified Capital Stock (other than by Subsidiaries of such person
to such person or such person's wholly owned Subsidiaries). For purposes of
this definition; (x) interest on a Capitalized Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined by such person to be the
rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP; and (y) interest expense attributable to any Indebtedness represented
by the guaranty by such person or a Subsidiary of such person of an obligation
of another person shall be deemed to be the interest expense attributable to the
Indebtedness guaranteed.
7
"Consolidated Income Tax Expense" for any person means the total net
income tax expenses for such person and its Consolidated Subsidiaries, as
determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication): (a) all gains which are either
extraordinary (as determined in accordance with GAAP) or are either unusual or
nonrecurring (including, without limitation, any gain from the sale or other
disposition of assets outside the ordinary course of business or from the
issuance or sale of any capital stock); (b) the net income, if positive, of any
person, other than a Consolidated Subsidiary, in which such person or any of its
Consolidated Subsidiaries has an interest, except to the extent of the amount of
any dividends or distributions actually paid in Cash to such person or a
Consolidated Subsidiary of such person during such period up to (and not in
excess of) the amount of such person's pro rata share of such person's net
income for such period; (c) the net income, if positive, of any person acquired
in a pooling of interests transaction for any period prior to the date of such
acquisition; and (d) the net income, if positive, of any of such person's
Consolidated Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by operation of
the terms of its charter or bylaws or any other agreement, instrument, judgment,
decree, order, law, statute, rule or governmental regulation applicable to such
Consolidated Subsidiary.
"Consolidated Net Worth" of any person at any date means the aggregate
of capital, surplus and retained earnings of such person (plus amounts of equity
attributable to preferred stock) and its Consolidated Subsidiaries, as would be
shown on the consolidated balance sheet of such person prepared in accordance
with GAAP, adjusted to exclude (to the extent included in calculating such
equity), (a) the amount of capital, surplus and accrued but unpaid dividends
attributable to any Disqualified Capital Stock; (b) 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 (c) all investments
in Subsidiaries that are not Consolidated Subsidiaries and in persons that are
not Subsidiaries.
"Consolidated Subsidiary" means, for any person, each Subsidiary of
such person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated for
financial statement reporting purposes with the financial statements of such
person in accordance with GAAP.
8
"Corporate Trust Office" means the Corporate Trust Office of the
Trustee located in New York, New York.
"Covenant Defeasance" shall have the meaning specified in Section 9.3.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Disqualified Capital Stock" means (a) except as set forth in (b),
with respect to any person, Capital Stock of such person that, by its terms or
by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time would
be, required to be redeemed or repurchased (including at the option of the
holder thereof) by such person or any of its Subsidiaries, in whole or in part,
on or prior to the Stated Maturity of the Notes; and (b) with respect to any
Subsidiary of such person, any Capital Stock.
"Empress" means Empress River Casino Corporation, an Illinois
corporation.
"Empress I" means that certain riverboat casino, U.S. Coast Guard
Registration Number 984286.
"Empress II" means that certain riverboat casino, U.S. Coast Guard
Registration Number 998517.
"Empress III" means that certain riverboat casino that is being
constructed pursuant to the terms of that certain Sales and Construction
Contract dated October 12, 1993 between River Casino and Atlantic Marine, Inc.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"Event of Default" shall have the meaning specified in Section 7.1.
"Event of Loss" means, with respect to any property or asset, any
loss, destruction or damage of such property or asset or any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
9
"Event of Loss Amount" shall have the meaning specified in Section
5.14.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Excluded Persons" means, collectively, the existing shareholders of
Empress as of the Issue Date, and Xxxxxx X. XxXxxxx, and any of their respective
estates, spouses, heirs, ancestors, lineal descendants, legatees, and legal
representatives and the trustee of any bona fide trust of which one or more of
the foregoing are the sole beneficiaries and, for purposes of clauses (i) and
(ii) of the definition of "Change of Control," any Parent Guarantor formed to be
the issuer of an Initial Public Equity Offering; provided that all holders of
all classes of Capital Stock of Empress, Xxxxxxx Empress, Hammond Leasing and
any Additional Guarantor then outstanding would be entitled to receive Capital
Stock in the Parent Guarantor in amounts proportionate to their relative
holdings in Empress, Xxxxxxx Empress, Hammond Leasing and any Additional
Guarantor.
"Final Completion Date" means that date by which (a) each required
certificate of occupancy has been issued by the building department and other
relevant agencies, including the U.S. Coast Guard, if applicable, with respect
to the Xxxxxxx Facility; (b) all Gaming Licenses and other Approvals required to
commence gaming operations at the Xxxxxxx Facility have been obtained by the
Company, Xxxxxxx Empress, Xxxxxxx Leasing and any of their Subsidiaries and
their respective officers, directors and stockholders, with respect to the
Xxxxxxx Facility; (c) the Xxxxxxx Facility is in a condition (including the
installation of fixtures, furnishings and equipment) to receive customers
substantially in the ordinary course of its gaming operations; and (d) the
Xxxxxxx Facility is open for business to the general public and operates,
therein, at least 200 slot machines.
"GAAP" means United States generally accepted accounting principles as
in effect on the Issue Date.
"Gaming Authority" means any Governmental Authority with the power to
regulate gaming in any Gaming Jurisdiction, and the corresponding Governmental
Authorities with responsibility to interpret and enforce the laws and
regulations applicable to gaming in any Gaming Jurisdiction.
"Gaming Jurisdiction" means any Federal, state or local jurisdiction
in which the Company, the Guarantors or any of their Subsidiaries has a direct
or indirect beneficial, legal or voting interest in an entity that conducts
casino gaming.
10
"Gaming Law" means any law, rule, regulation or ordinance governing
gaming activities, including the Riverboat Gambling Act of Illinois and Article
33 of the Indiana Code, any administrative rules or regulations promulgated
thereunder, and any of the corresponding statutes, rules and regulations in each
Gaming Jurisdiction.
"Gaming Licenses" means every license, franchise or other
authorization on the Issue Date or thereafter required to own, lease, operate or
otherwise conduct riverboat, dockside or land-based gaming in any Gaming
Jurisdiction, and any applicable liquor licenses.
"Governmental Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or a foreign government, any state, province or any city or
other political subdivision or otherwise and whether now or hereafter in
existence, or any officer or official thereof, and any maritime authority.
"Guarantor Loan Agreement" means the Guarantor Loan Agreement dated
the Issue Date by and between the Company and Empress.
"Guarantors" means Empress, Xxxxxxx Empress, Hammond Leasing, the
Additional Guarantors, if any, and all of their future Subsidiaries.
"Guarantor Sale Offer" shall have the meaning specified in Section
5.20.
"Guarantor Sale Offer Period" shall have the meaning specified in
Section 5.20.
"Guarantor Sale Offer Put Date" shall have the meaning specified in
Section 5.20.
"Guarantor Sale Payment Date" shall have the meaning specified in
Section 5.20.
"Guarantor Sale Purchase Price" shall have the meaning specified in
Section 5.20.
"Guarantor Sale Repurchase Amount" means (i) the outstanding principal
amount of the Mirror Notes, plus accrued and unpaid interest, of Xxxxxxx
Empress, Xxxxxxx Leasing or an Additional Guarantor, as applicable, plus (ii) to
the extent in excess of such amount, an amount equal to the principal amount of
Notes that would be required to be repurchased such that after giving pro forma
effect to such Sale of a Guarantor and such repurchase of Notes pursuant to such
Sale of a Guarantor (x) the
11
aggregate amount of all Indebtedness of the continuing Guarantors would not
exceed 3.0 times Combined EBITDA and (y) the Combined Fixed Charge Coverage
Ratio of the continuing Guarantors for the two full fiscal quarters immediately
preceding such Sale of a Guarantor would be at least 3.5 to 1.
Notwithstanding the foregoing, in the case of a sale of all or
substantially all of the assets of Xxxxxxx Empress, Xxxxxxx Leasing or an
Additional Guarantor, in the event (i) aggregate fair market value of all
proceeds of such Sale of a Guarantor are less than the Guarantor Sale Repurchase
Amount as determined in accordance with the immediately preceding paragraph,
(ii) the Combined Fixed Charge Coverage Ratio of the continuing Guarantors after
giving pro forma effect to such Sale of a Guarantor and redemption of the Notes
--- -----
equal in principal amount to the Guarantor Sale Repurchase Amount (as determined
in accordance with this paragraph) would be equal to or greater than the
Combined Fixed Charge Coverage Ratio of all Guarantors for the two full fiscal
quarters immediately prior to such Sale of a Guarantor; and (iii) during the
twelve months preceding the date of such Sale of a Guarantor, neither such
Guarantor nor any of its Subsidiaries made any Restricted Payments, then the
Guarantor, Sale Repurchase Amount shall be equal to the greater of (x) the
aggregate fair market value of all proceeds of such Sale of a Guarantor; and (y)
the outstanding principal amount of the Mirror Notes, plus accrued and unpaid
interest, of such Guarantor.
"Guaranty" shall have the meaning provided in Section 13.1(a).
"Xxxxxxx Access Construction" means the construction of certain roads
and bridges necessary to provide increased access to the proposed location of
the Xxxxxxx Facility, including costs necessary to acquire certain parcels of
real property, which construction shall be funded either directly or indirectly
by Hammond Empress.
"Xxxxxxx Empress" means Lake Michigan Charters, Ltd., an Indiana
corporation.
"Hammond Empress Collateral Account" means the collateral account
established at the Collateral Agent by Hammond Empress pursuant to the Xxxxxxx
Empress Disbursement Agreement.
"Xxxxxxx Empress Disbursement Agreement" means that certain Xxxxxxx
Empress Cash Collateral and Disbursement Agreement, dated the date hereof, by
and among the Collateral Agent, Xxxxxxx Empress, Empress and the Trustee.
"Xxxxxxx Empress Note Proceeds" means $33 million loaned by Empress to
Xxxxxxx Empress as evidenced by the Mirror Note executed by Xxxxxxx Empress in
favor of Empress, which
12
amount shall be deposited into the Xxxxxxx Empress Collateral Account pursuant
to the Xxxxxxx Empress Disbursement Agreement.
"Xxxxxxx Facility" means the proposed land-based facility to be
maintained by Hammond Empress for the purpose of conducting riverboat gaming in
the state of Indiana, the county of Lake and the city of Xxxxxxx as described in
the Registration Statement.
"Hammond Leasing" means LMC Leasing, Ltd., a Delaware corporation.
"Xxxxxxx Leasing Collateral Account" means the collateral account
established at the Collateral Agent by Hammod Leasing pursuant to the Xxxxxxx
Leasing Disbursement Account.
"Xxxxxxx Leasing Disbursement Agreement" means that certain Xxxxxxx
Leasing Cash Collateral and Disbursement Agreement, dated the date hereof, by
and among the Collateral Agent, Empress, Xxxxxxx Leasing and the Trustee.
"Xxxxxxx Leasing Note Proceeds" means $25 million loaned by Empress to
Xxxxxxx Leasing as evidenced by the Mirror Note executed by Xxxxxxx Leasing in
favor of Empress, which amount shall be deposited into the Xxxxxxx Leasing
Collateral Account pursuant to the Xxxxxxx Leasing Disbursement Agreement.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Registrar's books.
"incur" or "incurrence" shall have the meaning specified in Section
5.11.
"Incurrence Date" shall have the meaning specified Section 5.11.
"Indebtedness" of any person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, with respect to any
person, (i) in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such person or only to a portion
thereof), (ii) evidenced by bonds, notes, debentures or similar instruments,
(iii) representing the balance deferred and unpaid of the purchase price of any
property or services, except such as would constitute trade payables to trade
creditors in the ordinary course of business that are not more than ninety (90)
days past their original due date or are being contested in good faith, (iv)
evidenced by bankers' acceptances or similar instruments issued or accepted by
banks, (v) for the payment of money relating to a Capitalized Lease Obligation,
or (vi) evidenced by a letter of credit or a reimbursement obligation of such
person with respect to any letter of credit; (b) all net obligations of
13
such person under Interest Swap Obligations and foreign currency xxxxxx; (c) all
liabilities of others of the kind described in the preceding clauses (a) or (b)
that such person has guaranteed or that is otherwise its legal liability; (d)
all obligations to purchase, redeem or acquire any Capital Stock; (e) all
obligations secured by a Lien, to which the property or assets (including,
without limitation, leasehold interests and any other tangible or intangible
property rights) of such person are subject, whether or not the obligations
secured thereby shall have been assumed by or shall otherwise be such person's
legal liability, provided, that the amount of such obligations shall be limited
--------
to the lesser of the fair market value of the assets or property to which such
Lien attaches and the amount of the obligation so secured; and (f) any and all
deferrals, renewals, extensions, refinancings and refundings (whether direct or
indirect) of, any liability of the kind described in any of the preceding
clauses (a), (b), (c), (d) or (e), or this clause (f), whether or not between or
among the same parties.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Indenture Obligations" means the obligations of the Company and the
Guarantors pursuant to this Indenture and the Securities (and any other obligor
hereunder or under the Securities) now or hereafter existing, to pay principal
of, and premium, if any, and interest on, the Securities when due and payable,
whether on the Maturity Date or an Interest Payment Date, by acceleration, call
for redemption, acceptance of any Offer to Purchase or otherwise, and interest
on the overdue principal and premium, if any, of, and (to the extent lawful)
interest, if any, on, the Securities and all other amounts due or to become due
in connection with this Indenture and the Securities, including any and all
extensions, renewals or other modifications thereof, in whole or in part, and
the performance of all other obligations of the Company (and any other obligor
hereunder or under the Securities) and the Guarantors, including all costs and
expenses incurred by the Trustee or the Holders in the collection or enforcement
of any such obligations or realization upon the Collateral.
"Initial Public Equity Offering" means an initial underwritten public
offering of common stock of Empress or, to the extent the proceeds are
contributed in cash to Empress or the other Guarantors, the Parent Guarantor,
pursuant to an effective registration statement under the Securities Act as a
consequence of which the common stock of Empress or the Parent Guarantor, as
applicable, is listed on a national securities exchange or quoted on the
national market system of the National Association of Securities Dealers, Inc.
14
"Interest Payment Date" means the stated due date of an installment of
---------------------
interest on the Securities.
"Interest Swap Obligation" means, when used with reference to any
------------------------
person, the obligations of such person pursuant to any arrangement with any
other person whereby, directly or indirectly, such person is entitled to receive
from time to time periodic payments calculated by applying either a floating or
a fixed rate of interest on a stated notional amount in exchange for periodic
payments made by such person calculated by applying a fixed or a floating rate
of interest on the same notional amount.
"Investment" by any person in any other person means (without
----------
duplication) (a) the acquisition by such person (whether for cash, property,
services, securities or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities, including any
options or warrants, of such other person or any agreement to make any such
acquisition; (b) the making by such person of any deposit with, or advance, loan
or other extension of credit to, such other person (including the purchase of
property from another person subject to an understanding or agreement,
contingent or otherwise, to resell such property from another person to such
other person) or any commitment to make any such advance, loan or extension (but
excluding accounts receivable arising in the ordinary course of business that
are not more than 90 days past their original due date); (c) other than the
Guarantees of the Notes, the entering into by such person of any guarantee of,
or other credit support or contingent obligation with respect to, Indebtedness
or other liability of such other person; or (d) the making of any capital
contribution by such person to such other person.
"Issue Date" means the date of first issuance of the Notes under the
----------
Indenture.
"Joliet Facility" means the land-based facility maintained by Empress
---------------
for the purpose of conducting riverboat gaming located in the state of Illinois,
the county of Will and the city of Joliet which currently consists of an
approximately 65,280 square foot pavilion.
"Legal Defeasance" shall have the meaning specified in Section 9.2.
----------------
"Legal Holiday" shall have the meaning provided in Section 14.7.
-------------
"Lien" means any mortgage, lien, pledge, charge, security interest, or
----
other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agree-
15
ment and any lease deemed to constitute a security interest, and any option or
other agreement to give any security interest).
"Maturity Date," when used with respect to any Security, means the
-------------
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at Stated Maturity, a Casino Offer Payment Date, a
Change of Control Payment Date, an Asset Sale Purchase Date, a Guarantor Sale
Payment Date, or by declaration of acceleration, call for redemption or
otherwise.
"Minimum Accumulation Date" shall have the meaning specified in
-------------------------
Section 5.14.
"Mirror Notes" means, collectively, (a) the note in aggregate
------------
principal amount of $150,000,000 executed by Empress in favor of Finance; (b)
the note in the aggregate principal amount of $33,000,000 executed by Xxxxxxx
Empress in favor of Empress; and (c) the note in the aggregate principal amount
of $25,000,000 executed by Xxxxxxx Leasing in favor of Empress, each such note
containing interest and default terms that are substantially identical to those
contained in the Securities.
"Net Cash Proceeds" means the aggregate amount of U.S. Legal Tender of
-----------------
Cash Equivalents received by a Guarantor in the case of a sale of Qualified
Capital Stock and by a Guarantor and its Subsidiaries in respect of an Asset
Sale, less, in each case, the sum of all fees, commissions and other (in the
case of an Asset Sale, reasonable and customary) expenses incurred in connection
with such Asset Sale or sale of Qualified Capital Stock, and, in the case of an
Asset Sale only, less the amount (estimated reasonably and in good faith by such
Guarantor) of income, franchise, sales and other applicable taxes required to be
paid by such Guarantor or any of its Subsidiaries in connection with such Asset
Sale.
"Net Proceeds" means the aggregate Net Cash Proceeds and fair market
------------
value of property (valued at the fair market value thereof at the time of
receipt in good faith by the Board of Directors of the applicable Guarantor),
other than securities of a Guarantor or any of its Subsidiaries, received by a
Guarantor after payment of expenses, commissions, discounts and the like
incurred in connection therewith.
"Net Retained Repurchase Amount" means an amount equal to the
------------------------------
aggregate principal amount of the Mirror Notes of Xxxxxxx Empress, Xxxxxxx
Leasing or any Additional Guarantor, as applicable, which are offered by the
Company to be repurchased and are not tendered pursuant to a Guarantor Sale
Offer.
"Non-recourse Indebtedness" means Indebtedness of a person to the
-------------------------
extent that under the terms thereof or any other
16
document, instrument or filing no personal recourse shall be had against such
person for the payment of the principal of, premium, if any, or interest on,
such Indebtedness, and enforcement of obligations on such Indebtedness is
limited only to recourse against interests in property and assets purchased with
the proceeds of the incurrence of such Indebtedness and as to which none of the
Company, any Guarantor or any of their Subsidiaries provides any credit support
or is directly or indirectly liable.
"Offer to Purchase" means any Casino Purchase Offer, Change of Control
-----------------
Offer, Asset Sale Offer (including in connection with an Event of Loss) or
Guarantor Sale Offer.
STOP 1
"Offer to Purchase Price" means any Casino Offer Price, Change of
-----------------------
Control Offer Price, Asset Sale Offer Price (including in connection with an
Event of Loss), or Guarantor Sale Purchase Price.
"Officer" means, with respect to the Company, the Chairman of the
-------
Board, the President, any Vice President, the Chief Financial Officer, the
Treasurer, the Controller, or the Secretary or Assistant Secretary of the
Company.
"Officers' Certificate" means, with respect to the Company or any
---------------------
Guarantor, a certificate signed by two Officers of the Company or such Guarantor
and otherwise complying with the requirements of Sections 14.4 and 14.5.
"Opinion of Counsel" means a written opinion from legal counsel to the
------------------
Company complying with the requirements of Sections 14.4 and 14.5. Unless
otherwise required by this Indenture, the counsel may be in-house counsel to the
Company.
"Parent Guarantor" means, subsequent to an Initial Public Equity
----------------
Offering of such corporation, a Publicly Traded Company that owns 100% of the
Capital Stock, and any other equity interests, of the Guarantors and has
guaranteed irrevocably and unconditionally the obligations of the Company under
the Indenture and the Notes.
"Paying Agent" shall have the meaning specified in Section 2.3
------------
provided, however, that for purposes of Articles III, IX, XII and Sections 5.14,
5.16 and 5.20, the Company or any Affiliate of the Company shall not act as
Paying Agent.
"Payment Guarantor" shall have the meaning specified in Section 5.3.
-----------------
"Permitted FF&E Slot Machine Indebtedness" means Indebtedness which is
----------------------------------------
Non-recourse Indebtedness and is incurred to finance the acquisition or lease
after the Issue Date of newly acquired or leased slot machines ("FF&E") used
directly in the
17
operation of Casinos owned or operated by a Guarantor and secured by an
exclusive Lien on such FF&E, but, in each case, not exceeding the purchase price
of the slot machines being financed.
"Permitted Indebtedness" means any of the following:
----------------------
(a) Indebtedness solely in respect of performance bonds (to the
extent that such incurrence does not result in the incurrence of any obligation
for the payment of borrowed money others), in the ordinary course of business,
in amounts and for the purposes customary in the Guarantors' industry for gaming
operations similar to those of the Guarantors; provided, that the aggregate
principal amount outstanding of such Indebtedness (including any Indebtedness
issued to refinance, refund or replace such Indebtedness) shall at no time
exceed $2.5 million;
(b) Indebtedness under Interest Swap Obligations, provided that
in each case the notional principal amount of such Interest Swap Obligation does
not exceed the principal amount of Indebtedness to which such Interest Swap
Obligation relates; and
(c) Permitted FF&E Slot Machine Indebtedness.
"Permitted Liens" means any of the following:
---------------
(a) Liens for taxes, assessments or other governmental charges
not yet due or which are being contested in good faith and by appropriate
proceedings by the applicable Guarantor or Subsidiary if adequate reserves with
respect thereto are maintained on the books of such Guarantor or Subsidiary, as
the case may be, in accordance with GAAP;
(b) statutory Liens of carriers, warehousemen, mechanics,
landlords, materialmen, repairmen or other like Liens arising by operation of
law in the ordinary course of business and consistent with industry practices
and Liens on deposits made to obtain the release of such Liens if (i) the
underlying obligations are not overdue; or (ii) such Liens are being contested
in good faith and by appropriate proceedings by the applicable Guarantor or
Subsidiary and adequate reserves with respect thereto are maintained on the
books of such Guarantor or Subsidiary, as the case may be, in accordance with
GAAP;
(c) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred in the ordinary course
of business and consistent with industry practices which, in the aggregate, are
not substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto (as such property is used by any
Guarantor or any of its Subsidiaries) or interfere with the ordinary conduct of
the business of such Guarantor or any of its Subsidiaries; provided, that any
--------
such Liens are not
18
incurred in connection with any borrowing of money or any commitment to loan any
money or to extend any credit; and
(d) Liens created by the Indenture.
"Permitted Proceed Uses" means (i) distributions from time to time by
----------------------
Empress of up to an aggregate of $50.0 million to the shareholders of Empress,
representing the undistributed taxable income of Empress as well as a return of
equity to such shareholders, provided that no distributions shall be permitted
--------
under this clause (i) if, after giving effect, on a pro forma basis, to such
distribution, the shareholder's equity of Empress would be less than $25
million; (ii) loans by Empress to Xxxxxxx Leasing of the Xxxxxxx Leasing Note
Proceeds to finance, construct, equip and operate the Empress III and to
reimburse Empress for all payments made by River Casino with respect to the
construction of the Empress III, to be distributed to Xxxxxxx Leasing pursuant
to the Xxxxxxx Leasing Disbursement Agreement; (iii) loans by Empress to Xxxxxxx
Empress of the Xxxxxxx Empress Note Proceeds to finance, develop, construct,
equip and operate the Xxxxxxx Facility including funds necessary to perform the
Xxxxxxx Access Construction, to be distributed to Xxxxxxx Empress pursuant to
the Xxxxxxx Empress Disbursement Agreement; (iv) payments by Empress of up to
$21 million for the mandatory prepayment of amounts owed by Empress to Riverboat
Gaming Management, Inc. ("RGMI") pursuant to that certain Settlement Agreement,
dated October 3, 1992, among Empress, RGMI, Xxxxxx X. Xxxx and Xxxxxx X.
Xxxxxxxx; (v) for working capital purposes at Empress, including expansion and
refurbishment of the Joliet Facility; (vi) payments by Empress of up to $3.0
million for the mandatory repayment by Empress of that certain mortgage loan,
dated June 30, 1992, between Empress and Caterpillar Financial Services
Corporation; and (vii) as and when done in accordance with the terms of this
Indenture, payments to consummate a Casino Purchase Offer.
"Permitted Regulatory Redemption" means a redemption by the Company of
-------------------------------
such person's securities (i) pursuant to, and in accordance with, any order of
any Governmental Authority with appropriate jurisdiction and authority relating
to a Gaming License, or (ii) to the extent necessary in the reasonable, good
faith judgment of the Board of Directors of Finance to prevent the loss, failure
to obtain or material impairment or to secure the reinstatement of, any material
Gaming License, where in the case of (i) and (ii) such redemption or acquisition
is required because the holder or beneficial owner of such security is required
to be found suitable or to otherwise qualify under any Gaming Laws and is not
found suitable or so qualified within a reasonable period of time.
"person" means any individual, limited liability company, corporation,
------
partnership, joint venture, association, joint-
19
stock company, trust, unincorporated organization or government or other agency
or political subdivision thereof.
"Plans" means all drawings, plans and specifications prepared by or on
-----
behalf of a Guarantor or any of its Subsidiaries, as the same may be amended or
supplemented from time to time in good faith, and, if required by applicable
law, submitted to and approved by the building or other relevant governmental
agency, which describe and show the Empress III, the Xxxxxxx Facility and the
Joliet Facility, as applicable, and the labor and materials necessary for
construction thereof.
"Principal" of any Indebtedness (including the Securities) means the
---------
principal of such Indebtedness plus any applicable premium, if any, on such
Indebtedness.
"Property" or "property" means any right or interest in or to property
-------- --------
or assets of any kind whatsoever, whether real, personal or mixed and whether
tangible, intangible, contingent, indirect or direct.
"Proportionate Share" means, as of any date of determination, a ratio
-------------------
(i) the numerator of which is the aggregate outstanding principal amount of the
Mirror Notes of Xxxxxxx Empress, Xxxxxxx Leasing or an Additional Guarantor, as
applicable, or, in the case of Empress, the aggregate outstanding principal
amount of the Notes less the outstanding aggregate principal amount of the
Mirror Notes of all the Guarantors (other than Empress); and (ii) the
denominator of which is the aggregate principal amount outstanding of the Notes.
"Publicly Traded Company" means a company, the common stock of which
-----------------------
is registered pursuant to the Securities Act and listed on a national securities
exchange or quoted on the national market system of the National Association of
Securities Dealers, Inc.
"Purchase Money Indebtedness" means any Non-recourse Indebtedness of
---------------------------
such person owed to any seller or other person which is incurred to finance the
acquisition of any real or personal tangible property of a Related Business
within 90 days of such acquisition.
"Purchase Price" means any Casino Offer Price, Change of Control Offer
--------------
Price, Asset Sale Offer Price or Guarantor Sale Purchase Price.
"Qualified Capital Stock" means any Capital Stock of a Guarantor that
-----------------------
is not Disqualified Capital Stock.
"Qualified Exchange" means any defeasance, redemption, repurchase or
------------------
other acquisition of Capital Stock or Indebtedness
20
of a Guarantor with the Net Proceeds received by such Guarantor from the
substantially concurrent sale of Qualified Capital Stock of such Guarantor or in
exchange for Qualified Capital Stock of such Guarantor.
"Qualified Inter-Guarantor Loans" means loans solely between
-------------------------------
Guarantors, of which the sole source of funds is Indebtedness incurred in
accordance with paragraph (a) or (f) of Section 5.11, and evidenced by a written
loan agreement containing provisions substantially similar to the provisions of
such underlying Indebtedness (including restrictions on prepayments) and in
principal amounts not exceeding such corresponding underlying Indebtedness, as
determined in good faith by the Board of Directors of the Guarantor incurring
such indebtedness.
"Qualified Loans" means loans from Empress to an Additional Guarantor,
---------------
evidenced by notes with terms which are substantially similar to the terms of
the Mirror Notes, including provisions restricting prepayment.
"Reconciled Tax Amount" means the taxable income of the relevant
---------------------
Guarantor as reported on such Guarantor's Internal Revenue Service Form 1120S
for the applicable taxable year.
"Record Date" means a Record Date specified in the Securities whether
-----------
or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to be
---------------
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Security.
"Redemption Price," when used with respect to any Security to be
----------------
redeemed, means the redemption price for such redemption set forth in Paragraph
5 in the form of Security, plus in each case accrued and unpaid interest with
respect to such Security to the applicable Redemption Date.
"Reference Period" with regard to any person means the four full
----------------
fiscal quarters, or in the case of Sections 5.16 and 5.20 the two full fiscal
quarters (or such lesser period during which such person has been in existence),
ended immediately preceding the relevant date upon which such determination is
to be made pursuant to the terms of the Notes or the Indenture.
"Refinancing Indebtedness" means Indebtedness or Disqualified Capital
------------------------
Stock (a) issued in exchange for, or the proceeds from the issuance and sale of
which are used substantially concurrently to repay, redeem, decrease, refund,
refinance, discharge or otherwise retire for value, in whole or in part, or (b)
constituting an amendment, modification or supplement to; or a deferral or
renewal of ((a) and (b) above are,
21
collectively, a "Refinancing"), any Indebtedness or Disqualified Capital Stock
of such person in a principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, not to exceed (after deduction of reasonable and
customary fees and expenses incurred in connection with the Refinancing) the
lesser of (i) the principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, of the Indebtedness or Disqualified Capital Stock
so Refinanced and (ii) if such Indebtedness being Refinanced was issued with an
original issue discount, the accredited value thereof (as determined in
accordance with GAAP) at the time of such Refinancing; provided, that (A)
--------
Refinancing Indebtedness of any Subsidiary of a Guarantor shall only be used to
Refinance outstanding Indebtedness or Disqualified Capital Stock of such
Subsidiary; (B) Refinancing Indebtedness shall not have an Average Life less
than that of the Indebtedness or Disqualified Capital Stock to be so refinanced
at the time of such refinancing; (C) such Refinancing Indebtedness shall have no
installment of principal (or redemption payment) scheduled to come due earlier
than the scheduled maturity of any installment of principal of the Indebtedness
(or Disqualified Capital Stock) to be so refinanced which was scheduled to come
due on or prior to the Stated Maturity; and (D) if the Indebtedness or
Disqualified Capital Stock to be so refinanced was subordinate or junior in
right of payment to the Guarantee, then the Refinancing Indebtedness shall be
subordinate or junior in right of payment to such Guarantee to an extent no less
favorable in respect thereof to the Holders.
"Registrar" shall have the meaning specified in Section 2.3.
---------
"Registration Statement" means the registration statement of the
----------------------
Company, Empress, Xxxxxxx Empress and Xxxxxxx Leasing, dated February 4, 1994,
as amended.
"Related Business" means the gaming business conducted (or proposed to
----------------
be conducted) by the Guarantors and their Subsidiaries as of the Issue Date and
any and all related businesses in support of and ancillary to the gaming
business of such Guarantors and additionally expressly includes any riverboat,
dockside or land-based gaming businesses.
"Required Regulatory Redemption" means a redemption of Holder's
------------------------------
Securities (i) pursuant to, and in accordance with, any order of any
Governmental Authority with appropriate jurisdiction and authority relating to a
Gaming License, or (ii) to the extent necessary in the reasonable, good faith
judgment of the Board of Directors of the Company to prevent the loss, failure
to obtain or material impairment or to secure the reinstatement of, any Gaming
License, which if lost, impaired or not obtained or reinstated would reasonably
be expected to have a material adverse effect on any of the Guarantors or would
restrict the
22
ability of any of the Guarantors to conduct business in any Gaming Jurisdiction,
in the case of each of (i) and (ii) where such redemption or acquisition is
required because the Holder or beneficial owner of such Security is required to
be found suitable, or to otherwise qualify, under any Gaming Laws and is not
found suitable or so qualified.
"Restricted Investment" means, in one or a series of related
---------------------
transactions, any Investment, other than Cash Equivalents; provided, that a
--------
Restricted Investment shall not include (i) the extension of credit to customers
of Casinos consistent with industry practice in the ordinary course of business;
and (ii) a guaranty by a Guarantor of Indebtedness incurred by another Guarantor
in accordance with Section 5.11.
"Restricted Payment" means, with respect to any person, (a) the
------------------
declaration or payment of any dividend or other distribution in respect of
Capital Stock of such person or any Subsidiary of such person; (b) any payment
on account of the purchase, redemption or other acquisition or retirement for
value of Capital Stock of such person or any Subsidiary of such person; (c) any
purchase, redemption, or other acquisition or retirement for value of, and any
payment in respect of any amendment of the terms of or any defeasance of, any
subordinated Indebtedness, directly or indirectly, by such person or a
Subsidiary of such person prior to the scheduled maturity, scheduled repayment
of principal, or scheduled sinking fund payment, as the case may be, of such
Indebtedness; and (d) any Restricted Investment by such person; provided,
--------
however, that the term "Restricted Payment" does not include (i) any dividend,
-------
distribution or other payment on or with respect to Capital Stock of an issuer
to the extent payable solely in shares of Qualified Capital Stock of such
issuer; (ii) any dividend, distribution or other payment to any of the
Guarantors, by any of their respective Subsidiaries; and (iii) Restricted
Investments solely among the Guarantors in the form of Qualified Inter-Guarantor
Loans; (iv) amounts distributed by any Guarantor to any of its wholly owned
Subsidiaries; and amounts distributed by a Guarantor to the Company to enable
the Company to make an offer to Purchase or to make payments of principal of,
premium, if any, or interest on, the Notes.
"River Casino" means River Casino Corporation, a Delaware corporation.
------------
"Sale of a Guarantor" means (i) any merger or consolidation of, or any
-------------------
sale, transfer or other conveyance, whether direct or indirect, of all or
substantially all of the assets of, any of Xxxxxxx Empress, Xxxxxxx Leasing, or
any Additional Guarantor in each case on a consolidated basis, in one
transaction or a series of related transactions; or (ii) during any period of 12
consecutive months after the Issue Date, individuals who at the beginning of any
such 12-month period constituted the
23
Board of Directors of Xxxxxxx Empress, Xxxxxxx Leasing, or any Additional
Guarantor (together with any new directors whose election by such Board or whose
election by the stockholders of Xxxxxxx Empress, Xxxxxxx Leasing or such
Additional Guarantor was approved by a vote of a majority of 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), cease for
any reason to constitute a majority of the Board of Directors of Xxxxxxx
Empress, Xxxxxxx Leasing, or such Additional Guarantor then in office, as
applicable. Notwithstanding the foregoing, a Sale of a Guarantor with respect to
-----------------------------
Xxxxxxx Leasing shall not have been deemed to have occurred as long as
thereafter a Casino remains in operation by either Xxxxxxx Empress or Xxxxxxx
Leasing at the Xxxxxxx Facility.
"SEC" means the Securities and Exchange Commission.
---
"Securities" or "Notes" means 10 3/4% Senior Notes due 2002, as
----------
amended or modified from time to time in accordance with the terms hereof,
issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations of the SEC promulgated thereunder.
"Security Documents" shall have the meaning specified in Section 4.1.
------------------
"Securityholder" See "Holder."
-------------- ------
"Security Interests" shall have the meaning specified in Section 4.7.
------------------
"Stated Maturity," when used with respect to any Note, means April 1,
---------------
2002.
"subordinated Indebtedness" means Indebtedness of a Guarantor that is
-------------------------
subordinated in right of payment to the Guarantee of such Guarantor to any
extent.
"Subsidiary" with respect to any person, means (i) a corporation a
----------
majority of whose Capital Stock with voting power, under ordinary circumstances,
to elect directors is at the time, directly or indirectly, owned by such person,
by such person and one or more Subsidiaries of such person or by one or more
Subsidiaries of such person or (ii) any other person (other than a corporation)
in which such person, one or more Subsidiaries of such person, or such person
and one or more Subsidiaries of such person, directly or indirectly, at the date
of determination thereof has at least majority ownership interest.
24
"Tax Reimbursement Agreement" shall have the meaning specified in
---------------------------
Section 5.3.
"Tax Amounts" with respect to any year means (a) an amount equal to
-----------
the higher of (i) the product of (A) the taxable income of the relevant
Guarantor for such year as determined in good faith by its Board of Directors;
and (B) the Tax Percentage and (ii) the product of (A) the alternative minimum
taxable income attributable to such Guarantor for such year as determined in
good faith by its Board of Directors; and (B) the Tax Percentage, in either
case, reduced by (b) to the extent not previously taken into account, any income
tax benefit attributable to such Guarantor which could be realized by such
Guarantor's stockholders in the current or a prior taxable year (including,
without limitation, tax losses, alternative minimum tax credits, other tax
credits and carryforwards and carrybacks thereof).
"Tax Percentage" means the highest aggregate applicable effective
--------------
marginal rate of Federal, state and local income tax or, when applicable,
alternative minimum tax, to which an individual resident of Chicago, Illinois
would be subject in the relevant year of determination (as certified to the
Trustee by a nationally recognized tax accounting firm) provided, however, that
--------
in no event shall such Tax Percentage exceed the lesser of (1) the highest
aggregate applicable effective marginal rate of Federal, state and local income
tax or, when applicable, alternative minimum tax, to which a corporation doing
business in Chicago, Illinois would be subject in the relevant year of
determination (as certified to the Trustee by a nationally recognized tax
accounting firm) plus 500 Basis Points and (2) 60%.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
---
77aaa-77bbbb) as in effect on the date of the execution of this Indenture.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
-------------
department (or any successor group) of the Trustee including any vice president,
assistant vice president, secretary, assistant secretary or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer of
the corporate trust department (or any successor group) of the Trustee to whom
such trust matter is referred because of his knowledge of and familiarity with
the particular subject.
25
"U.S. Government Obligations" means direct non-callable obligations
---------------------------
of, or noncallable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States or America is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
-----------------
of America as at the time of payment is legal tender for the payment of public
and private debts.
"Vessel Offer Amount" shall have the meaning specified in Section
-------------------
5.16.
"wholly owned" with respect to a Subsidiary of any person means (i)
------------
with respect to a Subsidiary that is a limited liability company or similar
entity, a Subsidiary whose capital stock is 99% or greater beneficially owned by
such person and (ii) with respect to a Subsidiary that is other than a limited
liability company or similar entity, a Subsidiary whose capital stock or other
equity interest is 100% beneficially owned by such person.
Section 1.2 Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
----------
"indenture securities" means the Securities.
--------------------
"indenture securityholder" means a Holder or a Securityholder.
------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the indenture securities means the Company and any other
------
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
Section 1.3 Rules of Construction.
---------------------
Unless the context otherwise requires:
26
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(vii) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating.
---------------
The Securities and the Trustee's certificate of authentication, in
respect thereof, shall be substantially in the form of Exhibit A hereto which is
---------
part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the form of the Securities and any notation, legend or endorsement on
them. Any such notations, legends or endorsements not contained in the form of
Security attached as Exhibit A hereto shall be delivered in writing to the
---------
Trustee. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
27
Section 2.2 Execution and Authentication.
----------------------------
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Securities for the Company by manual or facsimile
signature. The Company's seal shall be impressed, affixed, imprinted, or
reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless and the
Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security, but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $150,000,000 upon a written order of the
Company in the form of an Officers' Certificate. The Officers' Certificate
shall specify the amount of Securities to be authenticated and the date on which
the Securities are to be authenticated. The aggregate principal amount of
Securities outstanding at any time may not exceed $150,000,000, except as
provided in Section 2.7.
Upon the written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Securities in substitution of
Securities originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company, any Affiliate of the Company
or any of their respective Subsidiaries.
Securities shall be issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
28
Section 2.3 Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
in the Borough of Manhattan, The City of New York where Securities may be
presented for payment ("Paying Agent") and an office or agency where notices and
demands to or upon the Company in respect of the Securities may be served. The
Company may act as its own Registrar or Paying Agent, except that, for the
purposes of Articles III, IX, XII and Sections 5.14, 5.16 and 5.20, neither the
Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-Registrars and one or more
additional Paying Agents. The term "Paying Agent" includes any additional
Paying Agent. The Company hereby initially appoints the Trustee as Registrar
and Paying Agent, and the Trustee hereby initially agrees so to act.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
Section 2.4 Paying Agent to Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Securities (whether such assets have been
distributed to it by the Company or any other obligor on the Securities), and
shall notify the Trustee in writing of any Default by the Company (or any other
obligor on the Securities) in making any such payment. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate such assets
and hold them as a separate trust fund for the benefit of the Holders or the
Trustee. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered by
the Company to the Paying Agent, the Paying Agent (if other than the Company)
shall have no further liability for such assets.
29
Section 2.5 Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before the third Business Day preceding each Interest Payment Date
and at such other times as the Trustee may reasonably request in writing a list
in such form and as of such date as the Trustee reasonably may require of the
names and addresses of Holders. The Trustee, the Registrar and the Company shall
provide a current securityholder list to any Gaming Authority upon demand.
Section 2.6 Transfer.
--------
When Securities are presented to the Registrar or a co-Registrar with
a request to register the transfer of such Securities, the Registrar or co-
Registrar shall register the transfer as requested if its reasonable
requirements for such transaction are met; provided, however, that the
-------- -------
Securities surrendered for transfer shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the Company
and the Registrar or co-Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing. To permit registrations of transfers, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's or co-Registrar's request. No service charge shall be made for any
registration of transfer, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments, or similar governmental charge payable upon transfers pursuant to
Sections 2.2, 2.10, 3.6, 5.14, 5.16, 5.20, 10.5, or 12.1). Except for a
Required Regulatory Redemption pursuant to Section 3.2 of this Indenture or an
order of any Gaming Authority, the Registrar or co-Registrar shall not be
required to register the transfer of (a) any Security selected for redemption in
whole or in part pursuant to Article Three, except the unredeemed portion of any
Security being redeemed in part, or (b) any Security for a period beginning 15
Business Days before the mailing of a notice of an offer to repurchase pursuant
to Sections 5.14, 5.16 or 5.20 or redeem Securities pursuant to Article III
hereof and ending at the close of business on the day of such mailing.
Section 2.7 Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims and submits an affidavit or other evidence, satisfactory to
the Trustee, to the Trustee to the effect that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements
30
are met. If required by the Trustee or the Company, such Holder must provide an
indemnity bond or other indemnity, sufficient in the judgment of both the
Company and the Trustee, to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Security is replaced. The Company may
charge such Holder for its reasonable, out-of-pocket expenses in replacing a
Security.
Every replacement Security is an additional obligation of the Company.
Section 2.8 Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section 2.8 as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security, except as provided in Section
2.9.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
---- ----
upon surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or an Affiliate of the Company) holds U.S. Legal Tender or U.S.
Government Obligations sufficient to pay all of the principal and interest due
on the Securities payable on that date and payment of the Securities called for
redemption is not otherwise prohibited, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
Section 2.9 Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or
consent, Securities owned by the Company, any Guarantor and Affiliates of the
Company or of any Guarantor shall be disregarded, except that, for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, amendment, supplement, waiver or consent, only Securities that the
Trustee knows or has reason to know are so owned shall be disregarded.
31
Section 2.10 Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare, the Guarantor shall endorse and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company reasonably and
in good faith considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare, the Guarantor shall endorse and
the Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as permanent Securities
authenticated and delivered hereunder.
Section 2.11 Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else, shall
cancel and, at the written direction of the Company, shall dispose of all
Securities surrendered for transfer, exchange, payment or cancellation. Subject
to Section 2.7, the Company may not issue new Securities to replace Securities
it has paid or delivered to the Trustee for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section 2.11, except as expressly permitted in the form of
Securities and as permitted by this Indenture.
Section 2.12 Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus (to the extent lawful) interest on the
defaulted interest, to the persons who are Holders on a Record Date (or at its
option a subsequent special record date) which date shall be the fifteenth day
next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day, unless the Trustee fixes
another record date. At least 15 days before the subsequent special record date,
the Company shall mail to each Holder with a copy to the Trustee a notice that
states the subsequent special record date, the payment date and the amount of
defaulted interest, and interest payable on such defaulted interest, if any, to
be paid.
32
ARTICLE III
REDEMPTION
Section 3.1 Right of Redemption.
-------------------
Redemption of Securities shall be made only in accordance with this
Article III. At its election, the Company may redeem the Securities in whole or
in part, at any time on or after April 1, 1999, at the Redemption Prices
specified under the caption "Redemption," in the Form of Note attached as
Exhibit A hereto, plus accrued and unpaid interest to the Redemption Date. In
---------
the event an Initial Public Equity Offering is completed at any time prior to
April 1, 1997, the Company may, at its election, one time only, redeem up to an
aggregate amount of $50,000,000 of the Securities with the proceeds of such
Initial Public Equity Offering, at a redemption price of 110%, plus accrued and
unpaid interest to the date of redemption, provided that such redemption occurs
--------
within 60 days of the closing of such Initial Public Equity Offering, and that
after giving effect to any such redemption with the proceeds of the Initial
Public Equity offering there shall remain not less than an aggregate principal
amount of $100,000,000 of the Securities outstanding. Except as provided in this
paragraph, Section 3.2 and paragraph 5 of the Notes, the Notes may not otherwise
be redeemed at the option of the Company.
Section 3.2 Redemption Pursuant to Gaming Laws.
----------------------------------
Notwithstanding any other provision of this Indenture, the Notes shall
also be redeemable, in whole or in part, at any time pursuant to, and in
accordance with, a Required Regulatory Redemption. If the Company requires the
redemption of any Security pursuant to this Section 3.2, then the redemption
price shall be 100% of the principal amount thereof, plus accrued and unpaid
interest to the date of redemption. The Company shall tender the redemption
price (together with any accrued and unpaid interest) to the Trustee no later
than 30 days after the Company gives the Securityholder or owner of a beneficial
or voting interest written notice of redemption or such earlier date as may be
ordered by any Gaming Authority. The Company shall notify the Trustee of any
disposition or redemption required under this Section 3.2, and upon receipt of
such notice, the Trustee shall not accord any rights or privileges under this
Indenture or any Security to any Securityholder or owner of a beneficial or
voting interest who is required to dispose of any Security or tender it for
redemption, except to pay the redemption price (together with any accrued but
unpaid interest) upon tender of such Security.
33
Section 3.3 Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to Article III, it
shall notify the Trustee in writing of the Redemption Date and the principal
amount of Securities to be redeemed and whether it wants the Trustee to give
notice of redemption to the Holders.
If the Company elects to reduce the principal amount of Securities to
be redeemed pursuant to Paragraph 5 of the Securities by crediting against any
such redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall so notify the Trustee of the amount of the reduction and
deliver such Securities with such notice.
The Company shall give each notice to the Trustee provided for in this
Section 3.3 at least 35 days before the Redemption Date (unless a shorter notice
shall be required by applicable Gaming Laws or by order of any Gaming
Authority).
Section 3.4 Selection of Securities to Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed pursuant to
Paragraph 5 thereof, the Trustee shall select the Securities to be redeemed pro
---
rata or by lot or by such other method as the Trustee shall determine to be fair
----
and appropriate and in such manner as complies with any applicable legal and
stock exchange requirements.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
Section 3.5 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, postage
prepaid, to each Holder whose Securities are to be redeemed (unless a shorter
notice shall be required by applicable Gaming Laws). At the Company's request,
the Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. Each notice for redemption shall identify the Securities to
be redeemed and shall state:
34
(1) that the notice is being sent pursuant to this Section 3.5 and
pursuant to the optional redemption provisions of Paragraph 5 of the Securities;
(2) the Redemption Price (including the amount of accrued and unpaid
interest to be paid upon such redemption) and the Redemption Date;
(3) that any Security or portion thereof not redeemed will continue
to accrue interest if interest is then accruing;
(4) that, unless (a) the Company defaults in its obligation to
deposit U.S. Legal Tender with the Paying Agent in accordance with Section 3.7
hereof or (b) such redemption payment is prevented for any reason, interest on
Securities called for redemption ceases to accrue on and after the Redemption
Date and the only remaining right of the Holders of such Securities is to
receive payment of the Redemption Price, plus accrued and unpaid interest, upon
surrender to the Paying Agent of the Securities called for redemption and to be
redeemed;
(5) that the Company shall redeem Securities such that only
Securities in denominations of $1,000 at maturity or integral multiples of
$1,000 shall be acquired;
(6) that Holders whose Securities are redeemed only in part will be
issued a new Security or Securities equal in aggregate principal amount to the
unredeemed portion of the Securities redeemed;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of such Securities to be redeemed and
the aggregate principal amount of Securities to be outstanding after such
partial redemption;
(8) the CUSIP number of the Securities to be redeemed;
(9) the name, address and telephone number of the Paying Agent;
(10) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the Redemption
Price; and
(11) if the Redemption Date is on or after an interest payment record
date and on or before the related interest payment date, any accrued interest
will be paid to the person in whose name a Security is registered at the close
of business on such Security record date, and no additional interest will be
payable to Securityholders whose Securities are so redeemed.
35
Section 3.6 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.5,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price, plus accrued and unpaid interest. Upon surrender
to the Trustee or Paying Agent, such Securities called for redemption shall be
paid at the Redemption Price, plus accrued and unpaid interest to the Redemption
Date; provided that if the Redemption Date is after a regular Record Date and on
--------
or prior to the Interest Payment Date, the accrued and unpaid Interest shall be
payable to the Holder of the redeemed Securities registered on the relevant
Record Date; and provided, further, that if a Redemption Date is a Legal
-------- -------
Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
Section 3.7 Deposit of Redemption Price.
---------------------------
On or before the close of business on the Business Day immediately
preceding the Redemption Date, each of Xxxxxxx Empress, Xxxxxxx Leasing and any
Additional Guarantors shall deposit with Empress U.S. Legal Tender in an amount
equal to its Proportionate Share of the amount Empress is required to deposit
with the Company pursuant to this Section 3.7 (subject to the joint and several
obligations of each Guarantor with respect to such payments). No later than
12:00 noon, New York City time, on the Redemption Date, Empress shall
irrevocably deposit with the Company, and the Company shall irrevocably deposit
with the Paying Agent U.S. Legal Tender in an amount sufficient to pay the
Redemption Price of, plus accrued and unpaid interest on, all Securities to be
redeemed on such Redemption Date (other than Securities or portions thereof
called for redemption on that date that have been delivered by the Company to
the Trustee for cancellation). The Paying Agent shall promptly return to the
Company any U.S. Legal Tender so deposited which is not required for that
purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not prevented for any reason, interest on the Securities to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Securities are presented for payment. Notwithstanding anything herein to
the contrary, if any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid upon surrender for redemption because of
the failure of the Company to comply with the preceding paragraph and the other
provisions of this Article III, interest shall continue to accrue and be paid
from the Redemption Date until such payment is made on the unpaid principal,
and, to the extent lawful, on any interest not paid on
36
such unpaid principal, in each case at the rate and in the manner provided in
Section 5.1 hereof and the Securities.
Section 3.8 Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge, a new Security or Securities equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
SECURITY
Section 4.1 Security Interest.
-----------------
(a) In order to secure the Indenture Obligations, the Company
and Empress have entered into the Guarantor Loan Agreement, Xxxxxxx Empress,
Empress, the Collateral Agent and the Trustee have entered into the Xxxxxxx
Empress Disbursement Agreement and Xxxxxxx Leasing, Empress, the Collateral
Agent and the Trustee have entered into the Xxxxxxx Leasing Disbursement
Agreement (collectively, the "Security Documents"). Each Holder, by accepting a
Security, agrees to all of the terms and provisions of the Security Documents
and the Trustee agrees to all of the terms and provisions of the Security
Documents as the Security Documents may be amended from time to time pursuant to
the provisions thereof and hereof.
(b) The Collateral as now or hereafter constituted shall be held
for the equal and ratable benefit of the Holders without preference, priority or
distinction of any thereof over any other by reason of difference in time of
issuance, sale or otherwise, as security for the Indenture Obligations.
(c) The provisions of TIA (S) 314(d), and the provisions of TIA
(S) 314(c) (3) to the extent applicable by specific reference in this Article
IV, are hereby incorporated by reference herein as if set forth in their
entirety and to the same extent as if the Indenture were qualified under the
TIA.
Section 4.2 Recording; Opinions of Counsel.
------------------------------
(a) The Company and each of the Guarantors represent that they
have caused or will promptly cause to be executed and delivered, filed and
recorded and covenant that they will promptly cause to be executed and
delivered, filed and recorded, all instruments and documents, and have done and
will do or will cause to be done all such acts and other things, at the
Company's expense, as are necessary to subject the Collateral to valid
37
security interests and to perfect those security interests. Until all of the
funds in the Xxxxxxx Empress Disbursement Account and the Xxxxxxx Leasing
Disbursement Account have been disbursed in accordance with the terms of the
Xxxxxxx Empress Disbursement Agreement and the Xxxxxxx Leasing Disbursement
Agreement, respectively, the Company and each of the Guarantors shall, as
promptly as practicable, cause to be executed and delivered, filed and recorded
all instruments and do all acts and other things as may be required by law to
perfect, maintain and protect the security interests under the Security
Documents and herein.
(b) The Company shall furnish to the Trustee, promptly after the
execution and delivery of this Indenture and the Security Documents and promptly
after the execution and delivery of any amendment thereto or any other
instrument of further assurance, an Opinion(s) of Counsel stating that, in the
opinion of such counsel, subject to customary exclusions and exceptions
reasonably acceptable to the Trustee, either (i) this Indenture, the Security
Documents, any such amendment and all other instruments of further assurance are
in appropriate form for filing and recording under the Uniform Commercial Code
as then in effect in the State of Illinois (the "Illinois UCC"), and the
security interest in favor of the Trustee in the Collateral will be perfected
upon the filing and recording of such financing statements in the office of the
Secretary of State of the State of Illinois, in compliance with Section 9-302 of
the Illinois UCC evidenced by means of a signed letter in the form of Exhibit B
---------
to the Disbursement Agreements (assuming such letter is acknowledged and
consented to by the Collateral Agent) and continuous possession of the Mirror
Notes by the Trustee, and reciting the details of such action or referring to
prior Opinions of Counsel in which such details are given, or (ii) no such
action is necessary to maintain the validity of the security interests under the
Security Documents and hereunder.
(c) The Company shall furnish to the Trustee, on or prior to
April 1 of each year (commencing on April 1, 1995) an Opinion(s) of Counsel,
dated as of such date, stating that, in the opinion of such counsel, subject to
customary exclusions and exceptions, either (A) all such action has been taken
with respect to the recording, registering, filing, rerecording and refiling of
the Indenture, all supplemental indentures, the Security Documents, financing
statements, continuation statements and all other instruments of further
assurance as is necessary to maintain the security interests under the Security
Documents and hereunder in full force and effect and reciting the details of
such action or referring to prior Opinions of Counsel in which such details are
given, and stating that all financing statements and continuation statements
have been executed and filed and such other actions taken that are necessary
fully to preserve and protect the rights of the Holders and the Trustee
hereunder and
38
under the Security Documents, or (B) no such action is necessary to maintain the
security interests in full force and effect. Notwithstanding the foregoing, the
Company shall not be required to furnish an Opinion of Counsel to the Trustee if
all of the funds in the Xxxxxxx Empress Disbursement Account and the Xxxxxxx
Leasing Disbursement Account have been disbursed in accordance with the terms of
the Xxxxxxx Empress Disbursement Agreement and the Xxxxxxx Leasing Disbursement
Agreement, respectively.
Section 4.3 Guarantor Loan Agreement and Collateral Accounts.
------------------------------------------------
(a) The Company and Empress shall enter into the Guarantor Loan
Agreement pursuant to which the Company shall loan the net proceeds of the
Securities to Empress and Empress shall establish and maintain with the
collateral agent (the "Collateral Agent") (i) subject to the Xxxxxxx Empress
Disbursement Agreement, the Xxxxxxx Empress Collateral Account and (ii) subject
to the Xxxxxxx Leasing Disbursement Agreement, the Xxxxxxx Leasing Collateral
Account. The Company and the Guarantors shall grant a valid, perfected and
exclusive security interest in favor of the Trustee for the equal and ratable
benefit of the Holders in the Collateral without preference, priority, or
distinction of any thereof over any other thereof by reason of difference in
time of issuance, sale or otherwise, as security for the prompt and complete
performance and payment in full of Indenture Obligations. The funds deposited
in the Xxxxxxx Empress Collateral Account and the Xxxxxxx Leasing Collateral
Account may be disbursed from such account only for the purposes and in the
manner provided for in the Xxxxxxx Empress Disbursement Agreement and the
Xxxxxxx Leasing Disbursement Agreement, respectively. The funds held in such
collateral accounts shall be released from the security interests granted to
Holders pursuant to this Article IV upon disbursement of such funds in
accordance with the Xxxxxxx Empress Disbursement Agreement and the Xxxxxxx
Leasing Disbursement Agreement, respectively, and the Holders shall not have a
security interest in the assets acquired or constructed with such funds. Upon a
prepayment of any of the Mirror Notes pursuant to their respective terms, such
Mirror Notes shall be released from the security interests granted to Holders
pursuant to this Article IV to the extent of such prepayment.
(b) The Collateral Agent shall hold and invest the Hammond
Empress Note Proceeds in U.S. Legal Tender or Cash Equivalents pursuant to the
Xxxxxxx Empress Disbursement Agreement. The Collateral Agent shall hold and
invest the Hammond Leasing Note Proceeds in U.S. Legal Tender or Cash
Equivalents pursuant to the Xxxxxxx Leasing Disbursement Agreement. Interest and
other amounts earned on such funds shall be held in the respective collateral
accounts as provided in the Xxxxxxx Empress Disbursement Agreement and the
Xxxxxxx Leasing Disbursement Agreement, respectively.
39
Section 4.4 Certain Releases of Collateral.
------------------------------
Subject to applicable law, the release of any collateral from the
terms of the Security Documents or the release of, whole or in part, the Liens
created by the Security Documents, will not be deemed to impair the Security
Documents in contravention of the provisions of this Indenture if and to the
extent the Collateral or Liens are released pursuant to, and in accordance with,
the terms hereof, which are (i) the release of Collateral as a result of
disbursements made pursuant to the Xxxxxxx Empress Disbursement Agreement or the
Xxxxxxx Leasing Disbursement Agreement, as applicable, and (ii) the release of
the security interest in the Mirror Notes upon and to the extent of any
prepayments pursuant to the terms of such Mirror Notes. To the extent
applicable, without limitation, the Company and each obligor on the Securities
shall cause TIA (S) 314(d) relating to the release of property or securities
from the Liens of the Security Documents to be complied with. Any certificate or
opinion required by TIA (S) 314(d) may be made by one officer prior to the
qualification of the Indenture under the TIA and by two officers after such
qualification, except in cases which TIA (S) 314(d) requires that such
certificate or opinion be made by an independent person.
Upon written request of the Company, subject to applicable law, and
presentation to the Trustee and the Collateral Agent of an Officers' Certificate
evidencing compliance with the Xxxxxxx Empress Disbursement Agreement and the
Xxxxxxx Leasing Disbursement Agreement, as applicable, the Collateral Agent
shall release funds (and the Trustee's Lien with respect thereto) in accordance
with the terms of the respective disbursement agreements.
Section 4.5 Payment of Expenses.
-------------------
On demand of the Trustee, the Company forthwith shall pay or
satisfactorily provide for all reasonable expenditures incurred by the Trustee
under this Article IV, including the reasonable fees and expenses of counsel and
all such sums shall be a Lien upon the Collateral and shall be secured thereby.
Section 4.6 Suits to Protect the Collateral.
-------------------------------
Subject to Section 4.1 of this Indenture and to the provisions of the
Security Documents, the Trustee shall have 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 which may be unlawful or in violation of the Security
Documents or this Indenture, including the 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
40
or if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interests in contravention of this Indenture or be
prejudicial to the interests of the Holders or of the Trustee. The Trustee shall
give notice to the Company promptly following the institution of any such suit
or Proceeding.
Section 4.7 Trustee's Duties.
----------------
The powers and duties conferred upon the Trustee by this Article IV
are solely to protect the security interests created by the Security Documents
in favor of the Trustee for the benefit of the Holders (the "Security
Interests") and shall not impose any duty upon the Trustee to exercise any such
powers and duties, except as expressly provided in this Indenture. The Trustee
shall be under no duty to the Company or any Guarantor whatsoever to make or
give any presentment, demand for performance, notice of nonperformance, protest,
notice of protest, notice of dishonor, or other notice or demand in connection
with any Collateral, or to take any steps necessary to preserve any rights
against prior parties except as expressly provided in this Indenture. The
Trustee shall not be liable to the Company or the Guarantors for failure to
collect or realize upon any or all of the Collateral, or for any delay in so
doing, nor shall the Trustee be under any duty to the Company or the Guarantors
to take any action whatsoever with regard thereto. The Trustee shall have no
duty to the Company or the Guarantors to comply with any recording, filing, or
other legal requirements necessary to establish or maintain the validity,
priority or enforceability of the Security Interests in, or the Trustee's rights
in or to, any of the Collateral.
ARTICLE V
COVENANTS
Section 5.1 Payment of Securities.
---------------------
The Company shall pay the principal of, and interest on, the
Securities on the dates and in the manner provided in the Securities and this
Indenture. An installment of principal of, or interest on, the Securities shall
be considered paid on the date it is due if the Trustee or Paying Agent (other
than the Company or an Affiliate of the Company) holds for the benefit of the
Holders, on or before 10:00 a.m. New York City time on that date, U.S. Legal
Tender deposited and designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
41
Section 5.2 Maintenance of office or Agency.
-------------------------------
The Company and the Guarantors shall maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company and the Guarantors in respect of the Securities and this Indenture
may be served. The Company and the Guarantors shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company and the Guarantors shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 14.2.
The Company and the Guarantors may also from time to time designate
one or more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company and the Guarantors of their obligation to
maintain an office or agency in the Borough of Manhattan, The City of New York,
for such purposes. The Company and the Guarantors shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. The Company and the Guarantors
hereby initially designate the Corporate Trust Office of the Trustee as such
office.
Section 5.3 Limitation on Restricted Payments.
---------------------------------
The Guarantors shall not, and shall not permit any of their
Subsidiaries to, directly or indirectly, make any Restricted Payment if,
immediately prior to such proposed Restricted Payment or after giving effect to
such proposed Restricted Payment on a pro forma basis, (1) a Default or an Event
of Default shall have occurred and be continuing; or (2) the Guarantor proposing
to make such Restricted Payment (the "Payment Guarantor") would not be permitted
to incur at least $1.00 of additional Indebtedness solely by virtue of the
Combined Fixed Charge Coverage Ratio provision contained in clause (ii) of
paragraph (a) of Section 5.11; or (3) the aggregate amount of all Restricted
Payments made by such Payment Guarantor and its Subsidiaries, including after
giving pro forma effect to such proposed Restricted Payment, from and after the
Issue Date, would exceed the sum of (a) 50% of the amount by which the aggregate
Adjusted Consolidated Net Income of such Payment Guarantor for the period (taken
as one accounting period) commencing on the first day of the first full fiscal
quarter that commenced after the Issue Date, to and including the last day of
the fiscal
42
quarter ended immediately prior to the date of each such calculation exceeds
permitted distributions of Tax Amounts (in accordance with clause (v) of the
next paragraph) for such Payment Guarantor for such period (or, in the event
Adjusted Consolidated Net Income less permitted distributions of Tax Amounts for
such period is a deficit, then minus 100% of such deficit) plus (b) the
aggregate Net Cash Proceeds received by such Payment Guarantor as a capital
contribution or from the sale of its Qualified Capital Stock (other than (i) to
a Guarantor or Subsidiary of a Guarantor, including of such Payment Guarantor,
or (ii) other than in connection with a Qualified Exchange) after the Issue
Date; or (4) the aggregate amount of all Restricted Payments, including after
giving pro forma effect to such proposed Restricted Payment, of all the
Guarantors and their Subsidiaries from and after the Issue Date would exceed the
sum of (a) 50% of the amount by which the Adjusted Combined Net Income for the
period (taken as one accounting period) commencing on the first day of the first
full fiscal quarter which commenced after the Issue Date, to and including the
last day of the fiscal quarter ended immediately prior to the date of each such
calculation exceeds permitted distributions of Tax Amounts (in accordance with
clause (v) of the next paragraph) for all of the Guarantors for such period (or,
in the event Adjusted Combined Net Income less permitted distributions of Tax
Amounts for such period is a deficit, then minus 100% of such deficit) plus (b)
the aggregate Net Cash Proceeds received by the Guarantors as a capital
contribution or from the sale of their Qualified Capital Stock (other than (i)
to a Guarantor or Subsidiary of a Guarantor; or (ii) in connection with a
Qualified Exchange) after the Issue Date.
The foregoing clauses (2), (3) and (4) of the immediately preceding
paragraph, however, will not prohibit (p) as and when required pursuant to the
terms of the Indenture, payments of principal of, premium, if any, and interest
on, the Mirror Notes and Qualified Loans, in accordance with their respective
terms; (q) any repayment of the Indebtedness described in subparagraphs (w) and
(y) of this paragraph; (r) distributions made pursuant to Permitted Proceed
Uses; (s) the payment of any dividend within 60 days after the date of its
declaration, if such dividend could have been made on the date of such
declaration in compliance with the foregoing provisions; (t) a Qualified
Exchange; (u) a Permitted Regulatory Redemption of Indebtedness (other than the
Notes) or Capital Stock of such Payment Guarantor; (v) with respect to each tax
year that a Guarantor qualifies as an S Corporation under the Code, or any
similar provision of state or local law, distributions of Tax Amounts; provided
however that prior to any distribution of Tax Amounts a knowledgeable and duly
authorized officer of the Guarantor making such distribution certifies, and
counsel reasonably acceptable to the Trustee opines, that such Guarantor
qualifies as an S Corporation for Federal income tax purposes and for the states
in respect of which such distributions are being made and that at the time of
such distributions,
43
the most recent audited financial statements of such Guarantor provide that such
Guarantor was treated as an S Corporation for Federal income tax purposes for
the period of such financial statements; (w) unsecured, subordinated loans by
Empress to Xxxxxxx Empress or Xxxxxxx Leasing as and when necessary to fund
interest payments on their respective Mirror Notes in an amount not to exceed
$11 million, including up to $2 million of which can be used for working capital
purposes; (x) Restricted Investments in the form of Qualified Loans to
Additional Guarantors in an amount equal to the Net Retained Repurchase Amount
(only to the extent that such amounts were not otherwise included in Combined
Net Income or Consolidated Net Income of Empress); (y) any loan from Xxxxxxx
Empress or Xxxxxxx Leasing to Empress, evidenced by an unsecured subordinated
promissory note, provided that immediately prior to such proposed Restricted
Investment and after giving effect to such proposed Restricted Investment, on a
pro forma basis, the then outstanding aggregate principal amount of such loans
by Xxxxxxx Empress or Xxxxxxx Leasing, as applicable, would not exceed the
lesser of (i) 100% of the aggregate amount by which the Adjusted Consolidated
Net Income of Xxxxxxx Empress or Xxxxxxx Leasing, as applicable, for the period
(taken as one accounting period) commencing on the first day of the first full
fiscal quarter that commenced after the Issue Date, to and including the last
day of the fiscal quarter ended immediately prior to the date of each such
calculation exceeds permitted distributions of Tax Amounts (in accordance with
clause (v) of this paragraph) by Xxxxxxx Empress or Xxxxxxx Leasing, as
applicable; and (ii) with respect to Xxxxxxx Empress, $33 million, or, with
respect to Xxxxxxx Leasing, $25 million; and (z) any Restricted Investment by
Empress in the form of Qualified Loans to Additional Guarantors, of which the
source of funds is indebtedness incurred by Empress pursuant to the foregoing
clause (y). The full amount of any Restricted Payment made pursuant to any of
the foregoing clauses (s), (t), (u) and (y), however, will be deducted in the
calculation of the aggregate amount of Restricted Payments available to be made
referred to in clauses (3) and (4) of the immediately preceding paragraph.
Distributions of Tax Amounts may be made from time to time with
respect to a tax year based on reasonable estimates, with a reconciliation
within 40 days of the earlier of (i) the Guarantor's filing of Internal Revenue
Service Form 1120S for the applicable taxable year; and (ii) the last date such
form is required to be filed (without regard to any extensions), provided that
-------- ----
the stockholders of each Guarantor shall have entered into a binding agreement
(the "Tax Reimbursement Agreement") with each Guarantor to reimburse the
applicable Guarantor for certain positive differences between distributed Tax
Amounts and the Reconciled Tax Amount, which difference must be paid at the time
of such reconciliation. Any part of Tax Amounts not distributed in respect of a
tax period for which it is calculated shall be available for distribution in
subsequent tax periods.
44
The Company shall not, directly or indirectly, make any Restricted
Payment to any party, other than to its parent Guarantors.
Section 5.4 Corporate Existence.
-------------------
Subject to Article VI, the Company and the Guarantors shall do or
cause to be done all things necessary to preserve and keep in full force and
effect their corporate existence and the corporate or other existence of each of
their Subsidiaries in accordance with the respective organizational documents of
each of them and the rights (charter and statutory) and corporate franchises of
the Company and their Guarantors and each of their Subsidiaries; provided,
--------
however, that neither the Company nor any of the Guarantors shall be required to
-------
preserve, with respect to itself, any right or franchise if (a) the Board of
Directors of the Company shall determine reasonably and in good faith that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and (b) the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 5.5 Payment of Taxes and Other Claims.
---------------------------------
The Company and the Guarantors shall, and shall cause each of their
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and governmental
charges (including withholding taxes and any penalties, interest and additions
to taxes) levied or imposed upon the Company, any Guarantor or any of their
Subsidiaries or properties and assets of the Company, any Guarantor or any of
their Subsidiaries; and (ii) all lawful claims, whether for labor, materials,
supplies, services or anything else, which have become due and payable and which
by law have or may become a Lien upon the property and assets of the Company,
any Guarantor or any of their Subsidiaries; provided, however, that neither the
-------- -------
Company nor any Guarantor shall be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which disputed amounts adequate reserves have been
established in accordance with GAAP.
Section 5.6 Maintenance of Insurance.
------------------------
From and at all times after the Issue Date, the Company and each of
the Guarantors shall have in effect customary insurance for business
interruptions, comprehensive general liability and (as applicable) xxxxx water
coverage, and shall have completion, performance or similar bonds in place for
all ongoing projects, in each case on terms and in an amount reasonably
sufficient (taking into account, among other factors, the creditworthiness of
the insurer) to avoid a material adverse
45
change in the financial condition or results of operation of the Company and the
Guarantors taken as a whole.
Section 5.7 Compliance Certificate; Notice of Default.
-----------------------------------------
(a) The Company and each of the Guarantors shall deliver to the
Trustee within 90 days after the end of their respective fiscal years an
Officers' Certificate complying (whether or not required) with Section 314(a)(4)
of the TIA and stating that a review of the activities of the Company and each
of the Guarantors, respectively, during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
the Company and the Guarantors, as the case may be, has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, whether or not the
signer knows of any failure by the Company or any Guarantor to comply with any
conditions or covenants in this Indenture and, if such signer does know of such
a failure to comply, the certificate shall describe such failure with
particularity. The Officers' Certificate shall also notify the Trustee should
the relevant fiscal year end on any date other than the current fiscal year end
date.
(b) So long as not contrary to the then current recommendation of
the American Institute of Certified Public Accountants, the Company shall
deliver to the Trustee within 120 days after the end of each of its fiscal years
a written report of a firm of independent certified public accountants with an
established national reputation stating that in conducting their audit for such
fiscal year, nothing has come to their attention that caused them to believe
that the Company or any Guarantor was not in compliance with the provisions set
forth in Sections 5.3, 5.11, 5.14, 5.16, 5.19 or 5.20 of this Indenture.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, immediately upon becoming aware of any
Default or Event of Default under this Indenture, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 5.8 Reports.
-------
Whether or not the Company or any of the Guarantors is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, each shall
deliver to the Trustee and to each Holder, within 15 days after it is or would
have been required to file such with the SEC, annual and quarterly consolidated
financial statements substantially equivalent to financial statements that would
have been included in reports filed with the SEC if such person were subject to
the requirements of Section 13 or
46
15(d) of the Exchange Act including, with respect to annual information only, a
report thereon by certified independent public accountants as such would be so
required in such reports to the SEC and, in each case, together with a
management's discussion and analysis of financial condition and results of
operations which would be so required.
Section 5.9 Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law wherever enacted which would
prohibit or forgive the Company or any Guarantor from paying all or any portion
of the principal of, or interest on, the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that they may
lawfully do so) the Company and each Guarantor hereby expressly waives all
benefit or advantage of any such law insofar as such law applies to the
Securities, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
Section 5.10 Limitation on Transactions with Affiliates.
------------------------------------------
None of the Guarantors shall be permitted, and none shall permit any
of their Subsidiaries, on or after the Issue Date, to enter into any
transaction, including any contract, arrangement, agreement, loan, advance,
guarantee or understanding and including any series of related transactions,
with or for the benefit of any Affiliate (an "Affiliate Transaction") except for
transactions made in good faith the terms of which are fair and reasonable to
such Guarantor or such Subsidiary, as the case may be, and are at least as
favorable as the terms that could be obtained by such Guarantor or such
Subsidiary, as the case may be, in a comparable transaction made on an arms'
length basis between unaffiliated parties, provided, that with respect to any
--------
Affiliate Transaction (including any series of related Affiliate Transactions)
involving consideration to either party in excess of (x) $2.0 million, a
majority of the Board of Directors of such Guarantor approves such Affiliate
Transaction, as evidenced by a Board Resolution, and (y) $10.0 million, such
Guarantor or such Subsidiary, as the case may be, delivers to the Trustee and
the Holders a written favorable opinion as to the fairness of such transaction
to the Guarantor, from a financial point of view, from an independent investment
banking firm of national reputation. Any transactions solely between or among
the Company, Empress, Xxxxxxx Empress or Xxxxxxx Leasing or any Guarantors
47
that are wholly owned Subsidiaries of such Guarantors shall not be deemed to be
Affiliate Transactions for purposes of this Section 5.10.
Section 5.11 Limitation on Incurrence of Additional Indebtedness and
-------------------------------------------------------
Disqualified Capital Stock.
--------------------------
Except as set forth in any one of the paragraphs below, the Guarantors
shall not, and shall not permit any of their Subsidiaries to, directly or
indirectly, issue, assume, guaranty, incur, become directly or indirectly liable
with respect to (including as a result of an acquisition, merger or
consolidation), extend the maturity of, or otherwise become responsible for,
contingently or otherwise (individually and collectively, to "incur," or, as
appropriate, an "incurrence"), any Indebtedness or any Disqualified Capital
Stock on or after the Issue Date. Notwithstanding the foregoing:
(a) If (i) no Default or Event of Default shall have occurred and be
--
continuing at the time of, or would occur after giving effect, on a pro
forma basis, to such incurrence of such Indebtedness or Disqualified
Capital Stock; and (ii) (A) in the case of senior Indebtedness, on the date
of the incurrence of such Indebtedness (the "Incurrence Date"), the
Combined Fixed Charge Coverage Ratio for the Reference Period immediately
preceding the Incurrence Date, after giving effect, on a pro forma basis,
to the incurrence of such Indebtedness, would be at least 2.75 to 1 and,
after giving effect, on a pro forma basis, to the incurrence of such
Indebtedness, the aggregate amount of all senior Indebtedness of the
Guarantors would not exceed 2.5 times Combined EBITDA; or (B) in the case
of subordinated Indebtedness or Disqualified Capital Stock, on the
Incurrence Date, the Combined Fixed Charge Coverage Ratio for the Reference
Period immediately preceding the Incurrence Date, after giving effect, on a
pro forma basis, to such incurrence of such Indebtedness or Disqualified
Capital Stock, would be at least 2.25 to 1 and the Indebtedness or
Disqualified Capital Stock, as applicable, being incurred has an Average
Life that is greater than the Average Life of the Notes and has a final
maturity date (or final redemption date in the case of Disqualified Capital
Stock) after the Stated Maturity of the Notes, then the Guarantors may
----
incur, in the case of (ii)(A), such senior Indebtedness or, in the case of
(ii)(B), such subordinated Indebtedness or Disqualified Capital Stock;
(b) The Guarantors may incur Indebtedness pursuant to (i) the Mirror
Notes and the Guarantor Loan Agreement up to the amounts specified therein
as of the date thereof; (ii) Qualified Inter-Guarantor Loans; (iii)
Qualified Loans; and
48
(iv) loans made pursuant to clauses (w) and (y) of the second paragraph of
Section 5.3;
(c) The Guarantors may incur Purchase Money Indebtedness, provided
that the amount of such Indebtedness outstanding at any time pursuant to
this paragraph (c) shall not, in the aggregate, exceed $7.5 million;
(d) The Guarantors may incur Refinancing Indebtedness with respect to
any Indebtedness or Disqualified Capital Stock, as applicable, described in
clauses (a) and (c) of this covenant (so long as, in the case of
Indebtedness used to refinance, replace or retire Indebtedness in clause
(c), such Refinancing Indebtedness is non-recourse as to any assets other
than the assets that secure such Indebtedness refinanced, replaced or
retired);
(e) The Guarantors may incur Permitted Indebtedness; and
(f) The Guarantors may also incur Indebtedness in a principal amount
outstanding at any time of up to $15 million in the aggregate.
Notwithstanding the foregoing or anything herein to the contrary, the
Guarantors will not, and will not permit any of their Subsidiaries to, directly
or indirectly, incur any Indebtedness in a principal amount outstanding at any
time in excess of $75 million, which Indebtedness is secured by the Empress I or
the Empress II.
The Company shall not, directly or indirectly, incur any Indebtedness
or any Disqualified Capital Stock, other than the Indebtedness evidenced by the
Notes.
Section 5.12 Limitation on Dividends and Other Payment Restrictions
------------------------------------------------------
Affecting Subsidiaries.
----------------------
None of the Guarantors shall, and none shall permit any of its
respective Subsidiaries to, directly or indirectly, create, assume or suffer to
exist any consensual encumbrance or restriction on the ability of any Subsidiary
to pay dividends or make other distributions to, or to pay any obligation to, or
to otherwise transfer assets or make or pay loans or advances to, the Company or
any of the Guarantors, except (a) restrictions imposed by the Notes, the Mirror
Notes or the Indenture, or restrictions imposed by other senior Indebtedness
which are substantially the same as (and apply only to the same persons and
property as) such restrictions; (b) restrictions imposed by applicable Gaming
Law; and (c) restrictions under any Acquired Indebtedness or any agreement
relating to any property, asset, or business acquired by a Guarantor or any of
its Subsidiaries,
49
which restrictions existed at the time of such acquisition, were not incurred in
connection with or in anticipation of such acquisition and are not applicable to
any person, other than the person acquired, or to any property, asset or
business, other than the property, assets and business so acquired.
Notwithstanding the foregoing, neither (a) reasonable and customary provisions
restricting subletting or assignment of any lease entered into in the ordinary
course of business, consistent with industry practice; nor (b) Liens on assets
securing permitted senior Indebtedness, shall in and of themselves be considered
a restriction on the ability of the applicable Subsidiary to transfer such
property or assets, as the case may be.
Section 5.13 Limitation on Liens.
-------------------
None of the Guarantors shall, and none shall permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien in or on any right, title or interest to any of their respective
properties or assets, expect (a) Permitted Liens; (b) Liens incurred pursuant to
Purchase Money Indebtedness incurred in accordance with the provisions of
paragraph (c) of Section 5.11; (c) with respect to each Guarantor, Liens
incurred pursuant to senior Indebtedness incurred in accordance with the
provisions of clause (ii) (A) of paragraph (a) of Section 5.11; and (d) Liens
incurred pursuant to Permitted FF& E Slot Machine Indebtedness.
The Company shall not create, assume, or suffer to exist any Liens on
any of its property or assets, except Liens created under the Indenture and the
Notes.
Section 5.14 Limitation on Sales of Assets and Subsidiary Stock;
--------------------------------------------------
Event of Loss.
-------------
(a) The Guarantors shall not, and none shall permit any of its
Subsidiaries to, in one or a series of related transactions, convey, sell,
lease, transfer, assign or otherwise suffer to dispose of, directly or
indirectly, any of its property, business or assets, including without
limitation upon any sale or other transfer or issuance of any Capital Stock or
other ownership interest of any Subsidiary of such Guarantor or any sale and
leaseback transaction whether by such Guarantor or a Subsidiary of such
Guarantor or through the issuance, sale or transfer of Capital Stock or other
ownership interest by a Subsidiary (an "Asset Sale") that results in Net Cash
Proceeds in excess of $5.0 million unless or that has a fair market value in
excess of $5.0 million unless (i) (a) the Net Cash Proceeds therefrom (the
"Asset Sale Offer Amount") are applied to the repurchase of the Notes pursuant
to an irrevocable, unconditional offer (the "Asset Sale Offer") to repurchase
Notes at a purchase price (the "Asset Sale Offer Price") of 101% of the
principal amount of such Notes, plus accrued and unpaid interest to the date of
payment;
50
or (b) within 180 days of such Asset Sale, the Net Cash Proceeds therefrom are
invested in assets and property that are part of a Related Business of a
continuing Guarantor; (2) at least 75% of the consideration for such conveyance,
sale, lease, transfer or other disposition or issuance consists of (i) U.S.
Legal Tender; or (ii) Cash Equivalents; or (iii) the securities of a company
with a market capitalization in excess of $500 million, which securities are
traded on a national securities exchange and are of a class and series of
securities with a minimum public float of $100 million; or (iv) liabilities
assumed (other than subordinated Indebtedness) by the transferee; or (v)
property that promptly (and in no event more than 10 days) after such Asset Sale
is converted into U.S. Legal Tender; (3) no Default or Event of Default shall
have occurred and be continuing at the time of, or would occur after giving
effect, on a pro forma basis, to, such Asset Sale; and (4) the Board of
Directors of the applicable Guarantor determines in good faith that such
Guarantor or such Subsidiary, as applicable, receives fair market value for such
Asset Sale, as evidence by an Officers' Certificate delivered to the Trustee.
Notwithstanding the foregoing provisions of the prior paragraph, an
Asset Sale shall not be deemed to have occurred if:
(i) the Guarantors in the ordinary course of business and
consistent with past practice, convey, sell, lease, transfer, assign, or
otherwise dispose of assets acquired and held for resale in the ordinary
course of business;
(ii) Xxxxxxx Leasing leases the Empress III to Xxxxxxx Empress,
or if Xxxxxxx Empress, or if Xxxxxxx Empress fails to commence gaming
operations, leases the Empress III to a third party;
(iii) Xxxxxxx Leasing merges or consolidates into Xxxxxxx
Empress;
(iv) the Guarantors convey, sell, lease, transfer or otherwise
dispose of assets pursuant to and in accordance with the provisions of
Article VI; or
(v) a Sale of a Guarantor is made in accordance with the
provisions of Section 5.20.
The Company and the Guarantors shall accumulate all Net Cash Proceeds
from Asset Sales (including any cash as and when received from the proceeds of
any property which itself was acquired in consideration of an Asset Sale) and
the aggregate amount of such accumulated Net Cash Proceeds not used for the
purposes permitted, and within the time period provided, by
51
Section 5.14 (a) (1) (b) shall be referred to as the "Accumulated Amount."
(b) For the purposes of this Section 5.14, "Minimum Accumulation
Date" means each date on which the Accumulated Amount exceeds $10.0 million. Not
later than 10 Business Days after each Minimum Accumulation Date the Company (or
the Trustee, upon the request and at the expense of the Company) shall commence
an Asset Sale Offer to purchase, on a pro rata basis, for U.S. Legal Tender,
--- ----
Securities in an aggregate principal amount equal to the Accumulated Amount
divided by the Asset Sale Offer Price (the "Asset Sale Offer Amount") by sending
written notice by first-class mail to each Holder at its registered address,
with a copy to the Trustee, of the commencement of such Asset Sale Offer. The
Company shall use its best efforts to provide the Trustee with notice of the
Asset Sale Offer at least 5 Business Days before the commencement of any Asset
Sale Offer. An Asset Sale Offer shall remain open for 20 Business Days following
its commencement and no longer, except to the extent that a longer period is
expressly required by applicable law (the "Asset Sale Offer Period"). Upon
expiration of the Asset Sale Offer Period (the "Asset Sale Put Date"), Holders
electing to have a Security (or portion thereof) purchased pursuant to an Asset
Sale Offer must surrender their Security as set forth in Section 5.14 (b) (5)
below. On the third Business Day following the Asset Sale Put Date (the "Asset
Sale Purchase Date"), the Asset Sale Offer shall be consummated.
The notice to the Holders shall contain all information, instructions
and materials required by applicable law or otherwise material to such Holders'
decision to tender Securities pursuant to the Asset Sale Offer. The notice (to
the extent consistent with this Indenture) shall govern the terms of the Asset
Sale Offer and shall state:
(1) that the Asset Sale Offer is being made pursuant to such
notice and this Section 5.14;
(2) the Asset Sale Offer Amount, the Asset Sale Offer Price
(including the amount of accrued and unpaid interest), the Asset Sale Put Date,
and the Asset Sale Purchase Date;
(3) that any Security or portion thereof not tendered or
accepted for payment will continue to accrue interest if interest is then
accruing;
(4) that, unless the Company defaults in depositing U.S.
Legal Tender with the Paying Agent, as provided pursuant to the last paragraph
of this Section 5.14 (b), in an amount sufficient to purchase the principal
amount of, any pay accrued and unpaid interest on, Securities to be acquired
pursu-
52
ant to the Asset Sale Offer, any Security, or portion thereof, accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest after
the Asset Sale Purchase Date;
(5) That Holders electing to have a Security, or any portion
thereof, purchased pursuant to an Asset Sale Offer, will be required to
surrender their Security, together with the properly completed form entitled
"Option of Holder to Elect Purchase" (located on the reverse of the Security),
to the Paying Agent at the address specified in the notice on or prior to the
close of business on the Asset Sale Put Date;
(6) that Holders will be entitled to withdraw their elections to
have Securities purchased pursuant to the Asset Sale Offer, in whole or in part,
if the Paying Agent receives, on or prior to the close of business on the Asset
Sale Put Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the securities such Holder is
withdrawing and a statement that such Holder is withdrawing its election to have
such principal amount of Securities purchased pursuant to the Asset Sale Offer;
(7) that if Securities in a principal amount in excess of the
Asset Sale Offer Amount are tendered and not withdrawn, the Company shall
purchase Securities on a pro rata basis (with such adjustment as may be deemed
--- ----
appropriate by the Company so that only Securities in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(8) That Holders whose Securities were purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered;
(9) if the Asset Sale Purchase Date is on or after an interest
payment record date and on or before the related interest payment date, any
accrued interest will be paid to the person in whose name a Security is
registered at the close of business on such record date, and no additional
interest will be payable to Securityholders who tender Securities pursuant to
the Asset Sale Offer; and
(10) a brief description of the circumstances and relevant facts
regarding such Asset Sales.
Any such Asset Sale Offer shall comply with all applicable provisions
of Federal and state laws, including those regulating tender offers, if
applicable, and any provisions of this Indenture that conflict with such laws
shall be deemed to be superseded by the provisions of such laws.
53
No later than 12:00 noon New York City time on an Asset Sale Purchase
Date, the Company (i) shall accept for payment Securities or portions thereof
properly tendered pursuant to the Asset Sale Offer (on a pro rata basis if
--- ----
required pursuant to paragraph (7) above) and (ii) deliver to the Trustee
Securities so accepted together with an Officers' Certificate setting forth the
Securities or portions thereof being purchased by the Company. No later than
12:00 noon New York City time on an Asset Sale Purchase Date, Empress shall
irrevocably deposit with the Company and the Company shall irrevocably deposit
with the Paying Agent U.S. Legal Tender in an amount sufficient to purchase the
principal amount of, and pay accrued and unpaid interest on, all Securities or
portions thereof so accepted. In the event an Asset Sale Offer pursuant to this
Section 5.14 is commenced, in whole or in part, as a result of one or more Asset
Sales by any Guarantor other than Empress, each such Guarantor shall, on or
prior to the close of business on the Business Day immediately preceding the
Asset Sale Purchase Date, pay to Empress U.S. Legal Tender in an amount equal to
the product of (A) the amount Empress is required to deposit with the Company
pursuant to this paragraph and (B) a fraction, the numerator of which is the Net
Cash Proceeds received by a Guarantor from such Guarantor's Asset Sale and the
denominator of which is the Accumulated Amount applicable to such Asset Sale
Offer, subject to the joint and several obligations of each Guarantor with
respect to such payments. Empress' payment to the Company pursuant to this
paragraph shall represent a pre-payment of principal of, premium, if any, and
interest on, the Mirror Note of Empress in an amount equal to the amount paid by
Empress to the Company. Any payment made by any Guarantor Empress pursuant to
this paragraph shall represent a prepayment of principal of, premium, if any,
and interest on, the Mirror Note of such Guarantor in an amount equal to such
amount paid to Empress. The Paying Agent shall promptly mail or deliver to
Holders of Securities so accepted payment in an amount equal to the Asset Sale
Offer Price (plus accrued and unpaid interest) for such Securities, and the
Company shall execute and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof. The
Company (or the Trustee, upon the request and at the expense of the Company)
shall notify the Holders of the results of the Asset Sale Offer promptly after
the Asset Sale Purchase Date.
(c) If the amount required to acquire all Securities tendered by
Holders pursuant to the Asset Sale Offer (the "Acceptance Amount") is less than
the Accumulated Amount, the excess of the Accumulated Amount over the Acceptance
Amount may be used by the applicable Guarantor or Guarantors, as the case may
be, for general corporate purposes without regard to the restrictions set forth
in this Section 5.14, unless otherwise restricted by the
54
other provisions of this Indenture. Upon consummation of any Asset Sale Offer
made in accordance with the terms of this Section 5.14, the Accumulated Amount
(but only to the extent offered to the Holders pursuant to the terms of this
Section 5.14) as of the Minimum Accumulation Date shall be reduced to zero and
accumulations thereof shall be deemed to recommence from the day next following
such Minimum Accumulation Date.
(d) Upon an Event of Loss relating to property with a fair market
value in excess of $5 million, the Guarantors shall make an Asset Sale Offer to
repurchase at the Asset Sale Offer Price, plus accrued and unpaid interest, that
principal amount of Notes equal to the Net Cash Proceeds of such Event of Loss
(the "Event of Loss Amount") within 210 days thereafter, unless the Asset Sale
Amount related to such Event of Loss is invested, within 180 days after such
Event of Loss, in assets and property directly related to a Related Business of
a continuing Guarantor. Notwithstanding the foregoing, the applicable Guarantor
may first retire senior Indebtedness secured by the property subject to the
Event of Loss, if and to the extent required by the terms of such senior
Indebtedness and all amounts so expended shall reduce the Asset Sale Offer
Amount upon such an Event of Loss.
Section 5.15 Limitation on Use of Proceeds.
-----------------------------
On the Issue Date, the Company shall loan the net proceeds of the
offering of the Securities to Empress pursuant to the Guarantor Loan Agreement.
Empress shall use the loan from the Company only for Permitted Proceeds Uses.
Section 5.16 Construction and Licensure.
--------------------------
(a) The Guarantors shall cause construction of the Empress III
and the Xxxxxxx Facility and the expansion and refurbishment of the Joliet
Facility to be prosecuted with diligence in a good and workmanlike manner in
accordance with the Plans. The Company shall be required to make an irrevocable,
unconditional offer (except as set forth in Section 5.16 (b)) to all Holders to
repurchase, for U.S. Legal Tender (a "Casino Purchase Offer") on a pro rata
basis, at a purchase price (the "Casino Offer Price") of 101% of the principal
amount of the Notes, plus accrued and unpaid interest to the purchase date, (i)
$33 million of the principal amount of Notes (the "Casino Offer Amount") (a)
within 10 Business Days of a final determination (without regard to any
administrative appeals or judicial review) by the applicable Governmental
Authority with jurisdiction over such matters that Xxxxxxx Empress or Xxxxxxx
Leasing will not receive the necessary Gaming Licenses to operate riverboat
gaming activities at the Xxxxxxx Facility; (b) on September 1, 1995, if the
Final Completion Date has not occurred on or prior to such date and for the
immediately preceding two fiscal quarters, the Combined Fixed Charge Coverage
Ratio is less than 3.5 to 1; (c)
55
on March 1, 1996, if the Final Completion Date has not occurred on or prior to
such date; (d) within 10 Business Days of (A) any revocation of any of Xxxxxxx
Empress' or Xxxxxxx Leasing's Gaming Licenses to conduct gaming activities; (B)
the prohibition by any Governmental Authority with jurisdiction as to such
matters of gaming activities at the location of the Xxxxxxx Facility, which
prohibition has not been rescinded or otherwise terminated within 90 days
thereafter; or (C) a determination by Xxxxxxx Empress to cease its efforts to
obtain a Gaming License to conduct gaming activities in Xxxxxxx or to open the
Xxxxxxx Facility; and (ii) an additional $25 million principal amount of Notes
(the "Vessel Offer Amount") on March 1, 1996, if, the Final Completion Date has
not occurred on or prior to such date and, for the immediately preceding two
fiscal quarters, the Combined Fixed Charge Coverage Ratio is less than 3.5 to 1.
(b) In the event that, pursuant to this Section 5.16, the Company
shall be required to commence a Casino Purchase Offer, the Company (or the
Trustee, upon the request and at the expense of the Company shall commence a
Casino Purchase Offer by sending written notice by first-class mail to each
Holder at its registered address, with a copy to the Trustee, of the
commencement of such Casino Purchase Offer. The Company shall use its best
efforts to provide the Trustee with notice of the Casino Purchase Offer at least
5 Business Days before the commencement of any Casino Purchase Offer. A Casino
Purchase Offer shall remain open for 20 Business Days following its
commencement, except to the extent that a longer period is expressly required by
applicable law (the "Casino Offer Period"). On or before the expiration of the
Casino Offer Period (the "Casino Offer Put Date") (unless with respect to the
matters referred to in clauses ((i) (a) and (i) (d) of Section 5.16 (a) above,
the event(s) that gave rise to the Company's obligation to make the Casino
Purchase Offer have all been cured as of the expiration of the Casino Purchase
Offer have all been cured as of the expiration of the Casino Offer Period),
Holders electing to have a Security (or portion thereof) purchased pursuant to a
Casino Purchase Offer must surrender their Security as set forth in Section 5.16
(b) (5) below. On the third Business Day following the Casino Offer Put Date
(the "Casino Offer Payment Date"), the Company shall apply the Casino Offer
Amount or the Vessel Offer Amount, as the case may be (plus, in each case,
accrued and unpaid interest) to all Securities tendered on a pro rata basis if
the Casino Offer Amount or the Vessel Offer Amount (or, if applicable, the
combined amounts thereof), as the case may be, is insufficient to purchase all
Securities so tendered or, if less than the applicable Casino Offer Amount or
Vessel Offer Amount, as the case may be, has been tendered, shall purchase all
of the Securities tendered in response to the Casino Purchase Offer.
The notice to the Holders shall contain all information, instructions
and materials required by applicable law or otherwise material to such Holders'
decision to tender Securities
56
pursuant to the Casino Purchase Offer. The notice (to the extent consistent with
this Indenture) shall govern the terms of the Casino Purchase Offer and shall
state:
(1) that the Casino Purchase Offer is being made pursuant to such
notice and this Section 5.16;
(2) the Casino Offer Amount and the Vessel Offer Amount, as
applicable, the Casino Offer Price (including the amount of accrued and
unpaid interest), the Casino Offer Put Date and the Casino Offer Payment
Date;
(3) that any Security or portion thereof not tendered or accepted
for payment will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults in depositing U.S. Legal
Tender with the Paying Agent, as provided pursuant to the last paragraph of
this Section 5.16(b), in an amount sufficient to purchase the principal
amount of, and pay accrued and unpaid interest on, Securities to be
acquired pursuant to the Casino Purchase Offer, any Security or portion
thereof accepted for payment pursuant to the Casino Purchase Offer shall
cease to accrue interest after the Casino Offer Payment Date;
(5) that Holder electing to have a Security, or any portion
thereof, purchased pursuant to any Casino Purchase Offer will be required
to surrender the Security, together with the properly completed form
entitled "Option of Securityholder to Elect Purchase" (located on the
reverse of the Security) to the Paying Agent at the address specified in
the notice on or prior to the close of business on the Casino Offer Put
Date;
(6) that Holders will be entitled to withdraw their elections to
have Securities purchased pursuant to the Casino Purchase Offer, in whole
or in part, if the Paying Agent receives, on or prior to the close of
business on the Casino Offer Put Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Securities the Holder is withdrawing and a statement that
such Holder is withdrawing its election to have such principal amount of
Securities purchased pursuant to the Casino Purchase Offer;
(7) that, if Securities in a principal amount in excess of the
Casino Offer Amount or Vessel Offer Amount (or, if applicable, the combined
amounts thereof), as the case may be, are tendered and not withdrawn, the
Company shall purchase Securities on a pro rata basis (with such
--- ----
57
adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000, or integral multiples thereof, shall
be acquired);
(8) that Holders whose Securities were purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered;
(9) if the Casino Offer Payment Date is on or after an interest
payment record date and on or before the related interest payment date, any
accrued interest will be paid to the person in whose name a Security is
registered at the close of business on such record date, and no additional
interest will be payable to Securityholders who tender Securities pursuant
to the Casino Purchase Offer; and
(10) a brief description of the circumstances and relevant facts
regarding such Casino Purchase Offer.
Any such Casino Purchase Offer shall comply with all applicable
provisions of Federal and state laws, including those, regulating tender offers,
if applicable, and any provisions of this Indenture that conflict with such laws
shall be deemed to be superseded by the provisions of such laws.
No later than 12:00 noon New York City time on the Casino Offer
Payment Date, the Company shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Casino Purchase Offer (on a pro rata basis if
--- ----
required pursuant to paragraph (7) above) and (ii) deliver to the Trustee
Securities so accepted together with an Officers' Certificate setting forth the
Securities or portions thereof being purchased by the Company. No later than
12:00 noon New York City time on the Casino Offer Payment Date, Empress shall
irrevocably deposit with the Company and the Company shall irrevocably deposit
with the Paying Agent U.S. Legal Tender in an amount sufficient to purchase the
principal amount of, and pay accrued and unpaid interest on, all Securities or
portions thereof so accepted. On or prior to the close of business on the
Business Day immediately preceding the Casino Offer Payment Date, each of
Xxxxxxx Empress and Xxxxxxx Leasing shall pay to Empress U.S. Legal Tender in an
amount equal to the Casino Offer Amount and the Vessel Offer Amount (or, if
applicable, the combined amounts thereof), respectively, subject to the joint
and several obligations of each Guarantor with respect to such payments.
Empress' payment to the Company pursuant to this paragraph shall represent a
prepayment of principal of, premium, if any, and interest on, the Mirror Note of
Empress in an amount equal to the amount paid to the Note of Empress in an
amount equal to the amount paid to the Company. Any payment made by Xxxxxxx
Empress and Xxxxxxx Leasing, respectively, to Empress pursuant to this paragraph
shall
58
represent, in each case, a prepayment of principal of, premium, if any, and
interest on, the Mirror Note of Xxxxxxx Empress and Xxxxxxx Leasing, as
applicable, in an amount equal to such amount paid to Empress. The Paying Agent
shall promptly mail or deliver to each Holder of Securities so accepted, payment
in an amount equal to the Casino Offer Price, plus accrued and unpaid interest,
for such Securities, and the Company shall execute and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security equal
in principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Paying
Agent to the Holder thereof. The Company (or the Trustee, upon the request and
at the expense of the Company) shall notify the Holders of the results of the
Casino Purchase Offer promptly after the Casino Offer Payment Date.
(c) If the amount required to acquire all Securities tendered by
Holders pursuant to the Casino Purchase Offer (the "Acceptance Amount") shall be
less than the Casino Offer Amount or the Vessel Offer amount (or, if applicable,
the combined amounts thereof), the excess of such amount over the Acceptance
Amount may be used by the applicable Guarantor or Guarantors, as the case may
be, for general corporate purposes without regard to the restrictions set forth
in this Section 5.16, unless otherwise restricted by the other provisions of
this Indenture.
Section 5.17 Limitation on Lines of Business.
-------------------------------
None of the Guarantors and their respective Subsidiaries shall
directly or indirectly and the Parent Guarantor shall not directly engage, to
any substantial extent, in any line or lines of business activity other than in
a Related Business.
Section 5.18 Limitation on Status as Investment Company.
------------------------------------------
None of the Company, the Guarantors and their respective Subsidiaries
shall become "investment companies" (as that term is defined in the Investment
Company Act of 1940, as amended), or otherwise become subject to regulation
under the Investment Company Act.
Section 5.19 Limitation on Sales and Issuances of Capital Stock by
-----------------------------------------------------
Subsidiaries.
------------
No Subsidiary of a Guarantor shall issue or sell, other than to such
Guarantor, any shares of its Capital Stock to any person ( other than common
stock with no preferences or special rights or privileges and with no redemption
or prepayment provisions, which shares of common stock constitute in the
aggregate
59
less than 20% of the voting interest and less than 20% of the economic interest
of such Subsidiary).
Section 5.20 Limitation on Sale of a Guarantor.
---------------------------------
(a) Upon a Sale of a Guarantor: (i) the applicable Guarantor
shall pay to Empress the Guarantor Sale Repurchase Amount relating to such
Guarantor; and (ii) the Company shall make an irrevocable, unconditional offer
(the "Guarantor Sale Offer" ) to purchase for U.S. Legal Tender the principal
amount of Notes equal to the Guarantor Sale Repurchase Amount at a purchase
price (the "Guarantor Sale Purchase Price") of 101% thereof, plus accrued and
unpaid interest to the date of payment.
(b) In the event that, pursuant to this Section 5.20, the Company
shall be required to commence a Guarantor Sale Offer, the Company (or the
Trustee, upon the request and at the expense of the Company) shall, within 10
Business Days following a Sale of a Guarantor, commence a Guarantor sale Offer
by sending written notice by first-class mail to each Holder at its registered
address, with a copy to the Trustee, of the commencement of such Guarantor Sale
Offer. The Company shall use its best efforts to provide the Trustee with
notice of the Guarantor Sale Offer at least 5 Business Days before the
commencement of any Guarantor Sale Offer. A guarantor Sale Offer shall remain
open for 20 Business Days following its commencement, except to the extent that
a longer period is expressly required by applicable law (the "Guarantor Sale
Offer Period"). On or prior to the date of the expiration of the Guarantor Sale
Offer Period (the "Guarantor Sale Put Date"), Holders electing to have a
Security (or portion thereof) purchased pursuant to a Guarantor Sale Offer must
surrender their Security as set forth in Section 5.20 (b) (5) below. On the
third Business Day following the Guarantor Sale Put Date (the "Guarantor Sale
Payment Date"), the Company shall apply the Guarantor Sale Repurchase Amount
(plus accrued and unpaid interest) to all Securities tendered on a pro rata
basis if the principal amount of Securities tendered exceeds the Guarantor Sale
Repurchase Amount or, if less than the Guarantor Sale Repurchase Amount has been
tendered, shall purchase all the Securities tendered in response to the
Guarantor Sale Offer.
The notice to the Holders shall contain all information, instructions
and materials required by applicable law or otherwise material to such Holders'
decision to tender Securities pursuant to the Guarantor Sale Offer. The notice
(to the extent consistent with this Indenture) shall govern the terms of the
Guarantor Sale Offer and shall state:
(1) that the Guarantor Sale Offer is being made pursuant to such
notice and this Section 5.20;
60
(2) the Guarantor Sale Repurchase Amount, the Guarantor Sale Purchase
Price (including the amount of accrued and unpaid interest), the Guarantor Sale
Put Date and the Guarantor Sale Payment Date;
(3) that any Security or portion thereof not tendered or accepted for
payment will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults in depositing U.S. Legal Tender
with the Paying Agent, as provided pursuant to the last paragraph of this
Section 5.20(b), in an amount sufficient to purchase the principal amount of,
and pay accrued and unpaid interest on, Securities to be acquired pursuant to
the Guarantor Sale Offer, any Security or portion thereof accepted for payment
pursuant to the Guarantor Sale Offer shall cease to accrue interest after the
Guarantor Sale Payment Date;
(5) that Holders electing to have a Security, or any portion thereof,
purchased pursuant to a Guarantor Sale Offer will be required to surrender the
Security, together with the properly completed form entitled "Option of Holder
to Elect Purchase" (located on the reverse of the Security), to the Paying Agent
at the address specified in the notice on or prior to the close of business on
the Guarantor Sale Put Date;
(6) that Holders will be entitled to withdraw their elections to have
Securities purchased pursuant to the Guarantor Sale Offer, in whole or in part,
if the Paying Agent receives, on or prior to the close of business on the
Guarantor Sale Put Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Securities the
Holder is withdrawing and a statement that such Holder is withdrawing his
election to have such principal amount of Securities purchased pursuant to the
Guarantor Sale Offer;
(7) that if Securities in a principal amount in excess of the
Guarantor Sale Repurchase Amount are tendered and not withdrawn, the Company
shall purchase Securities on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Securities in denominations of
$1,000 or integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion of
the Securities surrendered;
(9) if the Guarantor Sale Payment Date is on or after an interest
payment record date and on or before the related interest payment date, any
accrued interest will be paid to the person in whose name a Security is
registered at the close of business on such record date, and no additional
interest will be
61
payable to Securityholders who tender Securities pursuant to the Guarantor Sale
Offer; and
(10) a brief description of the circumstances and relevant facts
regarding such a Sale of a Guarantor.
Any such Guarantor Sale Offer shall comply with all applicable
provisions of Federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture that conflict with such laws
shall be deemed to be superseded by the provisions of such laws.
No later than 12:00 noon, New York City Time, on a Guarantor Sale
Payment Date, the Company (i) shall accept for payment Securities or portions
thereof properly tendered pursuant to the Guarantor Sale Offer (on a pro rata
--- ----
basis if required pursuant to paragraph (7) above) and (ii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate listing
the Securities or portion thereof being purchased by the Company. No later than
12:00 noon, New York City Time, on a Guarantor Sale Payment Date, Empress shall
irrevocably deposit with the Company and the Company shall irrevocably deposit
with the Paying Agent U.S. Legal Tender sufficient to purchase the principal
amount of, and pay accrued and unpaid interest on, all Securities so accepted;
and on or prior to the close of business of the Business Day immediately
preceding the Guarantor Sale Payment Date, Xxxxxxx Empress, Xxxxxxx Leasing or
an Additional Guarantor, as applicable, shall pay to Empress U.S. Legal Tender
in an amount equal to the Guarantor Sale Repurchase Amount, subject to the joint
and several obligations of each Guarantor with respect to such payments.
Empress' payment to the Company pursuant to this paragraph shall represent a
prepayment of principal of, premium, if any, and interest on, the Mirror Note of
Empress in an amount equal to the amount paid to the Company. Any payment made
by Xxxxxxx Empress, Xxxxxxx Leasing or any Additional Guarantor, as applicable,
to Empress pursuant to this paragraph shall represent, in each case, a
prepayment of principal of, premium, if any, and interest on, the Mirror Note of
Xxxxxxx Empress, Xxxxxxx Leasing and such Additional Guarantor, as applicable,
in an amount equal to such amount paid to Empress. The Paying Agent shall
promptly mail or deliver to each Holder of Securities so accepted, payment in an
amount equal to the Guarantor Sale Offer Price, plus accrued and unpaid
interest, for such Securities, and the Company shall execute and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new Security
equal in principal amount to an unpurchased portion of the Security surrendered.
Any Securities not so accepted shall be promptly mailed or delivered by the
Paying Agent to the Holder thereof. The Company (or the Trustee, upon the
request and at
62
the expense of the Company) shall notify the Holders of the results of the
Guarantor Sale Offer promptly after the Guarantor Sale Payment Date.
(c) Any amounts paid by Xxxxxxx Empress, Xxxxxxx Leasing or an
Additional Guarantor to Empress pursuant to a Sale of a Guarantor in excess of
such Guarantor's Mirror Notes outstanding immediately prior to such Sale of a
Guarantor shall be treated as a loan to Empress and be evidenced by a note which
note must (i) be unsecured; (ii) be subordinated in all respects to Empress'
Guarantee of the Notes; (iii) have a final maturity date after the Stated
Maturity of the Notes; and (iv) have no payment of principal (or cash payment of
interest), other than an amount for each year equal to the product of (a) the
Tax Percentage; and (b) the lesser of (i) the amount that would be imputed to
the Guarantor or its stockholders for Federal income tax purposes as interest
income under such note for such year; or (ii) the amount of interest accrued
under such note for such year) due (whether scheduled or optional at either
Empress' or the holder's option on) or prior to the Stated Maturity of the
Notes.
(d) If the amount required to acquire all Securities tendered by
Holders pursuant to the Guarantor Sale Offer (the "Acceptance Amount") shall be
less than the Guarantor Sale Repurchase Amount, the excess of the Guarantor Sale
Repurchase Amount over the Acceptance Amount may be used by Empress for general
corporate purposes without regard to the restrictions set forth in this Section
5.20, unless otherwise restricted by the other provisions of this Indenture.
Upon payment by the Company of the Guarantor Sale Repurchase Amount
and consummation of the Guarantor Sale Offer as provided pursuant to this
Section 5.2, Xxxxxxx Empress, Xxxxxxx Leasing or any Additional Guarantor, as
applicable, shall be released from its obligations as a Guarantor of the
Securities, as set forth in Section 13.5 hereof.
Section 5.21 Ownership of the Company. Notwithstanding any other
------------------------
provisions in this Indenture to the contrary, Empress, or Empress and one or
more of the other Guarantors, shall at all times own 100% of the Capital Stock
and any other equity interests of the Company.
Section 5.22 Future Guarantors. Each Guarantor shall cause each of
-----------------
its respective Subsidiaries (and the Parent Guarantor and any Additional
Guarantors) created or acquired after the Issue Date to enter into a
supplemental indenture for the purpose of jointly and severally guaranteeing, on
a senior basis, the Company's obligation to pay principal, premium and interest
on the Securities on terms identical to those contained in Article XIII hereof.
63
ARTICLE VI
SUCCESSOR CORPORATION
Section 6.1 Limitation on Merger, Sale or Consolidation.
-------------------------------------------
Neither the Company nor Empress shall consolidate with or merge with
or into another person or, directly or indirectly, sell, lease or convey all or
substantially all of its assets (computed on a consolidated basis), whether in a
single transaction or a series of related transactions, to another person or
group of affiliated persons, unless:
(1) either (a) the Company or Empress, as the case may be, is the
continuing entity or (b) the resulting, surviving or transferee entity is a
corporation organized under the laws of the United States, any state thereof or
the District of Columbia and expressly assumes by supplemental indenture all of
the obligations of the Company or Empress, as the case may be, in connection
with the Notes and the Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction;
--- -----
(3) immediately after giving effect to such transaction, on a pro
---
forma basis, the Consolidation Net Worth of the consolidated, surviving or
-----
transferee entity is at least equal to the Consolidated Net Worth of the Company
or Empress, as the case may be, immediately prior to such transaction;
(4) immediately after giving effect to such transaction, on a pro
---
forma basis, the surviving or transferee entity would immediately thereafter be
-----
permitted to incur at least $1.00 of additional Indebtedness pursuant to
paragraph (a) of Section 5.11;
(5) such transaction will not result in the loss of any Gaming
License; and
(6) the Company or such Guarantor, as the case may be, has delivered
to the Trustee an Officers' Certificate stating that such consolidation, merger,
assignment, or transfer and such supplemental indenture complies with this
Article VI and that all conditions precedent herein provided relating to such
transaction have been satisfied.
For purposes of this Section 6.1, the Combined Fixed Charge Coverage
Ratio shall be determined on a pro forma consolidated basis (giving effect, on a
--- -----
pro forma basis, to the transaction and any related incurrence of Indebtedness
--- -----
or Disqualified
64
Capital Stock) for the four fiscal quarters which ended immediately preceding
such transaction.
Section 6.2 Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or Empress in accordance with
Section 6.1, the successor corporation formed by such consolidation or into
which the Company or Empress, as the case may be, is merged or to which such
transfer is made, shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or Empress, as the case may be, under the
Indenture and the Notes with the same effect as if such successor corporation
had been named therein as the Company or Empress, as the case may be, and the
Company or Empress, as applicable, shall be released from its obligations under
the Indenture and the Notes, except as to any obligations that arise from or as
a result of such transaction.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default
------------------
(a) "Event of Default," wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be caused voluntarily or involuntarily or effected, without limitation,
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the failure by the Company or any Guarantor to pay any installment
of interest on the Notes or any of the Mirror Notes, as applicable, as and when
due and payable and the continuance of any such failure for 30 days;
(2) the failure by the Company to pay all or any part of the principal
of, premium, if any, on the Notes, when and as the same become due and payable
at maturity, redemption, by acceleration or otherwise, including, without
limitation, failure to pay any Offer to Purchase Price, or otherwise, or the
failure by any Guarantor to pay or prepay any of the Mirror Notes in an amount
sufficient to enable the Company to make any such payment;
(3) except as otherwise provided herein, the failure by the Company or
any Guarantor to observe or perform any other covenant or agreement contained in
the Notes, the Mirror Notes, the Indenture or the Guarantor Loan Agreement, as
applicable, and the continuance of such failure for a period of 30 days after
written notice is given to the Company by the Trustee or to the
65
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Notes outstanding;
(4) a decree, judgment, or order by a court of competent jurisdiction
shall have been entered adjudging the Company, any of the Guarantors or any of
their Subsidiaries as bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization of the Company, such Guarantors or any of their
Subsidiaries under any bankruptcy or similar law, and such decree or order shall
have continued undischarged and unstayed for a period of 60 days; or a decree or
order of a court of competent jurisdiction over the appointment of a receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency of the Company,
such Guarantors or any of their Subsidiaries, or of the property of any such
person, or for the winding up or liquidation of the affairs of any such person,
shall have been entered, and such decree, judgment, or order shall have remained
in force undischarged and unstayed for a period of 60 days;
(5) the Company, any of the Guarantors or any of their Subsidiaries
shall institute proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against it, or shall file a
petition or answer or consent seeking reorganization under any bankruptcy or
similar law or similar statute, or shall consent to the filing of any such
petition, or shall consent to the appointment of a Custodian, receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency of it or any of its
assets or property, or shall make a general assignment for the benefit of
creditors, or shall take any corporate action in furtherance of or to
facilitate, conditionally or otherwise, any of the foregoing, or shall admit in
writing its inability to pay its debts generally as they become due, or shall,
within the meaning of any Bankruptcy Law, (i) with respect to Empress only,
become insolvent, or (ii) fail generally to pay its debts as they become due.
(6) a default in the payment of principal of, premium or interest when
due which extends beyond any stated period of grace applicable thereto or an
acceleration for any other reason of maturity of any Indebtedness of the
Company, any of the Guarantors or any of their respective Subsidiaries with an
aggregate principal amount in excess of $5,000,000;
(7) final unsatisfied judgments no longer subject to appeal not
covered by insurance aggregating in excess of $5,000,000, at any one time
rendered against the Company, any of the Guarantors or any of their respective
Subsidiaries and not stayed, bonded or discharged within 60 days; and
(8) the loss for 90 days of the legal right to conduct gaming
operations at any Casino.
66
(b) If a Default occurs and is continuing, the Trustee shall,
within 90 days after the occurrence of such default, give to the Holders notice
of such default; provided, however, that Empress shall have the right to cure
--------
any Default and thereupon such Default shall be deemed never to have occurred,
including any payment default (but excluding any default pursuant to Section
7.1(a)(4), (5) or (8)) by the Company or any other Guarantor; and provided
--------
further, that with respect to any optional redemption or Required Regulatory
-------
Redemption pursuant to Article III or any Offer to Purchase or the payment of
principal of, premium, if any, or interest on, the Notes and/or the Mirror Notes
on any Payment Date, the failure by a Guarantor (other than Empress) to deposit
funds (including the payment of interest) as required by this Indenture shall
not constitute a Default so long as Empress has deposited U.S. Legal Tender with
the Company in an amount sufficient to enable the Company to purchase the
principal amount of, and pay accrued and unpaid interest on, Securities to be
acquired as required pursuant to the terms of this Indenture.
Section 7.2 Acceleration of Maturity Date; Rescission and Annulment.
-------------------------------------------------------
(a) If an Event of Default (other than an Event of Default
specified in Sections 7.1(a)(4) or (5)) occurs and is continuing relating to the
Company, any Guarantor or any of their Subsidiaries, then, and in every such
case, unless the principal of all of the Securities shall have already become
due and payable, either the Trustee or the Holders of not less then 25% in
aggregate principal amount of then outstanding Securities, by a notice in
writing to the Company (and to the Trustee if given by Holders) (an
"Acceleration Notice"), may declare all of the principal of, premium, if any,
and accrued and unpaid interest on, the Securities, determined as set forth
below to be due and payable immediately. If an Event of Default specified in
Sections 7.1(a)(4) or (5) occurs, all principal of, premium, if any, and accrued
and unpaid interest on, the Securities shall be immediately due and payable on
all outstanding Securities without any declaration or other act on the part of
the Trustee or the Holders.
(b) At any time before or after such a declaration of
acceleration is made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter provided in this Article
VII, the Holders of a majority in aggregate principal amount of then outstanding
Securities, by written notice to the Company and the Trustee, may waive, on
behalf of all Holders, any Default or an Event of Default if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
67
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any,
applicable to) any Securities which would become due
otherwise than by such declaration of acceleration, and
interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
the Securities,
(D) all sums paid or advanced by the Trustee
hereunder and the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and
(2) all Events of Default, other than the non-payment of amounts which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 7.12.
Notwithstanding the previous sentence of this Section 7.2, no waiver shall be
effective for any Default or 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 Security affected, unless all such affected Holders agree,
in writing, to waive such Default or Event of Default. No such waiver shall
cure or waive any subsequent default or impair any right consequent thereon.
Section 7.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
The Company covenants that if an Event of Default in payment of
principal of, premium, if any, or interest on, the Notes as specified in Section
7.1(a)(1) and (2) occurs and is continuing, the Company shall, upon demand of
the Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal, premium, if any, and interest on, the Notes, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate borne
by the Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including compensation
to, and expenses, disbursements and advances of the Trustee, its agents and
counsel.
68
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial Proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 7.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise to take any and
all actions under the TIA, including
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such
69
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 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 8.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, or composition affecting the Securities
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 7.5 Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
Section 7.6 Priorities.
----------
Any money collected by the Trustee pursuant to this Article VII shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal of,
premium, if any, or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 8.7;
SECOND: To the Holders in payment of the amounts then due and unpaid
for principal of, premium, if any, and accrued and unpaid interest on, the
Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable for principal of, premium, if any, and interest on, such
Securities, respectively; and
THIRD: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
70
Section 7.7 Limitation on Suits.
-------------------
No Holder of any Security shall have any right to order or direct the
Trustee to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(A) such Holder has previously given written
notice to the Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% of the
aggregate principal amount of the then outstanding
Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(C) such Holder or Holders have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities to be incurred or reasonably
probable to be incurred in compliance with such request;
(D) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed
to institute any such proceeding; and
(E) no direction inconsistent with such
written request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the
outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 7.8 Unconditional Right of Holders to Receive Principal,
---------------------------------------------------
Premium and Interest.
--------------------
Notwithstanding any other provision of this Indenture, the Holder of
any Security shall have the right, which is abso-
71
lute and unconditional, to receive payment of the principal of, premium, if any,
and interest on, such Security on the Maturity Dates of such payments as
expressed in such Security (in the case of redemption, the Redemption Price on
the applicable Redemption Date, in the case of the Change of Control Offer
Price, on the applicable Change of Control Payment Date, in the case of the
Guarantor Sale Purchase Price, on the applicable Guarantor Sale Payment Date, in
the case of the Asset Sale Offer Price, on the Asset Sale Purchase Date and, in
the case of a Casino Purchase Offer, on the applicable Casino Offer Payment
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 7.9 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 7.10 Delay or Omission Not Waiver.
----------------------------
No delay or omission by the Trustee or by any Holder of any Security
to exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VII or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 7.11 Control by Holders.
------------------
The Holder or Holders of a majority of the aggregate principal amount
of the then outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred upon the Trustee, provided,
--------
that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction, and
72
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 7.12 Waiver of Past Default.
-----------------------
Subject to Section 7.8, the Holder or Holders of not less than a
majority of the aggregate principal amount of the then outstanding Securities
may, by written notice to the Trustee on behalf of all Holders, prior to the
declaration of the maturity of the Securities, waive any past Default or Event
of Default hereunder and its consequences, except a Default or Event of Default
(A) in the payment of the principal of,
premium, if any, or interest on, any Security as specified
in clauses (1) and (2) of Section 7.1(a), or
(B) in respect of a covenant or provision
hereof which, under, Article X, cannot be modified or
amended without the consent of the Holder of each
outstanding Security affected.
Upon any such waiver, such Default or Event of 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 Event of Default or impair the exercise of
any right arising therefrom.
Section 7.13 Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted to be taken by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 7.13 shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the outstanding Securities, or to any suit
instituted by any Holder for enforcement of the payment of principal of,
73
premium, if any, or accrued and unpaid interest on, any Security on or after the
Maturity Date of such Security.
Section 7.14 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Guarantor, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
ARTICLE VIII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
Section 8.1 Duties of Trustee.
-----------------
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no others, and no covenants or obligations shall
be implied in or read into this Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
74
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 8.1.
(2) The Trustee shall comply with any order or directive of a Gaming
Authority that the Trustee submit an application for any license, finding of
suitability or other approval pursuant to any Gaming Law and will cooperate
fully and completely in any proceeding related to such application.
(3) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(4) 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 7.11.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or at the request, order or direction of the Holders or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 8.1.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
Section 8.2 Rights of Trustee.
-----------------
Subject to Section 8.1:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
75
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 14.4 and 14.5. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Except with respect to Section 5.1, the Trustee shall have
no duty to inquire as to the performance of the Company's covenants in Article V
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 7.1(a)(1), 7.1(a)(2) and 5.1, or (ii) any Default or Event of
Default of which the Trustee shall have received written notification or
obtained actual knowledge.
Section 8.3 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, any
Guarantor, any of their respective Subsidiaries, or their respective Affiliates
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee must comply with Sections 8.10 and
8.11.
Section 8.4 Trustee's Disclaimer.
--------------------
76
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities and it shall not be accountable for the
Company's use of the proceeds from the Securities following the release of such
proceeds in accordance with the terms of this Indenture, and it shall not be
responsible for any statement in the Securities, other than the Trustee's
certificate of authentication, or the use or application of any funds received
by a Paying Agent other than the Trustee.
Section 8.5 Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder notice of
the uncured Default or Event of Default within 90 days after such Default or
Event of Default occurs. Except in the case of a Default or an Event of Default
in payment of principal of, premium, if any, or interest on, any Security
(including the payment of the Change of Control Offer Price on the Change of
Control Payment Date, the Redemption Price on the Redemption Date, the Asset
Sale Offer Price on the Asset Sale Purchase Date, the Casino Offer Price on the
Casino Offer Payment Date and the Guarantor Sale Purchase Price on the Guarantor
Sale Payment Date, as the case may be), the Trustee may withhold the notice if
and so long as a Trust Officer in good faith determines that withholding the
notice is in the interest of the Securityholders.
Section 8.6 Reports by Trustee to Holders.
-----------------------------
If required by law, within 60 days after each May 15 beginning with
the May 15 following the date of this Indenture, the Trustee shall mail to each
Securityholder a brief report dated as of such May 15 that complies with TIA (S)
313(a). If required by law, the Trustee also shall comply with TIA (S)(S) 313(b)
and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
Section 8.7 Compensation and Indemnity.
--------------------------
The Company shall pay (or the Guarantors shall cause to be paid) to
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse (or the Guarantors
shall
77
cause to be reimbursed) the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel.
The Company and the Guarantors shall indemnify the Trustee (in its
capacity as Trustee) and each of its officers, directors, attorneys-in-fact and
agents for, and hold it harmless against, any claim, demand, expense (including
but not limited to reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel), loss or liability incurred by them without
negligence or bad faith on its part, arising out of or in connection with the
administration of this trust and their rights or duties hereunder including the
reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall provide reasonable cooperation at the
Company's expense in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel; provided,
--------
that the Company and the Guarantors will not be required to pay such fees and
expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Guarantors and the Trustee in connection
with such defense. The Company and the Guarantors need not pay for any
settlement made without its written consent. The Company and the Guarantors
need not reimburse any expense or indemnify against any loss or liability to the
extent incurred by the Trustee through its negligence, bad faith or willful
misconduct.
To secure the Company's and the Guarantors' payment obligations in
this Section 8.7, the Trustee shall have a lien prior to the Securities on all
assets held or collected by the Trustee, in its capacity as Trustee, except
assets held in trust to pay principal of, premium, if any, or interest on
particular Securities.
When the Trustee incurs expenses or renders services after a Default
or Event of Default specified in Section 7.1(a)(4) or (5) occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's and the Guarantors' obligations under this Section 8.7
and any lien arising hereunder shall survive the resignation or removal of the
Trustee, the discharge of the Company's and the Guarantors' obligations pursuant
to Article IX of this Indenture and any rejection or termination of this
Indenture under any Bankruptcy Law.
78
Section 8.8 Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority of the principal amount of the then outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee in
writing and may appoint a successor trustee with the Company's consent. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 8.1(e) or 8.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, Custodian, or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
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 Holder or Holders of a majority of the principal amount of the Securities
then outstanding may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 8.7 have
been paid, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 8.7,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
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
Holder or Holders of at least 10% of the principal amount of the then
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
79
Notwithstanding replacement of the Trustee pursuant to this Section
8.8, the Company's obligations under Section 8.7 shall continue for the benefit
of the retiring Trustee.
Section 8.9 Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
Section 8.10 Eligibility; Disqualification.
-----------------------------
The Trustee shall at all times satisfy the requirements of TIA (S)
310(a)(1) and TIA (S) 310(a)(5). The Trustee shall have a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA (S) 310(b).
Section 8.11 Preferential Collection of Claims against Company.
-------------------------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
ARTICLE IX
SATISFACTION AND DISCHARGE;
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 9.1 Option to Effect Legal Defeasance or Covenant
---------------------------------------------
Defeasance.
----------
The Company may, at its option at any time within the final year of
the Stated Maturity of the Securities, elect to have Section 9.2 or, at any
time, Section 9.3 applied to all outstanding Securities upon compliance with the
conditions set forth below in this Article IX.
Section 9.2 Legal Defeasance and Discharge
------------------------------
Upon the Company's exercise under Section 9.1 of its option applicable
to this Section 9.2, the Company shall be deemed to have paid and discharged its
obligations and the Indenture shall cease to be of further effect with respect
to all outstanding Securities and the Guarantees from and after the date the
conditions set forth below are satisfied (hereinafter, "Legal
80
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Securities and the Guarantees, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 9.5 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Securities and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Securities to receive solely from the trust fund
described in Section 9.4, and as more fully set forth in such section, payments
in respect of the principal of, premium, if any, and interest on such Securities
when such payments are due, (b) the Company's obligations with respect to such
Securities under Sections 2.4, 2.6, 2.7, 2.10 and 5.2, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Section 9.2 relating to Legal
Defeasance. Subject to compliance with this Article IX, the Company may exercise
its option under this Section 9.2 notwithstanding the prior exercise of its
option under Section 9.3 with respect to the Securities.
Section 9.3 Covenant Defeasance. Upon the Company's exercise of its
-------------------
option under Section 9.1 applicable to this Section 9.3, the Company, all
Guarantors and the Parent Guarantor, if any, shall be released from their
respective obligations under the covenants contained in Sections 5.3, 5.6, 5.7,
5.8, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17, 5.18, 5.19, 5.20, 5.21 and
5.22 and Articles VI and XII with respect to the outstanding Securities on and
after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Securities 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 (it being understood that such Securities shall not be deemed
outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Securities, the Company
need not comply with and shall have no 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 and such Securities shall be unaffected thereby. In addition, upon
the Company's exercise of its option applicable to this Section 9.3, Sections
7.1(a)(3), 7.1(a)(6) and 7.1(a)(8) shall not constitute Events of Default.
81
Section 9.4 Conditions to Legal Defeasance and Covenant Defeasance.
------------------------------------------------------
The following shall be the conditions to the application of either
Section 9.2 or 9.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 8.10 who shall agree to comply with the provisions of this Article IX
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) U.S. Legal Tender in an
amount, or (b) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, U.S. Legal
Tender in an amount, or (c) a combination thereof, in such amounts, as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge the principal of, premium, if
any, and interest on, the outstanding Securities on the Stated Maturity date for
payment thereof or on the applicable Redemption Date, as the case may be, of
such principal or installment of principal of, premium, if any, or interest on
such Securities; provided that the Trustee shall have been irrevocably
--------
instructed to apply such U.S. Legal Tender or the proceeds of such U.S.
Government Obligations to said payments with respect to the Securities.
(b) In the case of an election under Section 9.2, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably satisfactory to the Trustee confirming that (i) the Company has
received from, or there has been published by the Internal Revenue Service a
ruling, or (ii) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of the outstanding Securities 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;
(c) In the case of an election under Section 9.3, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee to the effect that the Holders of the
outstanding Securities will not recognize income, gain or loss for Federal
income tax purpos-
82
es as a result of such Covenant Defeasance and will be subject to Federal income
tax in the same amount, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Section 7.1(a)(4) or
7.1(a)(5) is concerned, at any time in the period ending on the 91st day after
the date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company,
the Guarantors, the Parent Guarantor or any of their Subsidiaries is a party or
by which any of them is bound;
(f) In the case of an election under Section 9.2 or 9.3, the
Company shall have delivered to the Trustee an Officers' Certificate stating
that the deposit made by the Company pursuant to its election under such Section
was not made by the Company with the intent of preferring the Holders over other
creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others; and
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating that
all conditions precedent provided for or relating to either the Legal Defeasance
or the Covenant Defeasance have been complied with as contemplated by this
Section 9.4.
Section 9.5 Deposited U.S. Legal Tender and U.S. Government
-----------------------------------------------
Obligations to be Held in Trust; Other Miscellaneous Provisions.
---------------------------------------------------------------
Subject to Section 9.7, all U.S. Legal Tender and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 9.5 the
"Trustee,") pursuant to Section 9.4 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal of, premium, if any, and interest on, the Securities but such money
need not be segregated from other funds except to the extent required by law.
83
The Company, the Guarantors and the Parent Guarantor, jointly and
severally, agree to pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Legal Tender or U.S. Government
Obligations deposited pursuant to Section 9.4 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 the outstanding Securities.
Anything in this Article IX to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time any U.S. Legal
Tender or U.S. Government Obligations held by it as provided in Section 9.4
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 9.4(a)), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 9.6 Application of Trust Assets.
----------------------------
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable trust established pursuant to
Section 9.4. The Trustee shall apply the deposited U.S. Legal Tender or U.S.
Government Obligations, together with earnings thereon, through the Paying
Agent, in accordance with this Indenture and the terms of the Securities, to the
payment of principal of, and interest on, the Securities.
Section 9.7 Repayment to the Company.
------------------------
Upon termination of the trust established pursuant to Section 9.4, by
payment of the trust property to the Holders, the Trustee and the Paying Agent
shall promptly pay to the Company any excess U.S. Legal Tender or U.S.
Government Obligations held by them.
The Trustee and the Paying Agent shall promptly pay to the Company,
and, if applicable, in accordance with the irrevocable trust established
pursuant to Section 9.4, any U.S. Legal Tender or U.S. Government Obligations
held by them for the payment of principal of or interest on the Securities that
remain unclaimed for two years after the date on which such payment shall have
been become due; provided, however, that the Trustee or such Paying Agent,
-------- -------
before being required to make any such repayment, may, at the expense of the
Company, cause to be published once, in a newspaper customarily published on
each Business Day and of general circulation in the Borough of Manhattan, The
City of New York, 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 publication, any unclaimed balance of
84
such money then remaining shall be repaid to the Company. After payment to the
Company, Holders entitled to such payment must look to the Company for such
payment as general creditors unless an applicable abandoned property law
designates another person.
Section 9.8 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 9.2 or 9.3 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.2 or 9.3 until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in
accordance with Section 9.2 or 9.3; provided, however, that if the Company or a
-------- -------
Guarantor has made any payment of principal of, premium, if any, or interest on,
any Securities because of the reinstatement of its obligations, the Company or
such Guarantor shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the U.S. Legal Tender or U.S. Government
Obligations held by the Trustee or Paying Agent.
Section 9.9 Termination of Obligations upon Cancellation of the
---------------------------------------------------
Securities.
----------
In addition to the Company's rights under Section 9.1 the Company and
the Guarantors may terminate all of their obligations under this Indenture
(subject to Section 9.3) when:
(1) all Securities theretofore authenticated and delivered (other
than Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.7) have been delivered to the Trustee
for cancellation;
(2) the Company or a Guarantor has paid or caused to be paid all sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel (who may be outside counsel to the Company, but not
in-house counsel to the Company or any of its Subsidiaries), each in form and
substance satisfactory to the Trustee, stating that all conditions precedent
specified herein relating to the satisfaction and discharge contemplated by this
Section 9.9 have been complied with and that such satisfaction and discharge
will not result in a breach or violation of, or constitute a Default under, this
Indenture or any other instrument to which the Company, any Guarantor or any of
their Subsidiaries is a party or by which it or their property is bound.
85
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.1 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holder, the Company or any Guarantor, when
authorized by Board Resolutions, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto for any of the
following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this Indenture,
provided such action pursuant to this clause (1) shall not adversely affect the
interests of any Holder in any respect;
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company or
to make any other change that does not adversely affect the rights of any
Holder; provided, that the Company has delivered to the Trustee an Opinion of
--------
Counsel stating that such change does not adversely affect the rights of any
Holder;
(3) to provide for additional Guarantors of the Securities;
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(5) to evidence the succession of another person to the Company, and
the assumption by any such successor of the obligations of the Company, herein
and in the Securities in accordance with Article VI; or
(6) to comply with the TIA.
Section 10.2 Amendments, Supplemental Indentures and Waivers with
----------------------------------------------------
Consent of Holders.
------------------
Subject to Section 7.8 and the last sentence of this paragraph, with
the consent of the Holders of not less than a majority of the aggregate
principal amount of the then outstanding Securities, by written act of said
Holders delivered to the Company and the Trustee, the Company and any Guarantor,
when authorized by Board Resolutions, and the Trustee may amend or supplement
this Indenture or the Securities or enter into an indenture or indentures
supplemental hereto for the purpose of
86
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or the Securities or of modifying in any manner the
rights of the Holders under this Indenture or the Securities. Subject to Section
7.8 and the last sentence of this paragraph, the Holder or Holders of a
majority, of the aggregate principal amount of the then outstanding Securities
may waive compliance by the Company or any Guarantor with any provision of this
Indenture or the Securities. Notwithstanding the foregoing provisions of this
Section 10.2, no such amendment, supplemental indenture or waiver shall, without
the consent of the Holders of at least 66-2/3% of the aggregate principal amount
of outstanding Securities, change any provision of Article IV or Article XIII or
(except for the Stated Maturity, which is governed by clause (4) below) extend
any Maturity Date of any Security, and no such amendment, supplemental indenture
or waiver shall, without the consent of the Holder of each outstanding Security
affected thereby:
(1) reduce the percentage of principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver of any provision of
this Indenture or the Securities;
(2) reduce the rate or extend the time for payment of interest on any
Security;
(3) reduce the principal amount of any Security, or reduce any
Purchase Price of, or any premium payable upon the redemption of, any Security;
(4) change the Stated Maturity of any Security;
(5) alter the redemption provisions of Article III in a manner
adverse to any Holder;
(6) make any changes in the provisions concerning waivers of Defaults
or Events of Default by Holders of the Securities (except to increase any
required percentage or to provide that certain other provisions hereof cannot be
modified or waived without the consent of the Holders of each outstanding
Security affected thereby) or the rights of Holders to recover the principal or
premium of, interest on, or redemption payment with respect to, any Security;
(7) make any changes in Section 7.4, 7.7 or this third sentence of
this Section 10.2;
(8) make the principal of, or the interest on, any Security payable
with anything or in any manner (including, without limitation, changing the
place of payment where, or the coin or currency in which, any Security, or any
premium or interest thereon is payable) other than as provided for in this
Indenture and the Securities as in effect on the date hereof; or
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(9) make the Securities, the Guarantees or the Mirror Notes
subordinated in right of payment to any extent or under any circumstances to any
other Indebtedness.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
After an amendment, supplement or waiver under this Section 10.2 or
10.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article X, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Section 10.3 Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
Section 10.4 Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security by written notice to the
Company or the person designated by the Company as the person to whom consents
should be sent if such revocation is received by the Company or such person
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding
88
the provisions of the TIA. If a record date is fixed, then notwithstanding the
last sentence of the immediately preceding paragraph, those persons who were
Holders at such record date, and only those persons (or their duly designated
proxies), shall be entitled to revoke any consent previously given, whether or
not such persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (9) of Section 10.2, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided, that any such
--------
waiver shall not impair or affect the right of any Holder to receive payment of
principal of, premium, if any, and interest on, a Security, on or after the
respective dates set for such amounts to become due and payable expressed in
such Security, or to bring suit for the enforcement, of any such payment on or
after such respective dates.
Section 10.5 Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee
or require the Holder to put an appropriate notation on the Security. The
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue, the
Guarantors shall endorse and the Trustee shall authenticate a new Security that
reflects the changed terms. Any failure to make the appropriate notation or to
issue a new Security shall not affect the validity of such amendment, supplement
or waiver.
Section 10.6 Trustee to Sign Amendments, Etc.
-------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article X, provided, that the Trustee may, but shall
not be obligated to, execute any such amendment, supplement or waiver which
affects the Trustee's own rights, duties or immunities under this Indenture.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article X is authorized or
permitted by this Indenture.
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ARTICLE XI
MEETINGS OF SECURITYHOLDERS
Section 11.1 Purposes for Which Meetings May Be Called.
-----------------------------------------
A meeting of Securityholders may be called at any time and from time
to time pursuant to the provisions of this Article XI for any of the following
purposes:
(a) to give any notice to the Company, any Guarantor or to the
Trustee, or to give any directions to the Trustee, or to waive or to consent to
the waiving of any Default or Event of Default hereunder and its consequences,
or to take any other action authorized to be taken by Securityholders pursuant
to any of the provisions of Article VII;
(b) to remove the Trustee or appoint a successor Trustee
pursuant to the provisions of Article VIII;
(c) to consent to an amendment, supplement or waiver pursuant to
the provisions of Section 10.2; or
(d) to take any other action (i) authorized to be taken by or on
behalf of the Holder or Holders of any specified aggregate principal amount of
the Securities under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate in
connection with the administration of this Indenture.
Section 11.2 Manner of Calling Meetings.
---------------------------
The Trustee may at any time call a meeting of Securityholders to take
any action specified in Section 11.1, to be held at such time and at such place
in The City of New York, State of New York or elsewhere as the Trustee shall
determine. Notice of every meeting of Securityholders, setting forth the time
and place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed by the Trustee, first-class postage prepaid, to
the Company, the Guarantors and to the Holders at their last addresses as they
shall appear on the registration books of the Registrar, not less than 10 nor
more than 60 days prior to the date fixed for a meeting. The Company shall pay
the costs and expenses of preparing and mailing such notice.
Any meeting of Securityholders shall be valid without notice if the
Holders of all Securities then outstanding are present in person or by proxy, or
if notice is waived before or after the meeting by the Holders of all Securities
outstanding, and if the Company and the Trustee are either present by duly
90
authorized representatives or have, before or after the meeting, waived notice.
Section 11.3 Call of Meetings by Company or Holders.
--------------------------------------
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of not less than 10% in aggregate principal amount of the Securities
then outstanding, shall have requested the Trustee to call a meeting of
Securityholders to take any action specified in Section 11.1, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or the Holders of
Securities in the amount above specified may determine the time and place in The
City of New York, State of New York or elsewhere for such meeting and may call
such meeting for the purpose of taking such action, by mailing or causing to be
mailed notice thereof as provided in Section 11.2, or by causing notice thereof
to be published at least once in each of two successive calendar weeks (on any
Business Day during such week) in a newspaper or newspapers printed in the
English language, customarily published at least five days a week of a general
circulation in The City of New York, State of New York, the first such
publication to be not less than 10 nor more than 60 days prior to the date fixed
for the meeting.
Section 11.4 Who May Attend and Vote at Meetings.
-----------------------------------
To be entitled to vote at any meeting of Securityholders, a person
shall (a) be a registered Holder of one or more Securities, or (b) be a person
appointed by an instrument in writing as proxy for the registered Holder or
Holders of Securities. The only persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the persons entitled to vote
at such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company, the Guarantors and their
counsel.
Section 11.5 Regulations May Be Made by Trustee; Conduct of the
--------------------------------------------------
Meeting; Voting Rights; Adjournment.
-----------------------------------
Notwithstanding any other provision of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any action by or
any meeting of Securityholders, in regard to proof of the holding of Securities
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, and submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think appropriate. Such regulations may fix
a record date and time for determining the Holders of record of Securities
entitled
91
to vote at such meeting, in which case those and only those persons who are
Holders of Securities at the record date and time so fixed, or their proxies,
shall be entitled to vote at such meeting whether or not they shall be such
Holders at the time of the meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 11.3, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
At any meeting each Securityholder or proxy shall be entitled to one
vote for each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
-------- -------
respect of any Securities challenged as not outstanding and ruled by the
chairman of the meeting to be not then outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities held by him or
instruments in writing as aforesaid duly designating him as the proxy to vote on
behalf of other Securityholders. Any meeting of Securityholders duly called
pursuant to the provisions of Section 11.2 or Section 11.3 may be adjourned from
time to time by vote of the Holder or Holders of a majority in aggregate
principal amount of the Securities represented at the meeting and entitled to
vote, and the meeting may be held as so adjourned without further notice.
Section 11.6 Voting at the Meeting and Record to Be Kept.
-------------------------------------------
The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amount of the Securities voted by the ballot. The permanent
chairman of the meeting shall appoint two inspectors of votes, who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to such record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts, setting forth a
copy of the notice of the meeting and showing that such notice was mailed as
provided in Section 11.2 or published as provided in Section 11.3. The
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record shall be signed and verified by the affidavits of the permanent chairman
and the secretary of the meeting and one of the duplicates shall be delivered to
the Company and the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 11.7 Exercise of Rights of Trustee or Securityholders May
----------------------------------------------------
Not Be Hindered or Delayed by Call of Meeting.
---------------------------------------------
Nothing contained in this Article XI shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Securityholders or
any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Securityholders under any of the provisions of
this Indenture or of the Securities.
ARTICLE XII
RIGHT TO REQUIRE REPURCHASE UPON CHANGE OF CONTROL
Section 12.1 Repurchase of Securities at Option of the Holder Upon
-----------------------------------------------------
Change of Control.
-----------------
(a) In the event that a Change of Control occurs, each Holder of
Securities shall have the right pursuant to an irrevocable, unconditional offer
by the Company (the "Change of Control Offer"), at such Holder's option, subject
to the terms and conditions of this Indenture, to require the Company to
repurchase all or any portion of such Holder's Notes (provided, that the
principal amount of such Notes at maturity must be $1,000 or an integral
multiple thereof) on the date that is no later than 35 Business Days after the
occurrence of such Change of Control (the "Change of Control Payment Date"), at
a cash price (the "Change of Control Offer Price") equal to 101% of the
principal amount thereof, plus accrued and unpaid interest to and including the
Change of Control Payment Date.
(b) In the event that, pursuant to this Section 12.1, the Company
shall be required to commence a Change of Control Offer, the Company (or the
Trustee, upon the request and at the expense of the Company) shall, within 10
Business Days following a Change of Control, commence a Change of Control Offer
by sending written notice by first-class mail to each Holder at its registered
address, with a copy to the Trustee, of the commencement of such Change of
Control Offer. The Company shall use its best efforts to provide the Trustee
with notice of the Change
93
of Control Offer at least 5 Business Days before the commencement of any Change
of Control Offer. A Change of Control Offer shall remain open for 20 Business
Days following its commencement, except to the extent that a longer period is
expressly required by applicable law (the "Change of Control Offer Period"). On
or prior to the date of the expiration of the Change of Control Offer Period
(the "Change of Control Put Date"), Holders electing to have a Security (or
portion thereof) purchased pursuant to a Change of Control Offer must surrender
their Security as set forth in Section 12.1(b)(5) below. On or prior to the
Change of Control Payment Date, the Company shall purchase all Notes tendered in
accordance with the terms hereof in response to the Change of Control Offer.
The notice to the Holders shall contain all information, instructions
and materials required by applicable law or otherwise material to such Holders'
decision to tender Securities pursuant to the Change of Control Offer. The
notice (to the extent consistent with this Indenture) shall govern the terms of
the Change of Control Offer and shall state:
(1) that the change of Control Offer is being made pursuant to such
notice and this Section 12.1;
(2) the Change of Control Offer Price (including the amount of
accrued and unpaid interest), the Change of Control Put Date and the Change of
Control Payment Date;
(3) that any Security or portion thereof not tendered or accepted for
payment will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults in depositing U.S. Legal Tender
with the Paying Agent, as provided pursuant to the last paragraph of this
Section 12.1(b), in an amount sufficient to purchase the principal amount of,
and pay accrued and unpaid interest on, Securities to be acquired pursuant to
the Change of Control Offer, any Security or portion thereof accepted for
payment pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(5) that Holders electing to have a Security, or any portion thereof,
purchased pursuant to a Change of Control Offer will be required to surrender
the Security, together with the properly completed form entitled "Option of
Holder to Elect Purchase" (located on the reverse of the Security), to the
Paying Agent at the address specified in the notice on or prior to the close of
business on the Change of Control Put Date;
(6) that Holders will be entitled to withdraw their elections to have
Securities purchased pursuant to the Change of Control Offer, in whole or in
part, if the Paying Agent receives,
94
on or prior to the close of business on the Change of Control Put Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Securities the Holder is withdrawing and a
statement that such Holder is withdrawing his election to have such principal
amount of Securities purchased pursuant to the Change of Control Offer;
(7) that the Company shall purchase Securities such that only
Securities in denominations of $1,000 at maturity or integral multiples of
$1,000 shall be acquired;
(8) that Holders whose Securities were purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion of
the Securities surrendered;
(9) if the Change of Control Payment Date is on or after an interest
payment record date and on or before the related interest payment date, any
accrued interest will be paid to the person in whose name a Security is
registered at the close of business on such record date, and no additional
interest will be payable to Securityholders who tender Securities pursuant to
the Change of Control offer; and
(10) a brief description of the circumstances and relevant facts
regarding such Change of Control.
Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture that conflict with such laws
shall be deemed to be superseded by the provisions of such laws.
No later than 12:00 noon, New York City Time, on Change of Control
Payment Date, the Company (i) shall accept for payment Securities or portions
thereof properly tendered pursuant to the Change of Control Offer and (ii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate listing the Securities or portions thereof being purchased by the
Company. No later than 12:00 noon, New York City Time, on a Change of Control
Payment Date, Empress shall irrevocably deposit with the Company and the Company
shall irrevocably deposit with the Paying Agent U.S. Legal Tender sufficient to
purchase the principal amount of, and pay accrued and unpaid interest on, all
Securities so accepted. On or prior to the close of business of the Business
Day immediately preceding the Change of Control Payment Date, Xxxxxxx Empress,
Xxxxxxx Leasing or any Additional Guarantor, as applicable, shall pay to Empress
U.S. Legal Tender in an amount equal to its Proportionate Share of the amount
Empress is required to deposit with the Company pursuant to this paragraph,
subject to the joint and several obligations of each Guarantor with respect to
such payments. Empress' payment to the Company pursuant to this paragraph shall
represent a prepayment of
95
principal of, premium, if any, and interest on, the Mirror Note of Empress in an
amount equal to the amount paid to the Company. Any payment made by Xxxxxxx
Empress, Xxxxxxx Leasing or any Additional Guarantor, as applicable, to Empress
pursuant to this paragraph shall represent, in each case, a prepayment of
principal of, premium, if any, and interest on, the Mirror Note of Xxxxxxx
Empress, Xxxxxxx Leasing and such Additional Guarantor, as applicable, in an
amount equal to such amount paid to Empress. The Paying Agent shall promptly
mail or deliver to each Holder of Securities so accepted, payment in an amount
equal to the Change of Control Offer Price, plus accrued and unpaid interest,
for such Securities, and the Company shall execute and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security equal
in principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Paying
Agent to the Holder thereof. The Company (or the Trustee, upon the request and
at the expense of the Company) shall notify the Holders of the results of the
Change of Control Offer promptly after the Change of Control Payment Date.
ARTICLE XIII
GUARANTY
Section 13.1 Guaranty.
--------
(a) In consideration of good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each of the Guarantors
hereby, jointly and severally, and irrevocably and unconditionally guarantees
(the "Guaranty") to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Securities or the obligations
of the Company under this Indenture or the Securities, that: (w) the principal
of, premium, if any, and interest on, the Securities will be paid in full when
due, whether at the maturity or interest payment date, by acceleration, call for
redemption, upon an Offer to Purchase, or otherwise; (x) all other obligations
of the Company to the Holders or the Trustee under this Indenture or the
Securities will be promptly paid in full or performed, all in accordance with
the terms of this Indenture and the Securities; and (y) in case of any extension
of time of payment or renewal of any Securities or any of such other
obligations, the Securities or such other obligations will be paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at maturity, by acceleration, call for redemption, upon an Offer to
Purchase or otherwise. Failing payment when due of any amount so guaranteed for
whatever reason, each Guarantor shall be obligated promptly to pay in full the
same before failure so to
96
pay becomes an Event of Default without the necessity of any action by the
Trustee or any Holder.
(b) Each Guarantor hereby agrees that its obligations with
regard to this Guaranty shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this indenture, the absence of
any action to enforce the same, any delays in obtaining or realizing upon or
failures to obtain or realize upon collateral, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstances
that might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company or
right to require the prior disposition of the assets of the Company to meet its
obligations, protest, notice and all demands whatsoever and covenants that this
Guaranty will not be discharged except by complete performance of the
obligations contained in the Securities and this Indenture or as provided by
Section 13.5 hereof.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Guarantor, or any Custodian,
Trustee, or similar official acting in relation to either the Company or such
Guarantor, any amount paid by either the Company or such Guarantor 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 it will
not be entitled to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby has been made. Each Guarantor further agrees that,
as between such Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 7.2 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 7.2, 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.
(d) It is the intention of each Guarantor and the Company that
the obligations of each Guarantor hereunder shall be in, but not in excess of,
the maximum amount permitted by applicable law. Accordingly, if the obligations
in respect of the Guaranty would be annulled, avoided or subordinated to the
creditors of any Guarantor by a court of competent jurisdiction in a proceeding
actually pending before such court as a result of a determination both that such
Guaranty was made without fair
97
consideration and, immediately after giving effect thereto, such Guarantor was
insolvent or unable to pay its debts as they mature or left with an unreasonably
small capital, then the obligations of such Guarantor under such Guaranty shall
be reduced by such court if such reduction would result in the avoidance of such
annulment, avoidance or subordination; provided, however, that any reduction
pursuant to this paragraph shall be made in the smallest amount as is strictly
necessary to reach such result. For purposes of this paragraph, "fair
consideration", "insolvency", "unable to pay its debts as they mature",
"unreasonably small capital" and the effective times of reductions, if any,
required by this paragraph shall be determined in accordance with applicable
law.
Section 13.2 Execution and Delivery of Guaranty.
----------------------------------
To evidence its Guaranty set forth in Section 13.1, each Guarantor
agrees that a notation of such Guaranty substantially in the form annexed hereto
as Exhibit B shall be endorsed on each Security authenticated and delivered by
the Trustee and that this indenture shall be executed on behalf of such
Guarantor by two Officers or an Officer and an Assistant Secretary by manual or
facsimile signature.
Each Guarantor agrees that its Guaranty set forth in section 13.1
shall remain in full force and effect and apply to all the Securities
notwithstanding any failure to endorse on each Security a notation of such
Guaranty.
If an officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security on which a Guaranty is
endorsed, the Guaranty shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guaranty set forth in
this Indenture on behalf of each Guarantor.
Section 13.3 Future Guarantors.
-----------------
The Company and the Guarantors covenant and agree that they shall
cause each person that is or becomes a Subsidiary of the Company or any
Guarantor or the Parent Guarantor to execute a Guaranty in the form of Exhibit B
---------
hereto and will and cause such Subsidiary to execute an Indenture supplemental
hereto for the purpose of adding such Subsidiary as a Guarantor hereunder.
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Section 13.4 Certain Bankruptcy Events.
-------------------------
Each Guarantor hereby covenants and agrees that in the event of the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company, such Guarantor shall not file or join in any filing of), or otherwise
seek to participate in the filing of, any motion or request seeking to stay or
to prohibit (even temporarily) execution on the Guaranty and hereby waives and
agrees not to take the benefit of any such stay of execution, whether under
Section 362 or 105 of the United States Bankruptcy Code or otherwise.
Section 13.5 Release of Certain Guarantors.
-----------------------------
Upon payment by the Company of the Guarantor Sale Repurchase Amount
and consummation of the Guarantor Sale Offer as provided pursuant to Section
5.20 hereof, Xxxxxxx Empress, Xxxxxxx Leasing or any Additional Guarantor, as
applicable, shall be released from its obligations as a guarantor of the
Securities.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
Section 14.2 Notices.
-------
Any notices or other communications to the Company, the Guarantors or
the Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telex, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company or any Guarantor:
Empress River Casino Corporation
0000 Xxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
99
with a copy to:
X'Xxxxxx & Xxxxxx
00 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Fax: (000) 000-0000
if to the Trustee:
First Trust National Association
000 X. 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Dept.
Fax: (000) 000-0000
The Company, the Guarantors or the Trustee by notice to each other
party may designate additional or different addresses as shall be furnished in
writing by such party. Any notice or communication to the Company, the
Guarantors or the Trustee 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 5 Business Days after mailing if
sent by registered or certified mail, postage prepaid (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 14.3 Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantors, the Trustee, the Registrar and any
other person shall have the protection of TIA (S) 312(c).
100
Section 14.4 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:
(1) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 14.5 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he 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
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided, however,
-------- -------
that with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
Section 14.6 Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
Section 14.7 Legal Holidays.
--------------
101
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York are not required to be open. If a payment date is a Legal Holiday in New
York, New York, payment may be made at such place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 14.8 Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN
IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN
IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. THE COMPANY AND EACH GUARANTOR
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER 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 14.9 No Adverse Interpretation of other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Company, the Guarantors or any of their
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 14.10 No Recourse against Others.
--------------------------
No direct or indirect owner, stockholder, employee, agent, officer or
director, as such, past, present or future of the Company, the Guarantors, the
Parent Guarantor, any of their Subsidiaries or any successor entity shall have
any personal liability in respect of the obligations of the Company, the
Guarantors, the Parent Guarantor or any of their Subsidiaries under the
Indenture or the Notes by reason of his or its status as such owner,
stockholder, employee, agent, officer or director.
102
Each Securityholder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
Section 14.11 Successors.
----------
All agreements of the Company and the Guarantors in this Indenture and
the Securities shall bind their successors. All agreements of the Trustee in
this Indenture shall bind its successor.
Section 14.12 Duplicate Originals.
-------------------
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
Section 14.13 Severability.
------------
In case any one or more of the provisions, in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
Section 14.14 Table of Contents, Headings, Etc.
--------------------------------
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
103
SIGNATURE
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
EMPRESS RIVER CASINO FINANCE
CORPORATION
By:/s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Attest: [SIGNATURE ILLEGIBLE]^^
-----------------------
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Name:
Title:
Attest: _____________________
GUARANTORS:
EMPRESS RIVER CASINO CORPORATION
By:/s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
LAKE MICHIGAN CHARTERS, LTD.
By:/s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
104
SIGNATURE
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
EMPRESS RIVER CASINO FINANCE
CORPORATION
By:_____________________________________
Name: Xxxxx X. Xxxxxx
Title: President
Attest:___________________
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: Asst. Vice Pres
Attest: SIGNATURE ILLEGIBLE
----------------------------
GUARANTORS:
EMPRESS RIVER CASINO CORPORATION
By:_____________________________________
Name:
Title:
LAKE MICHIGAN CHARTERS, LTD.
By:_____________________________________
Name:
Title:
105
LMC LEASING, LTD
By:/s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
106
EXHIBIT A
[FORM OF NOTE]
EMPRESS RIVER CASINO FINANCE CORPORATION
10 3/4% SENIOR NOTES
DUE 2002
No. $
Empress River Casino Finance Corporation, a Delaware corporation
(hereinafter called the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______, or registered assigns, the
principal sum of ______ Dollars, on April 1, 2002.
Interest Payment Dates: April 1 and October 1.
Record Dates: March 15 and September 15.
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the COmpany has caused this Instrument to be duly
executed under its corporate seal.
Dated: April 7, 1994
EMPRESS RIVER CASINO FINANCE CORPORATION
By: ____________________________________
Attest:
____________________________
Secretary
A-1
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
______________________________
as Trustee
By:___________________________
Authorized Signatory
Dated:
A-2
EMPRESS RIVER CASINO FINANCE CORPORATION
10 3/4% Senior Notes
due 2002
1. Interest.
--------
Empress River Casino Finance Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
a rate of 10 3/4% per annum. To the extent it is lawful, the Company promises to
pay interest on any interest payment due but unpaid on such principal amount at
a rate of 10 3/4% per annum compounded semi-annually.
The Company will pay interest semi-annually on April 1 and October 1
of each year (each, an "Interest Payment Date"), commencing October 1, 1994.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from April 7, 1994.
Interest will be computed on the basis of a 360-day year consisting of twelve
30-day months.
2. Method of Payment.
-----------------
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. Except as
provided below, the Company shall pay principal and interest in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal and interest by wire transfer of Federal
funds, or interest by its check payable in such U.S. Legal Tender. The Company
may deliver any such interest payment to the Paying Agent or the Company may
mail any such interest payment to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
--------------------------
Initially, First Trust National Association (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or Co-registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or Co-registrar.
A-3
4. Indenture.
---------
The Company issued the Securities under an Indenture, dated April 1,
1994 (the "Indenture"), between the Company, the Guarantors named therein and
the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act, as in effect on the date of the Indenture. The Securities
are subject to all such terms, and Holders of Securities are referred to the
Indenture and said Act for a statement of them. The Securities are senior
obligations of the Company limited in aggregate principal amount to
$150,000,000.
5. Redemption.
----------
The Securities are redeemable, in whole or from time to time in part,
at any time on and after April 1, 1999, at the option of the Company, at the
Redemption Price (expressed as a percentage of principal amount) set forth
below, if redeemed during the 12-month period commencing April 1 of each of the
years indicated below, in each case, plus accrued and unpaid interest to the
Redemption Date. Except as provided in the following two paragraphs, the
Securities may not otherwise be redeemed.
Year Redemption Price
---- ----------------
1999........................... 105.38%
2000........................... 102.69%
2001........................... 100.00%
The Securities may also be redeemed, in whole or in part, at any time
at 100% of the principal amount thereof plus accrued and unpaid interest to the
redemption date, pursuant to, and in accordance with, a Required Regulatory
Redemption.
The Company may, at its election, one time only, also redeem up to an
aggregate of $50,000,000 of the Securities with the proceeds of an Initial
Public Equity Offering at any time prior to April 1, 1997, at a redemption price
of 110%, plus accrued and unpaid interest to the date of redemption, provided
--------
that such redemption occurs within 60 days of the closing of such Initial Public
Equity Offering and that after giving effect to any such redemption, there shall
remain not less than an aggregate principal amount of $100,000,000 of the
Securities outstanding.
A-4
Any redemption of the Notes shall comply with Article III of the
Indenture.
6. Notice of Redemption.
--------------------
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the Redemption Date (unless a shorter
notice shall be required by applicable Gaming Laws or by order of any Gaming
Authority) to each Holder of Securities to be redeemed at his registered
address. Securities in denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent (which shall not be the Company, any
of the Guarantors or the Parent Guarantor) on such Redemption Date, the
Securities called for redemption will cease to bear interest and the only right
of the Holders of such Securities will be to receive payment of the Redemption
Price, including any accrued and unpaid interest to the Redemption Date.
7. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption.
8. Persons Deemed Owners.
---------------------
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company. After that, all liability of the Trustee and such Paying Agent(s)
with respect to such money shall cease.
A-5
10. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits into an irrevocable trust with the
Trustee U.S. Legal Tender or U.S. Government Obligations sufficient to pay the
principal of, premium, if any, and interest on, the Securities to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the Indenture
and the Securities (including the financial covenants, but excluding its
obligation to pay the principal of, premium, if any, and interest on, the
Securities).
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of a majority,
and in certain cases at least two-thirds, of the aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of
a majority of the aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities, or make any other change
that does not adversely affect the rights of any Holder of a Security.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company, the Guarantors and any of their Subsidiaries to, among other things,
incur additional Indebtedness and Disqualified Capital Stock; make Restricted
Payments; enter into transactions with Affiliates; incur Liens; enter into any
line of business other than a Related Business; merge or consolidate with any
other person; and sell, lease, transfer or otherwise dispose of substantially
all of its properties or assets. The limitations are subject to a number of
important qualifications and exceptions. The Indenture prohibits the Company
from (i) incurring any Indebtedness other than the Notes, (ii) making any
Restricted Payments to any party other than its parent Guarantor, or (iii)
creating, assuming or suffering to exist any Lien on any of its property or
assets, except Liens created under the Indenture and the Notes. The Company must
annually report to the Trustee on compliance with such limitations.
A-6
13. Change of Control.
-----------------
In the event there shall occur any Change of Control, each Holder of
Securities shall have the right, at such Holder's option, but subject to the
limitations, and conditions set forth in the Indenture, to require the Company
to purchase on the Change of Control Payment Date in the manner specified in the
Indenture, all or any part (in integral multiples of $1,000) of such Holder's
Securities at a price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest to and including the purchase date.
14. Security.
--------
In order to secure the obligations under the Indenture, the Mirror
Notes have been pledged as security for the Indenture Oblations and the Company,
the Guarantors and the Trustee have entered into certain security agreements
pursuant to which security interests have been granted to the Trustee for the
benefit of the Holders in funds held in certain collateral and disbursement
accounts of the Guarantors.
15. Sale of Assets.
--------------
The Indenture imposes certain limitations on the ability of the
Guarantors and any of their respective Subsidiaries to sell assets. In the event
the proceeds from a permitted Asset Sale exceed certain amounts, as specified in
the Indenture, the applicable Guarantor will be required either to reinvest the
proceeds of such Asset Sale in a Related Business of a continuing Guarantor or
the Company will be required to make an offer to purchase each Holder's
Securities at 101% of the principal amount thereof, plus accrued and unpaid
interest to the date of purchase.
16. Construction and Licensure.
--------------------------
The Indenture imposes obligations on the Guarantors to commence
operations at the Xxxxxxx Facility by certain dates (subject to extension if
certain financial tests are met), such that if the requisite licenses therefor
are not timely received or such construction is not timely completed and certain
financial tests are not met, then the Company must offer to purchase designated
aggregate principal amounts of Securities at a purchase price equal to 101% of
the principal amount thereof, plus accrued and unpaid interest to the date of
purchase.
A-7
17. Limitation on Sale of a Guarantor.
---------------------------------
The Indenture imposes certain limitations on the ability of Xxxxxxx
Empress, Xxxxxxx Leasing or any Additional Guarantor to merge or consolidate,
sell, transfer or convey, directly or indirectly, substantially all of its
assets or to effect certain changes in the composition of its Board of
Directors. Upon a Sale of a Guarantor: (a) Xxxxxxx Empress, Xxxxxxx Leasing or
an Additional Guarantor, as applicable, is required to pay to Empress the
Guarantor Sale Repurchase Amount; and (b) the Company is required to make a
Guarantor Sale Offer to purchase for U.S. Legal Tender the principal amount of
Notes equal to the Guarantor Sale Repurchase Amount at 101% of the principal
amount thereof, plus accrued and unpaid interest to the date of payment.
18. Gaming Laws.
-----------
The rights of the Holder of this Security and any owner of any
beneficial interest in this Security are subject to the Gaming Laws and the
jurisdiction and requirements of the Gaming Authorities and the further
limitations and requirements set forth in the Indenture.
19. Successors.
----------
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
20. Defaults and Remedies.
---------------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% of the aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority of the aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Securities notice of any continuing Default
or Event of Default (except a Default in payment of principal or interest), if
it determines that withholding notices is in their interest.
A-8
21. 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 the Trustee.
22. No Recourse Against Others.
--------------------------
No direct or indirect owner, stockholder, employee, agent, officer or
director, as such, past, present or future of the Company, the Guarantors, the
Parent Guarantor, any of their Subsidiaries or any successor entity shall have
any personal liability in respect of the obligations of the Company, the
Guarantors, the Parent Guarantor or any of their Subsidiaries under the
Indenture or the Notes by reason of his or its status as such owner,
stockholder, employee, agent, officer or director. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
23. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
24. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security 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).
25. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
A-9
[FORM OF ASSIGNMENT]
I or we assign this Security to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number assignee
____________ and irrevocably appoint _____________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Dated: ________________ Signed: _________________________________________
________________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to any of the following provisions of the Indenture, check the
appropriate box:
[_] Section 5.14; [_] Section 5.16; [_] Section 5.20;
[_] Article XII.
If you want to elect to have only part of this Security purchased by
the Company pursuant to the Indenture, state the principal amount you want to be
purchased: $_________
Date: ______________ Signature: ________________________________________________
(Sign exactly as your name appears on the
Security)
A-11
EXHIBIT B
---------
FORM OF GUARANTY
----------------
For value received, _______________, a ______________ corporation, hereby
unconditionally guarantees to the Holder of the Security upon which this
Guaranty is endorsed the due and punctual payment, as set forth in the Indenture
pursuant to which such Security and this Guaranty were issued, of the principal
of, premium, if any, and interest on, such Security when and as the same shall
become due and payable for any reason according to the terms of such Security
and Article XIII of the Indenture. The Guaranty of the Security upon which this
Guaranty is endorsed will not become effective until the Trustee signs the
certificate of authentication on such Security.
__________________________________
By:_______________________________
Attest:___________________________
B-1
