Exhibit 10.5
THE MAJESTIC STAR CASINO, LLC
MAJESTIC STAR CASINO CAPITAL CORP. II
as Issuers
and the Subsidiary Guarantors referred to herein
9 3/4% Senior Notes due 2011
INDENTURE
Dated as of December 21, 0000
XXX XXXX XX XXX XXXX TRUST COMPANY, N.A.
Trustee
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE....................... 1
SECTION 1.1 Definitions................................................ 1
SECTION 1.2 Other Definitions.......................................... 25
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.......... 26
SECTION 1.4 Rules of Construction...................................... 27
ARTICLE II THE NOTES........................................................ 27
SECTION 2.1 Form and Dating............................................ 27
SECTION 2.2 Execution and Authentication............................... 28
SECTION 2.3 Registrar, Paying Agent and Depositary..................... 29
SECTION 2.4 Paying Agent to Hold Money In Trust........................ 29
SECTION 2.5 Holder Lists............................................... 29
SECTION 2.6 Transfer and Exchange...................................... 30
SECTION 2.7 Replacement Notes.......................................... 41
SECTION 2.8 Outstanding Notes.......................................... 41
SECTION 2.9 Treasury Notes............................................. 41
SECTION 2.10 Temporary Notes............................................ 41
SECTION 2.11 Cancellation............................................... 42
SECTION 2.12 Defaulted Interest......................................... 42
SECTION 2.13 Deposit of Moneys.......................................... 42
SECTION 2.14 CUSIP Numbers.............................................. 43
ARTICLE III REDEMPTION...................................................... 43
SECTION 3.1 Notices to Trustee......................................... 43
SECTION 3.2 Selection of Notes to be Redeemed.......................... 43
SECTION 3.3 Notice of Redemption....................................... 43
SECTION 3.4 Effect of Notice of Redemption............................. 44
SECTION 3.5 Deposit of Redemption Price................................ 44
SECTION 3.6 Notes Redeemed in Part..................................... 45
SECTION 3.7 Optional Redemption........................................ 45
SECTION 3.8 Required Regulatory Redemption............................. 45
SECTION 3.9 No Mandatory Redemption.................................... 45
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ARTICLE IV COVENANTS........................................................ 46
SECTION 4.1 Payment of Notes........................................... 46
SECTION 4.2 Maintenance of Office or Agency............................ 46
SECTION 4.3 Reports.................................................... 46
SECTION 4.4 Compliance Certificate..................................... 47
SECTION 4.5 Taxes...................................................... 48
SECTION 4.6 Stay, Extension and Usury Laws............................. 48
SECTION 4.7 Limitation on Restricted Payments.......................... 48
SECTION 4.8 Limitation on Restrictions on Subsidiary Dividends......... 52
SECTION 4.9 Limitation on Incurrence of Indebtedness................... 53
SECTION 4.10 Limitation on Asset Sales.................................. 55
SECTION 4.11 Limitation on Transactions with Affiliates................. 57
SECTION 4.12 Limitation on Liens........................................ 58
SECTION 4.13 Existence.................................................. 59
SECTION 4.14 Repurchase Upon Change of Control.......................... 59
SECTION 4.15 Maintenance of Properties.................................. 61
SECTION 4.16 Maintenance of Insurance................................... 61
SECTION 4.17 Restrictions on Sale and Issuance of Subsidiary Stock...... 61
SECTION 4.18 Line of Business........................................... 61
SECTION 4.19 Restrictions on Activities of Capital...................... 61
ARTICLE V SUCCESSORS........................................................ 61
SECTION 5.1 When the Company may Merge, etc............................ 61
SECTION 5.2 Successor Substituted...................................... 63
ARTICLE VI DEFAULTS AND REMEDIES............................................ 63
SECTION 6.1 Events of Default.......................................... 63
SECTION 6.2 Acceleration............................................... 65
SECTION 6.3 Other Remedies............................................. 65
SECTION 6.4 Waiver of Past Defaults.................................... 65
SECTION 6.5 Control by Majority........................................ 65
SECTION 6.6 Limitation on Suits........................................ 66
SECTION 6.7 Rights of Holders to Receive Payment....................... 66
SECTION 6.8 Collection Suit by Trustee................................. 66
SECTION 6.9 Trustee May File Proofs of Claim .......................... 66
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SECTION 6.10 Priorities................................................. 67
SECTION 6.11 Undertaking for Costs...................................... 67
ARTICLE VII TRUSTEE......................................................... 67
SECTION 7.1 Duties of Trustee.......................................... 68
SECTION 7.2 Rights of Trustee.......................................... 68
SECTION 7.3 Individual Rights of Trustee............................... 70
SECTION 7.4 Trustee's Disclaimer....................................... 70
SECTION 7.5 Notice of Defaults......................................... 70
SECTION 7.6 Reports by Trustee to Holders.............................. 70
SECTION 7.7 Compensation and Indemnity................................. 71
SECTION 7.8 Replacement of Trustee..................................... 72
SECTION 7.9 Successor Trustee by Merger, etc........................... 73
SECTION 7.10 Eligibility; Disqualification.............................. 73
SECTION 7.11 Preferential Collection of Claims Against Issuers.......... 74
ARTICLE VIII DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE............ 74
SECTION 8.1 Discharge; Option to Effect Legal Defeasance or
Covenant Defeasance........................................ 74
SECTION 8.2 Legal Defeasance and Discharge............................. 74
SECTION 8.3 Covenant Defeasance........................................ 75
SECTION 8.4 Conditions to Legal Defeasance or Covenant Defeasance...... 75
SECTION 8.5 Deposited Cash and U.S. Government Obligations to be
Held in Trust; other Miscellaneous Provisions.............. 76
SECTION 8.6 Repayment to the Issuers................................... 76
SECTION 8.7 Reinstatement.............................................. 77
ARTICLE IX AMENDMENTS....................................................... 77
SECTION 9.1 Without Consent of Holders................................. 77
SECTION 9.2 With Consent of Holders.................................... 78
SECTION 9.3 Compliance with Trust Indenture Act........................ 79
SECTION 9.4 Revocation and Effect of Consents.......................... 79
SECTION 9.5 Notation on or Exchange of Notes........................... 79
SECTION 9.6 Trustee to Sign Amendments, etc............................ 79
ARTICLE X GUARANTEE ........................................................ 80
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SECTION 10.1 Subsidiary Guarantee....................................... 80
SECTION 10.2 Execution and Delivery of Subsidiary Guarantee............. 81
SECTION 10.3 Limitation on Subsidiary Guarantor's Liability............. 82
SECTION 10.4 Rights Under the Subsidiary Guarantee...................... 82
SECTION 10.5 Primary Obligations........................................ 82
SECTION 10.6 Guarantee By Subsidiary.................................... 83
SECTION 10.7 Release of Subsidiary Guarantors........................... 83
SECTION 10.8 [Gaming Law and Liquor Law Considerations.................. 83
ARTICLE XI MISCELLANEOUS.................................................... 84
SECTION 11.1 Trust Indenture Act Controls............................... 84
SECTION 11.2 Notices.................................................... 84
SECTION 11.3 Communication by Holders with Other Holders................ 85
SECTION 11.4 Certificate and Opinion as to Conditions Precedent......... 85
SECTION 11.5 Statements Required in Certificate or Opinion.............. 86
SECTION 11.6 Rules by Trustee and Agents................................ 86
SECTION 11.7 Legal Holidays............................................. 86
SECTION 11.8 No Recourse Against Others................................. 86
SECTION 11.9 Governing Law.............................................. 87
SECTION 11.10 No Adverse Interpretation of Other Agreements.............. 87
SECTION 11.11 Successors................................................. 87
SECTION 11.12 Severability............................................... 87
SECTION 11.13 Counterpart Originals...................................... 88
SECTION 11.14 Table Of Contents, Headings, Etc........................... 88
SECTION 11.15 Waiver of Jury Trial....................................... 88
SECTION 11.16 Force Majeure.............................................. 88
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EXHIBITS
Exhibit A Form of Note............................................................ A-1
Exhibit B Form of Private Placement Legend........................................ B-1
Exhibit C Form of Guaranty........................................................ C-1
Exhibit D Form of Legend for Regulation S Temporary Global Note................... D-1
Exhibit E Form of Legend for Global Note.......................................... E-1
Exhibit F Form of Certificate of Transfer......................................... F-1
Exhibit G Form of Certificate of Exchange......................................... G-1
Exhibit H Form of Certificate from Acquiring Institutional Accredited Investor ... H-1
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CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT SECTION INDENTURE SECTION
--------------------------- -----------------
310(a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(a)(5)................................................... 7.10
(b)...................................................... 7.8; 7.10
(c)...................................................... N.A.
311(a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312(a)...................................................... 2.5
(b)...................................................... 11.3
(c)...................................................... 11.3
313(a)...................................................... 7.6
(b)...................................................... 7.6
(c)...................................................... 7.6
(d)...................................................... 7.6
314(a)...................................................... 4.3; 4.4; 11.5
(b)...................................................... N.A.
(c)(1)................................................... 11.4
(c)(2)................................................... 11.4
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(e)...................................................... 11.5
(f)...................................................... N.A.
315(a)...................................................... 7.1(b)
(b)...................................................... 7.5
(c)...................................................... 7.1(a)
(d)...................................................... 7.1(c)
(e)...................................................... 6.11
316(a), (last sentence)..................................... 2.9
(a)(1)(A)................................................ 6.5
(a)(1)(B)................................................ 6.4
(a)(2)................................................... N.A.
(b)...................................................... 9.2
(c)...................................................... 9.4
317(a)(1)................................................... 6.8
(a)(2)................................................... 6.9
(b)...................................................... 2.4
318(a)...................................................... 11.1
(b)...................................................... N.A.
(c)...................................................... 11.1
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
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INDENTURE, dated as of December 21, 2005 among The Majestic Star Casino,
LLC, an Indiana limited liability company, Majestic Star Casino Capital Corp.
II, an Indiana corporation, the Subsidiary Guarantors (as defined) named herein
and The Bank of New York Trust Company, N.A., a national banking association, as
trustee.
The Issuers (as defined) and the Trustee (as defined) agree as follows for
the benefit of each other and for the equal and ratable benefit of the Holders
(as defined) of the Issuers' 9 3/4% Senior Notes due 2011.
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 Definitions.
"144A Global Note" means a global security substantially in the form of
Exhibit A bearing the Private Placement Legend and deposited with or on behalf
of, and registered in the name of, the Depositary or its nominee, that shall be
issued in a denomination equal to the outstanding principal amount at maturity
of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means Indebtedness of a Person existing at the time such
Person is merged with or into the Company or a Restricted Subsidiary or becomes
a Restricted Subsidiary, other than Indebtedness incurred in connection with, or
in contemplation of, such Person merging with or into the Company or a
Restricted Subsidiary or becoming a Restricted Subsidiary.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, means (a)
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise or (b) beneficial
ownership of 10% or more of the voting securities of such Person.
"Affiliate Transaction" means, with respect to any Person, (1) the sale,
lease, transfer or other disposition of any of such Person's properties or
assets to, or the purchaser of any property or assets from, any Affiliate, and
(2) the entering into by such Person, or the suffering to exist by such Person,
of any contract, agreement, understanding, loan, advance or guaranty with or for
the benefit of any Affiliate of such Person.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Capital Gain Tax Rate" means a rate equal to the sum of (i) the
highest marginal Federal capital gain tax rate applicable to an individual who
is a citizen of the United States plus (ii) an amount equal to the sum of the
highest marginal state and local capital gain tax
rates applicable to an individual who is a resident of the State of New York,
multiplied by a factor equal to 1 minus the rate described in clause (i) above.
"Applicable Income Tax Rate" means a rate equal to the sum of (i) the
highest marginal Federal income tax rate applicable to an individual who is a
citizen of the United States plus (ii) an amount equal to the sum of the highest
marginal state and local income tax rates applicable to an individual who is a
resident of the State of New York, multiplied by a factor equal to 1 minus the
rate described in clause (i) above.
"Applicable Procedures" means with respect to any transfer or exchange of
interests in a Global Note, the rules and procedures of DTC, Euroclear and
Clearstream that apply to such transfer or exchange.
"Asset Sale" means any (i) transfer (as defined), other than in the
ordinary course of business, of any assets of the Company or any Restricted
Subsidiary; (ii) direct or indirect issuance or sale of any Capital Stock of any
Restricted Subsidiary (other than directors' qualifying shares), in each case to
any Person; or (iii) Event of Loss. For purposes of this definition, (a) any
series of transactions that are part of a common plan shall be deemed a single
Asset Sale and (b) the term "Asset Sale" shall not include (1) any series of
transactions that have a fair market value (or result in gross proceeds) of less
than $1,000,000, until the aggregate fair market value and gross proceeds of the
transactions excluded from the definition of Asset Sale pursuant to this clause
(b)(1) exceed $5,000,000, (2) any disposition of all or substantially all of the
assets of the Company that is governed under and complies with the terms of
Article V, (3) the conveyance, sale, transfer, assignment or other disposition
of inventory and other assets acquired and held for resale in the ordinary
course of business, in each case made in the ordinary course of business,
consistent with past practices of the Company and its Restricted Subsidiaries,
(4) the sale or disposition by the Company or any of its Restricted Subsidiaries
of damaged, worn out or other obsolete personal property in the ordinary course
of business so long as such property is no longer necessary for the proper
conduct of the Company's business or the business of such Restricted Subsidiary,
as applicable, (5) the liquidation of Cash Equivalents and (6) so long as such
exchange is consummated within 60 days, the exchange of gaming equipment of the
Company or any of its Restricted Subsidiaries for other gaming equipment of
equal or greater value. A transfer of assets by the Company to a Wholly Owned
Subsidiary or by a Wholly Owned Subsidiary to the Company or another Wholly
Owned Subsidiary, and an issuance of Equity Interests by a Wholly Owned
Subsidiary to the Company or to another Wholly Owned Subsidiary, shall not be
deemed to be an Asset Sale. Any Investment that is not prohibited by Section 4.7
will not be deemed to be an Asset Sale.
"Bankruptcy Code" means title 11, U.S. Code or any similar Federal, state
or foreign law for the relief of debtors..
"BDI" means Xxxxxx Development, Inc., an Indiana corporation.
"beneficial owner" has the meaning attributed to it in Rules 13d-3 and
13d-5 under the Exchange Act (as in effect on the Issue Date), whether or not
applicable.
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"Board of Directors" means the board of directors or any duly constituted
committee of any corporation or of a corporate general partner of a partnership
and any similar body empowered to direct the affairs of any other entity.
"Business Day" means any day other than a Legal Holiday.
"Capital" means Majestic Star Casino Capital Corp. II, an Indiana
corporation and a wholly owned subsidiary of the Company.
"Capital Contribution" means any contribution to the equity of the Company
from a direct or indirect parent of the Company for which no consideration other
than the issuance of Qualified Capital Stock is given.
"Capital Lease Obligation" means, as to any Person, the obligations of such
Person under a lease that are required to be classified and accounted for as
capital lease obligations under GAAP, and the amount of such obligations at any
date shall be the capitalized amount of such obligations at such date,
determined in accordance with GAAP.
"Capital Stock" means, (i) with respect to any Person that is a
corporation, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (ii) with respect to a
limited liability company, any and all membership interests, and (iii) with
respect to any other Person, any and all partnership, joint venture or other
equity interests of such Person.
"Cash Equivalent" means (i) any evidence of Indebtedness 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 or bankers acceptance issued by the
parent corporation of any domestic commercial bank of recognized standing having
combined capital and surplus in excess of $250,000,000 and commercial paper
issued by others rated at least A-2 or the equivalent thereof by Standard &
Poor's Corporation or at least P-2 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. and in each case maturing within one year after the date
of acquisition; (iii) investments in money market funds substantially all of
whose assets comprise securities of the type described in clauses (i) and (ii)
above and (iv) repurchase obligations for underlying securities of the types and
with the maturities described above.
"Cash Flow-Based Management Distributions" is defined in the definition of
Management Agreement.
"Casino" means a gaming establishment owned by the Company or a Restricted
Subsidiary and containing at least 400 gaming devices and 10,000 square feet of
space dedicated to the operation of games of chance.
"Change of Control" means
(i) any merger or consolidation of the Company with or into any Person
or any sale, transfer or other conveyance, whether direct or indirect, of
all or substantially
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all of the assets of the Company, on a consolidated basis, in one
transaction or a series of related transactions, if, immediately after
giving effect to such transaction(s), 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 an Excluded Person) is or
becomes the "beneficial owner," directly or indirectly, of more than 50% of
the total voting power in the aggregate of the Voting Stock of the
transferee(s) or surviving entity or entities,
(ii) 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 an Excluded Person) is or becomes the "beneficial owner,"
directly or indirectly, of more than 50% of the total voting power in the
aggregate of the Voting Stock of the Company,
(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 Managers of the Company (together with any new directors whose election
by such Managers or whose nomination for election by the members of the
Company 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, including
new directors designated in or provided for in an agreement regarding the
merger, consolidation or sale, transfer or other conveyance, of all or
substantially all of the assets of the Company, if such agreement was
approved by a vote of such majority of directors) cease for any reason to
constitute a majority of the Managers of the Company then in office,
(iv) the Company adopts a plan of liquidation, or
(v) the first day on which the Company fails to own 100% of the issued
and outstanding Equity Interests of Capital.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means The Majestic Star Casino, LLC, an Indiana limited liability
company, until a successor replaces such Person in accordance with the terms of
this Indenture, and thereafter means such successor.
"Consolidated Cash Flow" means, with respect to any Person (the referent
Person) for any period,
(a) consolidated income (loss) from operations of such Person and its
subsidiaries for such period, determined in accordance with GAAP,
(b) plus, to the extent such amounts are deducted in calculating such
income (loss) from operations of such Person for such period, and without
duplication (i) amortization, depreciation and other non-cash charges
(including, without limitation, amortization of goodwill, deferred
financing fees, and other intangibles but excluding (x) non-cash charges
incurred after the Issue Date that require an accrual of or a reserve for
cash charges for any future period and (y) normally recurring accruals such
as reserves
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against accounts receivables); (ii) provision for taxes based on income or
profits of such Person and its subsidiaries and Permitted Tax
Distributions; and (iii) Pre-Opening Expenses, and
(c) adjusted to exclude (only to the extent included in calculating
such income (loss) from operations of such Person for such period, and
without duplication) (i) to the extent the aggregate amount of such
payments does not exceed $2,000,000, the payment of severance to employees
of (A) the Company that are employed in connection with the operation of
its riverboat casino that is located in Gary, Indiana and more commonly
known as the "Majestic Star," (B) Xxxxxxxxxx Harbor Riverboats, LLC that
are employed in connection with the operation of its docking facility and
land-based pavilions and (C) Xxxxx Indiana, Inc., and (ii) nonrecurring
items (including, without limitation, restructuring costs) that would be
permitted to be excluded in accordance with Item 10 of Regulation S-K under
the Securities Act if the Consolidated Coverage Ratio were included in a
filing with the Commission;
provided, that (1) the income from operations of any Person that is not a
Wholly Owned Subsidiary of the referent Person or that is accounted for by the
equity method of accounting will be included only to the extent of the amount of
dividends or distributions paid during such period to the referent Person or a
Wholly Owned Subsidiary of the referent Person, and (2) the income from
operations of any Restricted Subsidiary will not be included to the extent that
declarations of dividends or similar distributions by that Restricted Subsidiary
are not at the time permitted, directly or indirectly, by operation of the terms
of its organizational documents or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its owners.
"Consolidated Interest Expense" means, with respect to any Person for any
period, (a) the consolidated interest expense of such Person and its
subsidiaries for such period, whether paid or accrued (including noncash
interest payment and the interest component of Capital Lease Obligations), to
the extent such expense was deducted in computing Consolidated Net Income of
such Person for such period less (b) write-off of deferred financing costs, the
amortization of original issue discount and any charge related to any premium or
penalty paid, in each case accrued during such period in connection with
redeeming or retiring any Indebtedness before its stated maturity, as determined
in accordance with GAAP, to the extent such expense, cost or charge was included
in the calculation made pursuant to clause (a) above.
"Consolidated Net Income" means, with respect to any Person (the referent
Person) for any period, the aggregate of the Net Income of such Person and its
subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; provided, that (i) the Net Income of any Person relating to any
portion of such period that such Person (a) is not a Wholly Owned Subsidiary of
the referent Person or (b) is accounted for by the equity method of accounting
will be included only to the extent of the amount of dividends or distributions
paid to the referent Person or a Wholly Owned Subsidiary of the referent Person
during such portion of such period, (ii) the Net Income of any Restricted
Subsidiary will not be included to the extent that declarations of dividends or
similar distributions by that Restricted Subsidiary are not at the time
permitted, directly or indirectly, by operation of the terms of its
organizational documents or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation
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applicable to that Restricted Subsidiary or its owners, (iii) solely for the
avoidance of doubt, any Returns from Unrestricted Subsidiaries shall be excluded
and (iv) any impairment charge or asset write-off pursuant to GAAP and the
amortization of intangibles arising pursuant to GAAP shall be excluded.
"Consolidated Net Worth" means, with respect to any Person, the total
stockholders' (or members') equity of such Person determined on a consolidated
basis in accordance with GAAP, adjusted to exclude (to the extent included in
calculating such equity), (i) the amount of any such stockholders' (or members')
equity attributable to Disqualified Capital Stock or treasury stock of such
Person and its consolidated subsidiaries, (ii) all upward revaluations and other
write-ups in the book value of any asset of such Person or a consolidated
subsidiary of such Person subsequent to the Issue Date, and (iii) all
Investments in subsidiaries of such Person that are not consolidated
subsidiaries and in Persons that are not subsidiaries of such Person.
"Corporate Senior Secured Notes Co-Issuer" means The Majestic Star Casino
Capital Corp., an Indiana corporation and a wholly owned subsidiary of the
Company.
"Corporate Trust Office" shall be at the address of the Trustee specified
in Section 11.2 or such other address as the Trustee may specify by notice to
the Issuers.
"Credit Facility" means (a) the credit facility, dated as of October 7,
2003, between the Company and Xxxxx Fargo Foothill, Inc., as agent (any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith) and (b) any amendment, modification, supplement,
refunding, refinancing or replacement thereof that has terms and conditions
(including with respect to applicable interest rates and fees) customary for
similar facilities extended to borrowers comparable to the Company.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Code.
"Default" means any event that is, or after notice or the passage of time
or both would be, an Event of Default.
"Depositary" means the Person specified in Section 2.3 as the Depositary
with respect to the Notes issuable in global form, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Discount Notes" means the $63,500,000 aggregate principal amount at
maturity of the Discount Notes Issuers' 12 1/2 % Senior Discount Notes due 2011.
"Discount Notes Issuers" means Holdco and Majestic Star Holdco, Inc., an
Indiana corporation and a wholly owned subsidiary of Holdco.
"Disqualified Capital Stock" means any Equity Interest that (i) either by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable) is or upon the happening of an event would be required
to be redeemed or repurchased prior to the 90th day following the final stated
maturity of the Notes or is redeemable at the option of the holder
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thereof at any time prior to such 90th day, or (ii) is convertible into or
exchangeable at the option of the issuer thereof or any other Person for debt
securities. Notwithstanding anything to the contrary in the immediately
preceding sentence, any Equity Interest that would constitute Disqualified
Capital Stock solely because the holder thereof has the right to require the
Company to repurchase or redeem such Equity Interest upon a Change of Control
shall not constitute Disqualified Capital Stock if the terms of such Equity
Interest provide that the Company is not required to repurchase or redeem such
Equity Interest pursuant to such terms unless such repurchase or redemption is
permitted under clause (vi) of the second paragraph of Section 4.7.
"DTC" means The Depository Trust Company.
"Equity Holder" means (a) with respect to a corporation, each holder of
stock of such corporation, (b) with respect to a limited liability company or
similar entity, each member of such limited liability company or similar entity
(in each case, which is not disregarded for Federal income tax purposes), (c)
with respect to a partnership, each partner of such partnership and (d) with
respect to any entity that is disregarded for Federal income tax purposes, the
owner of such entity.
"Equity Interests" means Capital Stock or warrants, options or other rights
to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"Event of Loss" means, with respect to any property or asset, any (i) loss,
destruction or damage of such property or asset or (ii) 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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer that may be made by the Issuers pursuant
to the Registration Rights Agreement to exchange Series B Notes for Series A
Notes.
"Exchange Offer Registration Statement" means a registration statement
under the Securities Act relating to the Series B Notes.
"Excluded Person" means (i) any employee benefit plan of the Company or any
of its Restricted Subsidiaries or any trustee or similar fiduciary holding
Capital Stock of the Company for or pursuant to the terms of any such plan, (ii)
BDI, so long as it is controlled by Xxx X. Xxxxxx or his spouse or an entity
controlled by either of them, (iii) Xxx X. Xxxxxx or his spouse or an entity
controlled by either of them, (iv) the estate of Xxx X. Xxxxxx, (v) any
descendant of Xxx X. Xxxxxx or the spouse of any such descendant, (vi) the
estate of any such descendant or the spouse of any such descendant, (vii) any
trust or other arrangement for the benefit of the spouse of Xxx X. Xxxxxx or any
such descendant or the spouse of any such descendant and (viii) any charitable
organization or trust established by Xxx X. Xxxxxx.
-7-
"Expense Reimbursement Agreement" means that certain Expense Reimbursement
Agreement, dated October 7, 2003, by and between the Company and Xxxxxx Nevada
Gaming, LLC pursuant to which Xxxxxx Nevada Gaming, LLC reimburses the Company
for certain expenses (the "Expense Reimbursements"), which Expense
Reimbursement, for any fiscal year, is the greater of $500,000 and the actual
out-of-pocket expenses incurred by the Company for that fiscal year.
"Expense Reimbursements" is defined in the definition of Expense
Reimbursement Amount.
"Federal Flow Through Entity" is defined in the definition of Flow Through
Entity.
"FF&E" means furniture, fixture and equipment acquired by the Company or a
Restricted Subsidiary in the ordinary course of business.
"FF&E Financing" means Purchase Money Obligations, Capital Lease
Obligations, or Industrial Revenue Bond Obligations incurred solely to acquire
or lease, respectively, FF& E; provided, that the principal amount of such
Indebtedness does not exceed the cost (including sales and excise taxes,
installation and delivery charges and other direct costs and expenses) of the
FF&E purchased or leased with the proceeds thereof.
"FF&E Lender" means a Person that is not an Affiliate of the Company and is
a lender under FF&E Financing.
"Flow Through Entity" means an entity that (a) for Federal income tax
purposes constitutes (i) an "S corporation" (as defined in Section 1361(a) of
the Code), (ii) a "qualified subchapter S subsidiary" (as defined in Section
136l(b)(3)(B) of the Code), (iii) a "partnership" (within the meaning of Section
7701(a)(2) of the Code) other than a "publicly traded partnership" (as defined
in Section 7704 of the Code), (iv) a business entity that is disregarded as an
entity separate from its owner under the Code, the Treasury Regulations or any
published administrative guidance of the Internal Revenue Service, or (v) any
other substantially similar pass-through entity for Federal income tax purposes
(each of the entities described in the immediately preceding clauses (i), (ii),
(iii), (iv) and (v), a "Federal Flow Through Entity") and (b) for state and
local jurisdictions in respect of which Permitted Tax Distributions are being
made, is subject to treatment on a basis under applicable state or local income
tax law substantially similar to a Federal Flow Through Entity.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession, and in the rules and regulations of the
Commission.
"Gaming Authorities" means the Indiana Gaming Commission, the Mississippi
Gaming Commission, the Colorado Limited Gaming Control Commission, the Colorado
Division of Gaming, and any agency, authority, board, bureau, commission,
department, office or instrumentality of any nature whatsoever of the United
States or foreign government, any state,
-8-
province or any city or other political subdivision, whether now or hereafter
existing, or any officer or official thereof, including, without limitation, any
other agency with authority to regulate any gaming operation (or proposed gaming
operation) owned, managed or operated by the Company or any of its Subsidiaries.
"Gaming Law" means the provisions of any gaming laws or regulations of any
state or jurisdiction to which the Company or any of its Subsidiaries is, or may
at any time after the date of this Indenture, be subject.
"Gaming Licenses" means every finding of suitability, registration,
license, franchise or other finding of suitability, registration, approval or
authorization required to own, lease, operate or otherwise conduct or manage
riverboat, dockside or land-based gaming activities in any state or jurisdiction
in which the Company or any of its Subsidiaries conducts business and all
applicable liquor licenses.
"GNC Land" means the approximately 170 acres of land located adjacent to
the Xxxxxxxxxx Harbor gaming complex that was acquired by the Company on
February 11, 2004.
"Government Securities" means (i) direct obligations of the United States
of America for the timely payment of which its full faith and credit is pledged
or (ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as
custodian with respect to any such Government Security or a specific payment of
principal of or interest on any such Government Security held by such custodian
for the account of the holder of such depository receipt; provided, that (except
as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Security or the specific
payment of principal of or interest on the Government Security evidenced by such
depository receipt.
"Governmental Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States of America or foreign government, any state, province or any
city or other political subdivision or otherwise and whether now or hereafter in
existence, or any officer or official thereof, and any maritime authority.
"guaranty" or "guarantee," used as a noun, means any guaranty (other than
by endorsement of negotiable instruments for collection in the ordinary course
of business), direct or indirect, in any manner (including, without limitation,
letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness or other Obligation. "guarantee," used as a verb,
has a correlative meaning.
"Hedging Obligations" means, with respect to any Person, the Obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar
-9-
agreements and (ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates.
"Holdco" means Majestic Star Holdco, LLC, an Indiana limited liability
company.
"Holder" means the Person in whose name a Senior Note is registered in the
register of the Senior Notes.
"Indebtedness" of any Person means (without duplication) (i) all
liabilities and obligations, contingent or otherwise, of such Person (A) in
respect of borrowed money (regardless of whether the recourse of the lender is
to the whole of the assets of such Person or only to a portion thereof), (B)
evidenced by bonds, debentures, notes or other similar instruments, (C)
representing the deferred purchase price of property or services (other than
trade payables on customary terms incurred in the ordinary course of business),
(D) created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (E) representing
Capital Lease Obligations, (F) under bankers' acceptance and letter of credit
facilities, (G) to purchase, redeem, retire, defease or otherwise acquire for
value any Disqualified Capital Stock, or (H) in respect of net Hedging
Obligations; (ii) all Indebtedness of others that is guaranteed by such Person;
and (iii) all Indebtedness of others that is secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness; provided, that the amount
of such Indebtedness shall (to the extent such Person has not assumed or become
liable for the payment of such Indebtedness) be the lesser of (x) the fair
market value of such property at the time of determination and (y) the amount of
such Indebtedness. The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such
date. Notwithstanding the foregoing, the term Indebtedness shall not include
obligations arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument drawn against insufficient funds in the
ordinary course of business; provided, that such obligation is extinguished
within two business days of its incurrence. The principal amount outstanding of
any Indebtedness issued with original issue discount is the accreted value of
such Indebtedness.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Industrial Revenue Bond Obligations" means obligations of the Company or
any of its Restricted Subsidiaries in connection with industrial revenue bonds
issued by the Mississippi Business Finance Corporation ("MBFC"), all of the
proceeds of which are loaned by the MBFC to the Company or its Restricted
Subsidiaries for the acquisition, construction or development of
-10-
hotels or other improvements at the Company's or its Restricted Subsidiaries'
Casino located in Tunica County, Mississippi.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
promulgated under the Securities Act.
"Initial Purchaser" means Xxxxxxxxx & Company, Inc.
"Interest Coverage Ratio" means, for any period, the ratio of (i)
Consolidated Cash Flow of the Company for such period, to (ii) Consolidated
Interest Expense of the Company for such period. In calculating the Interest
Coverage Ratio for any period: (a) pro forma effect shall be given to the
incurrence, assumption, guarantee, repayment, repurchase, redemption or
retirement by the Company or any of its Restricted Subsidiaries of any
Indebtedness subsequent to the commencement of the period for which the Interest
Coverage Ratio is being calculated, as if the same had occurred at the beginning
of the applicable period; (b) acquisitions that have been made by the Company or
any of its Restricted Subsidiaries, including all mergers and consolidations,
subsequent to the commencement of such period shall be calculated on a pro forma
basis, assuming that all such acquisitions, mergers and consolidations had
occurred on the first day of such period, including giving effect to reductions
in costs for such period that are directly attributable to the elimination of
duplicative functions and expenses (regardless of whether such cost savings
could then be reflected in pro forma financial statements under GAAP, Regulation
S-X promulgated by the Commission or any other regulation or policy of the
Commission) as a result of such acquisition, merger or consolidation, provided
that (x) such cost savings were identified and quantified in an Officers'
Certificate delivered to the Trustee at the time of the consummation of such
acquisition, merger or consolidation and such Officers' Certificate states that
such officers believe in good faith that actions will be commenced or initiated
within 90 days of the consummation of such acquisition, merger or consolidation
to effect such cost savings and sets forth the specific steps to be taken within
the 90 days after such acquisition, merger or consolidation to accomplish such
cost savings, and (y) with respect to each acquisition, merger or consolidation
completed prior to the 90th day preceding such date of determination, actions
were commenced or initiated by the Company or any of its Restricted Subsidiaries
within 90 days of such acquisition, merger or consolidation to effect the cost
savings identified in such Officers' Certificate (regardless, however, of
whether the corresponding cost savings have been achieved); and (c) the
financial information of the Company with respect to any portion of such period
that falls before the Issue Date shall be adjusted to give pro forma effect to
the issuance of the Notes, the Senior Secured Notes and the Discount Notes and
the application of the proceeds therefrom, in each case, on such date as if they
had occurred at the beginning of such period.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of loans, guarantees
and other forms of direct and indirect credit support, advances or capital
contributions (excluding (i) payroll commission, travel and similar advances to
officers and employees of such Person made in the ordinary course of business,
(ii) extensions of credit to gaming customers in the ordinary course of
business, consistent with industry practices and (iii) bona fide accounts
receivable arising from the sale of goods or services in the ordinary course of
business consistent with past practice), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other
-11-
securities, and any other items that are or would be classified as investments
on a balance sheet prepared in accordance with GAAP.
"Issue Date" means the date the Notes offered hereby are first issued.
"Issuers" means Capital and the Company.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed.
"Lien" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, regardless of whether filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Liquidated Damages" means liquidated damages payable under the
Registration Rights Agreement.
"Liquor Authorities" means the Mississippi State Tax Commission, the State
of Mississippi Alcoholic Beverage Control Division of the Mississippi State Tax
Commission, the State Licensing Authority of the State of Colorado, City of
Black Hawk, the State of Colorado Liquor Enforcement Division, the State of
Indiana Alcohol and Tobacco Commission, the Department of the Treasury Bureau of
Alcohol, Tobacco and Firearms, and any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or foreign government, any state, province or any city or
other political subdivision, whether now or hereafter existing, or any officer
or official thereof, including without limitation, any other agency with
authority to regulate the sale or distribution of alcoholic beverages by the
Company or any of its Subsidiaries.
"Liquor Laws" means the statutes regarding the sale and distribution of
alcoholic beverages enforced by the Liquor Authorities and the rules and
regulations of the Liquor Authorities.
"Majestic Investor" means Majestic Investor, LLC, a Delaware limited
liability company.
"Majestic Investor Holdings" means Majestic Investor Holdings, LLC, a
Delaware limited liability company.
"Management Agreement" means that certain Management Agreement, dated
October 7, 2003, by and between the Company and BDI pursuant to which the
Company may pay to BDI distributions (the "Management Distributions") for acting
as the Manager of the Company, which Management Distributions, for any fiscal
quarter, shall not exceed 1% of net revenues (such Management Distributions, the
"Revenue-Based Management Distributions") plus 5% of Consolidated Cash Flow
(such Management Distributions, the "Cash Flow-Based Management Distributions")
for the immediately preceding fiscal quarter; provided that the payment of such
-12-
Management Distributions shall be subordinated to the payment in full of
principal, interest, premium and Liquidated Damages, if any, then due on the
Notes.
"Management Distributions" is defined in the definition of Management
Agreement.
"Managers" means (i) for so long as the Company is a limited liability
company, the Managers appointed pursuant to the Operating Agreement or (ii)
otherwise, the Board of Directors of the Company.
"Members" means the members of the Company.
"Net Cash Proceeds" means the aggregate amount of cash or Cash Equivalents
received by the Company in the case of a sale, or Capital Contribution in
respect, of Qualified Capital Stock upon any exercise, exchange or conversion of
securities (including options, warrants, rights and convertible or exchangeable
debt) of the Company that were issued for cash or Cash Equivalents on or after
the Issue Date, the amount of cash or Cash Equivalents originally received by
the Company upon the issuance of such securities (including options, warrants,
rights and convertible or exchangeable debt) less, in each case, the sum of all
payments, fees, commissions and expenses (including, without limitation, the
fees and expenses of legal counsel and investment banking fees and expenses)
incurred in connection with such sale of Qualified Capital Stock or Capital
Contribution.
"Net Income" means, with respect to any Person for any period, the net
income (loss) of such Person for such period, determined in accordance with
GAAP, reduced by the maximum amount of Permitted Tax Distributions for such
period, excluding (to the extent included in calculating such net income) (i)
any gain or loss, together with any related taxes paid or accrued on such gain
or loss, realized in connection with any Asset Sales and dispositions pursuant
to sale-leaseback transactions, and (ii) any extraordinary gain or loss,
together with any related taxes paid or accrued on such gain or loss.
"Net Proceeds" means the aggregate proceeds received in the form of cash or
Cash Equivalents in respect of any Asset Sale (other than an Event of Loss)
(including payments in respect of deferred payment obligations and any cash or
Cash Equivalents received upon the sale or disposition of any non-cash
consideration received in any Asset Sale, in each case when received, and the
net proceeds received in the form of cash or Cash Equivalents in respect of any
Event of Loss (including insurance or other payments)), net of
(i) the reasonable and customary direct out-of-pocket costs relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), other than any such costs
payable to an Affiliate of the Company,
(ii) taxes required to be paid by the Company or any of its
Subsidiaries in connection with such Asset Sale in the taxable year that
such sale is consummated or in the immediately succeeding taxable year or
any Permitted Tax Distributions during the taxable year within which such
Asset Sale is consummated or in the immediately succeeding taxable year
that would not otherwise be permitted to be distributed but for such Asset
Sale,
-13-
(iii) amounts required to be applied to the permanent repayment or
prepayment of Purchase Money Obligations and Capital Lease Obligations in
connection with such Asset Sale, and
(iv) appropriate amounts provided as a reserve by the Company or any
Restricted Subsidiary, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or such
Restricted Subsidiary, as the case may be, after such Asset Sale
(including, without limitation, as applicable, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification arising from such Asset
Sale).
"Notes" means, collectively, the Series A Notes and the Series B Notes.
"Obligation" means any principal, premium, interest, penalty, fee,
indemnification, reimbursement, damage and other obligation and liability
payable under the documentation governing any liability.
"Officers" means the Chairman of the Board, the President, the Chief
Operating Officer, Chief Financial Officer, the Treasurer, any Assistant
Treasurer, Controller, Secretary, any Assistant Secretary or any Vice President
of the Issuers.
"Officers' Certificate" means a certificate signed on behalf of the Issuers
by two Officers of each of the Company and Capital, in each case, one of whom
must be the President, Chief Operating Officer, Chief Financial Officer,
Treasurer, Controller or a Senior Vice President.
"Operating Agreement" means the Limited Liability Company Agreement of the
Company, as amended from time to time.
"Opinion of Counsel" means an opinion from legal counsel. Such counsel may
be an employee of or counsel to the Company or any Subsidiary of the Company.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Contribution" means the contribution by the Company or any of
its Restricted Subsidiaries of any Undeveloped Land to a Permitted Entity in a
transaction that satisfies each of the following: (a) such contribution shall
have been approved by a majority of the Managers that are disinterested in such
transaction (or, if none of the Managers is disinterested in such transaction, a
representative appointed by the Managers to make such determination, which
representative, in the reasonable good faith judgment of a majority of the
Managers, is disinterested in the transaction and is qualified to make such
determination); (b) such majority or such representative, as the case may be,
shall have determined in reasonable good faith that the Company and its
Restricted Subsidiaries will receive fair market value for such contribution in
the form of Equity Interests in such Permitted Entity; and (c) 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 contribution.
-14-
"Permitted Entity" means a joint venture or Unrestricted Subsidiary that
satisfies each of the following: (a) such entity satisfies each of the
requirements of clauses (a) through (d) of the proviso to the first sentence of
the definition of the term "Unrestricted Subsidiary;" (b) such entity was formed
for the primary purpose of owning and developing the Undeveloped Land that is
contributed thereto pursuant to clause (xii) of the definition of the term
"Permitted Investment;" and (c) unless the Company owns directly or indirectly
in the aggregate 100% of the Equity Interests of such entity, such entity does
not own, operate or manage any gaming equipment or otherwise engage in or
conduct any other gaming activities.
"Permitted Investments" means
(i) Investments in the Company or in any Wholly Owned Subsidiary;
(ii) Investments in Cash Equivalents;
(iii) Investments in a Person, if, as a result of such Investment,
such Person (A) becomes a Wholly Owned Subsidiary, or (B) is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Wholly Owned Subsidiary;
(iv) Hedging Obligations;
(v) Investments as a result of consideration received in connection
with an Asset Sale made in compliance with Section 4.10;
(vi) Investments existing on October 7, 2003;
(vii) Investments paid for solely with Capital Stock (other than
Disqualified Capital Stock) of the Company;
(viii) credit extensions to gaming customers in the ordinary course of
business, consistent with industry practice;
(ix) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company in
satisfaction of judgments;
(x) loans or advances to Affiliates or to employees of the Company and
its Restricted Subsidiaries in an aggregate amount not to exceed $1,000,000
at any one time outstanding pursuant to this clause (x);
(xi) Investments in a joint venture between the Company or any of its
Restricted Subsidiaries and the municipality of Black Hawk, Colorado, in an
amount not to exceed $2,500,000;
(xii) a Permitted Contribution and the interest in the Permitted
Entity received pursuant thereto; provided, that if the entity to which
such Permitted Contribution was made either (x) ceases to qualify as a
"Permitted Entity" or (y) disposes of or otherwise ceases to own the
Undeveloped Land that was the subject of such Permitted Contribution,
-15-
then the Company and its Restricted Subsidiaries will be deemed to have
made an Investment at such time equal to the aggregate fair market value of
their Investments in such entity at the time each such Investment was
originally made and such aggregate value will, for the period such
Investment does not so qualify, be included in the calculation of the
aggregate amount of Restricted Payments referenced in clause (c) of the
first paragraph of Section 4.7(c); and
(xiii) Investments in Unrestricted Subsidiaries or Affiliates,
provided, that the aggregate amount of all such Investments outstanding at
any time pursuant to this clause (xiii) shall not in the aggregate exceed
$10,000,000 (measured by the value attributed to the Investment at the time
made or returned, as applicable).
"Permitted Liens" means:
(i) Liens arising by reason of any judgment, decree or order of any
court for an amount and for a period not resulting in an Event of Default
with respect thereto, so long as such Lien is being contested in good faith
and is adequately bonded, and any appropriate legal proceedings that may
have been duly initiated for the review of such judgment, decree or order
shall not have been finally adversely terminated or the period within which
such proceedings may be initiated shall not have expired;
(ii) security for the performance of bids, tenders, trade, contracts
(other than contracts for the payment of money) or leases, surety bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business, consistent with industry practice;
(iii) Liens (other than Liens arising under ERISA) for taxes,
assessments or other governmental charges not yet due or that are being
contested in good faith and by appropriate proceedings if adequate reserves
with respect thereto are maintained on the books of the Company in
accordance with GAAP;
(iv) Liens of carriers, warehousemen, mechanics, landlords,
materialmen, repairmen or other like Liens arising by operation of law in
the ordinary course of business consistent with industry practices (other
than Liens arising under ERISA) and Liens on deposits made to obtain the
release of such Liens if (a) the underlying obligations are not overdue for
a period of more than 30 days or (b) such Liens are being contested in good
faith and by appropriate proceedings and adequate reserves with respect
thereto are maintained on the books of the Company in accordance with GAAP;
(v) Liens arising by virtue of any contractual, statutory, or common
law provision relating to bankers' liens, rights of set-off, or similar
rights and remedies regarding deposit accounts or other funds maintained
with a creditor depository institution;
(vi) (A) easements, rights of way, zoning and similar agreements,
restrictions, covenants, conditions and restrictions, including agreements
in respect of the shared use of access rights (including access rights to
utilities) and easements, and (B) other encumbrances or title defects
incurred in the ordinary course of business, consistent with
-16-
industry practices, both of which (A) and (B) do not in any case materially
detract from the value of the property subject thereto (as such property is
used by the Company or a Restricted Subsidiary) or interfere with the
ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries; provided, that such Liens are not incurred in connection with
any borrowing of money or any commitment to loan any money or to extend any
credit;
(vii) pledges or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of social security legislation;
(viii) Liens securing Refinancing Indebtedness incurred in compliance
with this Indenture to refinance Indebtedness secured by Liens, provided,
such Liens do not extend to any additional property or assets;
(ix) Liens that secure Acquired Debt; provided, that such Liens do not
extend to or cover any property or assets other than those of the Person
being acquired and were not put in place in anticipation of such
acquisition;
(x) Liens that secure FF&E Financing permitted to be incurred pursuant
to clause (b) of the second paragraph of Section 4.9; provided, that such
Liens do not extend to or cover any property or assets other than those
being acquired or developed;
(xi) those matters shown as exceptions to title on the title policies,
dated as of October 7, 2003, and issued by Fidelity National Title
Insurance Company for the benefit of the trustee under the Senior Secured
Notes Indenture;
(xii) Liens on assets of the Company and the Restricted Subsidiaries,
and the proceeds of any or all the foregoing, securing Indebtedness under
the Credit Facility incurred pursuant to clause (a) or (i) (but only to the
extent such Refinancing Indebtedness incurred under the Credit Facility
Refinanced Indebtedness permitted under clause (h)(i)) of the second
paragraph of Section 4.9;
(xiii) Liens securing additional Indebtedness incurred under the
Credit Facility in an aggregate principal amount not to exceed $10,000,000,
the proceeds of which are used by the Company or a Restricted Subsidiary to
acquire a gaming establishment containing at least 1,000 gaming devices and
pay related transaction fees and expenses;
(xiv) Liens on assets of the Company and the Restricted Subsidiaries,
and the proceeds of any or all of the foregoing, securing Indebtedness
under the Senior Secured Notes and the Senior Secured Notes Indenture
incurred in compliance with clause (h)(i) of the second paragraph of
Section 4.9;
(xv) with respect to any vessel, certain maritime liens, including
liens for crew's wages and salvage;
-17-
(xvi) leases or subleases granted in the ordinary course of business
not materially interfering with the conduct of the business of the Company
or any of its Restricted Subsidiaries;
(xvii) Liens evidenced by precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered into by the
Company or any of its Subsidiaries in the ordinary course of business;
(xviii)Liens on the GNC Land securing Indebtedness incurred pursuant
to Section 4.9, so long as the aggregate amount of the Indebtedness secured
by such Liens shall not exceed at any one time outstanding exceed 50% of
the value of the aggregate consideration paid or given by the Company and
its Restricted Subsidiaries for the GNC Land; and
(xix) Liens existing as of October 7, 2003, and securing Indebtedness
permitted to be outstanding under clause (e) of the second paragraph of
Section 4.9, to the extent and in the manner such Liens were in effect on
such date.
"Permitted Tax Distributions" in respect of the Company and each Subsidiary
that qualifies as a Flow Through Entity shall mean, with respect to any taxable
year, the sum of:
(a) the product of (i) the excess of (A) all items of taxable income
or gain (other than capital gain) of the Company that is allocated (or
otherwise flows through) to Equity Holders (or the Upper Tier Equity
Holders, as the case may be) for such year over (B) all items of taxable
deduction or loss (other than capital loss) of the Company that is
allocated (or otherwise flows through) to Equity Holders (or the Upper Tier
Equity Holders, as the case may be) for such year and (ii) the Applicable
Income Tax Rate, plus
(b) the product of (i) the net capital gain (i.e., net long-term
capital gain over net short-term capital loss), if any, of the Company that
is allocated (or otherwise flows through) to Equity Holders (or the Upper
Tier Equity Holders, as the case may be) for such year and (ii) the
Applicable Capital Gain Tax Rate, plus
(c) the product of (i) the net short-term capital gain (i.e., net
short-term capital gain in excess of net long-term capital loss), if any,
of the Company that is allocated (or otherwise flows through) to Equity
Holders (or the Upper Tier Equity Holders, as the case may be) for such
year and (ii) the Applicable Income Tax Rate, minus
(d) the aggregate Tax Loss Benefit Amount for the Company for such
year;
provided that, in no event shall the Applicable Income Tax Rate or the
Applicable Capital Gain Tax Rate exceed the greater of (1) the highest aggregate
applicable effective marginal rate of Federal, state, and local income to which
a corporation doing business in the State of New York would be subject in the
relevant year of determination (as certified to the Trustee by a nationally
recognized tax accounting firm) plus 5%; and (2) 60%. For purposes of
calculating the amount of the Permitted Tax Distributions, the proportionate
part of the items of taxable income, gain, deduction, or loss (including capital
gain or loss) of any Subsidiary that is a Flow Through Entity
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shall be included in determining the taxable income, gain, deduction, or loss
(including capital gain or loss) of the Company.
Estimated tax distributions shall be made within fifteen days following
March 31, May 31, August 31, and December 31 based upon an estimate of the
excess of (x) the tax distributions that would be payable for the period
beginning on January 1 of such year and ending on March 31, May 31, August 31,
and December 31 if such period were a taxable year (computed as provided above)
over (y) distributions attributable to all prior periods during such taxable
year; provided that the estimated tax distribution with respect to the period
ending December 31 may be made within the last five days of such period.
Prior to making any estimated tax distribution, the Company shall require
each Equity Holder and Upper Tier Equity Holder to agree that (a) promptly after
the Company and each Subsidiary file their respective annual tax return, (i)
such Equity Holder and Upper Tier Equity Holder shall be jointly and severally
liable to reimburse the Company to the extent the estimated tax distributions
made to such Equity Holder exceeded the actual Permitted Tax Distributions, as
determined on the basis of such tax returns filed in respect of such taxable
year for that Equity Holder (or Upper Tier Equity Holder, as the case may be)
and (ii) the Company shall make a further payment to such Equity Holder to the
extent such estimated tax distributions were less than the actual Permitted Tax
Distributions, as determined on the basis of such tax returns filed in respect
of such taxable year for that Equity Holder (or Upper Tier Equity Holder, as the
case may be) and (b) if the appropriate Federal or state taxing authority
finally determines that the amount of the items of taxable income, gain,
deduction, or loss (including capital gain or loss) of the Company or any
Subsidiary that is treated as a Flow Through Entity for any taxable year or the
aggregate Tax Loss Benefit Amounts carried forward to such taxable year should
be changed or adjusted (including by reason of a final determination that the
Company or such Subsidiary was not a Flow Through Entity), then (i) such Equity
Holder and Upper Tier Equity Holder shall be jointly and severally liable to
reimburse the Company in an amount (such amount, until reimbursed to the
Company, an "Unreimbursed Tax Distribution Amount") equal to the sum of (A) the
excess of (x) the Permitted Tax Distributions previously made to such Equity
Holder in respect of that taxable year over (y) the Permitted Tax Distributions
with respect to such taxable year, taking into account such change or adjustment
for such Equity Holder, plus (B) interest and penalties imposed on the Company
and its Subsidiaries by a Governmental Authority resulting from a final
determination that the Company or a Subsidiary was not a Flow Through Entity,
and (ii) the Company shall make a further payment to such Equity Holder to the
extent the Permitted Tax Distributions previously made to such Equity Holder in
respect of that taxable year were less than the Permitted Tax Distributions
payable to such Equity Holder with respect to such taxable year taking into
account such change or adjustment.
To the extent that any tax distribution would otherwise be made to any
Equity Holder at a time when an obligation of such Equity Holder to make a
payment to the Company pursuant to the previous paragraph remains outstanding,
the amount of any tax distribution to be made shall be reduced by the amounts
such Equity Holder is obligated to pay the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity.
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"Pre-Opening Expenses" means all costs of start-up activities that are
required to be expensed (and are not capitalized) in accordance with SOP 98-5.
"Private Placement Legend" means the legend set forth in Exhibit B to be
placed on all Notes issued under this Indenture except where otherwise permitted
by the provisions of this Indenture.
"Purchase Money Obligations" means Indebtedness representing, or incurred
to finance, the cost (i) of acquiring any assets and (ii) of construction or
build-out of facilities (including Purchase Money Obligations of any other
Person at the time such other Person is merged with or into or is otherwise
acquired by the Issuers); provided, that (x) the principal amount of such
Indebtedness does not exceed 80% of such cost, including construction charges,
(y) any Lien securing such Indebtedness does not extend to or cover any other
asset or property other than the asset or property being so acquired,
constructed or built and (z) such Indebtedness is incurred, and any Liens with
respect thereto are granted, within 180 days of the acquisition or commencement
of construction or build-out of such property or asset.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Capital Stock" means, with respect to any Person, Capital Stock
of such Person other than Disqualified Capital Stock.
"Qualified Equity Offering" means (1) an underwritten registered public
offering of Qualified Capital Stock of the Company (or any holding company
thereof) for cash, other than pursuant to Form S-8 (or any successor thereto)
under the Securities Act and other than shares of Qualified Capital Stock of the
Company (or such holding company) issued (A) pursuant to employee benefit plans
or as compensation to employees or (B) to any of the Company's Subsidiaries (or
in the case where such Qualified Capital Stock is being issued by such holding
company, the Company), and (2) an unregistered offering of Qualified Capital
Stock of the Company (or such holding company) for cash resulting in net
proceeds to the Company in excess of $10,000,000.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the Issue Date, by and among the Issuers and the Initial Purchaser
as such agreement may be amended, modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or a
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note in the
form of Exhibit A, bearing the Private Placement Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee and issued
upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a global Note in the form of
Exhibit A bearing the Private Placement Legend and the legend set forth in
Exhibit D and deposited with or
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on behalf of and registered in the name of the Depositary or its nominee, issued
in a denomination equal to the outstanding principal amount at maturity of the
Notes initially sold in reliance on Rule 903 of Regulation S.
"Related Business" means the gaming and hotel businesses conducted by the
Company as of the Issue Date and any and all businesses that in the good faith
judgment of the Managers are materially related businesses.
"Required Regulatory Redemption" means a redemption by the Issuers of any
Holder's Notes pursuant to, and in accordance with, any order of any
Governmental Authority with appropriate jurisdiction and authority relating to a
Gaming License, or to the extent necessary in the reasonable, good faith
judgment of the Managers to prevent the loss, failure to obtain or material
impairment or to secure the reinstatement of, any Gaming License, where such
redemption or acquisition is required because the Holder or beneficial owner of
Notesis 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.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee located at the
Corporate Trust Office (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" has the meaning set forth in Section 4.8.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S.
"Restricted Securities" means Notes that bear or are required to bear the
legends set forth in Exhibit A hereto.
"Restricted Subsidiary" means a Subsidiary other than an Unrestricted
Subsidiary.
"Return from Unrestricted Subsidiaries" means (a) 50% of the fair market
value of any dividends or distributions received by the Company or a Restricted
Subsidiary from an Unrestricted Subsidiary, to the extent that such dividends or
distributions were not otherwise included in Consolidated Net Income of the
Company, plus (b) to the extent not otherwise included in Consolidated Net
Income of the Company, an amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (i) repayments and prepayments of the
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principal of loans or advances or other transfers of assets to the Company or
any Restricted Subsidiary from Unrestricted Subsidiaries or (ii) the sale or
liquidation of any Unrestricted Subsidiaries; plus (c) to the extent that any
Unrestricted Subsidiary is designated to be a Restricted Subsidiary, the fair
market value of the Company's Investment in such Subsidiary on the date of such
designation.
"Revenue-Based Management Distributions" is defined in the definition of
Management Agreement.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Secured Notes" means the 9 1/2% Senior Secured Notes due 2010 of
the Company and the Corporate Senior Secured Notes Co-Issuer and includes any
9 1/2% Senior Secured Notes due 2010 issued in exchange therefor in connection
with an exchange offering in respect thereof.
"Senior Secured Notes Indenture" means the indenture dated as of October 7,
2003, among the Company and the Corporate Senior Secured Notes Co-Issuer, as
co-issuers, the guarantors parties thereto and The Bank of New York, as trustee,
pursuant to which the Senior Secured Notes were issued and includes any
guarantees in respect of the Senior Secured Notes or security or collateral
agreements securing the Senior Secured Notes or such guarantees.
"Series A Notes" means the Issuers' 9 3/4% Series A Senior Notes due 2011,
as authenticated and issued under this Indenture.
"Series B Notes" means the Issuers' 9 3/4% Series B Senior Notes due 2011,
as authenticated and issued under this Indenture.
"Shelf Registration Statement" means a shelf registration statement
pursuant to Rule 415 under the Securities Act relating to the resale by certain
holders of the Series A Notes.
"subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity (including a limited liability company) of
which more than 50% of the total voting power of shares of Voting Stock thereof
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other subsidiaries of that Person or a combination thereof
and (ii) any partnership in which such Person or any of its subsidiaries is a
general partner.
"Subsidiary" means any subsidiary of the Company.
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"Subsidiary Guarantor" means any Restricted Subsidiary that has executed
and delivered in accordance with this Indenture an unconditional and irrevocable
Subsidiary Guarantee of the Issuers' obligations under the Notes and such
Person's successors and assigns.
"Subsidiary Guarantee" means an unconditional and irrevocable guaranty by a
Subsidiary Guarantor of the Obligations of the Issuers under the Notes and this
Indenture, as set forth in this Indenture, as amended from time to time in
accordance with the terms thereof.
"Tax Loss Benefit Amount" means, with respect to any taxable year, the
amount by which the Permitted Tax Distributions would be reduced were a net
operating loss or net capital loss from a prior taxable year of the Company
ending subsequent to the Issue Date carried forward to such taxable year;
provided, that for such purpose the amount of any such net operating loss or net
capital loss shall be utilized only once and in each case shall be carried
forward to the next succeeding taxable year until so utilized. For purposes of
calculating the Tax Loss Benefit Amount, the proportionate part of the items of
taxable income, gain, deduction, or loss (including capital gain or loss) of any
Subsidiary that is a Flow Through Entity for a taxable year of such Subsidiary
ending subsequent to the Issue Date shall be included in determining the amount
of net operating loss or net capital loss of the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date hereof until such time as
this Indenture is qualified under the TIA, and thereafter as in effect on the
date on which this Indenture is qualified under the TIA.
"transfer" means, with respect to any asset, any direct or indirect sale,
assignment, transfer, lease, conveyance, or other disposition (including,
without limitation, by way of merger or consolidation).
"Trustee" means The Bank of New York Trust Company, N.A., a New York
banking corporation, until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
"Undeveloped Land" means any unimproved land owned by the Company or any of
its Restricted Subsidiaries; provided that for the avoidance of doubt, for
purposes of determining the amount of any Permitted Investment pursuant to
clause (xii) of the definition thereof, (a) the amount of such contribution
attributable to the amount or value of any Investments in, or capital
expenditures or other payments with respect to, or development of or improvement
on, such Undeveloped Land after the Issue Date (other than minor improvements
and other than payments for reasonable costs incurred in connection with such
contribution, which costs would customarily be incurred by a seller of
unimproved land, including, without limitation, for title charges, environmental
studies, surveys and legal fees) shall not constitute a Permitted Investment,
and (b) any Investments in, or capital expenditures or other payments with
respect to, the Permitted Entity (to whom such Undeveloped Land was contributed
pursuant to such clause) after the Issue Date shall not constitute a Permitted
Investment.
"Unreimbursed Tax Distribution Amount" is defined in the definition of
Permitted Tax Distributions.
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"Unrestricted Definitive Note" means one or more Definitive Notes that do
not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means one or more Global Notes that do not and
are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary that, at or prior to the
time of determination, shall have been designated by the Managers as an
Unrestricted Subsidiary; provided, that such Subsidiary (a) does not hold any
Indebtedness or Capital Stock of, or any Lien on any assets of, the Company or
any Restricted Subsidiary; (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company; (c) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries. If, at any time, any Unrestricted Subsidiary would
fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary as of such date. The Managers may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation shall only be permitted if (i) such Indebtedness is permitted
under the Interest Coverage Ratio test set forth in Section 4.9 calculated on a
pro forma basis as if such designation had occurred at the beginning of the
four- quarter reference period, and (ii) no Default or Event of Default would be
in existence following such designation. The Managers may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary so long as no Default or
Event of Default is in existence at the time of such designation or would be in
existence following such designation. The Company shall be deemed to make an
Investment in each Subsidiary designated as an Unrestricted Subsidiary
immediately following such designation in an amount equal to the Investment in
such Subsidiary and its subsidiaries immediately prior to such designation. Any
such designation by the Managers shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution of the Managers giving
effect to such designation and an Officers' Certificate certifying that such
designation complies with the foregoing conditions and is permitted by Section
4.9.
"Upper Tier Equity Holder" means, in the case of any Flow Through Entity
the Equity Holder of which is, in turn, a Flow Through Entity, the person that
is ultimately subject to tax on a net income basis on the items of taxable
income, gain, deduction, and loss of the Company and its Subsidiaries that are
Flow Through Entities.
"U.S. Government Obligations" means direct obligations of the United States
of America, or any agency or instrumentality thereof for the payment of which
the full faith and credit of the United States of America is pledged.
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"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" means, with respect to any Person, (i) one or more classes
of the Capital Stock of such Person having general voting power to elect at
least a majority of the Board of Directors, managers or trustees of such Person
(regardless of whether at the time Capital Stock of any other class or classes
have or might have voting power by reason of the happening of any contingency)
and (ii) any Capital Stock of such Person convertible or exchangeable without
restriction at the option of the holder thereof into Capital Stock of such
Person described in clause (i) above.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years (rounded to the nearest one-twelfth) obtained
by dividing (i) the then outstanding principal amount of such Indebtedness into
(ii) the total of the product obtained by multiplying (A) the amount of each
then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof,
by (B) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment.
"Wholly Owned Subsidiary" of any Person means a subsidiary of such Person
all the Capital Stock of which (other than directors' qualifying shares) is
owned directly or indirectly by such Person or by a Wholly Owned Subsidiary of
such Person; provided, that with respect to the Company, the term Wholly Owned
Subsidiary shall exclude Unrestricted Subsidiaries.
SECTION 1.2 Other Definitions.
TERM DEFINED IN SECTION
---- ------------------
"Change of Control Offer" 4.14
"Change of Control Payment" 4.14
"Change of Control Payment Date" 4.14
"Covenant Defeasance" 8.3
"Definitive Notes" 2.1
"Event of Default" 6.1
"Excess Proceeds" 4.10
"Excess Proceeds Offer" 4.10
"Excess Proceeds Offer Period" 4.10
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TERM DEFINED IN SECTION
---- ------------------
"Excess Proceeds Payment Date" 4.10
"Global Notes" 2.1
"Legal Defeasance" 8.2
"Paying Agent" 2.3
"Purchase Amount" 4.10
"Refinance" 4.9(i)
"Refinancing Indebtedness" 4.9(i)
"Registrar" 2.3
"Restricted Payments" 4.7
"Subordinated Debt" 4.7
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Issuers, the Subsidiary Guarantors and any
successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute, or defined by Commission rule under the TIA
have the meanings so assigned to them.
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SECTION 1.4 Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions;
(f) "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 the terms "Article," "Section," and "Exhibit," unless
otherwise specified or indicated by the context in which used, mean the
corresponding article or section of, or the corresponding exhibit to, this
Indenture; and
(g) references to agreements and other instruments include subsequent
amendments, supplements and waivers to such agreements or instruments but
only to the extent not prohibited by this Indenture.
ARTICLE II
THE NOTES
SECTION 2.1 Form and Dating. (a) The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A attached hereto,
the terms of which are incorporated in and made a part of this Indenture. Each
Note shall include the Subsidiary Guarantee executed by each of the Subsidiary
Guarantors in the form of Exhibit C attached hereto, the terms of which are
incorporated into and made a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Issuers are subject or usage. Each Note shall be dated
the date of its authentication. The Notes shall be issued in denominations of
$1,000 and integral multiples thereof.
(b) Global Notes. The Notes will be issued (i) in global form (the "Global
Notes"), substantially in the form of Exhibit A attached hereto (and shall
include the legend set forth in Exhibit E and shall include the "Schedule of
Exchanges of Interests in the Global Note" set forth in Exhibit A) and (ii)
under certain circumstances, in definitive form (the "Definitive Notes"),
substantially in the form of Exhibit A attached hereto (but without the
"Schedule of Exchanges of Interests in the Global Note" set forth in Exhibit A).
Each Global Note shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon; provided that, the aggregate amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the amount
of outstanding Notes
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represented thereby shall be made by the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.6.
(c) Regulation S Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or Clearstream,
duly executed by the Issuers and authenticated by the Trustee as hereinafter
provided. Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Notes pursuant to Section
2.6 and the Applicable Procedures. Simultaneously with the authentication of
Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation S
Temporary Global Note.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Banking" and "Customer Handbook" of Clearstream shall be applicable to transfers
of beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Clearstream.
SECTION 2.2 Execution and Authentication. Two Officers of each of the
Issuers shall sign the Notes for the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the
time the Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature of the Trustee shall be conclusive evidence that the
Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in Exhibit A attached hereto.
The Trustee shall, upon a Company Order, authenticate for original issue
Notes in any aggregate principal amount. The aggregate principal amount of Notes
that may be authenticated and delivered under this Indenture is unlimited.
Subject to Section 4.9, additional Notes may be issued hereunder from time to
time, without the consent of the Holders of previously issued Notes, in an
aggregate principal amount to be determined from time to time by the Issuers.
The Trustee may appoint an authenticating agent acceptable to the Issuers
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authenticating by the Trustee includes
authenticating by such agent. An authenticating agent has the same rights as an
Agent to deal with the Issuers or an Affiliate of the Issuers.
The Issuers, the Trustee and any agent of the Issuers or the Trustee may
treat the Person in whose name any Note is registered as the owner of such Note
for the purpose of receiving payment of principal of and (subject to the
provisions of this Indenture and the Notes with respect to record dates)
interest on such Note and for all other purposes whatsoever, whether or
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not such Note is overdue, and neither the Issuers, the Trustee nor any agent of
the Issuers or the Trustee shall be affected by notice to the contrary.
SECTION 2.3 Registrar, Paying Agent and Depositary. The Issuers shall
maintain (i) an office or agency where Notes may be presented for registration
of transfer or for exchange ("Registrar") and (ii) an office or agency where
Notes may be presented for payment ("Paying Agent"). The Issuers initially
appoint the Trustee as Registrar and Paying Agent. The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Issuers may
appoint one or more co-registrars and one or more additional paying agents. The
term "Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Issuers may change any Paying Agent or
Registrar without notice to any Holder. The Issuers shall notify the Trustee of
the name and address of any Agent not a party to this Indenture. If the Issuers
fail to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar, except that for purposes of Articles III and VIII and
Sections 4.1, 4.10 and 4.14, neither the Company nor any of its Subsidiaries
shall act as Paying Agent.
The Issuers shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which shall incorporate the provisions of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such Agent.
The Issuers initially appoint DTC to act as Depositary with respect to the
Global Notes. The Trustee shall act as custodian for the Depositary with respect
to the Global Notes.
SECTION 2.4 Paying Agent to Hold Money In Trust. The Issuers shall require
each Paying Agent other than the Trustee to agree in writing that the Paying
Agent shall hold in trust for the benefit of the Holders or the Trustee all
money held by the Paying Agent for the payment of principal, premium, if any, or
interest on the Notes and shall notify the Trustee in writing of any default by
the Issuers in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Issuers at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary of the Company) shall have no further liability
for the money delivered to the Trustee. If the Company or a Subsidiary of the
Company acts as Paying Agent (subject to Section 2.3), it shall segregate and
hold in a separate trust fund for the benefit of the Holders all money held by
it as Paying Agent. Upon any bankruptcy or reorganization related to the
Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5 Holder Lists. The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names
and addresses of all Holders and shall otherwise comply with TIA Section 312(a).
If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders, including the aggregate principal amount of Notes held by each such
Holder, and the Issuers shall otherwise comply with TIA Section 312(a).
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SECTION 2.6 Transfer and Exchange. (a) Transfer and Exchange of Global
Notes. A Global Note may not be transferred as a whole except by the Depositary
to a nominee of the Depositary, by a nominee of the Depositary to the Depositary
or to another nominee of the Depositary, or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary. All
Global Notes shall be exchanged by the Issuers for Definitive Notes (i) if the
Depositary (A) notifies the Issuers that it is unwilling or unable to continue
as Depositary for the Global Notes and the Issuers fail to appoint a successor
Depositary within 90 days after receiving such notice or (B) has ceased to be a
clearing agency registered under the Exchange Act and the Issuers fail to
appoint a successor Depositary within 90 days after becoming aware of such
condition; (ii) if the Issuers, at their option, notify the Trustee in writing
that they elect to cause the issuance of Definitive Notes; provided that in no
event shall the Regulation S Temporary Global Note be exchanged by the Issuers
for Definitive Notes other than in accordance with Section 2.6(c)(2); or (iii)
at the request of the Holders, if there shall have occurred and be continuing a
Default or Event of Default with respect to the Notes. Upon the occurrence of
any of the preceding events in (i), (ii) or (iii) above, Definitive Notes shall
be issued in such names as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.7 and 2.10. Every Note authenticated and delivered in exchange for,
or in lieu of, a Global Note or any portion thereof, pursuant to this Section
2.6 or Sections 2.7 or 2.10, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.6(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.6(b), (c), (f) or (g).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Beneficial Interests in the Same Global Note. Beneficial
interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the
same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided,
however, that, prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Regulation S Temporary Global
Note may not be made to a U.S. Person or for the account or benefit of
a U.S. Person (other than an Initial Purchaser). Beneficial interests
in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.6(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.6(b)(1) above,
the transferor of such
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beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest
in another Global Note in an amount equal to the beneficial interest
to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above; provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial interests
in the Regulation S Temporary Global Note other than in accordance
with Section 2.6(c)(2). Upon consummation of an Exchange Offer by the
Issuers in accordance with Section 2.6(f), the requirements of this
Section 2.6(b)(2) shall be deemed to have been satisfied upon receipt
by the Registrar of the instructions contained in the letter of
transmittal delivered by the holder of such beneficial interests in
the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount at maturity of the relevant Global Notes pursuant to
Section 2.6(g).
(3) Beneficial Interests to Another Restricted Global Note. A
beneficial interest in any Restricted Global Note may be transferred
to a Person who takes delivery thereof in the form of a beneficial
interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.6(b)(2) above and the Registrar
receives the following:
(A) if the transferee shall take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit F, including
the certifications in item (1) thereof; and
(B) if the transferee shall take delivery in the form of a
beneficial interest in a Regulation S Temporary Global Note, then
the transferor must deliver a certificate in the form of Exhibit
F, including the certifications in item (2) thereof.
(4) Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial
interest in any Restricted Global Note may be exchanged by any Holder
thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.6(b)(2) above
and:
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(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable letter of
transmittal that (1) it is not an affiliate (as defined in Rule
144) of the Company, (2) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with
any Person to participate in a distribution of the Series B Notes
to be issued in the Exchange Offer and (3) it is acquiring the
Series B Notes in its ordinary course of business;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit G,
including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit F, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
or the Issuers so request or if the Applicable Procedures so require, an
opinion of counsel in form reasonably acceptable to the Registrar and the
Issuers to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) at a
time when an Unrestricted Global Note has not yet been issued, the Issuers shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.2, the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
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(c) Transfer or Exchange of Beneficial Interests in Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit G, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit F, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904, a certificate to the effect set forth in
Exhibit F, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a certificate to
the effect set forth in Exhibit F, including the certifications
in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than that listed in subparagraph (B) above, a certificate to the
effect set forth in Exhibit F hereto, including the
certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the
Issuers or any of their Subsidiaries, a certificate to the effect
set forth in Exhibit F, including the certifications in item
(3)(a) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
F hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.6(g) hereof,
and the Issuers shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in
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exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.6(c)(1) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.6(c)(1) shall bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary Global Note to
Definitive Notes. A beneficial interest in the Regulation S Temporary
Global Note may not be exchanged for a Definitive Note or transferred
to a Person who takes delivery thereof in the form of a Definitive
Note prior to the expiration of the Restricted Period, except in the
case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable letter of transmittal that (1) it is
not an affiliate (as defined in Rule 144) of the Company, (2) it
is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a
distribution of the Series B Notes to be issued in the Exchange
Offer and (3) it is acquiring the Series B Notes in its ordinary
course of business;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form of
Exhibit G, including the certifications in item (1)(b) thereof;
or
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(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a Definitive Note that does not bear the Private Placement
Legend, a certificate from such Holder in the form of Exhibit F,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
or the Issuers so request or if the Applicable Procedures so require, an
opinion of counsel in form reasonably acceptable to the Registrar and the
Issuers to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.6(b)(2), the Trustee shall cause the aggregate principal amount of
the applicable Global Note to be reduced accordingly pursuant to
Section 2.6(g), and the Issuers shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.6(c)(4) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.6(c)(4)
shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit G, including the certifications in item (2)(b)
thereof;
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(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit F, including the certifications in
item (1) thereof;
(C) if such Restricted Definitive Note is being transferred
to a non-U.S. Person in an "offshore transaction" in accordance
with Rule 903 or Rule 904, a certificate to the effect set forth
in Exhibit F, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a certificate to
the effect set forth in Exhibit F, including the certifications
in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit F,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to the Issuers or any of their Subsidiaries, a certificate to the
effect set forth in Exhibit F, including the certifications in
item (3)(a) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
F, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, and increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case of
clause (B) above, the 144A Global Note, and in the case of clause (C)
above, the Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable letter of transmittal (1) it is not an affiliate (as
defined in Rule 144) of the Company, (2) it is not engaged in,
and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution
of the Series B Notes to be
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issued in the Exchange Offer and (3) it is acquiring the Series B
Notes in its ordinary course of business;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit G, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Restricted Definitive Note
proposes to transfer such Note to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit F, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
or the Issuers so request or if the Applicable Procedures so require, an
opinion of counsel in form reasonably acceptable to the Registrar and the
Issuers to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.6(d)(2), the Trustee shall cancel the Definitive Notes and increase or
cause to be increased the aggregate principal amount of the Unrestricted Global
Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Unrestricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (2) or (3) of this Section 2.6(d)
above at a time when an Unrestricted Global Note has not yet been issued, the
Issuers shall issue and, upon receipt of an Officer's Certificate in accordance
with Section 2.1, the Trustee shall authenticate one or more
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Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.6(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.6(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a
Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer shall be made pursuant to Rule 144A,
then the transferor must deliver a certificate in the form of
Exhibit F, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the
form of Exhibit F, including the certifications in item (2)
thereof; and
(C) if the transfer shall be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit F, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof
for an Unrestricted Definitive Note or transferred to a Person or
Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable letter of transmittal that (1) it is not an affiliate
(as defined in Rule 144) of the Company, (2) it is not engaged
in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution
of the Series B Notes to be issued in the Exchange Offer and (3)
it is acquiring the Series B Notes in its ordinary course of
business;
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(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit G,
including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Note
proposes to transfer such Note to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note,
a certificate from such Holder in the form of Exhibit F,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests, an opinion of counsel in form reasonably acceptable to the
Issuers to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act..
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the Issuers shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.2, the Trustee
shall authenticate (i) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in
the applicable Letters of Transmittal that (x) they are not affiliates (as
defined in Rule 144) of the Issuers, (y) they are not engaged in, and do not
intend to engage in, and have no arrangement or understanding with any Person to
participate in, a distribution of the Series B Notes to be issued in the
Exchange Offer and (z) they are acquiring the Series B Notes in their ordinary
course of business and (ii) Unrestricted Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated
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by the Holders of Restricted Global Notes so accepted Unrestricted Global Notes
in the appropriate principal amount.
(g) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.12 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who shall take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary or Custodian at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary or Custodian at the direction of the Trustee to
reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuers
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Issuers' order or at the Registrar's request.
(ii) No service charge shall be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Issuers may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 4.10 and 9.5 or Section 5 of the Note).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) The Issuers and the Registrar shall not be required (A) to issue,
to register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.2 or Section 3.7 and
ending at the close of business on the day of selection, (B) to register
the transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part, (C) to register the transfer of or to exchange a Note between a
record date and the next succeeding interest payment date or (D) to
register the transfer of or to exchange a Note tendered and not withdrawn
in connection with a Excess Proceeds Offer or a Change of Control Offer.
(v) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Issuers may deem and treat the Person
in whose name any
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Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes and for all
other purposes, and none of the Trustee, any Agent or the Issuers shall be
affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.2.
(vii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.6 to
effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.7 Replacement Notes. If any mutilated Note is surrendered to the
Trustee, or the Issuers and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Note, the Issuers shall issue and the
Trustee shall authenticate a replacement Note if the Trustee's requirements for
replacements of Notes are met. If required by the Trustee or the Issuers, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent or
any authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Issuers or the Trustee may charge for their expenses in replacing
a Note.
Every replacement Note is an obligation of the Issuers and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.8 Outstanding Notes. The Notes outstanding at any time are all
the Notes authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.8 as not outstanding.
If a Note is replaced pursuant to Section 2.7, the replaced Note ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.1,
it ceases to be outstanding and interest on it ceases to accrue.
Subject to Section 2.9, a Note does not cease to be outstanding because the
Issuers or an Affiliate of the Issuers holds the Note; however, Notes held by
the Trustee shall not be deemed to be outstanding for purposes of Section 3.7.
SECTION 2.9 Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Issuers or any Affiliate of the Issuers shall be
considered as though not outstanding, except that for purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes that a Responsible Officer of the Trustee actually knows
to be so owned shall be considered as not outstanding.
SECTION 2.10 Temporary Notes. Pending the preparation of Definitive Notes,
the Issuers (and the Subsidiary Guarantors) may execute, and upon Company Order
the Trustee shall
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authenticate and deliver, temporary Notes that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the definitive Notes in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuers (and the Subsidiary Guarantors)
shall cause definitive Notes to be prepared without unreasonable delay. The
definitive Notes shall be printed, lithographed or engraved, or provided by any
combination thereof, or in any other manner permitted by the rules and
regulations of any principal national securities exchange, if any, on which the
Notes are listed, all as determined by the Officers executing such definitive
Notes. After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency maintained by the Issuers for such purpose pursuant to Section
4.2, without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes, the Issuers (and the Subsidiary Guarantors) shall execute,
and the Trustee shall authenticate and deliver, in exchange therefor the same
aggregate principal amount of definitive Notes of authorized denominations.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as definitive Notes.
SECTION 2.11 Cancellation. The Issuers at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall retain or destroy cancelled Notes in accordance with its normal practices
(subject to the record retention requirement of the Exchange Act) unless the
Issuers direct them to be returned to the Issuers. The Issuers may not issue new
Notes to replace Notes that have been redeemed or paid or that have been
delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be disposed of by the Trustee in its customary manner.
SECTION 2.12 Defaulted Interest. If the Issuers default in a payment of
interest on the Notes, the Issuers shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date,
which date shall be at the earliest practicable date but in all events at least
five Business Days prior to the payment date, in each case at the rate provided
in the Notes and in Section 4.1. The Issuers shall, with the consent of the
Trustee, fix or cause to be fixed each such special record date and payment
date. At least 15 days before the special record date, the Issuers (or the
Trustee, in the name of and at the expense of the Issuers) shall mail to the
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
SECTION 2.13 Deposit of Moneys. Subject to Section 3.5, prior to 10:00 a.m.
on each date on which the principal of, premium, if any, and interest on the
Notes are due, the Issuers shall deposit with the Trustee or Paying Agent in
immediately available funds, money sufficient to make cash payments, if any, due
on such date in a timely manner that permits the Trustee or the Paying Agent to
remit payment to the Holders on such date.
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SECTION 2.14 CUSIP Numbers. The Issuers may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that, any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuers will promptly notify the Trustee in
writing of any change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION
SECTION 3.1 Notices to Trustee. If the Issuers elect to redeem Notes
pursuant to Section 3.7, or are required to redeem Notes pursuant to Section
3.8, the Issuers shall furnish to the Trustee, at least 45 days but not more
than 60 days before a redemption date (except in the case of a Required
Regulatory Redemption requiring less notice), an Officers' Certificate setting
forth (i) the clause of Section 3.7 pursuant to which the redemption shall occur
or if the redemption is required by Section 3.8, (ii) the redemption date, (iii)
the principal amount of Notes to be redeemed and (iv) the redemption price.
SECTION 3.2 Selection of Notes to be Redeemed. If less than all of the
Notes are to be redeemed pursuant to Section 3.7 or 3.8, the Trustee shall
select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed,
or, if the Notes are not so listed, on a pro rata basis, by lot or by such
method as the Trustee deems to be fair and reasonable.
The Trustee shall promptly notify the Issuers in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.3 Notice of Redemption. At least 30 days but not more than 60
days before a redemption date (except in the case of a Required Regulatory
Redemption requiring less notice), the Issuer shall provide a notice of
redemption to each Holder whose Notes are to be redeemed either by mailing a
Notice by First Class Mail to each such Holder's registered address; provided
however that so long as DTC is the only registered Holder of the Notes, such
Notice may be given by e-mailing the notification to DTC at
XxxxxxxxxxXxxxxxxxxxxx@xxxx.xxx.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part only, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date, upon
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cancellation of the original Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption
payment, interest on Notes or portions of Notes called for redemption
ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or the section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) the CUSIP number of the Notes to be redeemed.
At the Issuers' request, the Trustee shall give the notice of redemption in
the name of the Issuers and at the Issuers' expense; provided that, the Issuers
shall deliver to the Trustee, at least 15 days (unless a shorter period is
acceptable to the Trustee) prior to the date such notice is to be given, an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.4 Effect of Notice of Redemption. Once notice of redemption has
been mailed to the Holders in accordance with Section 3.3 herein, Notes called
for redemption become due and payable on the redemption date at the redemption
price. At any time prior to the mailing of a notice of redemption to the Holders
pursuant to Section 3.3, the Issuers may withdraw, revoke or rescind any notice
of redemption delivered to the Trustee without any continuing obligation to
redeem the Notes as contemplated by such notice of redemption.
SECTION 3.5 Deposit of Redemption Price. At or before 10:00 a.m. on the
redemption date, the Issuers shall deposit with the Trustee (to the extent not
already held by the Trustee) or with the Paying Agent money in immediately
available funds sufficient to pay the redemption price of and accrued interest
on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall
return to the Issuers any money deposited with the Trustee or the Paying Agent
by the Issuers in excess of the amounts necessary to pay the redemption price
of, and accrued interest on, all Notes to be redeemed.
Interest on the Notes to be redeemed shall cease to accrue on the
applicable redemption date, whether or not such Notes are presented for payment,
if the Issuers make or deposit the redemption payment in accordance with this
Section 3.5. If any Note called for redemption shall not be paid upon surrender
for redemption because of the failure of the Issuers to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes.
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SECTION 3.6 Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Issuers shall issue and the Trustee shall authenticate for
the Holder at the expense of the Issuers a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
SECTION 3.7 Optional Redemption. (a) Except as set forth in Sections 3.7(b)
and 3.8, the Notes are not redeemable at the Issuers' option prior to October
15, 2008. Thereafter, the Notes will be subject to redemption at the option of
the Issuers, in whole or in part, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon and Liquidated Damages, if any, to the applicable date of
redemption, if redeemed during the 12-month period beginning on October 15 of
the years indicated below:
Year Percentage
---- ----------
2008 104.875%
2009 102.438%
2010 and thereafter 100.000%
(b) Notwithstanding the foregoing, at any time or from time to time prior
to October 15, 2008, the Issuers may redeem, at their option, up to 35% of the
aggregate principal amount of the Notes then outstanding at a redemption price
of 109.750% of the principal amount thereof, plus accrued and unpaid interest
thereon and Liquidated Damages, if any, through the applicable date of
redemption, with the Net Cash Proceeds of one or more Qualified Equity
Offerings; provided that, (a) such redemption shall occur within 60 days of the
date of closing of such Qualified Equity Offerings and (b) at least 65% of the
aggregate principal amount of Notes issued on or after the Issue Date remains
outstanding immediately after giving effect to each such redemption.
SECTION 3.8 Required Regulatory Redemption. The Notes shall be redeemable
by the Issuers, in whole or in part, at any time upon not less than 20 Business
Days nor more than 60 days' notice (or such earlier date as may be required by
any Gaming Authority) at 100% of the principal amount thereof plus accrued and
unpaid interest thereon (or, if required by any Gaming Authority, the fair
market value of such Notes, or such other amount as may be required by
applicable law or order of such Gaming Authority) and Liquidated Damages (if
permitted by relevant Gaming Authorities), if any, to the redemption date,
pursuant to a Required Regulatory Redemption. Any Required Regulatory Redemption
shall, except as specifically provided in this Section 3.8, be made in
accordance with the applicable provisions of Sections 3.3, 3.4 and 3.5 unless
other procedures are required by any Gaming Authority. In addition, where such
redemption is required because the Holder or beneficial owner of Notes is
required to be found suitable or to otherwise qualify under any Gaming Laws and
is not found suitable or so qualified, the Issuers shall have the right to
require any such Holder or beneficial owner to dispose of its Notes upon 30
days' notice (or such earlier date as may be required by the applicable Gaming
Authority).
SECTION 3.9 No Mandatory Redemption. The Issuers shall not be required to
make mandatory redemption payments with respect to the Notes (except for a
Required Regulatory Redemption). The Notes shall not have the benefit of any
sinking fund.
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ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes. The Issuers shall pay the principal and
premium, if any, of, and interest on, the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, other than the Company or a
Subsidiary of the Company, holds on or before that date money deposited by the
Issuers in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. Such Paying Agent shall
return to the Issuers, no later than three Business Days following the date of
payment, any money that exceeds such amount of principal, premium, if any, and
interest then due and payable on the Notes. The Issuers shall pay any and all
amounts, including, without limitation, Liquidated Damages, if any, on the dates
and in the manner required under the Registration Rights Agreement.
The Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Code) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Code) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.2 Maintenance of Office or Agency. The Issuers shall maintain an
office or agency (which may be an office of the Trustee, Registrar or
co-registrar) in the Borough of Manhattan, The City of New York where Notes may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuers in respect of the Notes and this Indenture may be
served. The Issuers 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 Issuers shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Issuers may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that, no
such designation or rescission shall in any manner relieve the Issuers of their
obligation to maintain an office or agency for such purposes. The Issuers 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 Issuers hereby designate the Corporate Trust Office of the Trustee as
one such office or agency of the Issuers in accordance with Section 2.3.
SECTION 4.3 Reports. (a) Regardless of whether required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the Issuers
will furnish to the Trustee and Holders, within 15 days after either Issuer is
or would have been required to file such with the Commission, (i) all quarterly
and annual financial information that would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K if either of the Issuers were
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required to file such Forms, including for each a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual information only, a report thereon by the Issuers' independent
certified public accountants and (ii) all information that would be required to
be contained in a filing with the Commission on Form 8-K if either of the
Issuers were required to file such reports. From and after the time either of
the Issuers files a registration statement with the Commission with respect to
the Notes, the Issuers will file such information with the Commission so long as
the Commission will accept such filings.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(b) So long as is required for an offer or sale of the Notes to qualify for
an exemption under Rule 144A, the Issuers shall, upon request, provide the
information required by clause (d)(4) thereunder to each Holder and to each
beneficial owner and prospective purchaser of Notes identified by any Holder of
Restricted Securities.
SECTION 4.4 Compliance Certificate. (a) The Issuers shall deliver to the
Trustee, within 120 days after the end of each fiscal year, an Officers'
Certificate (provided that, two of the signatories to such Officers' Certificate
shall be the principal executive officer, principal financial officer or
principal accounting officer of each of the Issuers) stating that a review of
the activities of the Issuers and the Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determine whether each has kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that each of the Issuers and the Subsidiaries has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof or thereof (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he may have knowledge and what action each is taking or
proposes to take with respect thereto).
(b) The year-end financial statements delivered pursuant to Section 4.3
above shall be accompanied by a written statement of the independent public
accountants of the Company (which shall be a firm of established national
reputation reasonably satisfactory to the Trustee) that in making the
examination necessary for certification of such financial statements nothing has
come to their attention which would lead them to believe that either the Company
or any of its Subsidiaries has violated any provisions of this Indenture or, if
any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) So long as any of the Notes are outstanding, the Issuers shall deliver
to the Trustee forthwith upon any Officer becoming aware of (i) any Default or
Event of Default or (ii) any event of default under any mortgage, indenture or
instrument referred to in Section 6.1(e), an
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Officers' Certificate specifying such Default, Event of Default or other event
of default and what action the Issuers are taking or propose to take with
respect thereto.
SECTION 4.5 Taxes. The Company shall, and shall cause its Subsidiaries to,
file all tax returns required to be filed and to pay prior to delinquency all
material taxes, assessments and governmental levies except as contested in good
faith and by appropriate proceedings and for which reserves have been
established in accordance with GAAP.
SECTION 4.6 Stay, Extension and Usury Laws. The Issuers (and each
Subsidiary Guarantor) covenant (to the extent that it may lawfully do so) that
neither of them shall at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension, usury
or other law, wherever enacted, now or at any time hereafter in force, that
would prohibit or forgive the payment of all or any portion of the principal of
or interest on the Notes, or that may affect the covenants or the performance of
this Indenture; and each of the Issuers and each Subsidiary Guarantor (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it shall not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee but shall suffer and permit the execution of every such power as though
no such law has been enacted.
SECTION 4.7 Limitation on Restricted Payments. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution on account of
any Equity Interests of the Company or any of its Subsidiaries or make any
other payment to any Excluded Person or Affiliate thereof (other than (A)
dividends or distributions payable in Equity Interests (other than
Disqualified Capital Stock) of the Company or (B) amounts payable to the
Company or any Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interest of the Company or any Affiliate (other than any Restricted
Subsidiary of the Company) of the Company (other than any such Equity
Interest owned by the Company or any Restricted Subsidiary);
(iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value, any Indebtedness ("Subordinated
Debt") of the Company or any Subsidiary Guarantor that is subordinated in
right of payment to the Notes or such Subsidiary Guarantor's Subsidiary
Guarantee thereof, as the case may be, prior to any scheduled principal
payment, sinking fund payment or other payment at the stated maturity
thereof; or
(iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of such
Restricted Payment:
(a) no Default or Event of Default has occurred and is continuing
or would occur as a consequence thereof, and
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(b) immediately after giving effect to such Restricted Payment on
a pro forma basis, the Company could incur at least $1.00 of
additional Indebtedness under the Interest Coverage Ratio test set
forth in Section 4.9, and
(c) such Restricted Payment (the value of any such payment, if
other than cash, being determined in good faith by the Managers of the
Company and evidenced by a resolution set forth in an Officers'
Certificate delivered to the Trustee), together with the aggregate of
all other Restricted Payments made on or after the Issue Date
(including Restricted Payments permitted by clauses (ii), (vi) (to the
extent such payments do not reduce Consolidated Net Income), (viii),
(ix), (x)(A), and, to the extent the Company is given credit for such
Net Cash Proceeds pursuant to clause (2) of this paragraph, (iii) of
the next following paragraph and excluding Restricted Payments
permitted by clauses (i), (iv), (v) and (vii), (x)(B) and (xi) and, to
the extent the Company is not given credit for such Net Cash Proceeds
pursuant to clause (2) of this paragraph, (iii) of the next following
paragraph), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for
the period (taken as one accounting period) from the beginning of
the first fiscal quarter commencing immediately after the Issue
Date to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at
the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, 100% of such deficit), plus
(2) 100% of the aggregate Net Cash Proceeds received by the
Company as a contribution to its capital from the issuance or
sale, other than to a Subsidiary, of Equity Interests of the
Company (other than Disqualified Capital Stock) after the Issue
Date and on or prior to the time of such Restricted Payment, plus
(3) 100% of the aggregate Net Cash Proceeds received by the
Company from the issuance or sale, other than to a Subsidiary, of
any convertible or exchangeable debt security of the Company that
has been converted or exchanged into Equity Interests of the
Company (other than Disqualified Capital Stock) pursuant to the
terms thereof after the Issue Date and on or prior to the time of
such Restricted Payment (including any additional net cash
proceeds received by the Company upon such conversion or
exchange), plus
(4) the aggregate Return from Unrestricted Subsidiaries
after the Issue Date and on or prior to the time of such
Restricted Payment; provided, that the aggregate Return from
Unrestricted Subsidiaries shall be excluded with respect to any
Unrestricted Subsidiary in which a Permitted Investment was made
pursuant to clause (xiii) of the definition to the extent any
such return was made while any such Permitted Investment was then
outstanding.
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The foregoing provisions shall not prohibit:
(i) so long as clause (a) above is satisfied, the declaration and
payment of regularly scheduled dividends to holders of any class or series
of Disqualified Capital Stock of the Company issued after the Issue Date in
accordance with the Interest Coverage Ratio test set forth in the first
paragraph of Section 4.9;
(ii) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would not
have been prohibited by the provisions of this Indenture;
(iii) the redemption, purchase, retirement or other acquisition of any
Equity Interests of the Company or Indebtedness of the Company or any
Restricted Subsidiary in exchange for, or out of the Net Cash Proceeds of,
the substantially concurrent sale (other than to a Subsidiary) of, other
Equity Interests of the Company (other than Disqualified Capital Stock);
(iv) so long as clause (a) above is satisfied, with respect to each
taxable year that the Company qualifies as a Flow Through Entity, the
payment of Permitted Tax Distributions; provided that, (A) prior to any
payment of Permitted Tax Distributions the Company provides an Officers'
Certificate and Opinion of Counsel to the effect that the Company and each
Subsidiary in respect of which such distributions are being made, qualify
as Flow Through Entities for Federal income tax purposes and for the states
in respect of which such distributions are being made and (B) at the time
of such distribution, the most recent audited financial statements of the
Company provided to the Trustee pursuant to Section 4.3, provide that the
Company and each such Subsidiary were treated as Flow Through Entities for
the period of such financial statements, provided that, the requirement set
forth in this subclause (B) shall not apply to the extent that such
Subsidiary that is acquired after the date hereof is not a Flow Through
Entity on the date of such acquisition but subsequently becomes a Flow
Through Entity after any period covered by such financial statements;
(v) the redemption, repurchase or payoff of any Indebtedness of the
Company or a Restricted Subsidiary with cash proceeds of or in exchange for
any Refinancing Indebtedness permitted to be incurred pursuant to clause
(i) of the second paragraph of Section 4.9;
(vi) so long as clauses (a) and (b) above are satisfied, within 60
days after the completion of a Change of Control offer as described in, and
consummated in accordance with, Section 4.14 (including the repurchase of
all Notes validly tendered and not properly withdrawn in connection
therewith), any purchase or redemption of any Subordinated Debt of the
Company or any Subsidiary Guarantor or any Disqualified Capital Stock of
the Company, in each case, required pursuant to the terms thereof as a
result of the related Change of Control; provided, however, that the
aggregate consideration to be paid for all such purchases and redemptions
of such Subordinated Debt and Disqualified Capital Stock shall not exceed
101% of the aggregate principal amount of such Subordinated Debt or 101% of
the liquidation value of such Disqualified
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Capital Stock, respectively, that is repurchased and redeemed in connection
with such Change of Control offer;
(vii) so long as clause (a) above is satisfied, any employment
agreement entered into, or any compensation or employee benefits paid to
employees, in each case, in the ordinary course of business, consistent
with customary industry practices and not involving the purchase,
redemption or other acquisition or retirement for value of any Equity
Interests of the Company or any Affiliate (other than any Restricted
Subsidiary of the Company);
(viii) so long as clause (a) above is satisfied, Cash Flow-Based
Management Distributions payable under the Management Agreement as in
effect on the Issue Date, without giving effect to any amendment,
supplement or modification thereof; provided that, the Interest Coverage
Ratio for the Company's most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the
date on which such payment is made would have been not less than 1.50 to
1.0, determined on a pro forma basis, as if such payment had been made
during such four-quarter period;
(ix) so long as clause (a) above is satisfied, Revenue-Based
Management Distributions payable under the Management Agreement as in
effect on the Issue Date, without giving effect to any amendment,
supplement or modification thereof; provided that, the Interest Coverage
Ratio for the Company's most recently ended four full fiscal quarter for
which internal financial statements are available immediately preceding the
date on which such payment is made would have been not less than 1.25 to
1.0, determined on a pro forma basis, as if such payment had been made
during such four-quarter period;
(x) the redemption and repurchase of any (A) Equity Interests or (B)
Indebtedness of the Company or any of its Subsidiaries, in each case, to
the extent required by any Gaming Authority or, if determined in the good
faith judgment of the Managers of the Company as evidenced by a resolution
of the Managers that has been delivered to the Trustee, to prevent the
loss, or to secure the grant or establishment, of any gaming license or
other right to conduct lawful gaming operations; and
(xi) any Unreimbursed Tax Distribution Amounts.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by this Section 4.7 were computed (or, in the case of a Restricted
Payment made pursuant to subsection (iv) of the immediately preceding paragraph,
a summary of such calculations as reasonably determined or estimated in good
faith by the Company), which calculations may be based upon the Company's latest
available financial statements. Notwithstanding the foregoing, the Company shall
not be required to deliver an Officers' Certificate to the Trustee pursuant to
this covenant if any action is taken pursuant to subsection (iii), (v), (vii),
(viii) or (ix) of the immediately preceding paragraph.
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SECTION 4.8 Limitation on Restrictions on Subsidiary Dividends. The Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions to the Company or
any of its Restricted Subsidiaries (a) on such Restricted Subsidiary's
Capital Stock or (b) with respect to any other interest or participation
in, or measured by, such Restricted Subsidiary's profits, or
(ii) pay any Indebtedness owed to the Company or any of its Restricted
Subsidiaries, or
(iii) make loans or advances to the Company or any of its Restricted
Subsidiaries, or
(iv) transfer any of its assets to the Company or any of its
Restricted Subsidiaries, except, with respect to clauses (i) through (iii)
above, for such encumbrances or restrictions existing under or by reason
of:
(1) any Credit Facility containing dividend or other payment
restrictions that are not more restrictive than those contained in the
documents governing the Credit Facility on the Issue Date;
(2) this Indenture and the Notes;
(3) applicable law;
(4) Acquired Debt; provided that, such encumbrances and
restrictions are not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets
of the Person, so acquired;
(5) customary non-assignment and net worth provisions of any
contract, lease or license entered into in the ordinary course of
business;
(6) customary restrictions on the transfer of assets subject to a
Permitted Lien imposed by the holder of such Lien;
(7) the Senior Secured Notes and the Senior Secured Notes
Indenture, in each case, as in effect on the Issue Date, without
giving effect to any amendment, supplement or modification thereof;
and
(8) the agreements governing permitted Refinancing Indebtedness;
provided that, such restrictions contained in any agreement governing
such Refinancing Indebtedness are no more restrictive than those
contained in any agreements governing the Indebtedness being
refinanced.
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SECTION 4.9 Limitation on Incurrence of Indebtedness. The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, (i) create, incur, issue, assume, guaranty or otherwise become
directly or indirectly liable with respect to, contingently or otherwise
(collectively, "incur"), any Indebtedness (including, without limitation,
Acquired Debt) or (ii) issue any Disqualified Capital Stock; provided that, the
Company and the Subsidiary Guarantors may incur Indebtedness (including, without
limitation, Acquired Debt) and the Company may issue shares of Disqualified
Capital Stock if (x) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect on a pro forma
basis to such incurrence or issuance, and (y) the Interest Coverage Ratio for
the Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Capital Stock is issued
would have been not less than 2.0 to 1.0, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified Capital Stock had
been issued, as the case may be, at the beginning of such four-quarter period.
Notwithstanding the foregoing, the foregoing limitations will not prohibit
the incurrence of:
(a) Indebtedness under the Credit Facility in an aggregate principal
amount not to exceed, at any time outstanding, $80,000,000 less the
aggregate principal amount of repayments and prepayments of such
indebtedness contemplated by clause (iii)(C)(1) of Section 4.10;
(b) FF&E Financing in an aggregate principal amount not to exceed, at
any time, $20,000,000;
(c) performance bonds, appeal bonds, surety bonds, insurance
obligations or bonds and other similar bonds or obligations (including
Obligations under letters of credit) incurred in the ordinary course of
business, and any guarantees thereof;
(d) Hedging Obligations incurred to fix or hedge interest rates with
respect to any variable or fixed rate Indebtedness otherwise permitted by
this Indenture; provided that, the notional principal amount of each such
Hedging Obligation does not exceed the principal amount of the Indebtedness
to which such Hedging Obligation relates and that such Hedging Obligations
shall not have been incurred for purposes of speculation;
(e) Indebtedness outstanding on October 7, 2003 (other than
Indebtedness under (x) the Credit Facility or (y) the Senior Secured Notes
and the Senior Secured Notes Indenture, which, in each case, which shall
not be deemed to be outstanding pursuant to this clause (e));
(f) Indebtedness incurred by the Company in an aggregate principal
amount not to exceed, at any time outstanding pursuant to this clause (f),
$10,000,000;
(g) any Subsidiary Guarantee or any Subsidiary's guarantee of the
Indebtedness permitted by clause (e) or (f) above or clause (h) below;
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(h) Indebtedness under (i) the Senior Secured Notes and the Senior
Secured Notes Indenture in an aggregate principal amount not to exceed
$300,000,000 and (ii) the Notes and this Indenture in an aggregate
principal amount not to exceed $200,000,000;
(i) Indebtedness issued in exchange for, or the proceeds of which are
contemporaneously used to extend, refinance, renew, replace, or refund
(collectively, "Refinance"), Indebtedness incurred pursuant to (A) the
Interest Coverage Ratio test set forth in the immediately preceding
paragraph, (B) clauses (e) and (h) above or (C) this clause (i) (the
"Refinancing Indebtedness"); provided that, (1) the principal amount (or
accreted value) of such Refinancing Indebtedness does not exceed the
principal amount (or accreted value) of Indebtedness so Refinanced
(including all accrued and then unpaid interest plus any required premiums
and out-of-pocket expenses reasonably incurred in connection therewith),
(2) the Refinancing Indebtedness has a final scheduled maturity that equals
or exceeds the final stated maturity, and a Weighted Average Life to
Maturity that is equal to or greater than the Weighted Average Life to
Maturity, of the Indebtedness being Refinanced, and (3) the Refinancing
Indebtedness ranks, in right of payment, no more favorable to the Notes
than the Indebtedness being Refinanced.
(j) intercompany Indebtedness of the Company or any of its Wholly
Owned Subsidiaries for so long as such Indebtedness is held by the Company
or any of its Wholly Owned Subsidiaries; provided that if as of any date
any Person other than the Company or any such Wholly Owned Subsidiary owns
or holds any such Indebtedness or holds a Lien in respect of such
Indebtedness (other than a Permitted Lien described in clause (xii), (xiii)
or (xiv) of the definition thereof), such date shall be deemed the
incurrence of Indebtedness not constituting Indebtedness permitted under
this clause (j) by the issuer of such Indebtedness.
For purposes of determining compliance with this Section 4.9, in the event
that an item of proposed Indebtedness meets the criteria of more than one of the
categories described in clauses (a) through (j) above or is entitled to be
incurred pursuant to the first paragraph of this Section 4.9, the Company will
be permitted to classify such item of Indebtedness on the date of its incurrence
in any manner that complies with this Section 4.9 and the Company may, at any
time, change the classification of an item of Indebtedness (or any portion
thereof) to any other clause or to the first paragraph of this Section 4.9;
provided that the Company or the applicable Restricted Subsidiary would be
permitted to incur such item of Indebtedness (or portion thereof) pursuant to
such other clause or the first paragraph of this Section 4.9, as the case may
be, at such time of reclassification. Accrual of interest, the accretion of
accreted value and the payment of interest or dividends in the form of
additional Indebtedness or Disqualified Capital Stock paid-in-kind will not be
deemed to be an incurrence of Indebtedness or issuance of Disqualified Capital
Stock for purposes of this covenant.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur any Indebtedness which by its
terms (or by the terms of any agreement governing such Indebtedness) is
contractually subordinated to any other Indebtedness of the Company or such
Restricted Subsidiary unless such Indebtedness is also by its terms (or by the
terms of any agreement governing such Indebtedness) made contractually
subordinate to the Obligations of the Company or such Restricted Subsidiary
under (i) in the case of the Company,
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the Notes and this Indenture or (ii) in the case of such Restricted Subsidiary,
its Subsidiary Guarantee and this Indenture, in each case, on substantially
identical terms.
SECTION 4.10 Limitation on Asset Sales. The Company shall not, and shall
not permit any Restricted Subsidiary to, make any Asset Sale unless
(i) the Company or such Restricted Subsidiary receives consideration
at the time of such Asset Sale not less than the fair market value of the
assets subject to such Asset Sale;
(ii) at least 75% of the consideration for such Asset Sale is in the
form of (A) cash or Cash Equivalents, (B) liabilities of the Company or any
Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes or the Subsidiary Guarantees) that are assumed by
the transferee of such assets (provided that, following such Asset Sale
there is no further recourse to the Company or its Restricted Subsidiaries
with respect to such liabilities), or (C) fixed assets or property that, in
the good faith judgment of the Managers, at the time of such Asset Sale
will be used in a Related Business of the Company or its Restricted
Subsidiaries; and
(iii) within 300 days of such Asset Sale, the Net Proceeds thereof are
(A) invested (or committed pursuant to a definitive agreement entered into
by the Company or any of its Restricted Subsidiaries to be invested within
12 months of the date such commitment is made) in fixed assets or property
that, in the good faith judgment of the Managers, at the time of such Asset
Sale will be used in a Related Business of the Company or its Restricted
Subsidiaries, (B) applied to repay or prepay Indebtedness under Purchase
Money Obligations incurred in connection with the asset so sold, (C)(1)
applied to repay or prepay Indebtedness under the Credit Facility and
permanently reduce the commitment thereunder in the amount of the
Indebtedness so repaid or (2) applied to repurchase, redeem or defease some
or all of the Senior Secured Notes in accordance with the terms thereof and
the Senior Secured Notes Indenture or (D) to the extent not used as
provided in clauses (A), (B), or (C) applied to make an offer to purchase
Notes as described below (an "Excess Proceeds Offer"); provided that, the
Company will not be required to make an Excess Proceeds Offer until the
amount of Excess Proceeds is greater than $10,000,000.
The foregoing provisions in (i) or (ii) above shall not apply to an Event
of Loss.
Pending the final application of any Net Proceeds, the Company may
temporarily reduce Indebtedness under the Credit Facility or temporarily invest
such Net Proceeds in Cash Equivalents.
Net Proceeds not invested or applied as set forth in subclause (A), (B) or
(C) of clause (iii) above constitute "Excess Proceeds;" provided, however, that
Net Proceeds that are committed to be invested pursuant to subclause (A) of
clause (iii) above shall not be deemed to constitute "Excess Proceeds" until the
last day of the 12-month period referred to in such subclause. If the Company
elects, or becomes obligated to make an Excess Proceeds Offer because such
Excess Proceeds exceed $10,000,000, the Issuers shall offer to purchase Notes
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having an aggregate principal amount equal to the Excess Proceeds (the "Purchase
Amount"), at a purchase price equal to 100% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon and Liquidated Damages, if
any, to the purchase date. The Issuers must consummate such Excess Proceeds
Offer not later than 30 days after the expiration of the 300-day period
following the Asset Sale that produced such Excess Proceeds; provided, however,
that no Excess Proceeds Offer in respect of any Net Proceeds that constitute
Excess Proceeds by operation of the proviso to the first sentence of this
paragraph shall be required to be consummated until the 30th day following the
last day of the relevant 12-month period that is described in such proviso. If
the aggregate purchase price for the Notes tendered pursuant to the Excess
Proceeds Offer is less than the Excess Proceeds, the Company and its Restricted
Subsidiaries may use the portion of the Excess Proceeds remaining after payment
of such purchase price for general corporate purposes.
Each Excess Proceeds Offer shall remain open for a period of 20 Business
Days and no longer, unless a longer period is required by law (the "Excess
Proceeds Offer Period"). Promptly after the termination of the Excess Proceeds
Offer Period (the "Excess Proceeds Payment Date"), the Issuers shall purchase
and mail or deliver payment for the Purchase Amount for the Notes or portions
thereof tendered, pro rata or by such other method as may be required by law,
or, if less than the Purchase Amount has been tendered, all Notes tendered
pursuant to the Excess Proceeds Offer.
To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section 4.10, the Issuers shall comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.10 by virtue thereof. The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, create or
suffer to exist or become effective any restriction that would impair the
ability of the Issuers to make an Excess Proceeds Offer upon an Asset Sale or,
if such Excess Proceeds Offer is made, to pay for the Notes tendered for
purchase.
The Issuers shall, no later than 30 days following the expiration of the
12-month period following the Asset Sale that produced Excess Proceeds, commence
the Excess Proceeds Offer by mailing to the Trustee and each Holder, at such
Holder's last registered address, a notice, which shall govern the terms of the
Excess Proceeds Offer, and shall state:
(1) that the Excess Proceeds Offer is being made pursuant to this
Section 4.10, the principal amount of Notes which shall be accepted
for payment and that all Notes validly tendered shall be accepted for
payment on a pro rata basis;
(2) the purchase price and the date of purchase;
(3) that any Notes not tendered or accepted for payment pursuant
to the Excess Proceeds Offer shall continue to accrue interest;
(4) that, unless the Issuers default in the payment of the
purchase price with respect to any Notes tendered, Notes accepted for
payment pursuant to the
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Excess Proceeds Offer shall cease to accrue interest after the Excess
Proceeds Payment Date;
(5) that Holders electing to have Notes purchased pursuant to an
Excess Proceeds Offer shall be required to surrender their Notes, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, to the Issuers prior to the close of business
on the third Business Day immediately preceding the Excess Proceeds
Payment Date;
(6) that Holders shall be entitled to withdraw their election if
the Issuers receive, not later than the close of business on the
second Business Day preceding the Excess Proceeds Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes the Holder delivered
for purchase and a statement that such Holder is withdrawing his
election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part shall be
issued Notes representing the unpurchased portion of the Notes
surrendered; provided that, each Note purchased and each new Note
issued shall be in principal amount of $1,000 or whole multiples
thereof; and
(8) the instructions that Holders must follow in order to tender
their Notes.
On or before the Excess Proceeds Payment Date, the Issuers shall (i) accept
for payment on a pro rata basis the Notes or portions thereof tendered pursuant
to the Excess Proceeds Offer, (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
accepted and (iii) deliver to the Trustee the Notes so accepted, together with
an Officers' Certificate stating that the Notes or portions thereof tendered to
the Issuers are accepted for payment. The Paying Agent shall promptly mail to
each Holder of Notes so accepted payment in an amount equal to the purchase
price of such Notes, and the Trustee shall promptly authenticate and mail to
such Holders new Notes equal in principal amount to any unpurchased portion of
the Notes surrendered.
The Issuers shall make a public announcement of the results of the Excess
Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date.
For the purposes of this Section 4.10, the Trustee shall act as the Paying
Agent.
SECTION 4.11 Limitation on Transactions with Affiliates. The Company shall
not, and shall not permit any of its Restricted Subsidiaries or any Permitted
Entity (or any Subsidiary of such Permitted Entity) to, directly or indirectly,
enter into, consummate or suffer to exist any Affiliate Transaction, except for:
(i) Affiliate Transactions that, together with all related
Affiliate Transactions, have an aggregate value of not more than
$2,000,000; provided that, (a) such transactions are conducted in good
faith and on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction at such time by the
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Company or such Restricted Subsidiary on an arm's-length basis from a
Person that is not an Affiliate of the Company or such Restricted
Subsidiary and (b) the Company shall have delivered to the Trustee an
Officers' Certificate certifying to such effect;
(ii) Affiliate Transactions that, together with all related
Affiliate Transactions, have an aggregate value of not more than
$5,000,000; provided that, (i) a majority of the Managers that are
disinterested in such transaction (or, if none of the Managers is
disinterested in such transaction, a representative appointed by the
Managers to make such determination, which representative, in the
reasonable good faith judgment of a majority of the Managers, is
disinterested in the transaction and is qualified to make such
determination) determine that such transactions are conducted in good
faith and on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction at such time by the Company or
such Restricted Subsidiary on an arm's-length basis from a Person that
is not an Affiliate of the Company or such Restricted Subsidiary and
(ii) prior to entering into such transaction the Company shall have
delivered to the Trustee an Officers' Certificate certifying to such
effect; or
(iii) Affiliate Transactions for which the Company delivers to
the Trustee an opinion as to the fairness to the Company or such
Restricted Subsidiary from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing.
Notwithstanding the foregoing, the following shall be deemed not to be
Affiliate Transactions:
(a) Restricted Payments permitted by Section 4.7;
(b) the Management Agreement and the Expense Reimbursement Agreement,
in each case, as in effect on the Issue Date, without giving effect to any
amendment, supplement or modification thereof, and payment of the
Management Distributions and the receipt of the Expense Reimbursements,
respectively, thereunder;
(c) the non-exclusive licensing of any service xxxx or other
trademarks of the Company or any Restricted Subsidiary to an Affiliate or
Affiliates of the Company or such Restricted Subsidiary; and
(d) transactions between or among the Company and any Wholly Owned
Subsidiary of the Company.
SECTION 4.12 Limitation on Liens. The Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, create, incur,
assume or suffer to exist any Lien (other than Permitted Liens) on any asset
(including, without limitation, all real, tangible or intangible property) of
the Company or any Restricted Subsidiary, whether now owned or hereafter
acquired, or on any income or profits therefrom, or assign or convey any right
to receive income therefrom, unless (1) if such Lien secures Indebtedness that
is pari passu in right
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of payment with the Notes or the Subsidiary Guarantees, then the Notes or the
Subsidiary Guarantees, as the case may be, are secured on an equal and ratable
basis with the obligations so secured until such time as such obligation is no
longer secured by a Lien or (2) if such Lien secures Indebtedness that is
subordinated in right of payment to the Notes or the Subsidiary Guarantees, any
such Lien shall be subordinated to a Lien granted to the holders of the Notes or
the Subsidiary Guarantees, as the case may be, in the same collateral as that
securing such Lien to the same extent as such subordinated Indebtedness is
subordinated to the Notesor the Subsidiary Guarantees, as the case may be.
SECTION 4.13 Existence. Subject to Article V, the Issuers shall do or cause
to be done all things necessary to preserve and keep in full force and effect
(i) their respective limited liability company and corporate existence, and
corporate, partnership or other existence of each of the Restricted
Subsidiaries, in accordance with their respective organizational documents (as
the same may be amended from time to time) and (ii) their (and the
Subsidiaries') rights (charter and statutory), licenses (including gaming and
related licenses) and franchises; provided that, the Issuers shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any Restricted Subsidiary, if the Board of
Directors on behalf of the Company shall determine in good faith that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuers and the Company's Subsidiaries taken as a whole and that the loss
thereof is not adverse in any material respect to the Holders.
SECTION 4.14 Repurchase Upon Change of Control. Upon the occurrence of a
Change of Control, the Issuers shall offer to repurchase all of the Notes then
outstanding (the "Change of Control Offer") at a purchase price equal to 101% of
the aggregate principal amount thereof, plus accrued and unpaid interest thereon
and Liquidated Damages, if any, to the date of repurchase (the "Change of
Control Payment").
To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section 4.14, the Issuers shall comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.14 by virtue thereof.
Within 30 days following any Change of Control, the Issuers shall commence
the Change of Control Offer by mailing to the Trustee and each Holder a notice,
which shall govern the terms of the Change of Control Offer, and shall state
that:
(i) the Change of Control Offer is being made pursuant to this Section
4.14 and that all Notes tendered will be accepted for payment,
(ii) the purchase price and the purchase date, which shall be a
Business Day no earlier than 30 days nor later than 45 days from the date
such notice is mailed (the "Change of Control Payment Date"),
(iii) that any Note not tendered for payment pursuant to the Change of
Control Offer shall continue to accrue interest,
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(iv) that, unless the Issuers default in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest on the Change of Control
Payment Date,
(v) that any Holder electing to have Notes purchased pursuant to a
Change of Control Offer shall be required to surrender such Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Notes completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the
Change of Control Payment Date,
(vi) that any Holder shall be entitled to withdraw such election if
the Paying Agent receives, not later than the close of business on the
second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Notes such Holder delivered for
purchase, and a statement that such Holder is withdrawing his election to
have such Notes purchased,
(vii) that a Holder whose Notes are being purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof,
(viii) the instructions that Holders must follow in order to tender
their Notes, and
(ix) the circumstances and relevant facts regarding such Change of
Control.
On the Change of Control Payment Date, the Issuers shall, to the extent
lawful, (i) accept for payment the Notes or portions thereof tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent an amount
equal to the Change of Control Payment in respect of all Notes or portions
thereof so tendered and not withdrawn, and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted, together with an Officers'
Certificate stating that the Notes or portions thereof tendered to the Issuers
are accepted for payment. The Paying Agent shall promptly mail to each Holder of
Notes so accepted payment in an amount equal to the purchase price for such
Notes, and the Trustee shall authenticate and mail (or cause to be transferred
by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that, each such
new Note will be in the principal amount of $1,000 or an integral multiple
thereof.
The Issuers shall make a public announcement of the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date. For the purposes of this Section 4.14, the Trustee shall act as
the Paying Agent.
The Issuers shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.14 and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
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SECTION 4.15 Maintenance of Properties. The Company shall, and shall cause
each of its Restricted Subsidiaries to, maintain their properties and assets in
normal working order and condition as on the date of this Indenture (reasonable
wear and tear excepted) and make all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto, as shall be reasonably
necessary for the proper conduct of the business of the Issuers and the
Restricted Subsidiaries taken as a whole; provided that, nothing herein shall
prevent the Issuers or any of the Restricted Subsidiaries from discontinuing any
maintenance of any such properties if the Company determines that such
discontinuance is desirable in the conduct of the business of the Issuers and
the Restricted Subsidiaries taken as a whole.
SECTION 4.16 Maintenance of Insurance. The Company shall, and shall cause
each of its Restricted Subsidiaries to, maintain liability, casualty and other
insurance (including self-insurance consistent with prior practice) with
responsible insurance companies in such amounts and against such risks as is in
accordance with customary industry practice in the general areas in which the
Issuers and the Restricted Subsidiaries operate.
SECTION 4.17 Restrictions on Sale and Issuance of Subsidiary Stock. The
Company shall not sell, and shall not permit any Restricted Subsidiary to issue
or sell, any Equity Interests (other than directors' qualifying shares) of any
Restricted Subsidiary to any Person other than the Company or a Wholly Owned
Subsidiary of the Company; provided that, the Company and its Restricted
Subsidiaries may sell all (but not less than all) of the Capital Stock of a
Restricted Subsidiary owned, directly or indirectly, by the Company and its
Restricted Subsidiaries if the Net Proceeds from such Asset Sale are used in
accordance with the terms of Section 4.10.
SECTION 4.18 Line of Business. The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, engage to any
substantial extent in any line or lines of business activity other than a
Related Business.
SECTION 4.19 Restrictions on Activities of Capital. Capital shall not hold
any material assets, become liable for any obligations or engage in any business
activities; provided that, Capital may be (i) a co-obligor of the Notes
(including any additional Notes incurred pursuant to Section 4.9) pursuant to
the terms of this Indenture and as contemplated by the Purchase Agreement
executed by the Issuers, the Subsidiary Guarantors and the Initial Purchaser and
(ii) a guarantor of the Senior Secured Notes pursuant to the terms of the Senior
Secured Notes Indenture. Capital may, as necessary, engage in any activities
directly related or necessary in connection therewith.
ARTICLE V
SUCCESSORS
SECTION 5.1 When the Company may Merge, etc. Neither Issuer shall
consolidate or merge with or into, or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets
(determined on a consolidated basis for the Company and its Restricted
Subsidiaries) in one or more related transactions to, any other Person, unless:
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(i) such Issuer is the surviving Person or the Person formed by
or surviving any such consolidation or merger (if other than such
Issuer) or to which such sale, assignment, transfer, lease, conveyance
or other disposition has been made is a corporation organized and
existing under the laws of the United States of America, any state
thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than such Issuer) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition has been
made assumes all the Obligations of such Issuer, pursuant to a
supplemental indenture and in a form reasonably satisfactory to the
Trustee, under the Notes, this Indenture and the Registration Rights
Agreement;
(iii) immediately after giving effect to such transaction on a
pro forma basis, no Default or Event of Default exists;
(iv) such transaction would not result in the loss or suspension
or material impairment of any Gaming License unless a comparable
replacement Gaming License is effective prior to or simultaneously
with such loss, suspension or material impairment; and
(v) such Issuer, or any Person formed by or surviving any such
consolidation or merger, or to which such sale, assignment, transfer,
lease, conveyance or other disposition has been made, (A) has
Consolidated Net Worth (immediately after the transaction but prior to
any purchase accounting adjustments resulting from the transaction)
equal to or greater than the Consolidated Net Worth of such Issuer
immediately preceding the transaction and (B) will be permitted, at
the time of such transaction and after giving pro forma effect thereto
as if such transaction had occurred at the beginning of the applicable
four-quarter period, to incur at least $1.00 of additional
Indebtedness pursuant to the Interest Coverage Ratio test set forth in
Section 4.9.
The Issuers shall deliver to the Trustee prior to the consummation of any
proposed transaction an Officers' Certificate to the foregoing effect, an
Opinion of Counsel, stating that all conditions precedent to the proposed
transaction provided for in this Indenture have been complied with and a written
statement from a firm of independent public accountants of established national
reputation reasonably satisfactory to the Trustee stating that the proposed
transaction complies with clause (v).
For purposes of this Section 5.1, the transfer of all or substantially all
of the properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
Notwithstanding the foregoing clause (v), the Company may reorganize as a
corporation or other business entity in accordance with the procedures
established in this Article V, provided
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that, (x) such transaction is solely for the purpose of such reorganization and
not for the purpose of evading this provision or any other provision of this
Indenture and not in connection with any other transaction, and (y) prior to
such reorganization, the Company has delivered to the Trustee an Opinion of
Counsel confirming that (i) the Holders will not recognize income, gain or loss
for Federal income tax purposes as a result of the reorganization 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 reorganization had not occurred,
and (ii) the Company will not recognize income, gain or loss for Federal and
state income tax purposes as a result of the reorganization.
SECTION 5.2 Successor Substituted. In the event of any transaction (other
than a lease or a transfer of less than all of the Issuers' assets) contemplated
by Section 5.1 in which neither of the Issuers is the surviving Person, the
successor formed by such consolidation or into or with which the applicable
Issuer is merged or to which such transfer is made, or formed by such
reorganization, as the case may be, shall succeed to, and be substituted for,
and may exercise every right and power of, such Issuer, and such Issuer shall be
discharged from its Obligations under this Indenture, the Notes and the
Registration Rights Agreement with the same effect as if such successor Person
had been named as such Issuer herein or therein.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default. Each of the following is an "Event of
Default":
(a) The Issuers default in the payment of interest on any Note when
the same becomes due and payable and the Default continues for a period of
30 days;
(b) The Issuers default in the payment of principal (or premium, if
any) on any Note when the same becomes due and payable at maturity, upon
redemption, by acceleration, or otherwise;
(c) the Issuers default in the performance of or breaches the
provisions of Section 4.10 or 4.14 or Article V;
(d) either of the Issuers or any Subsidiary Guarantor fails to comply
with any of its other agreements or covenants in, or provisions of, the
Notes or this Indenture and the Default continues for 60 days after written
notice thereof has been given to the Issuers by the Trustee or to the
Issuers and the Trustee by the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes, such notice to state that
it is a "Notice of Default";
(e) default under (after giving effect to any applicable grace periods
or any extension of any maturity date) any mortgage, indenture, agreement
or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness by the Issuers or any Restricted
Subsidiary (or the payment of which is guaranteed by the Issuers or any
Restricted Subsidiary), whether such Indebtedness or guaranty now exists or
is created after the Issue Date, if (A) either (1) such default results
from the failure to pay principal of or interest on such Indebtedness or
(2) as a result of
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such default the maturity of such Indebtedness has been accelerated, and
(B) the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness with respect to which such a payment
default (after the expiration of any applicable grace period or any
extension of the maturity date) has occurred, or the maturity of which has
been so accelerated, exceeds $5,000,000 in the aggregate;
(f) a final nonappealable judgment or judgments for the payment of
money (other than judgments as to which a reputable insurance company has
accepted full liability) is or are entered by a court or courts of
competent jurisdiction against the Issuers or any Restricted Subsidiary and
such judgment or judgments remain undischarged, unbonded or unstayed for a
period of 60 days after entry, provided that, the aggregate of all such
judgments exceeds $5,000,000;
(g) the cessation of a material portion of the gaming operations of
the Company and its Subsidiaries, taken as a whole, for more than 60 days,
except as a result of an Event of Loss;
(h) any revocation, suspension, expiration (without previous or
concurrent renewal) or loss of any Gaming License for more than 60 days
other than as a result of any Asset Sale made in accordance with the
provisions of this Indenture or any voluntary relinquishment that is, in
the judgment of the Managers, both desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and not
disadvantageous to the Holders in any material respect; and
(i) either of the Issuers or any Subsidiary Guarantor, pursuant to or
within the meaning of any Bankruptcy Code:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) admits in writing its inability to pay debts as the same
become due; and
(j) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Code that:
(i) is for relief against either of the Issuers or any Subsidiary
Guarantor in an involuntary case,
(ii) appoints a Custodian of either of the Issuers or any
Subsidiary Guarantor or for all or substantially all of their
property, or
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(iii) orders the liquidation of either of the Issuers or any
Subsidiary Guarantor,
and such order or decree remains unstayed and in effect for 60 days.
The Issuers shall, upon becoming aware of any Default or Event of Default,
deliver to the Trustee a statement specifying such Default or Event of Default
and what action the Issuers are taking or propose to take with respect thereto.
SECTION 6.2 Acceleration. If an Event of Default (other than an Event of
Default specified in Section 6.1(j) or (k)) occurs and is continuing, the
Trustee by written notice to the Issuers, or the Holders of at least 25% in
principal amount of the then outstanding Notes by written notice to the Issuers
and the Trustee, may declare the unpaid principal of and any accrued interest on
all the Notes to be due and payable. Upon such declaration the principal and
interest shall be due and payable immediately. If an Event of Default specified
in Section 6.1(j) or (k) occurs, all outstanding Notes shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
SECTION 6.3 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy (under this Indenture or
otherwise) to collect the payment of principal or interest on the Notes to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.
SECTION 6.4 Waiver of Past Defaults. Holders of a majority of the aggregate
principal amount of the then outstanding Notes, by written notice to the
Trustee, may on behalf of the Holders of all of the Notes (a) waive any existing
Default or Event of Default and its consequences under this Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, any Note or a Default or an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Note affected, and/or (b) rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been cured
or waived. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.5 Control by Majority. The Holders of a majority in principal
amount of the then outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this
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Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or that may involve the Trustee in personal liability.
SECTION 6.6 Limitation on Suits. A Holder may pursue a remedy with respect
to this Indenture or the Notes only if:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder of a Note to receive
payment of principal and interest on the Note, on or after the respective due
dates expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default specified in
Section 6.1(a) or (b) occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the
Issuers for the whole amount of principal and interest remaining unpaid on the
Notes and interest on overdue principal (and premium, if any) and, to the extent
lawful, interest on overdue interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee is authorized to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Issuers (or any other obligor under the Notes),
their creditors or their property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
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to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders of the Notes may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities. If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.7, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for
principal and interest, respectively;
Third: without duplication, to Holders for any other Obligations
owing to the Holders under the Notes or this Indenture; and
Fourth: to the Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.6, or a suit
by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
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SECTION 7.1 Duties of Trustee. (a) If an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) The duties of the Trustee shall be determined solely by the
express provisions of this Indenture, and the Trustee need perform only
those duties that are specifically set forth in this Indenture, and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(ii) 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,
in the case of certificates specifically required by any provision hereof
to be furnished to it, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section.
(ii) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to
it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.2 Rights of Trustee. (a) The Trustee may conclusively rely upon
any document (whether in original or facsimile form) 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.
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(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through 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 conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Issuers shall be sufficient if signed by
an Officer of each of the Issuers, on behalf of the Issuers.
(f) Except with respect to Section 4.1, the Trustee shall have no duty to
inquire as to the performance of the Issuers' covenants in Article IV. In
addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to Sections
6.1(a), (b) and 4.1, or (ii) any Default or Event of Default of which a
Responsible Officer of the Trustee shall have received written notification or
obtained actual knowledge.
(g) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture, unless such Holders shall have offered
to the Trustee indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or
direction.
(h) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness 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, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur not liability or additional
liability of any kind by reason of such inquiry or investigation.
(i) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture.
(j) The rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
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(k) The Trustee may request that the Company deliver and Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officer's Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(l) In no event shall the Trustee be responsible or liable for special,
indirect, or consequential loss or damage of any kind whatsoever (including loss
of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
SECTION 7.3 Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Issuers or an Affiliate of the Issuers with the same rights it
would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest (as defined in the TIA) it must eliminate such
conflict within 90 days, apply to the Commission for permission to continue as
trustee or resign. Any Agent may do the same with like rights. The Trustee is
also subject to Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer. The Trustee shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture or
the Notes, it shall not be accountable for the Issuers' use of the proceeds from
the Notes or any money paid to the Issuers or upon the Issuers' direction under
any provision hereof, it shall not be responsible for the use or application of
any money received by any Paying Agent other than the Trustee and it shall not
be responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.5 Notice of Defaults. If a Default or Event of Default occurs and
is continuing and if the Trustee has knowledge thereof (within the meaning of
Section 7.2(f)), the Trustee shall mail to the Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest on, any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.6 Reports by Trustee to Holders. Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to the Holders a brief report dated as of such reporting date that
complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA Section
313(b). The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a copy of
each report at the time of its mailing to the Holders shall be filed with the
Commission and each stock exchange on which the Notes are listed. The Issuers
shall promptly notify the Trustee when the Notes are listed on any stock
exchange or any delisting thereof.
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At the express written direction of the Company and at the Company's
expense, the Trustee will provide any Gaming Authority with:
(i) copies of all notices, reports and other written communications
that the Trustee gives to Holders;
(ii) a list of all of the Holders promptly after the original issuance
of the Notes and periodically thereafter if the Company so directs in
writing;
(iii) notice of any Default or Event of Default under this Indenture,
any acceleration of the Indebtedness evidenced hereby, the institution of
any legal actions or proceedings before any court or governmental authority
in respect of a Default or Event of Default hereunder;
(iv) notice of the removal or resignation of the Trustee within five
Business Days of the effectiveness thereof;
(v) notice of any transfer or assignment of rights, by the Issuers or
any Guarantor, under this Indenture known to the Trustee within five
Business Days thereof; and
(vi) a copy of any amendment to the Notes or this Indenture within
five Business Days of the effectiveness thereof.
Subject to Sections 7.1 and 7.2, to the extent reasonably requested by the
Company in writing and at the Company's expense, the Trustee shall cooperate
with any Gaming Authority in order to provide such Gaming Authority with such
information and documentation as may be reasonably available to the Trustee and
as may be requested in writing by such Gaming Authority and as otherwise
permitted by applicable law.
SECTION 7.7 Compensation and Indemnity. The Issuers shall pay to the
Trustee from time to time such compensation for its acceptance of this Indenture
and services hereunder as the Issuers and the Trustee may from time to time
agree in writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuers shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel, except such disbursements,
advances and expenses as shall be determined to have been caused by its own
negligence or willful misconduct.
Except as set forth below, the Issuers, jointly and severally, shall
indemnify the Trustee and its officers, directors, agents and employees against
any and all losses, liabilities, claims, damages or expenses incurred by it
without negligence or bad faith on its part arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Issuers and
defending itself 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 Issuers promptly of any claim of which it has received written notice
for which it may seek indemnity. Failure by the Trustee to so notify the
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Issuers shall not relieve the Issuers of their obligations hereunder. The
Issuers shall defend the claim and the Trustee shall cooperate in the defense.
In the event that, in the reasonable opinion of the Trustee, a conflict of
interest or conflicting defenses would arise in connection with the
representation of the Issuers and the Trustee by the same counsel, the Trustee
may have separate counsel and the Issuers shall pay the reasonable fees and
expenses of such counsel. The Issuers need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Issuers under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture.
To secure the Issuers' payment obligations in this Section 7.7, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal of (and premium, if
any) and interest on particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(j) or (k) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Code.
SECTION 7.8 Replacement of Trustee. A resignation or removal of the Trustee
and appointment of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section 7.8.
The Trustee may resign at any time and be discharged from the trust hereby
created by so notifying the Issuers. The Holders of a majority in principal
amount of the then outstanding Notes may remove the Trustee by so notifying the
Trustee and the Issuers. The Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Code;
(c) a Custodian or public officer takes charge of the Trustee or its
property;
(d) the Trustee becomes incapable of acting; or
(e) the Trustee is found unsuitable or unqualified by any Gaming
Authority.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
If any Gaming Authority requires the Trustee to be approved, licensed or
qualified and the Trustee fails or declines to do so, such approval, license or
qualification shall be obtained
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upon the request of, and at the expense of, the Company, unless the Trustee
declines to do so in its sole discretion, in which case the Trustee shall be
replaced in accordance with this Section 7.8, or, if the Trustee's relationship
with the Company may, in the Company's discretion, jeopardize any material
Gaming License or franchise or right or approval granted thereto, the Trustee
shall resign, and, in addition, the Trustee may, at its option, resign if the
Trustee in its sole discretion determines not to be so approved, licensed or
qualified.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition, at the Issuers' expense, any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee after written request by any Holder who has been a Holder
for at least six months fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuers. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to the
Holders. Upon payment of its charges hereunder, the retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
provided that, all sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.7. Notwithstanding replacement of
the Trustee pursuant to this Section 7.8, the Issuers' obligations under Section
7.7 shall continue for the benefit of the retiring Trustee, and the Issuers
shall pay to any such replaced or removed Trustee all amounts owed under Section
7.7 upon such replacement or removal.
SECTION 7.9 Successor Trustee by Merger, etc. If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation or banking association, the successor
corporation without any further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification. There shall at all times be a
Trustee hereunder that shall (a) be a corporation organized and doing business
under the laws of the United States of America or of any state thereof or of the
District of Columbia authorized under such laws to exercise corporate trustee
power, (b) be subject to supervision or examination by Federal or state or the
District of Columbia authority, and (c) have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to
TIA Section 310(b); provided that, there shall be excluded from the operations
of TIA Section 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Issuers are outstanding, if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
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SECTION 7.11 Preferential Collection of Claims Against Issuers. The Trustee
is subject to TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated therein. The provisions of TIA
Section 311 shall apply to the Issuers, as obligors on the Notes.
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 Discharge; Option to Effect Legal Defeasance or Covenant
Defeasance. This Indenture shall cease to be of further effect (except that the
Issuers' and the Subsidiary Guarantors' obligations under Section 7.7 and the
Trustee's and the Paying Agent's obligations under Sections 8.6 and 8.7 shall
survive) when all outstanding Notes theretofore authenticated and issued have
been delivered (other than destroyed, lost or stolen Notes that have been
replaced or paid) to the Trustee for cancellation and the Issuers or the
Subsidiary Guarantors have paid all sums payable hereunder. In addition, the
Issuers may elect at any time to have Section 8.2 or Section 8.3, at the
Issuers' option, applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article VIII.
SECTION 8.2 Legal Defeasance and Discharge. Upon the Issuers' exercise
under Section 8.1 of the option applicable to this Section 8.2, except as set
forth below, the Issuers and the Subsidiary Guarantors shall be deemed to have
been discharged from their respective obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). Following such Legal Defeasance, (a) the
Issuers shall be deemed to have paid and discharged the entire indebtedness
outstanding hereunder, and this Indenture shall cease to be of further effect as
to all outstanding Notes and Subsidiary Guarantees, and (b) the Issuers and the
Subsidiary Guarantors shall be deemed to have satisfied all other of their
respective obligations under the Notes, the Subsidiary Guarantee and this
Indenture (and the Trustee, on demand of and at the expense of the Issuers,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder:
(i) the rights of Holders to receive payments in respect of the
principal of, premium, if any, and interest (and Liquidated Damages, if
any) on such Notes when such payments are due from the trust described in
Section 8.5;
(ii) the Issuers' obligations under Sections 2.4, 2.6, 2.7, 2.10, 4.2,
8.5, 8.6 and 8.7; and
(iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Issuers' and the Subsidiary Guarantors' obligations in
connection therewith.
Subject to compliance with the provisions of this Article VIII, the Company
may exercise its option under this Section 8.2 notwithstanding the prior
exercise of its option under Section 8.3.
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SECTION 8.3 Covenant Defeasance. Upon the Issuers' exercise under Section
8.1 of the option applicable to this Section 8.3, the Issuers and the Subsidiary
Guarantors shall be released from their respective obligations under the
covenants contained in Sections 4.3, 4.4, 4.7 through 4.12, and 4.14 through
4.20, and Article V on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. Following such Covenant Defeasance, (a)
neither the Issuers nor any Subsidiary Guarantor need comply with, and none of
them shall have any liability in respect of, any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document, but,
except as specified above, the remainder of this Indenture, the Notes and the
Subsidiary Guarantee shall be unaffected thereby, and (b) Sections 6.1(c)
through (i) shall not constitute Events of Default with respect to the Notes.
SECTION 8.4 Conditions to Legal Defeasance or Covenant Defeasance. The
following shall be the conditions to the application of either Section 8.2 or
8.3 to the outstanding Notes:
(i) the Issuers shall irrevocably have deposited or caused to be
deposited with the Trustee, in trust, for the benefit of the Holders, cash
in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the outstanding Notes on the
stated maturity or on the applicable redemption date, as the case may be,
and the Issuers shall specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(ii) in the case of Legal Defeasance, the Issuers shall have delivered
to the Trustee an Opinion of Counsel confirming that (A) the Issuers have
received from, or there has been published by, the Internal Revenue Service
a ruling or (B) since the Issue Date, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders will
not recognize income, gain or loss for Federal income tax purposes as a
result of such Legal Defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Issuers shall have
delivered to the Trustee an Opinion of Counsel confirming that the Holders
will not recognize income, gain or loss for Federal income tax purposes as
a result of such Covenant Defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit);
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(v) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Issuers or
any of the Restricted Subsidiaries is a party or by which the Issuers or
any of the Restricted Subsidiaries is bound;
(vi) the Issuers shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuers with the
intent of preferring the Holders over the other creditors of the Issuers
with the intent of defeating, hindering, delaying or defrauding creditors
of the Issuers or others; and
(vii) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating, subject to certain
factual assumptions and bankruptcy and insolvency exceptions, that all
conditions precedent provided for in this Indenture relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
SECTION 8.5 Deposited Cash and U.S. Government Obligations to be Held in
Trust; other Miscellaneous Provisions. Subject to Section 8.6, all cash and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.5, the "Paying Agent") pursuant to Section 8.4 in respect of the outstanding
Notes shall be held in trust and applied by the Paying Agent, in accordance with
the provisions of such Notes and this Indenture, to the payment, either directly
or through any other Paying Agent as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest (and Liquidated Damages, if any).
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of outstanding Notes.
SECTION 8.6 Repayment to the Issuers. (a) The Trustee or the Paying Agent
shall deliver or pay to the Issuers from time to time upon the request of the
Issuers any cash or U.S. Government Obligations held by it as provided in
Section 8.4 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 8.4(i)), are in excess
of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
(b) Any cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or any Paying Agent, or then held by the
Issuers, in trust for the payment of the principal of, premium, if any, or
interest (and Liquidated Damages, if any) on any Note and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Issuers on their request; and the Holder of
such Note shall thereafter look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided that, the Trustee or such Paying Agent, before
being required to make any such repayment, shall at the
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expense of the Issuers cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Issuers.
SECTION 8.7 Reinstatement. If the Trustee or Paying Agent is unable to
apply any cash or U.S. Government Obligations in accordance with Section 8.2 or
8.3, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, or if any event occurs at any time in the period ending on the 91st
day after the date of deposit pursuant to Section 8.2 or 8.3 which event would
constitute an Event of Default under Section 6.1(j) or (k) had Legal Defeasance
or Covenant Defeasance, as the case may be, not occurred, then the Issuers' and
the Subsidiary Guarantors' obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.2 or 8.3 until such time as the Trustee or Paying Agent is permitted to apply
such money in accordance with Section 8.2 or 8.3, as the case may be; provided
that, if the Issuers make any payment of principal of, premium, if any, or
interest (and Liquidated Damages, if any) on any Note following the
reinstatement of its obligations, the Issuers shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the cash or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.1 Without Consent of Holders. The Issuers and the Trustee may
amend or supplement this Indenture and the Notes without the consent of any
Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to comply with Article V and Section 10.6;
(d) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights
of any Holder under this Indenture or under the Notes;
(e) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA;
(f) to release any Subsidiary Guarantee of the Notes permitted to be
released under Section 10.7; or
(g) to comply with the requirements of the Trustee and the Depositary
(including its nominees) with respect to transfers of beneficial interests
in the Notes.
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Upon the request of the Issuers, accompanied by a resolution of the Board
of Directors of each of the Issuers authorizing the execution of any such
supplemental indenture or amendment, and upon receipt by the Trustee of the
documents described in Section 9.6 required or requested by the Trustee, the
Trustee shall join with the Issuers in the execution of any supplemental
indenture or amendment authorized or permitted by the terms of this Indenture
and shall make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture or amendment that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.2 With Consent of Holders. (a) Subject to Sections 6.4 and 6.7,
the Issuers and the Trustee, as applicable, may amend, or waive any provision
of, this Indenture or the Notes, with the written consent of the Holders of at
least a majority of the aggregate principal amount of the then outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer
for Notes).
(b) Upon the request of the Issuers, accompanied by a resolution of the
Board of Directors of each of the Issuers authorizing the execution of any such
supplemental indenture or amendment, and upon filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.6, the
Trustee shall join with the Issuers in the execution of such supplemental
indenture or amendment unless such supplemental indenture or amendment affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
(c) It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture or amendment, but it shall be sufficient if such consent approves the
substance thereof.
(d) After a supplemental indenture or amendment under this Section 9.2
becomes effective, the Issuers shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture, amendment
or waiver.
(e) Notwithstanding any other provision hereof, without the consent of each
Holder affected, an amendment or waiver under this Section 9.2 may not (with
respect to any Notes held by a non-consenting Holder):
(i) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(ii) reduce the principal of, or the premium (including, without
limitation, redemption premium) on, or change the fixed maturity of, any
Note; alter the provisions with respect to the payment on redemption of the
Notes; or alter the price at which repurchases of the Notes may be made
pursuant to Section 4.10 or 4.14, after the Asset Sale or Change of
Control, respectively, has occurred;
(iii) reduce the rate of or change the time for payment of interest on
any Note;
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(iv) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of a majority in aggregate
principal amount of the Notes and a waiver of the payment default that
resulted from such acceleration);
(v) make any Note payable in money other than that stated in the
Notes;
(vi) make any change in Section 6.4 or 6.7 or in this Section 9.2;
(vii) waive a redemption payment with respect to any Note in a
redemption made pursuant to Article III; or
(viii) adversely affect the contractual ranking of the Notes or
Subsidiary Guarantees.
SECTION 9.3 Compliance with Trust Indenture Act. If, at the time of an
amendment to this Indenture or the Notes, this Indenture shall be qualified
under the TIA, every amendment to this Indenture or the Notes shall be set forth
in a supplemental indenture that complies with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents. Until a supplemental
indenture, an amendment or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. A
supplemental indenture, amendment or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.
The Issuers may fix a record date for determining which Holders must
consent to such supplemental indenture, amendment or waiver. If the Issuers fix
a record date, the record date shall be fixed at (i) the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to Section
2.5, or (ii) such other date as the Issuers shall designate.
SECTION 9.5 Notation on or Exchange of Notes. The Trustee may place an
appropriate notation about a supplemental indenture, amendment or waiver on any
Note thereafter authenticated. The Issuers in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the amendment or
waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment or waiver.
SECTION 9.6 Trustee to Sign Amendments, etc. The Trustee shall sign any
amendment or supplemental indenture authorized pursuant to this Article IX if
the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive, if requested, an indemnity reasonably
satisfactory to it and shall be provided with and, subject to Section 7.1, shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that
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such amendment or supplemental indenture is authorized or permitted by this
Indenture and applicable Gaming Laws, that it is not inconsistent herewith and
therewith, and that it shall be valid and binding upon the Issuers in accordance
with its terms. The Issuers may not sign an amendment or supplemental indenture
until the Board of Directors of each of the Issuers approves it.
ARTICLE X
GUARANTEE
SECTION 10.1 Subsidiary Guarantee. For good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, subject to Section
10.3, each Subsidiary Guarantor, jointly and severally, hereby unconditionally
guarantees (such guarantees, together with further guarantees granted from time
to time pursuant to Section 10.6, being the "Subsidiary Guarantee") to each
Holder and the Trustee irrespective of the validity or enforceability of this
Indenture, the Notes, the Registration Rights Agreement or the Obligations of
the Issuers hereunder or thereunder: (i) the due and punctual payment of the
principal and premium, if any, of, and interest on, the Notes (including,
without limitation, interest after the filing of a petition initiating any
proceedings referred to in Section 6.1(j) or (k)), whether at maturity or on an
interest payment date, by acceleration, call for redemption or otherwise; (ii)
the due and punctual payment of interest on the overdue principal and premium,
if any, of, and interest on, the Notes, if lawful; (iii) the due and punctual
payment and performance of all other Obligations of the Issuers under the Notes,
this Indenture and the Registration Rights Agreement, all in accordance with the
terms set forth herein and in the Notes and the Registration Rights Agreement;
and (iv) in case of any extension of time of payment or renewal of any Notes or
any of such other Obligations hereunder or under the Notes or the Registration
Rights Agreement, the due and punctual payment or performance thereof in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
Failing payment when due by the Issuers of any amount so guaranteed for
whatever reason, the Subsidiary Guarantors shall be jointly and severally
obligated to pay the same immediately.
Each Subsidiary Guarantor hereby agrees that (i) its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes, this Indenture, the Registration Rights Agreement
or the Obligations of the Issuers hereunder or thereunder, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, any amendment of this Indenture or the Notes,
the recovery of any judgment against either of the Issuers or any of the
Subsidiaries, any action to enforce the same, or any other circumstance that
might otherwise constitute a legal or equitable discharge or defense of a
guarantor and (ii) this Subsidiary Guarantee will not be discharged except by
complete performance of the Obligations of the Issuers under the Notes, this
Indenture and the Registration Rights Agreement.
Each Subsidiary Guarantor hereby agrees that it shall not be entitled to
and irrevocably waives (i) diligence, presentment, demand of payment, filing of
claim with a court in the event of insolvency or bankruptcy of either of the
Issuers, any Subsidiary Guarantor, any other Subsidiary
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or any other obligor under the Notes, any right to require a proceeding first
against the applicable Issuer, any Subsidiary Guarantor, any other Subsidiary or
any other obligor under this Indenture or the Notes, protest, notice and all
demands whatsoever, (ii) any right of subrogation, reimbursement, exoneration,
contribution or indemnification in respect of any Obligations guaranteed hereby
and (iii) any claim or other rights that it may now or hereafter acquire against
the Issuers or any of the Subsidiaries that arise from the existence or
performance of its Obligations under this Subsidiary Guarantee, including,
without limitation, any right to participate in any claim or remedy of a Holder
against the Issuers or any of the Subsidiaries, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law, by
any payment made hereunder or otherwise, and including, without limitation, the
right to take or receive from the Issuers or any of the Subsidiaries, directly
or indirectly, in cash or other property, by setoff or in any other manner,
payment on account of such claim or other rights.
If any Holder or the Trustee is required by any court or otherwise to
return to the Issuers, any Subsidiary Guarantor, any other Subsidiary of the
Issuers or any other obligor under this Indenture or the Notes, trustee,
liquidator, or other similar official, any amount paid by the Issuers, any
Subsidiary Guarantor, any other Subsidiary of the Issuers or any other obligor
under this Indenture or the Notes to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Subsidiary Guarantor agrees that, as between the Subsidiary
Guarantors, 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 6.2 for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration as to the Issuers of the Obligations guaranteed hereby, and (ii) in
the event of any declaration of acceleration of those Obligations as provided in
Section 6.2, those Obligations (whether or not due and payable) will forthwith
become due and payable by each of the Subsidiary Guarantors for the purpose of
this Subsidiary Guarantee.
SECTION 10.2 Execution and Delivery of Subsidiary Guarantee. To evidence
the Subsidiary Guarantee set forth in Section 10.1, the Issuers and each
Subsidiary Guarantor hereby agrees that (a) a notation of such Subsidiary
Guarantee substantially as set forth on Exhibit C hereto shall be endorsed on
each Note authenticated and delivered by the Trustee, (b) such endorsement shall
be executed on behalf of each Subsidiary Guarantor by its Chairman of the Board,
President, Chief Financial Officer, Chief Operating Officer, Treasurer,
Secretary or any Vice President and (c) a counterpart signature page to this
Indenture shall be executed on behalf of each Subsidiary Guarantor by its
Chairman of the Board, President or one of its Vice Presidents and attested to
by another officer acknowledging such Subsidiary Guarantor's agreement to be
bound by the provisions hereof and thereof.
Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set
forth in Section 10.1 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an officer whose signature is on this Indenture no longer holds that
office at the time the Trustee authenticates the Notes on which a Subsidiary
Guarantee is endorsed, the Subsidiary Guarantee shall nevertheless be valid.
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The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Subsidiary Guarantor.
SECTION 10.3 Limitation on Subsidiary Guarantor's Liability. Each
Subsidiary Guarantor and by its acceptance hereof each Holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a
fraudulent transfer or conveyance for purposes of any Federal or state law. To
effectuate the foregoing intention, the Holders and the Subsidiary Guarantors
hereby irrevocably agree that the Obligations of each Subsidiary Guarantor under
its Subsidiary Guarantee shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor and to any collections from or payments made by or on behalf of any
other Subsidiary Guarantor in respect of the Obligations of such other
Subsidiary Guarantor under its Subsidiary Guarantee, result in the Obligations
of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under Federal or state law or
render a Subsidiary Guarantor insolvent.
SECTION 10.4 Rights Under the Subsidiary Guarantee. (a) No payment by any
Subsidiary Guarantor pursuant to the provisions hereof shall give rise to any
claim of the Subsidiary Guarantors against the Trustee or any Holder.
(b) Each Subsidiary Guarantor waives notice of the issuance, sale and
purchase of the Notes and notice from the Trustee or the Holders from time to
time of any of the Notes of their acceptance and reliance on this Subsidiary
Guarantee.
(c) No set-off, counterclaim, reduction or diminution of any obligation or
any defense of any kind or nature (other than performance by the Subsidiary
Guarantors of their obligations hereunder) that any Subsidiary Guarantor may
have or assert against the Trustee or any Holder shall be available hereunder to
such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor shall pay all costs, expenses and fees,
including all reasonable attorneys' fees, that may be incurred by the Trustee in
enforcing or attempting to enforce the Subsidiary Guarantee or protecting the
rights of the Trustee or the Holder, if any, in accordance with this Indenture.
SECTION 10.5 Primary Obligations. The Obligations of each Subsidiary
Guarantor hereunder shall constitute a guaranty of payment and not of
collection. Each Subsidiary Guarantor agrees that it is directly liable to each
Holder hereunder, that the Obligations of each Subsidiary Guarantor hereunder
are independent of the Obligations of the Issuers or any other Subsidiary
Guarantor, and that a separate action may be brought against each Subsidiary
Guarantor, whether such action is brought against the Issuers or any other
Subsidiary Guarantor or whether the Issuers or any other Subsidiary Guarantor is
joined in such action. Each Subsidiary Guarantor agrees that its liability
hereunder shall be immediate and shall not be contingent upon the exercise or
enforcement by the Trustee or the Holders of whatever remedies they may have
against the Issuers or any other Subsidiary Guarantor. Each Subsidiary Guarantor
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agrees that any release that may be given by the Trustee or the Holders to the
Issuers or any other Subsidiary Guarantor shall not release such Subsidiary
Guarantor.
SECTION 10.6 Guarantee By Subsidiary. The Company shall cause (i) each
Restricted Subsidiary that is formed or acquired after the date hereof and (ii)
each Subsidiary that becomes a Restricted Subsidiary after the date hereof, in
each case concurrently therewith, to (a) become a Subsidiary Guarantor hereunder
and execute and deliver to the Trustee a Subsidiary Guarantee in the form of
Exhibit C attached hereto and a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Issuers' Obligations as set forth in
Section 10.1; and (b) cause such Restricted Subsidiary to deliver to the Trustee
an Opinion of Counsel, in form reasonably satisfactory to the Trustee, that (y)
such supplemental indenture and Subsidiary Guarantee have been duly authorized,
executed and delivered by such Restricted Subsidiary and (x) this Indenture and
such Subsidiary Guarantee constitute a legal, valid, binding and enforceable
obligation of such Restricted Subsidiary, subject to customary assumptions and
exceptions, including for bankruptcy, fraudulent transfer and equitable
principles.
Each Note issued after the date of execution by any Subsidiary Guarantor of
a Subsidiary Guarantee shall be endorsed with a form of Subsidiary Guarantee
that has been executed by such Subsidiary Guarantor. However, the failure of any
Note to have endorsed thereon a Subsidiary Guarantee executed by such Subsidiary
Guarantor shall not affect the validity or enforceability of such Subsidiary
Guarantee against such Subsidiary Guarantor.
SECTION 10.7 Release of Subsidiary Guarantors. If all of the Capital Stock
of any Subsidiary Guarantor is sold by the Company or any of its Subsidiaries to
a Person (other than the Company or any of its Subsidiaries) in a transaction
that complies with the terms of this Indenture and the Net Proceeds from such
Asset Sale are used in accordance with Section 4.10, then such Subsidiary
Guarantor will be released and discharged from all of its Obligations under its
Subsidiary Guarantee of the Notes and this Indenture.
SECTION 10.8 [Gaming Law and Liquor Law Considerations. (a) If any consent
or approval under the Gaming Laws or Liquor Laws is required in connection with
the taking of any of the actions which may be taken by the Trustee in the
exercise of its rights hereunder, then the Issuers agree to use their reasonable
best efforts to secure such consent or approval and to cooperate with the
Trustee in obtaining any such consent or approval. Upon the occurrence and
during the continuation of any Event of Default, the Issuers shall promptly
execute and/or cause the execution of all applications, certificates,
instruments and other documents and papers that the Trustee may be required to
file in order to obtain any necessary consents or approvals under the Gaming
Laws and Liquor Laws, and if the Issuers fail or refuse to execute such
documents, the Trustee or the clerk of the court with jurisdiction may execute
such documents on behalf of the Issuers.
(b) Notwithstanding any other provision of this Indenture to the contrary,
nothing in this Indenture shall (i) effect any transfer of any ownership
interest (within the meaning of 68 Indiana Administrative Code 5 or the Colorado
Gaming Laws) in the Company or (ii) effect any transfer, sale, purchase, lease
or hypothecation of, or any borrowing or loaning of money against, or any
establishment of any voting trust agreement or other similar agreement with
respect to (all
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within the meaning of Indiana Code 4-33-4-21), any certificate of suitability,
finding of suitability, registration, license or any owner's license heretofore
or hereafter issued to any Person, including the Company and the Restricted
Subsidiaries, under any of the Gaming Laws, including Indiana Code 4-33.]
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by TIA Section
318(c), the imposed duties shall control.
SECTION 11.2 Notices. Any notice or communication by the Issuers or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first-class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' addresses:
If to the Issuers:
c/o The Majestic Star Casino, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
With copies to:
Xxxxxx Companies, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
and
Xxxxxx Xxxxxxx PLLC
000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Telecopier No.: (000) 000-0000
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If to the Trustee:
The Bank of New York Trust Company, N.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Corporate Unit
Telecopier No.: (000) 000-0000
The Issuers or the Trustee by notice to the others may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; upon receipt, if deposited in the mail, postage prepaid; when
answered back, if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery. All notices and communications to the
Trustee shall be deemed to have been duly given only if actually received by the
Trustee.
Any notice or communication to a Holder shall be mailed by first-class
mail, certified or registered, return receipt requested, to his address shown on
the register kept by the Registrar. Failure to mail a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuers mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
The Trustee agrees to accept and act upon facsimile transmission of written
instructions and/or directions pursuant to this Indenture given by the Issuer,
provided, however that: (i) the Issuer, as the case may be, subsequent to such
facsimile transmission of written instructions and/or directions, shall provide
the originally executed instructions and/or directions to the Trustee in a
timely manner and (ii) such originally executed instructions and/or directions
shall be signed by an Authorized Representative of the Issuers.
SECTION 11.3 Communication by Holders with Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Issuers, the Trustee, the
Registrar and any other person shall have the protection of TIA Section 312(c).
SECTION 11.4 Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Issuers to the Trustee to take any action under
this Indenture, the Issuers shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.5) stating that, in
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the opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.5) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
SECTION 11.5 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with,
provided that, (i) with respect to matters of fact, an Opinion of Counsel may
rely upon an Officers' Certificate or a certificate of a public official, and
(ii) with respect to Restricted Payments, the Company shall provide the
statements required by Section 4.7.
SECTION 11.6 Rules by Trustee and Agents. The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Registrar or Paying Agent
may make reasonable rules and set reasonable requirements for its functions.
SECTION 11.7 Legal Holidays. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 11.8 No Recourse Against Others. No director, member, manager,
officer, employee, incorporator, stockholder or controlling person of the
Issuers or any Subsidiary Guarantor, as such, shall have any liability for any
obligations of the Issuers or any Subsidiary Guarantor under the Notes, this
Indenture or the Registration Rights Agreement or for any claim based on, in
respect of, or by reason of such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
shall be part of the consideration for the issuance of the Notes and the
Subsidiary Guarantee. Notwithstanding the foregoing, nothing in this provision
shall be construed as a waiver or release of any claims under the Federal
securities laws. Further, notwithstanding the foregoing, nothing in this
provision shall, or shall be construed in any way to, modify the rights or
obligations of either of
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the Issuers or any of the Subsidiary Guarantors as an Issuer or Subsidiary
Guarantor, respectively.
SECTION 11.9 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED
AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE
NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES
327(b). THE ISSUERS 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
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE ISSUERS
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE ISSUERS
IRREVOCABLY CONSENT, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE ISSUERS AT THEIR ADDRESS SET FORTH
HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY PURCHASER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE ISSUERS IN ANY OTHER JURISDICTION.
SECTION 11.10 No Adverse Interpretation of Other Agreements. This Indenture
may not be used to interpret another indenture, loan or debt agreement of the
Issuers or any of the Subsidiaries. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION 11.11 Successors. All agreements of the Issuers and any Subsidiary
Guarantors in this Indenture and the Notes shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 11.12 Severability. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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SECTION 11.13 Counterpart Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.14 Table Of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and Headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the terms
or provisions hereof.
SECTION 11.15 Waiver of Jury Trial. EACH OF THE ISSUERS AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 11.16 Force Majeure. In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Indenture as of the date first written above.
THE ISSUERS:
THE MAJESTIC STAR CASINO, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAJESTIC STAR CASINO CAPITAL CORP. II
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1 SENIOR NOTES INDENTURE
THE SUBSIDIARY GUARANTORS:
MAJESTIC INVESTOR, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAJESTIC INVESTOR HOLDINGS, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAJESTIC INVESTOR CAPITAL CORP.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXX MISSISSIPPI GAMING, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXX COLORADO GAMING, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2 SENIOR NOTES INDENTURE
THE TRUSTEE:
THE BANK OF NEW YORK TRUST COMPANY N.A.,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-3 SENIOR NOTES INDENTURE
