MIRAGE RESORTS, INCORPORATED, Issuer
AND
FIRSTAR BANK OF MINNESOTA, N.A., Trustee
$250,000,000
SUPPLEMENTAL INDENTURE
DATED AS OF
October 15, 1996
7.25% SENIOR NOTES DUE OCTOBER 15, 2006
EXHIBIT 4.2
THIS SUPPLEMENTAL INDENTURE is dated and entered into
as of October 15, 1996, between Mirage Resorts, Incorporated, a
Nevada corporation (hereinafter sometimes referred to as the
"Company"), and Firstar Bank of Minnesota, N.A., a corporation
organized and existing as a national banking association under
the laws of the United States, as trustee (hereinafter sometimes
referred to as the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company filed on June 28, 1996 a
Registration Statement on Form S-3 (the "Shelf Registration
Statement") with the Securities and Exchange Commission with
respect to certain securities of the Company, and the Shelf
Registration Statement was declared effective on July 12, 1996;
WHEREAS, the Indenture attached as Exhibit 4 to the
Shelf Registration Statement (the "Indenture") sets forth certain
terms and provisions of certain debt securities of the Company;
WHEREAS, for its lawful corporate purposes, the Company
desires to create and authorize the series of 7.25% Senior Notes
Due October 15, 2006 (hereinafter referred to as the "Notes") in
an aggregate principal amount of $250,000,000, and to provide the
terms and conditions upon which the Notes are to be executed,
registered, authenticated, issued and delivered;
WHEREAS, the Company has duly authorized the execution
and delivery of this Supplemental Indenture; and
WHEREAS, the Notes and the certificate of
authentication to be borne by the Notes are to be substantially
in the following forms, respectively:
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CUSIP No. 00000XXX0
This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee thereof. This Security may not
be exchanged in whole or in part for a Security registered, and
no transfer of this Security in whole or in part may be
registered, in the name of any person other than such Depositary
or a nominee thereof, except in the limited circumstances
described in the Indenture.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Mirage Resorts, Incorporated, or its
agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
MIRAGE RESORTS, INCORPORATED
7.25% Senior Note Due October 15, 2006
No. A-1 $250,000,000
MIRAGE RESORTS, INCORPORATED, a corporation duly
organized and existing under the laws of the State of Nevada
(herein called the "Company," which term includes any successor
to the Company under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or
registered assigns, the Principal sum of Two Hundred Fifty
Million Dollars ($250,000,000) on October 15, 2006, and to pay
interest thereon from October 30, 1996 or from the most recent
interest payment date to which interest has been paid or duly
provided for, semiannually in arrears on April 15 and October 15
in each year, commencing April 15, 1997, at the rate of 7.25% per
annum, until the Principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly
provided for, on any interest payment date will, as provided in
such Indenture, be paid to the person in whose name this Security
(or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest,
which shall be April 1 or October 1 (whether or not a Business
Day), as the case may be, next preceding such interest payment
date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such
regular record date and may either be paid to the person in whose
name this Security (or one or more Predecessor Securities) is
registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the
Trustee, notice whereof shall be mailed to Holders of the
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Securities not less than 10 days prior to such special record
date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in said Indenture. Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
Payment of the Principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The Borough of
Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest
may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the register for the
Securities.
Reference is hereby made to the further provisions of
this Security set forth on pages 6-11 following the signature
page hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the pages following
the signature page hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
[Signature Page to Follow]
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In Witness Whereof, the Company has caused this
instrument to be duly executed.
MIRAGE RESORTS, INCORPORATED
By XXXXXXX X. XXXX
____________________________
Xxxxxxx X. Xxxx
Chairman of the Board,
President and Chief
Executive Officer
By XXXXXX X. XXX
-----------------------------
Xxxxxx X. Xxx
Senior Vice President -
Finance and Development,
Chief Financial Officer
and Treasurer
Attest:
XXXXX X. XXXXX
___________________
Xxxxx X. Xxxxx
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: As of October 30, 0000 XXXXXXX XXXX XX XXXXXXXXX, N.A.
As Trustee
By XXXXX X. XXXXXX
____________________________
Xxxxx X. Xxxxxx
Authorized Signatory
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This Security is one of a duly authorized series of
securities of the Company (herein called the "Securities"),
issued under an Indenture, dated as of October 15, 1996, as
amended by a Supplemental Indenture, dated as of October 15, 1996
(as so amended, the "Indenture"), each between the Company and
Firstar Bank of Minnesota, N.A., as Trustee (herein called the
"Trustee," which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The
Securities are subject to, and qualified by, all of the terms of
the Indenture. This Security is one of the series designated on
the face hereof, limited in aggregate Principal Amount to
$250,000,000. The Securities are general obligations of the
Company.
The Securities are subject to redemption upon not less
than 30 days' nor more than 60 days' notice by first class mail,
in whole or in part, at the option of the Company at any time at
a redemption price equal to the greater of (i) 100% of the
Principal Amount of the Securities so redeemed or (ii) as
determined by a Quotation Agent, the sum of the present values of
the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate, plus, in each case, accrued interest
thereon to the redemption date.
"Adjusted Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.15%.
"Comparable Treasury Issue" means the United States
Treasury security selected by a Quotation Agent as having a
maturity comparable to the remaining term of the Security to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of such Security.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third Business Day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such Business Day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest such Reference Treasury
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Dealer Quotations, or (B) if the Trustee obtains fewer than three
such Reference Treasury Dealer Quotations, the average of all
such Quotations.
"Quotation Agent" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the
Company.
"Reference Treasury Dealer" means each of Xxxxxxx,
Xxxxx & Co. and CS First Boston Corporation and their respective
successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer; and any
other Primary Treasury Dealer selected by the Trustee after
consultation with the Company.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption
date, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing
to the Trustee by such Treasury Reference Dealer at 5:00 p.m. on
the third Business Day preceding such redemption date.
In the event of redemption of this Security in part
only, a new Security or Securities of like tenor for the
unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
Notwithstanding any other provision of Article 3 of the
Indenture, if any Gaming Authority requires that a Holder or
beneficial owner of Securities of a Holder must be licensed,
qualified or found suitable under any Gaming Law, such Holder or
such beneficial owner shall apply for a license, qualification or
a finding of suitability, as the case may be, within the required
time period. If such person fails to apply or become licensed or
qualified or is not found suitable (in each case, a "failure of
compliance"), the Company shall have the right, at its option,
(i) to require such Holder or owner to dispose of such Holder's
or owner's Securities within 30 days of receipt of notice of the
Company's election or such earlier date as may be requested or
prescribed by such Gaming Authority, or (ii) to redeem within
such 30-day or earlier period requested or prescribed by such
Gaming Authority the Securities of such Holder or owner at a
redemption price equal to the lesser of (A) 100% of the Principal
Amount thereof or (B) the price at which such Holder or owner
acquired the Securities, together, in either case, with accrued
interest to the earlier of the redemption date or the date of the
failure of compliance, which may be less than 30 days following
the notice of redemption if so requested or prescribed by such
Gaming Authority. The Company shall notify the Trustee in
writing of any such redemption as soon as practicable. The
Company shall not be responsible for any costs or expenses any
such Holder or owner may incur in connection with its application
for a license, qualification or finding of suitability.
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If there is a Change in Control (the time of a Change
in Control being referred to as the "Change in Control Date"),
then the Company shall (a) commence, within five Business Days
following the Change in Control Date, an offer to repurchase (the
"Repurchase Offer") all of the outstanding Securities at a
repurchase price (the "Repurchase Price") in cash equal to 101%
of the Principal Amount of the Securities plus accrued interest,
if any, to the Repurchase Date (as defined below) and (b) deposit
with the Paying Agent an amount equal to the aggregate Repurchase
Price for all Securities then outstanding so as to be available
for payment to the Holders of Securities who elect to require the
Company to repurchase all or a portion of their Securities.
If the Repurchase Date is on or after an interest
payment record date and on or before the related interest payment
date, any accrued interest will be paid to the person in whose
name a Security is registered at the close of business on such
record date, and no additional interest will be payable to
Holders who tender Securities pursuant to the Repurchase Offer.
Notice of any Repurchase Offer shall be mailed by the
Company to the Trustee and the Holders of the Securities at their
last registered addresses. The Repurchase Offer shall remain
open from the time of mailing until 10 Business Days thereafter,
and no longer, unless a longer period is required by law or stock
exchange rule or unless a majority of the Continuing Directors of
the Company votes in favor of extending such period (the date on
which the Repurchase Offer closes being the "Repurchase Date").
The notice shall contain all instructions and materials necessary
to enable such Holders to tender Securities pursuant to the
Repurchase Offer. The notice, which shall govern the terms of
the Repurchase Offer, shall state:
(1) that the Repurchase Offer is being made pursuant
to Section 4.07 of the Indenture and that Securities will be
accepted for payment either (A) in whole or (B) in part in
integral multiples of $1,000;
(2) the Repurchase Price and the Repurchase Date;
(3) that any Security not tendered will continue to
accrue interest;
(4) that any Security accepted for payment pursuant to
the Repurchase Offer shall cease to accrue interest from and
after the Repurchase Date;
(5) that Holders electing to have a Security purchased
pursuant to the Repurchase Offer will be required to surrender
the Security, with the form entitled "Option to Elect Purchase"
on the Security completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the
Repurchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than three
Business Days before the Repurchase Date, a telegram, telex,
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facsimile transmission or letter setting forth the name of the
Holder, the Principal Amount of Securities the Holder delivered
for purchase and a statement that the Holder is withdrawing his
election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only
in part will be issued new Securities equal in Principal Amount
to the unpurchased portion of the Securities surrendered.
On the Repurchase Date, the Company shall, to the
extent lawful, (i) accept for payment Securities or portions
thereof tendered pursuant to the Repurchase Offer; and
(ii) deliver to the Trustee the Securities so tendered, together
with an Officers' Certificate identifying the Securities or
portions thereof so accepted for payment by the Company. The
Paying Agent shall promptly mail or deliver to Holders of the
Securities so accepted payment in an amount equal to the
Repurchase Price. The Trustee shall promptly authenticate and
mail or deliver to each Holder who tendered a Security a new
Security or Securities equal in Principal Amount to any
untendered portion of the Security surrendered. The Paying Agent
shall invest funds deposited with it pursuant to Section 4.07 of
the Indenture for the benefit of, and at the written direction
of, the Company to the Repurchase Date.
"Board of Directors" or "Board" means the Board of
Directors or any authorized committee of the Board of Directors
of the Company, or a Consolidated Subsidiary thereof, as the
context may indicate.
"Capital Stock" of any person means any and all shares,
interests, participations or other equivalents (however
designated) of corporate stock and any and all forms of
partnership interests or other equity interests in a person,
including but not limited to any type of preference stock which
for other purposes may not be treated as equity.
"Change in Control" means (i) the time the Company
first determines that any person or group, within the meaning of
Section 14(d)(2) of the Exchange Act (other than any person who
was at the date of the Indenture an officer or director of the
Company or a group consisting of persons who were at the date of
the Indenture officers or directors of the Company) have acquired
direct or indirect beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of 35% or more of the
outstanding voting Capital Stock of the Company, unless a
majority of the Continuing Directors approves the acquisition not
later than 10 business days after the Company makes the
determination, or (ii) the first day on which a majority of the
members of the Board of Directors of the Company are not
Continuing Directors.
"Consolidated Subsidiary" of any specific person means
any subsidiary, all of whose voting Capital Stock (other than the
minimum required number of directors' qualifying shares) are
owned by such person and/or by another Consolidated Subsidiary of
such person, and the accounts of which are, or under generally
accepted accounting principles are required to be, consolidated
with the accounts of such person.
9
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors of the
Company who (i) was a member of that Board of Directors on the
date of the Indenture, (ii) had been a member of that Board of
Directors for the two years immediately preceding such date of
determination or (iii) was nominated for election or elected to
that Board of Directors with the affirmative vote of the greater
of (x) a majority of Continuing Directors who were members of
that Board at the time of such nomination or election or (y) at
least three Continuing Directors.
The Indenture contains provisions for defeasance of the
entire Indebtedness of this Security or certain restrictive
covenants with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to the Securities
shall occur and be continuing, the Principal of the Securities
may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a
majority in Principal Amount of the Securities at the time
outstanding. The Indenture also contains provisions permitting
the Holders of specified percentages in Principal Amount of the
Securities at the time outstanding, on behalf of the Holders of
all such Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security. The right of
any Holder (or such Holder's duly designated proxy) to
participate in any consent required or sought pursuant to any
provision of the Indenture (and the obligation of the Company to
obtain any such consent otherwise required from such Holder) may
be subject to the requirement that such Holder shall have been
the Holder of record of Securities as of a date set by the
Company and identified by the Trustee in a notice furnished to
Holders in accordance with the terms of the Indenture.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities, the Holders of not less than 25% in
Principal Amount of the Securities at the time outstanding shall
have made written request to the Trustee to institute proceedings
in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
10
received from the Holders of a majority in Principal Amount of
the Securities at the time outstanding a direction inconsistent
with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Security for the enforcement of
any payment of Principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the Principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the register for the Securities, upon surrender of
this Security for transfer at the office or agency of the Company
in any place where the Principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities of like tenor, of authorized
denominations and for the same aggregate Principal Amount, will
be issued to the designated transferee or transferees.
The Securities are issuable only in registered form
without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Securities are
exchangeable for a like aggregate Principal Amount of Securities
of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such transfer
or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment of this Security for transfer,
the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name this Security is
registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
No past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or any
successor corporation shall have any liability for any
obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the
Securities.
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All terms used in this Security without definition
which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEVADA.
Option to Elect Purchase
The undersigned registered Holder of this Security
hereby irrevocably exercises the option to require the Company to
repurchase this Security or portion thereof (which is $1,000 or
an integral multiple thereof) below designated on the Repurchase
Date and in accordance with the terms set forth in the notice of
Repurchase Offer distributed by the Company in accordance with
the terms of this Security, and directs that payment be made to
the registered Holder hereof unless a different name has been
indicated below. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.
Dated: ________________
Signature(s) must be Holder's Signature:
guaranteed if payment is to be
made other than to and in the
name of the registered Holder ____________________________
Portion of Security to be
____________________________ repurchased (in integral
Signature Guarantee multiples of $1,000) if other
than the full Principal
Amount thereof:
Fill in for payment of Repurchase
Price if to be made otherwise than _____________________________
to the registered Holder
____________________________________
Name
____________________________________
Address
____________________________________
Please print name and address
(including zip code)
SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER
____________________________________
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----------------
AND WHEREAS, all acts and things necessary to make the
Notes, when executed by the Company and authenticated and
delivered by or on behalf of the Trustee as in this Supplemental
Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute these presents a valid indenture
and agreement according to its terms, have been done and
performed;
NOW, THEREFORE, in order to declare the terms and
conditions upon which the Notes are executed, registered,
authenticated, issued and delivered, and in consideration of the
premises, of the purchase and acceptance of such Notes by the
Holders thereof and of the sum of one dollar to it duly paid by
the Trustee at the execution of these presents, the receipt
whereof is hereby acknowledged, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of the
respective Holders from time to time of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1. Capitalized Terms.
Capitalized terms used herein and not otherwise defined
herein are used with the respective meanings ascribed to such
terms in the Indenture.
2. Effectiveness.
This Supplemental Indenture shall become effective, and
shall bind the parties hereto, upon its execution by the parties
hereto.
3. Incorporation of Supplemental Indenture into Indenture.
This Supplemental Indenture is executed by the Company
and the Trustee pursuant to the provisions of Section 9.01 of the
Indenture, and the terms and conditions hereof shall be deemed to
be part of the Indenture for all purposes upon the effectiveness
of this Supplemental Indenture. The Indenture, as amended and
supplemented by this Supplemental Indenture, is in all respects
hereby adopted, ratified and confirmed.
4. Effect of Headings.
The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
5. Governing Law.
The internal laws of the State of Nevada shall govern
and be used to construe this Supplemental Indenture, without
regard to the conflicts of laws provisions thereof.
13
6. Counterparts.
This Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed
to be an original, but all such counterparts shall together
constitute but one and the same instrument.
7. Recitals.
The recitals contained herein shall be taken as the
statements of the Company and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Supplemental Indenture.
ARTICLE TWO
CREATION AND AUTHORIZATION OF SERIES
1. Designation of Series of Security.
There is hereby created and authorized the series of
Notes entitled the "7.25% Senior Notes Due October 15, 2006",
which shall be a closed series limited to $250,000,000 aggregate
Principal Amount (except for Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu
of, other Notes of this series pursuant to Sections 2.08, 2.09,
2.12 and 3.06 of the Indenture). The Notes shall be
substantially in the form set forth in the fifth recital of this
Supplemental Indenture.
ARTICLE THREE
AMENDMENTS TO PROVISIONS OF INDENTURE
1. Definitions.
Section 1.01 of the Indenture is hereby amended by
adding the following definitions in the appropriate alphabetical
order:
"Adjusted Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.15%.
"Attributable Value" in respect of any sale and
leaseback transaction means, as of the time of determination, the
total obligation (discounted to present value at the rate of
interest specified by the terms of the Notes compounded
semiannually) of the lessee for rental payments (other than
amounts required to be paid on account of property taxes as well
as maintenance, repairs, insurance, water rates and other items
which do not constitute payments for property rights) during the
remaining portion of the base term of the lease included in such
sale and leaseback transaction.
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"Comparable Treasury Issue" means the United States
Treasury security selected by a Quotation Agent as having a
maturity comparable to the remaining term of the Notes to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third Business Day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii) if
such release (or any successor release) is not published or does
not contain such prices on such Business Day, (A) the average of
the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations or (B) if the Trustee obtains fewer
than three such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Consolidated Net Tangible Assets" of the Company means
the aggregate amount of assets (less applicable reserves and
other properly deductible items) after deducting therefrom (a)
all current liabilities (excluding any Indebtedness for money
borrowed having a maturity of less than 12 months from the date
of the most recent consolidated balance sheet of the Company but
which by its terms is renewable or extendable beyond 12 months
from such date at the option of the borrower) and (b) all
goodwill, trade names, patents, unamortized debt discount and
expense and any other like intangibles, all as set forth on the
most recent consolidated balance sheet of the Company and
computed in accordance with generally accepted accounting
principles.
"Lien" means, with respect to any property or assets,
any mortgage or deed of trust, pledge, hypothecation, assignment,
security interest, lien, encumbrance or other security
arrangement of any kind or nature whatsoever on or with respect
to such property or assets (including any conditional sale or
other title retention agreement having substantially the same
economic effect as any of the foregoing).
"Principal Property" means any real property of the
Company or any of its subsidiaries, and any equipment located at
or comprising a part of any such real property, having a net book
value, as of the date of determination, in excess of the greater
of $25 million and 5% of Consolidated Net Tangible Assets of the
Company.
"Quotation Agent" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the
Company.
15
"Reference Treasury Dealer" means each of Xxxxxxx,
Xxxxx & Co. and CS First Boston Corporation and their respective
successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer; and any
other Primary Treasury Dealer selected by the Trustee after
consultation with the Company.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption
date, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing
to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on
the third Business Day preceding such redemption date.
2. Redemption and Offer to Purchase.
Section 3.05 of the Indenture is hereby amended and
restated in its entirety as follows:
Section 3.05. Deposit of Redemption Price.
Prior to or on the redemption date, the Company shall
deposit with the Paying Agent for the Notes (or if the Company or
a subsidiary or an Affiliate of the Company is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the
redemption price of, and (except if the redemption date shall be
an interest payment date) accrued interest on, all Notes to be
redeemed on that date other than Notes or portions of Notes
called for redemption which prior thereto have been delivered by
the Company to the Trustee for cancellation. If such money is
then held by the Company or a subsidiary or an Affiliate of the
Company in trust and is not required for such purpose, it shall
be discharged from such trust.
3. Optional Redemption.
The Indenture is hereby amended by adding a new Section
3.08 as follows:
Section 3.08. Optional Redemption.
The Notes are redeemable, in whole or in part, at the
option of the Company at any time at a redemption price equal to
the greater of (i) 100% of the Principal Amount of Notes so
redeemed or (ii) as determined by a Quotation Agent, the sum of
the present values of the remaining scheduled payments of
Principal and interest thereon discounted to the redemption date
on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in
each case, accrued interest thereon to the redemption date.
4. Limitation on Liens.
The Indenture is hereby amended by adding a new Section
4.08 as follows:
16
Section 4.08. Limitation on Liens.
The Company will not, and will not permit any
subsidiary to, create, incur, issue, assume or guarantee any
Indebtedness of the Company or any subsidiary secured by a Lien
upon any Principal Property, or upon shares of capital stock or
evidences of Indebtedness issued by any subsidiary which owns or
leases a Principal Property and which are owned by the Company or
any subsidiary (whether such Principal Property, shares or
evidences of Indebtedness are now owned or are hereafter acquired
by the Company), without making effective provision to secure all
of the Notes then outstanding by such Lien, equally and ratably
with (or prior to) any and all other Indebtedness thereby
secured, so long as such Indebtedness shall be so secured.
The foregoing restrictions shall not apply, however,
to: (a) Liens existing on the date of original issuance of the
Notes; (b) Liens affecting property of a corporation or other
entity existing at the time it becomes a subsidiary of the
Company or at the time it is merged into or consolidated with the
Company or a subsidiary of the Company; (c) Liens on property
existing at the time of acquisition thereof or incurred to secure
payment of all or a part of the purchase price thereof or to
secure Indebtedness incurred prior to, at the time of, or within
24 months after the acquisition for the purpose of financing all
or part of the purchase price thereof; (d) Liens on any property
to secure all or part of the cost of improvements or construction
thereon or Indebtedness incurred to provide funds for such
purpose in a principal amount not exceeding the cost of such
improvements or construction; (e) Liens which secure Indebtedness
owing by a subsidiary of the Company to the Company or to another
subsidiary of the Company; (f) purchase money security Liens on
personal property; (g) Liens to secure Indebtedness of joint
ventures in which the Company or a subsidiary has an interest, to
the extent such Liens are solely on property or assets of, or
equity interests in, such joint ventures; (h) Liens in favor of
the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision
thereof, to secure partial, progress, advance or other payments;
and (i) any extension, renewal, replacement or refunding of any
Lien referred to in the foregoing clauses (a) through (h),
provided, however, that the aggregate principal amount of
Indebtedness secured thereby and not otherwise authorized by the
foregoing clauses shall not exceed the aggregate principal amount
of Indebtedness, plus any premium or fee payable in connection
with any such extension, renewal, replacement or refunding, so
secured at the time of such extension, renewal, replacement or
refunding.
Notwithstanding the foregoing, the Company and its
subsidiaries may create, incur, issue, assume or guarantee
Indebtedness secured by Liens without equally and ratably
securing the Notes then outstanding, provided, that at the time
of such creation, incurrence, issuance, assumption or guarantee,
after giving effect thereto and to the retirement of any
Indebtedness which is concurrently being retired, the aggregate
amount of all outstanding Indebtedness secured by Liens so
incurred (other than those Liens permitted by the preceding
17
paragraph), together with all outstanding Attributable Value of
all sale and leaseback transactions permitted by the last
paragraph of Section 4.09, does not exceed 15% of the
Consolidated Net Tangible Assets of the Company.
5. Limitation on Sale and Leaseback Transactions.
The Indenture is hereby amended by adding a new Section
4.09 as follows:
Section 4.09. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any
subsidiary to, enter into any sale and leaseback transaction
involving any Principal Property unless the Company or such
subsidiary shall apply, or cause to be applied, to the retirement
of its secured debt within 120 days after the effective date of
the sale and leaseback transaction, an amount not less than the
greater of (i) the net proceeds of the sale of the Principal
Property leased pursuant to such arrangement or (ii) the fair
market value of the Principal Property so leased. This
restriction will not apply to a sale and leaseback transaction
involving the taking back of a lease for a period of less than
three years.
Notwithstanding the foregoing, the Company or any
subsidiary may enter into a sale and leaseback transaction,
provided, that at the time of such transaction, after giving
effect thereto, the Attributable Value thereof, together with all
Indebtedness secured by Liens permitted pursuant to Section 4.08
(other than those Liens permitted by the second paragraph of
Section 4.08, and other than the Attributable Value of the sale
and leaseback transactions permitted by the preceding paragraph)
does not exceed 15% of the Consolidated Net Tangible Assets of
the Company.
6. Successor Corporation and Assignment.
Section 5.01 of the Indenture is hereby amended and
restated in its entirety as follows:
Section 5.01. When the Company May Merge, etc.
The Company shall not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or
substantially all of its assets to, another person unless:
(1) the person formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such disposition shall have been made, is a
corporation organized and existing under the laws of the
United States or any State thereof or the District of
Columbia;
(2) the person formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such disposition shall have been made, assumes by
supplemental indenture all of the obligations of the Company
under the Notes and this Indenture;
18
(3) immediately after the transaction no Default
or Event of Default exists; and
(4) if, as a result of the transaction, property
of the Company would become subject to a Lien that would not
be permitted under the limitation on Liens contained in
Section 4.08, the Company takes such steps as shall be
necessary to secure the Notes equally and ratably with (or
prior to) the Indebtedness secured by such Lien.
The Company shall deliver to the Trustee for the Notes prior to
the consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed transaction and such supplemental
indenture comply with the provisions of this Indenture applicable
to the Notes.
7. Events of Default.
Section 6.01 of the Indenture is hereby amended and
restated in its entirety as follows:
Section 6.01. Events of Default.
An "Event of Default" occurs with respect to the Notes
in the event of any one of the following:
(1) failure of the Company to pay (whether or not
prohibited by applicable subordination provisions, if any),
interest for 30 days on, or the Principal when due of, any Notes;
(2) failure of the Company to comply with any of its
other agreements or covenants contained in the Notes or in this
Indenture and applicable to the Notes, and continuance of such
Default for the period and after the notice specified below;
(3) failure to pay when due (after applicable grace
periods as provided in any applicable instrument governing such
Indebtedness) the principal of, or acceleration of, any
Indebtedness for money borrowed by the Company having an
aggregate principal amount outstanding equal to at least
$25,000,000, if such Indebtedness is not discharged, or such
acceleration is not annulled, and the Default continues for the
period and after the notice specified below;
(4) entry of final judgments against the Company or
any subsidiary or subsidiaries of the Company which remain
undischarged for a period of 60 days, provided that the aggregate
of all such judgments exceeds $25,000,000 and the Default
continues for the period and after the notice specified below;
(5) the Company, pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
19
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(D) makes a general assignment for the benefit of
its creditors, or
(E) admits in writing its inability generally to
pay its debts as the same become due;
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Material Subsidiary of the Company in an involuntary case,
(B) appoints a Custodian of the Company for all
or substantially all of the property of the Company or any
Material Subsidiary of the Company, or
(C) orders the liquidation of the Company, and
the order or decree remains unstayed and in effect for 60
days; or
(7) a revocation, suspension or involuntary loss of
any Gaming License by the Company or a subsidiary of the Company
(after the same shall have been obtained) which results in the
cessation of operation of the business at a Principal Property
for a period of more than 90 consecutive days.
The term "Bankruptcy Law" means any Federal or State
bankruptcy, insolvency, reorganization or other similar law. The
term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A Default under clause (2) (other than a Default under
Section 4.05, 4.07 or 5.01, each of which Default shall be an
Event of Default without the notice or passage of time specified
in this paragraph) is not an Event of Default until the Trustee
or the Holders of at least 25% in Principal Amount of the Notes
then outstanding notify the Company of the Default and the
Company does not cure the Default or cause the Default to be
cured within 30 days after receipt of the notice. The notice
must specify the Default, demand that it be remedied and state
that the notice is a "Notice of Default."
A Default under clause (3) is not an Event of Default
until the Trustee or the Holders of at least 25% in Principal
Amount of the Notes then outstanding notify the Company of the
Default and the Company has not caused such Default to be cured
or waived or such acceleration to be rescinded or annulled within
30 days after receipt of the notice. The notice must specify the
Default, demand that it be rescinded or annulled and state that
the notice is a "Notice of Default."
A Default under clause (4) is not an Event of Default
until the Trustee or the Holders of at least 25% in Principal
Amount of the Notes then outstanding notify the Company of the
Default and the Company does not cure the Default or cause the
Default to be cured within 60 days after receipt of the notice.
20
The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default."
In the case of any Event of Default pursuant to the
provisions of this Section 6.01 occurring with respect to the
Notes by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company with the intention of
avoiding payment of the premium which the Company would have had
to pay if the Company then had elected optionally to redeem the
Notes, an equivalent premium (or, in the event that the Company
would not be permitted to redeem the Notes optionally on such
date, the premium payable on the first date thereafter on which
such redemption would be permissible) shall also become and be
immediately due and payable with respect to the Notes to the
extent permitted by law, anything in this Indenture or in the
Notes contained to the contrary notwithstanding.
[Signature page to follow]
IN WITNESS WHEREOF, the Company and the Trustee have
executed this Supplemental Indenture and have caused their names
to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
Dated: As of October 15, 1996 MIRAGE RESORTS, INCORPORATED
By: XXXXXXX X. XXXX
_________________________
Xxxxxxx X. Xxxx
Chairman of the Board,
President and Chief
Executive Officer
Attest:
XXXXX X. XXXXX
______________
Xxxxx X. Xxxxx
Assistant Secretary
By: XXXXXX X. XXX
_________________________
Xxxxxx X. Xxx
Senior Vice President-
Finance and Development,
Chief Financial
Officer and Treasurer
(SEAL)
Dated: As of October 15, 0000 XXXXXXX XXXX XX XXXXXXXXX, N.A.
By: XXXXX X. XXXXXX
__________________________
Xxxxx X. Xxxxxx
Vice President
Attest: (SEAL)
XXXXX X. XXXXXXX
________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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