EXHIBIT 4
INDENTURE
among
MGM MIRAGE, as Issuer,
The Subsidiary Guarantors Parties Hereto
and
U.S. Trust Company, National Association, as Trustee
Dated as of September 15, 2000
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................................... 2
Section 1.1 DEFINITIONS................................................................ 2
Section 1.2 COMPLIANCE CERTIFICATES AND OPINIONS....................................... 11
Section 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE..................................... 11
ARTICLE 2 FORM OF NOTES................................................................................... 12
Section 2.1 FORMS GENERALLY............................................................ 12
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION............................ 12
Section 2.3 NOTE IN GLOBAL FORM........................................................ 13
ARTICLE 3 THE NOTES....................................................................................... 13
Section 3.1 AMOUNT..................................................................... 13
Section 3.2 DENOMINATIONS.............................................................. 14
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING............................. 14
Section 3.4 TEMPORARY NOTES; EXCHANGE OF TEMPORARY GLOBAL NOTES FOR DEFINITIVE NOTES;
GLOBAL NOTES REPRESENTING NOTES............................................ 15
Section 3.5 REGISTRATION, TRANSFER AND EXCHANGE........................................ 17
Section 3.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES...................... 18
Section 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED............................. 18
Section 3.8 CANCELLATION............................................................... 19
Section 3.9 COMPUTATION OF INTEREST.................................................... 20
Section 3.11 MANDATORY DISPOSITION OF NOTES PURSUANT TO GAMING LAWS....................... 20
Section 3.12 CUSIP NUMBERS............................................................... 21
ARTICLE 4 SATISFACTION AND DISCHARGE................................................................... 21
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE..................................... 21
Section 4.2 APPLICATION OF TRUST MONEY.................................................. 22
ARTICLE 5 REMEDIES..................................................................................... 23
Section 5.1 EVENTS OF DEFAULT........................................................... 23
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.......................... 24
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE............. 25
Section 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM............................................ 25
Section 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT SECURITIES............ 26
Section 5.6 APPLICATION OF MONEY COLLECTED.............................................. 26
Section 5.7 LIMITATION ON SUITS......................................................... 27
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST... 27
Section 5.9 RESTORATION OF RIGHTS AND REMEDIES.......................................... 28
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE.............................................. 28
Section 5.11 DELAY OR OMISSION NOT WAIVER................................................ 28
Section 5.12 CONTROL BY HOLDERS.......................................................... 28
Section 5.13 WAIVER OF PAST DEFAULTS..................................................... 29
Section 5.14 UNDERTAKING FOR COSTS....................................................... 29
Section 5.15 WAIVER OF STAY OR EXTENSION LAWS............................................ 29
Section 5.16 DISQUALIFIED HOLDERS........................................................ 30
ARTICLE 6 THE TRUSTEE.................................................................................. 30
Section 6.1 CERTAIN DUTIES AND RESPONSIBILITIES......................................... 30
ii
Section 6.2 NOTICE OF DEFAULTS........................................................ 31
Section 6.3 CERTAIN RIGHTS OF TRUSTEE................................................. 31
Section 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES......................... 33
Section 6.5 MAY HOLD NOTES............................................................ 33
Section 6.6 MONEY HELD IN TRUST....................................................... 33
Section 6.7 COMPENSATION AND REIMBURSEMENT............................................ 33
Section 6.8 DISQUALIFICATION; CONFLICTING INTERESTS................................... 34
Section 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY................................... 34
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR......................... 34
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.................................... 36
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS............... 36
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY......................... 37
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT....................................... 37
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................................................. 39
Section 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS................. 39
Section 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS..................... 39
Section 7.3 REPORTS BY TRUSTEE........................................................ 40
Section 7.4 REPORTS BY COMPANY........................................................ 42
ARTICLE 8 CONCERNING THE HOLDERS........................................................................... 42
Section 8.1 ACTS OF HOLDERS........................................................... 42
Section 8.2 PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS BY HOLDER........... 43
iii
Section 8.3 PERSONS DEEMED OWNERS..................................................... 43
Section 8.4 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.............................. 43
ARTICLE 9 HOLDERS' MEETINGS................................................................................. 44
Section 9.1 PURPOSES OF MEETINGS...................................................... 44
Section 9.2 CALL OF MEETINGS BY TRUSTEE............................................... 44
Section 9.3 CALL OF MEETINGS BY COMPANY OR HOLDERS.................................... 44
Section 9.4 QUALIFICATIONS FOR VOTING................................................. 45
Section 9.5 REGULATIONS............................................................... 45
Section 9.6 VOTING.................................................................... 45
Section 9.7 NO DELAY OF RIGHTS BY MEETING............................................. 46
ARTICLE 10 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.............................................. 46
Section 10.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS...................... 46
Section 10.2 SUCCESSOR CORPORATION SUBSTITUTED......................................... 47
ARTICLE 11 SUPPLEMENTAL INDENTURES........................................................................... 47
Section 11.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS........................ 47
Section 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS........................... 48
Section 11.3 EXECUTION OF SUPPLEMENTAL INDENTURES...................................... 49
Section 11.4 EFFECT OF SUPPLEMENTAL INDENTURES......................................... 49
Section 11.5 CONFORMITY WITH TRUST INDENTURE ACT....................................... 49
Section 11.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES............................. 50
ARTICLE 12 COVENANTS......................................................................................... 50
Section 12.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST................................ 50
iv
Section 12.2 OFFICER'S CERTIFICATE AS TO COMPLIANCE.................................... 50
Section 12.3 MAINTENANCE OF OFFICE OR AGENCY........................................... 50
Section 12.4 MONEY FOR NOTES; PAYMENTS TO BE HELD IN TRUST............................. 51
Section 12.5 CORPORATE EXISTENCE....................................................... 52
Section 12.6 WAIVER OF CERTAIN COVENANTS............................................... 52
Section 12.7 GUARANTEES................................................................ 52
Section 12.8 LIMITATIONS ON LIENS...................................................... 53
Section 12.9 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS............................. 55
ARTICLE 13 REDEMPTION OF NOTES.............................................................................. 56
Section 13.1 OPTIONAL REDEMPTION....................................................... 56
Section 13.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE..................................... 57
Section 13.3 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.............................. 58
Section 13.4 NOTICE OF REDEMPTION...................................................... 58
Section 13.5 DEPOSIT OF REDEMPTION PRICE............................................... 59
Section 13.6 NOTES PAYABLE ON REDEMPTION DATE.......................................... 59
Section 13.7 NOTES REDEEMED IN PART.................................................... 59
ARTICLE 14 DEFEASANCE....................................................................................... 60
Section 14.1 APPLICABILITY OF ARTICLE.................................................. 60
Section 14.2 DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT OBLIGATIONS.......... 60
Section 14.3 DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST...... 62
Section 14.4 REPAYMENT TO COMPANY...................................................... 62
ARTICLE 15 GUARANTEE........................................................................................ 62
Section 15.1 GUARANTEE................................................................. 62
v
Section 15.2 EXECUTION AND DELIVERY OF GUARANTEE....................................... 63
Section 15.3 LIMITATION OF GUARANTOR'S LIABILITY....................................... 64
Section 15.4 CONTRIBUTION.............................................................. 64
Section 15.5 RIGHTS UNDER THE GUARANTEE................................................ 64
Section 15.6 PRIMARY OBLIGATIONS....................................................... 65
Section 15.7 WAIVERS................................................................... 65
Section 15.8 RELEASES.................................................................. 66
Section 15.9 NO ELECTION............................................................... 66
Section 15.10 FINANCIAL CONDITION OF THE COMPANY........................................ 66
Section 15.11 CONSOLIDATION, MERGER, ETC., ONLY ON CERTAIN TERMS........................ 67
ARTICLE 16 MISCELLANEOUS.................................................................................... 68
Section 16.1 NOTICES, ETC.............................................................. 68
Section 16.2 NOTICE TO HOLDERS; WAIVER................................................. 68
Section 16.3 CONFLICT WITH TRUST INDENTURE ACT......................................... 69
Section 16.4 COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS.................... 69
Section 16.5 SUCCESSORS AND ASSIGNS.................................................... 69
Section 16.6 SEPARABILITY CLAUSE....................................................... 69
Section 16.7 BENEFITS OF INDENTURE..................................................... 69
Section 16.8 GOVERNING LAW............................................................. 69
Section 16.9 LEGAL HOLIDAYS............................................................ 70
Section 16.10 NO RECOURSE AGAINST OTHERS................................................ 70
Section 16.11 GAMING LAWS............................................................... 70
Section 16.12 NO PARENT LIABILITY....................................................... 70
vi
Reconciliation between Trust Indenture Act of 1939 and Indenture, dated
as of September 15, 2000.
Trust Indenture
Act Section Indenture Section
--------------- -----------------
Section 310
-----------
(a)(1)............................................. 6.9
(a)(2)............................................. 6.9
(a)(3)............................................. 6.15
(a)(4)............................................. Not Applicable
(a)(5)............................................. 6.9
(b)................................................ 6.8, 6.10
(c)................................................ Not Applicable
Section 311
-----------
(a)................................................ 6.13(a)
(b)................................................ 6.13(b)
(c)................................................ Not Applicable
Section 312
-----------
(a)................................................ 7.1, 7.2(a)
(b)................................................ 7.2(b)
(c)................................................ 7.2(c)
Section 313
-----------
(a)................................................ 7.3(a)
(b)................................................ 7.3(b)
(c)................................................ 7.3(a), 7.3(c)
(d)................................................ 7.3(d)
Section 314
-----------
(a)................................................ 7.4, 12.2
(b)................................................ Not Applicable
(c)(1)............................................. 1.2
(c)(2)............................................. 1.2
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 1.2
Section 315
-----------
(a).............................................. 6.1(a), 6.1(c)
(b).............................................. 6.2, 7.3(a)(7)
(c).............................................. 6.1(b)
(d).............................................. 6.1(c)
(d)(1)........................................... 6.1(c)(1)
(d)(2)........................................... 6.1(c)(2)
(d)(3)........................................... 6.1(c)(3)
(e).............................................. 5.14
Section 316
-----------
(a)(1)(A)........................................ 5.12
(a)(1)(B)........................................ 5.13
(a)(2)........................................... Not Applicable
(b).............................................. 5.8
(c).............................................. Not Applicable
Section 317
-----------
(a)(1)........................................... 5.3
(a)(2)........................................... 5.4
(b).............................................. 12.4
Section 318...................................... 1.6
-----------
Note: This reconciliation shall not, for any purpose, be deemed to be a part of
the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), which provides that the
provisions of Sections 310 to and including 317 of the Trust Indenture Act are a
part of and govern every qualified indenture, whether or not physically
contained therein.
INDENTURE dated as of September 15, 2000, by and among MGM MIRAGE, a
Delaware corporation (the "Company"), having its principal executive office at
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, the Subsidiary
Guarantors party hereto and U.S. Trust Company, National Association (the
"Trustee"), having its Corporate Trust Office at 000 X. Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
RECITALS OF THE COMPANY
-----------------------
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 8 1/2% Senior Notes due 2010 (the
"Notes"), to be issued as provided in this Indenture.
The Subsidiary Guarantors have duly authorized the execution and delivery
of this Indenture to provide for the guarantee of the Notes by the Subsidiary
Guarantors as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are deemed incorporated into this Indenture and shall, to
the extent applicable, be governed by such provisions.
This Indenture constitutes a supplemental indenture in respect of the
indenture filed as an exhibit to the Company's registration statement on Form S-
3, filed on March 24, 2000, to the extent related to the Notes, and this
Indenture supersedes such indenture to the extent inconsistent therewith.
All things necessary have been done to make the Notes, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture, when
executed by the Company and each Subsidiary Guarantor, a valid agreement of the
Company and each such Subsidiary Guarantor, in each case in accordance with the
terms of the Notes and this Indenture, respectively.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Notes by the
holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all holders of Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
Section 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles or
as provided with respect to any Notes, and, except as otherwise herein provided
or as provided with respect to any Notes, the term "generally accepted
accounting principles" or "GAAP" with respect to any computation required or
permitted hereunder with respect to any Notes, shall mean such as 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 have been approved by a significant segment
of the accounting profession which are in effect as of the date of
determination;
(d) the words "herein," "hereof" and "hereunder" 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 word "including" when used herein means
"including without limitation" except when expressly stated to the contrary;
(e) certain terms, used principally in Article 3 or Article 6, are defined
in those respective Articles; and
(f) "Act" when used with respect to any holder, has the meaning specified
in Section 8.1.
"Additional Notes" means one or more series of securities issued by the
Company (together with any guarantees thereof by any Subsidiary Guarantors)
under this Indenture or a supplemental indenture to this Indenture after the
date hereof, in an aggregate principal amount not exceeding $1,190,000,000.
"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 the purposes of this definition,
"control" (including, with correlative meanings, the
2
terms "controlling," "controlled by" and "under common control with") as used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by agreement or otherwise.
"Attributable Debt" with respect to any Sale and Lease-Back transaction
that is subject to the restrictions under Section 12.9 below, means the present
value of the minimum rental payments called for during the term of the lease
(including any period for which such lease has been extended), determined in
accordance with generally accepted accounting principles, discounted at a rate
that, at the inception of the lease, the lessee would have incurred to borrow
over a similar term the funds necessary to purchase the leased assets.
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication (which in the case of the United States of America shall
be deemed to be English) customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal, state
or foreign law for the relief of debtors.
"Beneficiaries" means the holders of the Notes and the Trustee.
"Board of Directors" means either the board of directors of the Company or
any committee of that board or any other committee of the Company, duly
authorized by the board of directors of the Company to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day which is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in Nevada or
New York are authorized or obligated by law to close.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
3
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman of the Board of
Directors, the President or an Executive or Senior Vice President and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets
(including investments in Joint Ventures) of the Company and its Subsidiaries
(less applicable depreciation, amortization and other valuation reserves) after
deducting therefrom (a) all current liabilities of the Company and its
Subsidiaries (excluding (i) the current portion of long-term Indebtedness, (ii)
intercompany liabilities and (iii) any liabilities which are by their terms
renewable or extendible at the option of the obligor thereon to a time more than
12 months from the time as of which the amount thereof is being computed) and
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and any other like intangibles, all as set forth on the consolidated balance
sheet of the Company for the most recently completed fiscal quarter for which
financial statements are available and computed in accordance with generally
accepted accounting principles.
"Corporate Trust Office" means the corporate trust office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of execution of this instrument is located at 000 X.
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
"corporation" means a corporation, association, company or business trust.
"Credit Facilities" means, collectively: (i) the Second Amended and
Restated Loan Agreement, dated as of April 10, 2000, among MGM MIRAGE, as
Borrower, MGM Grand Atlantic City, Inc. and MGM Grand Detroit, LLC, as Co-
Borrowers, the Banks, Syndication Agent, Documentation Agents and Co-
Documentation Agents therein named, and Bank of America, N.A., as Administrative
Agent (and their successors and assigns from time to time party thereto),
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case as amended, modified,
renewed, extended, refunded, replaced or refinanced from time to time; (ii) the
364-Day Loan Agreement, dated as of April 10, 2000, among MGM MIRAGE, as
Borrower, MGM Grand Atlantic City, Inc. and MGM Grand Detroit, LLC, as Co-
Borrowers, the Banks, Syndication Agent, Documentation Agents and Co-
Documentation Agents therein named, and Bank of America, N.A., as Administrative
Agent (and their successors and assigns from time to time party thereto),
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case as amended, modified,
renewed, extended, refunded, replaced or refinanced from time to time; and (iii)
the Term Loan Agreement, dated as of April 7, 2000, among MGM MIRAGE, as
Borrower, MGM Grand Atlantic City, Inc. and MGM Grand Detroit, LLC, as Co-
Borrowers, the Banks, Syndication Agent, Documentation Agents and Co-
Documentation Agents therein named, and Bank of America, N.A., as
4
Administrative Agent (and their successors and assigns from time to time party
thereto), including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, in each case as
amended, modified, renewed, extended, refunded, replaced or refinanced from time
to time.
"Default" means any event that after notice or lapse of time, or both,
would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7(b).
"Detroit" means MGM Grand Detroit, LLC, a Delaware limited liability
company, and any Subsidiaries thereof.
"Discharged" has the meaning specified in Section 14.2.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States that, at the time of payment, is legal tender for
the payment of public and private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Excluded Subsidiary" means The MGM Grand Bally's Monorail, LLC, Detroit
and the Company's non-U.S. Subsidiaries whose only tangible assets are located
in foreign nations and their U.S. holding companies, provided such holding
companies have no other assets or operations and provided that except for
Detroit to the extent it guarantees any amounts of proceeds of borrowings under
the Credit Facilities made available to Detroit, if any Excluded Subsidiary
becomes subject to the covenants in the Credit Facilities applicable to the
Subsidiary Guarantors or grants any Liens to secure the Credit Facilities, or if
any Excluded Subsidiary guarantees or grants any Liens to secure any of the
Existing Senior Notes, such Excluded Subsidiary will thereafter not be an
Excluded Subsidiary.
"Existing Senior Notes" means (i) the Company's 6.95% senior notes due 2005
in the original aggregate principal amount of $300 million, (ii) the Company's
6.875% senior notes due 2008 in the original aggregate principal amount of $200
million and (iii) the Mirage Notes (in each case, including any guarantees
thereof by any Subsidiary Guarantors).
"Funded Debt" means all Indebtedness of the Company or any Subsidiary
Guarantor which (i) matures by its terms on, or is renewable at the option of
any obligor thereon to, a date more than one year after the date of original
issuance of such Indebtedness and (ii) ranks at least pari passu with the notes
or the applicable Guarantee.
"Gaming Authority" means the Nevada Gaming Commission, the Nevada State
Gaming Control Board, the New Jersey Casino Control Commission, the New Jersey
Division of Gaming Enforcement, the Michigan Gaming Control Board, the Detroit
City Council, the Mississippi Gaming Commission or any similar commission or
agency which has, or may at any time after the date of this Indenture have,
jurisdiction over the gaming activities of the Company or a Subsidiary (other
than an Excluded Subsidiary) of the Company or any successor thereto.
5
"Gaming Laws" means the gaming laws of a jurisdiction or jurisdictions to
which the Company or a Subsidiary of the Company is, or may at any time after
the date of this Indenture be, subject.
"Gaming Licenses" means every material license, permit, franchise,
registration or other material approval held by, or issued at any time after the
date of this indenture, to the Company or any of its Subsidiaries authorizing
the Company or any of its Subsidiaries to own, lease, operate or otherwise
conduct or manage gaming in any state or jurisdiction.
"Global Note" means a registered Note evidencing all or part of the Notes,
including, without limitation, any temporary or permanent Global Note.
"Guarantee" has the meaning specified in Section 15.1.
"Guaranteed Obligations" has the meaning specified in Section 15.1.
"Incur" means, with respect to any Indebtedness, to incur, create, issue,
assume, guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness;
provided that the accrual of interest shall not be considered an Incurrence of
Indebtedness.
"Indebtedness" of any person means (i) any indebtedness of such Person,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by notes, bonds, debentures or similar
instruments or letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such indebtedness
Incurred in connection with the acquisition by such person or any of its
Subsidiaries of any other business or entity, if and to the extent such
indebtedness would appear as a liability upon a balance sheet of such Person
prepared in accordance with generally accepted accounting principles, including
for such purpose Obligations under capitalized leases, and (ii) any guarantee,
endorsement (other than for collection or deposit in the ordinary course of
business), discount with recourse, or any agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire or to supply or advance funds with
respect to, or to become liable with respect to (directly or indirectly) any
indebtedness, obligation, liability or dividend of any Person, but shall not
include indebtedness or amounts owed for compensation to employees, or for goods
or materials purchased, or services utilized, in the ordinary course of business
of such Person. For purposes of this definition of Indebtedness, a "capitalized
lease" shall be deemed to mean a lease of real or personal property which, in
accordance with generally accepted accounting principles, is required to be
capitalized.
"Indenture" means this instrument as originally executed, or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including the
provisions relating to the Guarantees from time to time contained herein and,
unless the context otherwise requires, shall include the terms of the Notes.
"Interest Payment Date" with respect to any Note means March 15 and
September 15 of each year, commencing March 15, 2001, provided that if such
Interest Payment Date is not a
6
Business Day, interest due on such Interest Payment Date shall be payable on the
next succeeding Business Day.
"Issue Date" means any date on which any Notes are originally issued.
"Joint Venture" means any partnership, corporation or other entity, in
which up to and including 50% of the partnership interests, outstanding voting
stock or other equity interests is owned, directly or indirectly, by the Company
and/or one or more of its Subsidiaries.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit,
arrangement, encumbrance, security interest, lien (statutory or otherwise), or
preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Maturity" when used with respect to any Note means the date on which the
principal of such Note or an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment or otherwise.
"Mirage" means Mirage Resorts, Incorporated, a Nevada corporation.
"Mirage Notes" means (i) Mirage's 6-5/8% notes due 2005 in the principal
amount of $200 million, (ii) Mirage's 7-1/4% notes due 2006 in the principal
amount of $250 million, (iii) Mirage's 6-3/4% notes due 2007 in the principal
amount of $200 million, (iv) Mirage's 6-3/4% notes due 2008 in the principal
amount of $200 million and (v) Mirage's 7-1/4% debentures due 2017 in the
principal amount of $100 million.
"Moody's" means Xxxxx'x Investor Service, Inc.
"Non-recourse Indebtedness" means Indebtedness the terms of which provide
that the lender's claim for repayment of such Indebtedness is limited solely to
a claim against the property which secures such Indebtedness.
"Note Register" and "Note Registrar" have the respective meanings specified
in Section 3.5(a).
"Notes" has the meaning stated in the first recital of this Indenture and
includes any Notes (including any Global Note) authenticated and delivered under
this Indenture. In the event any Additional Notes are issued hereunder after
the date hereof, as contemplated by Section 3.1, references to "Notes" shall
also include such Additional Notes. All Notes, including any such Additional
Notes, shall vote together as one class of Notes under this Indenture.
"Obligations" means any principal, interest, premium, if any, penalties,
fees, indemnifications, reimbursements, expenses, damages or other liabilities
or amounts payable under the documentation governing or otherwise in respect of
any Indebtedness.
7
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, the President or an Executive or Senior Vice President and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
to the Company (including an employee of the Company).
"Outstanding" when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the holders of
such Notes; provided, however, that if such Notes are to be redeemed, then
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made and the date for
such redemption has passed;
(iii) Notes, except to the extent provided in Section 14.2, with
respect to which the Company has effected defeasance as provided in Article 14;
and
(iv) Notes paid pursuant to Section 3.6 and Notes in exchange for or
in lieu of which other Notes have been authenticated and delivered pursuant to
this Indenture, other than any such Notes in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Notes are held
by a bona fide purchaser in whose hands such Notes are valid obligations of the
Company;
provided, however, that in determining whether the holders of the requisite
principal amount of Notes Outstanding have performed any Act hereunder, Notes
owned by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding (provided, that in connection with any offer by the Company or any
obligor to purchase Notes, Notes tendered by a holder shall be Outstanding until
the date of purchase), except that, in determining whether the Trustee shall be
protected in relying upon any such Act, only Notes which a Responsible Officer
of the Trustee actually knows to be so owned shall be so disregarded. Notes so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
to act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.
8
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" when used with respect to the Notes means the Corporate
Trust Office of the Trustee or such other location as may be established under
Section 12.3.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.6 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Property" means any real estate or other physical facility or
depreciable asset or securities the net book value of which on the date of
determination exceeds the greater of $25 million or 2% of Consolidated Net
Tangible Assets.
"Redemption Date" means the date fixed for redemption of any Note pursuant
to this Indenture.
"Redemption Price" has the meaning specified in Section 13.1.
"Regular Record Date" for the interest payable on the Notes on any Interest
Payment Date means the March 1 or September 1 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means any vice
president, any assistant secretary, any assistant treasurer or any assistant
vice president or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above 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.
"Sale and Lease-Back Transaction" means any arrangement with a person
(other than the Company or any of its Subsidiaries), or to which any such person
is a party, providing for the leasing to the Company or any of its Subsidiaries
for a period of more than three years of any Principal Property which has been
or is to be sold or transferred by the Company or any of its Subsidiaries to
such person or to any other person (other than the Company or any of its
Subsidiaries), to which funds have been or are to be advanced by such person on
the security of the leased property.
"Significant Subsidiary" means, with respect to any Person, any Subsidiary
of that Person that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933,
as amended, as such Regulation is in effect on the date hereof.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7(b).
9
"Stated Maturity" when used with respect to any Note or any payment of
principal thereof or premium thereon or interest thereon means the date
specified in such Note or in this Indenture, as the date on which the principal
of such Note or such payment of principal, premium or interest is due and
payable.
"Subsidiary" of any specified Person means any corporation, partnership or
limited liability company of which at least a majority of the outstanding stock
(or other equity interests) having by the terms thereof ordinary voting power
for the election of directors (or the equivalent) of such Person (irrespective
of whether or not at the time stock (or other equity interests) of any other
class or classes of such Person shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly owned
by such Person, or by one or more other Subsidiaries, or by such Person and one
or more other Subsidiaries.
"Subsidiary Guarantor" means (i) each Subsidiary of the Company identified
as a Subsidiary Guarantor on the signature pages hereof and (ii) each other
Subsidiary of the Company that becomes a Subsidiary Guarantor in accordance with
Section 12.7 or by executing a supplemental indenture in which such Subsidiary
agrees to be bound by the terms of this Indenture as a Subsidiary Guarantor,
together with their permitted successors and assigns provided that if the
Guarantee of a Subsidiary Guarantor is withdrawn or cancelled pursuant to
Section 12.7(c), such Person shall no longer be a Subsidiary Guarantor
hereunder.
"S&P" means Standard & Poor's Ratings Group (a division of McGraw Hill,
Inc.).
"Treasury Securities" mean any obligations issued or guaranteed by the
United States government or any agency thereof.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder. Except where the context
otherwise requires, "Trustee" shall include the Trustee in its capacity as
Paying Agent and Note Registrar.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as it may be
amended from time to time.
"United States" means the United States of America (including the States
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"U.S. Depositary" means Depository Trust Company or any other clearing
agency registered under the Securities Exchange Act of 1934, as amended, or any
successor thereto, which shall in either case be the U.S. Depositary designated
in the form of Note attached as Exhibit A hereto until a successor U.S.
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "U.S. Depositary" shall mean or include each Person
who is then a U.S. Depositary hereunder.
"U.S. Government Obligations" has the meaning specified in Section 14.2.
10
"Vice President" includes, with respect to the Company, any Executive or
Senior Vice President and includes, with respect to the Trustee, any Vice
President, whether or not designated by a number or word or words added before
or after the title "Vice President."
Section 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than certificates provided
pursuant to Section 12.2) shall include:
(a) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(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 each such individual, such
individual has made such examination or investigation as is necessary to enable
that individual 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, in the opinion of each such individual, such
condition or covenant has been complied with.
provided, however, that with respect to matters of law, an Officers' Certificate
may be based upon an Opinion of Counsel, unless the signers know, or in the
exercise of reasonable care should know, that such Opinion of Counsel is
erroneous, and provided, further, that with respect to matters of fact an
Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials, unless the signer knows, or in the exercise of reasonable care
should know, that any such document is erroneous.
Section 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
11
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
ARTICLE 2
FORM OF NOTES
Section 2.1 FORMS GENERALLY.
The Notes shall be substantially in the form of Exhibit A hereto or in such
other form as shall be established in or pursuant to a Board Resolution or one
or more indentures supplemental hereto, and shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which any of the Notes may be listed, or to
conform to usage, all as determined by the officers executing such Notes as
conclusively evidenced by their execution of such Notes. If the form of Notes
(or any Global Note) is established in or pursuant to a Board Resolution, a copy
of such Board Resolution shall be delivered to the Trustee, together with an
Officers' Certificate setting forth the form of such Notes, at or prior to the
delivery of the Company Order contemplated by Section 3.3 for the authentication
and delivery of such Notes (or any such Global Note).
Subject to Section 3.4, the definitive Notes shall be printed, lithographed
or engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Notes, as conclusively evidenced by their execution of
such Notes.
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be borne by the
Notes shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within
mentioned Indenture.
U.S. Trust Company, National Association, as Trustee
By: _______________________
Authorized Signatory
12
Section 2.3 NOTE IN GLOBAL FORM.
If any Note is issued as a Global Note, such Global Note may provide that
it shall represent the aggregate amount of Outstanding Notes from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Notes represented thereby may from time to time be reduced to reflect exchanges.
Any endorsement of a Global Note to reflect the amount, or any increase or
decrease in the amount, of Outstanding Notes represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note.
Any instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.2.
Global Notes will be issued in registered form and in either temporary or
permanent form. Permanent Global Notes will be issued in definitive form.
Every Global Note authenticated and delivered hereunder shall bear a legend
in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO
TRANSFER OF THE NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
ARTICLE 3
THE NOTES
Section 3.1 AMOUNT.
The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is limited to $850,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.3, 3.3, 3.4, 3.5, 3.6,
11.6 or 13.7 and except for any Additional Notes that may be issued under this
Indenture after the date hereof.
The Notes shall be known and designated as the "8 1/2% Senior Notes due
2010" of the Company. Their Stated Maturity shall be September 15, 2010, and
they shall bear interest at a rate per annum equal to 8 1/2%, accruing from the
Issue Date or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, payable in cash semi-annually on each Interest
Payment Date, commencing March 15, 2001, until the principal thereof is paid or
duly provided for.
The principal of (and premium, if any) and interest on the Notes shall be
payable at such office or agency of the Company as may be maintained for such
purpose under Section 12.3, which initially shall be the Place of Payment.
13
The payment of the Notes is guaranteed pursuant to the Guarantees in favor
of the Beneficiaries.
The Notes shall be redeemable as provided in Article 13.
All Notes shall be substantially identical except as to denomination.
Section 3.2 DENOMINATIONS.
The Notes shall be issuable only as Notes in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its Chairman of the
Board of Directors, its President, one of its Executive or Senior Vice
Presidents or Chief Executive Officers or its Treasurer, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who were at
any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes, executed by the Company, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes and the Trustee in accordance with the Company Order
shall authenticate and deliver such Notes. If any Note shall be represented by
a permanent Global Note, then, for purposes of this Section and Section 3.4, the
notation of a beneficial owner's interest therein upon original issuance of such
Note or upon exchange of a portion of a temporary Global Note shall be deemed to
be delivery in connection with the original issuance of such beneficial owner's
interest in such permanent Global Note.
The Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Notes, (i) a Company Order for such authentication, (ii) the
Board Resolution by or pursuant to which the form and terms of such Notes have
been approved, (iii) an Officers' Certificate stating that all conditions
precedent provided for in the Indenture have been complied with and that, to the
best knowledge of the signers of such certificates, no Event of Default with
respect to any of the Notes shall have occurred and be continuing and (iv) an
Opinion of Counsel substantially to the effect that:
(a) the forms and terms of such Notes, have been established in conformity
with the provisions of this Indenture; and
(b) such Notes, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee in accordance with the Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and
14
subject to any conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company (and the Guarantees with
respect thereto will constitute legal, valid and binding obligations of each
Subsidiary Guarantor), enforceable against the Company (and each respective
Subsidiary Guarantor) in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent transfer and similar laws affecting
creditors' rights generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
The Trustee shall not be required to authenticate such Notes if the
issuance of such Notes pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Notes and this Indenture in a manner
which is not reasonably acceptable to the Trustee.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in one of the forms provided for herein duly
executed by the Trustee or by an Authenticating Agent, and such certificate upon
any Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture. Notwithstanding the foregoing, if any Note shall have been
duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Note to the Trustee for cancellation
as provided in Section 3.8 together with a written statement (which need not
comply with Section 1.2) stating that such Note has never been issued and sold
by the Company, for all purposes of this Indenture such Note shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
Section 3.4 TEMPORARY NOTES; EXCHANGE OF TEMPORARY GLOBAL NOTES FOR DEFINITIVE
NOTES; GLOBAL NOTES REPRESENTING NOTES.
(a) Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination for Notes, 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. Every such temporary Note shall be executed by the
Company and shall be authenticated and delivered by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes in lieu of which they are issued.
Except in the case of temporary Global Notes (which shall be exchanged in
accordance with the provisions of the following paragraphs), if temporary Notes
are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes, of a like Stated Maturity and
with like terms and provisions, upon surrender of the temporary Notes at the
office or agency of the Company in a Place of Payment, without charge to the
holder, except as
15
provided in Section 3.5 in connection with a transfer. Upon surrender for
cancellation of any one or more temporary Notes, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Notes of authorized denominations and of a like Stated
Maturity and like terms and provisions. Until so exchanged, the temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
definitive Notes.
(b) The Notes are initially to be issued in the form of one or more Global
Notes. The Company shall execute and the Trustee shall, in accordance with
Section 3.3 and the Company Order, authenticate and deliver one or more Global
Notes in temporary or permanent form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Notes to be represented by such Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially as
set forth in Section 2.3.
Notwithstanding any other provision of this Section or Section 3.5, unless
and until it is exchanged in whole or in part for Notes in definitive form, a
Global Note representing the Notes may not be transferred except as a whole by
the U.S. Depositary to a nominee of such depositary or by a nominee of such
depositary to such depositary or another nominee of such depositary or by such
depositary or any such nominee to a successor U.S. Depositary or a nominee of
such successor depositary.
Any person having a beneficial interest in a Global Note may, upon request
to the Trustee, exchange such beneficial interest for Notes in the form of
certificated securities. Upon any such request and evidence of such person's
beneficial ownership in a Global Note, the Trustee shall authenticate and
deliver to such person a certificated Note or Notes of any authorized
denominations as requested by such person in an aggregate principal amount equal
to and in exchange for such person's beneficial interest in the Global Note and
in the name of, and cause the same to be delivered to, such person or persons
(or the nominee of any thereof).
In addition, if:
(i) the Company notifies the Trustee in writing that the U.S.
Depositary for the Notes is no longer willing or able to act as U.S.
Depositary for the Notes and the Company is unable to locate a qualified
successor within 90 days; or
(ii) the Company, at its option, notifies the Trustee in writing that
it elects to cause the issuance of Notes in the form of certificated
securities,
then, upon surrender by the Global Note holder of the Global Note, Notes in
such form will be issued to each person that the Global Note holder and the U.S.
Depositary for the Notes identify as being the beneficial owner of the related
Notes.
Neither the Company nor the Trustee will be liable for any delay by the
Global Note holder or the U.S. Depositary for the Notes in identifying the
beneficial owners of Notes and the Company and the Trustee may conclusively rely
on, and will be protected in relying on, instructions from the Global Note
holder or the U.S. Depositary for the Notes for all purposes.
16
Upon the exchange of a Global Note for Notes in definitive form, such
Global Note shall be cancelled by the Trustee. Notes issued in exchange for a
Global Note pursuant to this subsection (c) shall be registered in such names
and in such authorized denominations as the U.S. Depositary for such Global
Note, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Notes to
the Persons in whose names such Notes are so registered.
Section 3.5 REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust Office of the
Trustee (or at the appropriate office of any other Note Registrar appointed
hereunder) a register (the registers maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers and exchanges of Notes. Pursuant to
Section 6.15, the Company shall appoint a "Note Registrar" for the purpose of
registering Notes and registering transfers and exchanges of Notes as herein
provided.
Upon surrender for registration of transfer of any Note at the office or
agency of the Company maintained for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee, one or more new Notes of like aggregate principal amount of such
denominations as are authorized for Notes and of a like Stated Maturity and with
like terms and conditions.
Except as otherwise provided in Section 3.4 and this Section 3.5, at the
option of the holder, Notes may be exchanged for other Notes of like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Notes which the
holder making the exchange is entitled to receive.
(b) All Notes issued upon any transfer or exchange of Notes shall be valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered for such transfer or
exchange.
Every Note presented or surrendered for transfer or exchange shall (if so
required by the Company or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the Note
Registrar, duly executed, by the holder thereof or his or her attorney duly
authorized in writing.
No service charge will be made for any transfer or exchange of Notes except
as provided in Section 3.6. The Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration, transfer or exchange of Notes, other than those expressly
provided in this Indenture to be made at the Company's own expense or without
expense or without charge to the holders.
The Company, the Trustee and the Note Registrar shall not be required (i)
to register, transfer or exchange Notes during a period beginning at the opening
of business 15 days before
17
the day of the transmission of a notice of redemption of Notes selected for
redemption under Section 13.3 and ending at the close of business on the day of
such transmission, or (ii) to register, transfer or exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
Section 3.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If (i) any mutilated Note is surrendered to the Trustee at its Corporate
Trust Office, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent harmless, and neither
the Company nor the Trustee receives notice that such Note has been acquired by
a bona fide purchaser, then the Company shall execute and upon Company Request,
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Note, a new Note of like Stated
Maturity and with like terms and conditions and like principal amount, bearing a
number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Note, pay the amount due on such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in respect thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) The Company shall duly and punctually pay the interest on the Notes in
accordance with the terms of the Notes and this Indenture. Payments in respect
of the Notes represented by a Global Note will be made by wire transfer of
immediately available funds to the accounts specified by the Global Note holder.
With respect to Notes that are not represented by Global Notes, the Company will
make all payments of interest by wire transfer of immediately available funds to
the accounts specified in writing by holders thereof prior to 10:00 a.m., New
York City time, on the relevant Regular Record Date or, if no such account is
specified, by mailing a check to each such holder's address in the Note
Register.
18
(b) Any interest on any Note which is payable but is not punctually paid
or duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered holder on the
relevant Regular Record Date by virtue of his having been such registered
holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names such Notes (or their respective Predecessor Note) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Note and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee prior to 10:00 a.m.,
New York City time, an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to the holders
of such Notes at their addresses as they appear in the Note Register, not less
than 15 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Notes (or their respective Predecessor Note) are registered at
the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on Notes in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which such Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice is given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon transfer of, in exchange for, or in lieu of,
any other Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
Section 3.8 CANCELLATION.
All Notes surrendered for payment, redemption, transfer or exchange shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee
at its Corporate Trust Office. All Notes so delivered shall be promptly
cancelled by the Trustee. The Company may at any time deliver to the Trustee
for cancellation any Notes previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Notes previously authenticated hereunder which the Company has
not issued, and all Notes so delivered shall be promptly cancelled by the
Trustee. No Notes shall be authenticated in lieu of
19
or in exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Notes held by the Trustee
shall be delivered to the Company upon Company Request. The acquisition of any
Notes by the Company shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Notes are surrendered to
the Trustee for cancellation. Permanent Global Notes shall not be disposed of
until exchanged in full for definitive Notes or until payment thereon is made in
full.
Section 3.9 COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 3.10 MANDATORY DISPOSITION OF NOTES PURSUANT TO GAMING LAWS.
Each holder and beneficial owner, by accepting or otherwise acquiring an
interest in the Notes, shall be deemed to have agreed that if the Gaming
Authority of any jurisdiction in which the Company or any of its Subsidiaries
conducts or proposes to conduct gaming requires that a Person who is a holder or
beneficial owner must be licensed, qualified or found suitable under the
applicable Gaming Laws, such holder or beneficial owner shall apply for a
license, qualification or a finding of suitability within the required time
period. If such Person fails to apply or become licensed or qualified or is
found unsuitable (a "Disqualified Holder"), then the Company shall have the
right, at its option, notwithstanding any other provision of this Indenture:
(i) to require such Person to dispose of its Notes or beneficial interest
therein within 30 days of receipt of notice of the Company's election or such
earlier date as may be requested or prescribed by such Gaming Authority; or
(ii) to redeem such Notes, which Redemption Date may be less than 30 days
following the notice of redemption if so requested or prescribed by the Gaming
Authority, at a redemption price equal to:
(1) the lesser of:
(a) the Person's cost, plus accrued and unpaid interest, if any,
to the earlier of the Redemption Date or the date of the finding of
unsuitability or failure to comply; and
(b) 100% of the principal amount thereof, plus accrued and unpaid
interest to the earlier of the Redemption Date and the date of the
finding of unsuitability; or
(2) such lesser amount as may be required by applicable Gaming Laws
or by order of any Gaming Authority.
The Company shall notify the Trustee in writing of any such Disqualified
Holder status or redemption as soon as practicable. The Company shall not be
responsible for any costs or
20
expenses any such holder or beneficial owner may incur in connection with its
application for a license, qualification or a finding of suitability.
Notwithstanding any other provision of this Indenture, immediately upon the
imposition of a requirement to dispose of Notes by a Gaming Authority, such
Person shall, to the extent required by applicable Gaming Laws, have no further
right (i) to exercise, directly or indirectly, through any trustee, nominee or
any other person or entity, any right conferred by the Notes or (ii) to receive
any interest, dividends or any other distributions or payments with respect to
the Notes or any remuneration in any form with respect to the Notes from the
Company or the Trustee, except the redemption price.
Section 3.12 CUSIP NUMBERS.
The Company in issuing the Notes 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 of Notes, 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 Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further effect
with respect to the Notes (except as to any surviving rights of registration of
transfer or exchange of such Notes herein expressly provided for and rights to
receive payments of principal (and premium, if any) and interest on such Notes)
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(a) either
(1) all Notes theretofore authenticated and delivered (other than (i)
Notes which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6, and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 12.4) have been delivered to the Trustee for cancellation;
or
(2) all Notes not theretofore delivered to the Trustee for
cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
21
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice by the
Trustee in the name, and at the expense, of the Company;
(b) the Company, in the case of subclause (i), (ii) or (iii) of clause
(a)(2) of this Section, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an amount sufficient to pay
and discharge the entire indebtedness on such Notes for principal (and premium,
if any) and interest to the date of such deposit (in the case of Notes which
have become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be; provided, however, in the event a petition for relief under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, is
filed with respect to the Company within 91 days after the deposit and the
Trustee is required to return the deposited money to the Company, the
obligations of the Company under this Indenture with respect to such Notes shall
not be deemed terminated or discharged;
(c) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(d) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with; and
(e) the Company has delivered to the Trustee an Opinion of Counsel or a
ruling by the Internal Revenue Service to the effect that holders of the Notes
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.1, and, if money shall have been deposited with the
Trustee pursuant to clause (b) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 12.4, shall survive.
Section 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 12.4, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Notes, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
22
ARTICLE 5
REMEDIES
Section 5.1 EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to the Notes means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law,
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Note when it becomes
due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (and premium, if any, on)
any Note at its Maturity (upon acceleration, optional or mandatory redemption or
otherwise); or
(c) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the holders of at least 25% in
principal amount of the Outstanding Notes, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(d) the acceleration or maturity of any Indebtedness of the Company or any
Subsidiary Guarantor (other than Non-recourse Indebtedness), at any time, in an
amount in excess of the greater of (i) $25,000,000 and (ii) 5% of Consolidated
Net Tangible Assets, if such acceleration is not annulled within 30 days after
written notice to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in principal amount of the Outstanding Notes; or
(e) entry of final judgments against the Company or any Subsidiary
Guarantor which remain undischarged for a period of 60 days, provided that the
aggregate of all such judgments exceeds $25,000,000 and judgments exceeding
$25,000,000 remain undischarged for 60 days after written notice to the Company
by the Trustee or to the Company and the Trustee by the holders of at least 25%
in principal amount of the Outstanding Notes; or
(f) the entry of a decree or order for relief in respect of the Company or
any Significant Subsidiary by a court having jurisdiction in the premises in an
involuntary case under the federal Bankruptcy Laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, or a decree or order adjudging the Company or any Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Significant Subsidiary under any applicable federal or
state law, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or
23
any Significant Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90 consecutive
days; or
(g) the commencement by the Company or any Significant Subsidiary of a
voluntary case under the federal Bankruptcy Laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, or the consent by it to the entry of an order for relief in
an involuntary case under any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any substantial
part of its property, or the making by it of an assignment for the benefit of
its creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action.
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default described in clause
(f) or (g) of Section 5.1) with respect to Notes at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the holders of not
less than 25% in principal amount of the Outstanding Notes may declare the
principal amount of all the Notes to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by holders), and upon any
such declaration such principal amount (or specified amount) plus accrued and
unpaid interest (and premium, if payable) shall become immediately due and
payable. Upon payment of such amount all obligations of the Company in respect
of the payment of principal of the Notes shall terminate.
At any time after such a declaration of acceleration with respect to Notes
has been made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
holders of at least a majority in principal amount of the Outstanding Notes, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(1) all overdue installments of interest on all Notes,
(2) the principal of (and premium, if any, on) any Notes which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Notes,
(3) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest on each Note at the rate or rates
prescribed therefor in such Notes, and
(4) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
24
(b) all Events of Default with respect to Notes, other than the nonpayment
of the principal of Notes which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
If an Event of Default described in clause (f) or (g) of Section 5.1 occurs
with respect to the Company or any Significant Subsidiary, the principal of,
premium, if any, and accrued interest on the Notes shall be due and payable
immediately without any further action or notice.
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that, if:
(a) default is made in the payment of any installment of interest on any
Note when such interest or payment becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of principal of (or premium, if any, on)
any Note at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to it, for the benefit of
the holders of such Notes, the amount then due and payable on such Notes for the
principal (and premium, if any) and interest, if any, and, in addition thereto,
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.
If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Notes wherever situated.
If an Event of Default with respect to Notes occurs and is continuing, then
the Trustee may, in its discretion, proceed to protect and enforce its rights
and the rights of the holders of Notes by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the federal
Bankruptcy Laws, as now or hereafter
25
constituted, relative to the Company or any Subsidiary Guarantor, or the
property of the Company or of any Subsidiary Guarantor or their creditors, the
Trustee (irrespective of whether the principal of such Notes shall then be due
and payable as therein expressed or by declaration of acceleration or otherwise
and irrespective of whether the Trustee shall have made any demand on the
Company or any Subsidiary Guarantor for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the holders of such Notes allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any holder any plan of
reorganization, arrangement, adjustment or composition affecting the 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 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT SECURITIES.
All rights of action and claims under this Indenture or the Notes or
Guarantees may be prosecuted and enforced by the Trustee without the possession
of any of such Notes or Guarantees or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name, as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the holders of the Notes in respect of which such
judgment has been recovered.
Section 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Notes and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
26
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Notes ratably, without preference or
priority of any kind, according to the amounts due and payable on such Notes for
principal (and premium, if any) and interest, respectively;
THIRD: without duplication, to holders of Notes for any other obligations
owing to the holders of Notes under the Notes or this Indenture; and
FOURTH: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7 LIMITATION ON SUITS.
No holder of any Note shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or the Guarantees, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such holder has previously given written notice to the Trustee of a
continuing Event of Default;
(b) the holders of not less than 25% in principal amount of the Outstanding
Notes shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such holder or holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the holders of at least a majority in
principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or the Guarantees to affect, disturb or prejudice the rights
of any other such holders, or to obtain or to seek to obtain priority or
preference over any other of such holders or to enforce any right under this
Indenture or the Guarantees, except in the manner herein provided and for the
equal and ratable benefit of all of such holders. For the protection and
enforcement of the provisions of this Section 5.7, each and every holder of
Notes and the Trustee shall be entitled to such relief as can be given at law or
in equity.
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, except for
restrictions imposed by Gaming Laws or Gaming Authorities on payments by
entities holding Gaming Licenses, the holder of any Note shall have the right,
which is absolute and unconditional, to receive payment
27
of the principal of (and premium, if any) and (subject to Section 3.7 and
Section 3.10) interest on such Note on the respective Stated Maturity or
Maturities expressed in such Note (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment
and interest thereon, and such right shall not be impaired without the consent
of such holder.
Section 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such holder, then and in every such case the Company, the Trustee and the
holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the holders shall continue as though
no such proceeding had been instituted.
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law (including Gaming Laws),
be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or any acquiescence
therein. Every right and remedy given by this Indenture or by law to the
Trustee or to the holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the holders, as the case may be.
Section 5.12 CONTROL BY HOLDERS.
The holders of at least a majority in principal amount of the Outstanding
Notes shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Notes, provided that:
(a) such direction shall not be in conflict with any rule of law (including
Gaming Laws) or with this Indenture;
(b) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would be unjustly prejudicial to the
holders of Notes not joining in any such direction; and
28
(c) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5.13 WAIVER OF PAST DEFAULTS.
The holders of not less than a majority in aggregate principal amount of
the Outstanding Notes, by notice to the Trustee, may, on behalf of the holders
of all the Notes, waive any past default hereunder and its consequences, except
a default:
(a) in the payment of the principal of (or premium, if any) or interest on
any Note, or
(b) in respect of a covenant or provision hereof which, pursuant to Article
11, cannot be modified or amended without the consent of the holder of each
Outstanding Note affected.
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 the Notes under this Indenture, but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit other than the Trustee of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant, but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any holder or
group of holders holding in the aggregate more than 10% in principal amount of
the Outstanding Notes, or to any suit instituted by any holder of a Note for the
enforcement of the payment of the principal of (or premium, if any) or interest
on such Note on or after the respective Stated Maturity or Maturities expressed
in such Note (or, in the case of redemption, on or after the Redemption Date).
Section 5.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
29
Section 5.16 DISQUALIFIED HOLDERS.
To the extent required by applicable Gaming Laws, Notes held by a
Disqualified Holder shall, so long as held by such Person, be disregarded for
purposes of providing notices, directions, waivers or other actions and
determining the sufficiency of such notices, directions, waivers or actions
under this Article 5.
ARTICLE 6
THE TRUSTEE
Section 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect to
the Notes,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) 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; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Notes has occurred and is
continuing, the Trustee shall, with respect to the Notes, 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 such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Notes in good faith in
accordance with the direction of the holders of at least a majority in principal
amount of the Outstanding Notes relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture; and
30
(4) the Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(5) the Trustee shall cooperate and comply with any order or directive
of a Gaming Authority in connection with this Indenture, including that the
Trustee submit an application for any license, finding of suitability or other
approval pursuant to any Gaming Laws (unless the Trustee shall have submitted
its resignation) and will cooperate fully and completely in any proceeding
related to such application; provided the Company agrees to prepare (or cause
the Subsidiary Guarantors to prepare) all documentation in connection with any
such order, directive, application and proceeding and to reimburse the Trustee
for all costs and expenses incurred by it in connection therewith.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect
to Notes, the Trustee shall give notice to all holders of Notes of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest on any Note, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the holders of Notes; and provided,
further, that in the case of any default of the character specified in Section
5.1(d) with respect to Notes, no such notice to holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Notes.
Notice given pursuant to this Section 6.2 shall be transmitted by mail:
(a) to all registered holders, as the names and addresses of the
registered holders appear in the Note Register; and
(b) to each holder of a Note whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a) of this Indenture.
Section 6.3 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.1:
(a) the Trustee may conclusively rely, and shall be protected in acting or
refraining from acting, upon any resolution, certificate, statement, instrument,
opinion, report, notice,
31
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the holders of Notes pursuant to this Indenture, unless such holders shall have
offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) 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;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) except with respect to Section 12.1, the Trustee shall have no duty to
inquire as to the performance of the Company's covenants in Article 12 hereof.
In addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Default or Event of Default occurring pursuant
to Section 5.1(a) or (b) or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or obtained actual knowledge;
(i) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture; and
32
(j) the Trustee may request that the Company deliver an 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 Officers' 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.
Section 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, 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 Indenture,
the Guarantees or of the Notes. The Trustee shall not be accountable for the
use or application by the Company of any Notes or the proceeds thereof.
Section 6.5 MAY HOLD NOTES.
The Trustee, any Paying Agent, the Note Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 6.8 and 6.13, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Note Registrar or such other agent.
Section 6.6 MONEY HELD IN TRUST.
Money in any currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
Section 6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee in Dollars for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including costs incurred in connection with applications to any
Gaming Authority and including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or willful
misconduct; and
(c) to indemnify in Dollars the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties
33
hereunder, including the costs and expenses of defending itself against any
claim (whether asserted by the Company, a holder of Notes or any other Person)
or liability in connection with the exercise or performance of any of its powers
or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Notes, upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of amounts due on the Notes.
The obligations of the Company under this Section 6.7 to compensate and
indemnify the Trustee for reasonable expenses, disbursements and advances shall
constitute additional indebtedness under this Indenture and shall survive the
satisfaction and discharge of this Indenture and any rejection or termination of
this Indenture under any Bankruptcy Law. When the Trustee incurs expenses or
renders services after an Event of Default specified in Section 5.1(f) or (g)
occurs, the expenses and the compensation for the services of the Trustee are
intended to constitute expenses of administration under any Bankruptcy Law.
Section 6.8 DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall comply with the relevant provisions of the Trust
Indenture Act with respect to conflicts of interest and disqualification. If
such provisions require the Trustee to resign with respect to the Notes, the
Company shall take prompt steps to have a successor appointed, in the manner and
with the effect hereinafter specified in this Article.
Section 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000, subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any Affiliate of the Company
shall serve as Trustee upon any Notes.
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
Subject to compliance with applicable Gaming Laws:
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Notes by
giving written notice thereof to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation,
34
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes
and a successor Trustee appointed by Act of the holders of at least a majority
in principal amount of the Outstanding Notes, delivered to the Trustee and to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 with respect to
the Notes after written request therefor by the Company or by any holder who has
been a bona fide holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 with
respect to the Notes and shall fail to resign after written request therefor by
the Company or by any such holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Notes, or (ii) subject to Section 5.14, any holder
who has been a bona fide holder of a Note for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Notes.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Notes, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Notes and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Notes shall be appointed by Act of the
holders of at least a majority in principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Notes and, to that extent, supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Notes shall have been so appointed by the Company or the holders
and accepted appointment in the manner hereinafter provided, any holder who has
been a bona fide holder of a Note for at least six months may, subject to
Section 5.7, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Notes.
35
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Notes and each appointment of a successor
Trustee with respect to the Notes in the manner and to the extent provided in
Section 16.2 to the holders of Notes. Each notice shall include the name of the
successor Trustee with respect to the Notes and the address of its Corporate
Trust Office .
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Subject to compliance with applicable Gaming Laws:
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Notes, each such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee, but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.7.
(b) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) of this Section, as the case may be.
(c) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case any
Notes shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Notes, in either its own
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
36
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
other obligor under the Notes), the Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Company or any Subsidiary Guarantor (or any such other obligor). A Trustee who
has resigned or been removed shall be subject to Trust Indenture Act Section
311(a) to the extent indicated therein.
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Notes remain Outstanding, upon a Company Request, there
shall be an authenticating agent (the "Authenticating Agent") appointed, for
such period as the Company shall elect, by the Trustee to act as its agent on
its behalf and subject to its direction in connection with the authentication
and delivery of the Notes. Notes authenticated by such Authenticating Agent
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by such Trustee. Wherever
reference is made in this Indenture to the authentication and delivery of Notes
by the Trustee or to the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on
behalf of such Trustee by such Authenticating Agent, except that only the
Trustee may authenticate Notes upon original issuance and pursuant to Section
3.6 hereof. Such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any state, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $100,000,000 and subject to
supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of any Authenticating Agent,
shall continue to be the Authenticating Agent with respect to the Notes for
which it served as Authenticating Agent without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the applicable
Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to the Notes,
the Trustee shall, upon Company Request, appoint a
37
successor Authenticating Agent, and the Company shall provide notice of such
appointment to all holders of Notes in the manner and to the extent provided in
Section 16.2. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein. The Company agrees to pay to the
Authenticating Agent from time to time reasonable compensation for its services.
The Authenticating Agent for the Notes shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee, except
arising out of its negligence or willful misconduct.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the within
mentioned Indenture.
U.S. Trust Company, National Association, As Trustee
By: ___________________________
As Authenticating Agent
By: ___________________________
Authorized Signatory
Section 6.15. PAYING AGENT; NOTE REGISTRAR.
(a) Each Paying Agent or Note Registrar (other than the Company)
shall be a corporation organized and doing business under the laws of the United
States of America or of any State and having a combined capital and surplus of
at least $500,000,000.
(b) Each Paying Agent or Note Registrar may resign at any time by
giving written notice thereof to the Company. The Company, by a Board
Resolution and upon giving written notice thereof to the Paying Agent or Note
Registrar, may remove such Paying Agent or Note Registrar at any time.
(c) If any Paying Agent or Note Registrar shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of any
Paying Agent or Note Registrar for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Paying Agent or Note Registrar.
(d) The Company shall give notice of each resignation and each
removal of any Paying Agent or Note Registrar and each appointment of a
successor Paying Agent or Note Registrar by mailing written notice of such event
by first-class mail, postage prepaid, to the Trustee. Each notice shall include
the name and address of the successor Paying Agent or Note Registrar.
(e) The Trustee is hereby initially appointed Paying Agent and Note
Registrar.
38
(f) The Company shall enter into an appropriate written agency
agreement with any Paying Agent or Note Registrar not a party to this Indenture,
which agreement shall implement the provisions of this Indenture that relate to
such Paying Agent or Note Registrar, including the provisions of Section
6.1(c)(5). The Company shall notify the Trustee in writing of the name and
address of any such Paying Agent or Note Registrar.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the Notes, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the registered holders as of the date 15 days next preceding each
such Regular Record Date (or such semi-annual dates, as the case may be); and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Note
Registrar, no such list need be furnished.
Section 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.3(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was compiled from information received
by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy, not earlier than two years after filing, any information
filed with it pursuant to Section 7.3(c)(2).
(b) If three or more holders (hereinafter referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a
39
Note for a period of at least six months preceding the date of such application,
and such application states that the applicants desire to communicate with other
holders of Notes with respect to their rights under this Indenture or under the
Notes and is accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of holders of
all Notes, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 7.2(a), and as to the approximate
cost of mailing to such holders the form of proxy or other communication,
specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written request of such applicants,
mail to the holders of Notes, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a), a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five Business Days after such
tender, the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the holders of Notes, or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the holders in accordance with Section 7.2(b), regardless
of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing of any material pursuant to a
request made under Section 7.2(b).
Section 7.3 REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the first May
15 after the original issuance of the Notes, the Trustee, if so required under
the Trust Indenture Act, shall transmit by mail to all holders of Notes, in the
manner and to the extent provided in Trust Indenture Act Section 313(c), a brief
report dated as of such May 15 in accordance with and with
40
respect to the matters required by Trust Indenture Act Section 313(a). The
Trustee shall also transmit by mail to all holders of Notes, in the manner and
to the extent provided in Trust Indenture Act Section 313(c), a brief report in
accordance with and with respect to the matters required by Trust Indenture Act
Section 313(b)(2).
(b) A copy of each report transmitted to holders of Notes pursuant to this
Section 7.3 shall, at the time of such transmission, be mailed to the Company
and filed with each stock exchange, if any, upon which the Notes are listed and
also with the Commission. The Company will notify the Trustee promptly if the
Notes are listed on any stock exchange or of any delisting thereof.
(c) Gaming License Requirements. To the extent required by Gaming Laws,
the Trustee will provide any applicable Gaming Authority upon its or the
Company's request with:
(1) copies of all notices, reports and other written communications
which the Trustee gives to holders of Notes;
(2) a list of holders of Notes promptly after the original issuance
of the Notes, eight months and two months prior to the expiration date of each
then-current Gaming License held by the Company or its Subsidiaries, and upon
demand;
(3) notice of any Event of Default under this Indenture or of any
Default, any acceleration of the indebtedness evidenced or secured hereby, the
institution of any legal actions or proceedings before any court or governmental
authority in respect of this Indenture and any rescission, annulment or waiver
in respect of an Event of Default;
(4) notice of the removal or resignation of the Trustee within five
Business Days thereof;
(5) notice of any transfer or assignment of rights under this
Indenture (but no transfers or assignments of the Notes) within five Business
Days thereof; and
(6) a copy of any amendment to the Notes or this Indenture within
five Business Days of the effectiveness thereof.
The notice specified in clause (3) above shall be in writing and, except as set
forth below, shall be given within five Business Days after the Trustee has
transmitted the notice required by Section 6.2. In the case of any notice in
respect of any Event of Default, such Notice shall be accompanied by a copy of
any notice from the holders of the Notes, or a representative thereof or the
Trustee, to the Company and, if accompanied by any such notice to the Company,
shall be given simultaneously with the giving of any such notice to the Company.
In the case of any legal actions or proceedings, such notice shall be
accompanied by a copy of the complaint or other initial pleading or document.
The Trustee shall in accordance with the limitations set forth herein
cooperate with any applicable Gaming Authority in order to provide such Gaming
Authority with information and documentation relevant to compliance with clause
(3) above and as otherwise required by any applicable Gaming Laws.
41
The Company will advise the Trustee in writing of the expiration date of
any then-current Gaming License held by the Company or its Subsidiaries at least
nine months prior to the expiration thereof and the Trustee until so advised may
assume that such Gaming License has not expired.
(d) Reports pursuant to this Section 7.3 shall be transmitted by mail:
(1) to all holders of Notes, as the names and addresses of such
holders of Notes appear in the Note Register; and
(2) except in the cases of reports pursuant to subsection (b) of this
Section 7.3, to each holder of a Note whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a).
A copy of each such report shall, at the time of such transmission to
holders, be filed by the Trustee with each stock exchange upon which any Notes
are listed, with the Commission and also with the Company. The Company will
notify the Trustee promptly when any of the Notes are listed on any stock
exchange or of any delisting thereof.
Section 7.4 REPORTS BY COMPANY.
So long as any Notes are outstanding, the Company will file with the
Trustee, within 15 days after the Company is required to file the same with the
Commission, copies of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, with respect to securities listed
and registered on a national securities exchange as such rules and regulations
may require.
ARTICLE 8
CONCERNING THE HOLDERS
Section 8.1 ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by holders of Notes
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such holders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the holders signing
such instrument or instruments. Whenever in this Indenture it is provided that
the holders of a specified percentage in aggregate principal amount of the
Outstanding Notes may take any Act, the fact that the holders of such specified
percentage have joined therein may be evidenced (a) by the instrument or
instruments executed by holders in person or by agent or proxy appointed in
writing, or (b) by the record of holders voting in favor thereof at any meeting
of such holders duly called and held in accordance
42
with the provisions of Article 9, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of holders.
Section 8.2 PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS BY HOLDER.
The ownership of Notes shall be proved by the Note Register or by a
certificate of the Note Registrar.
Subject to the provisions of Sections 6.1, 6.3 and 9.5, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a holder or his agent or proxy shall be sufficient and conclusive
in favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any instrument may
be proved by the certificate of any notary public or other officer authorized to
take acknowledgments of deeds, that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such officer. Where such
execution is by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership, as the
case may be, or by any other Person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
The record of any holders' meeting shall be proved in the manner provided
in Section 9.6.
The Trustee may in any instance require further proof with respect to any
of the matters referred to in this Section so long as the request is a
reasonable one.
Section 8.3 PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Note is registered as the owner of such Note
for the purpose of receiving payment of the principal of (and premium, if any)
and (subject to Section 3.7) interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any holder, or upon his
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such Note.
Section 8.4 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any Act by the holders of the
percentage in aggregate principal amount of the Outstanding Notes specified in
this Indenture in connection with such Act, any holder of a Note the number,
letter or other distinguishing symbol of which is shown by the evidence to be
included in the Notes the holders of which have consented to such Act may, by
filing written notice with the Trustee at the Corporate Trust Office and upon
proof of ownership as provided in Section 8.2, revoke such Act so far as it
concerns such Note. Except as aforesaid,
43
any such Act taken by the holder of any Note shall be conclusive and binding
upon such holder and, subject to the provisions of Section 5.8, upon all future
holders of such Note and of any Notes issued on transfer or in lieu thereof or
in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Note or such other Notes.
ARTICLE 9
HOLDERS' MEETINGS
Section 9.1 PURPOSES OF MEETINGS.
A meeting of holders of Notes may be called at any time and from time to
time pursuant to the provisions of this Article 9 for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
holders pursuant to any of the provisions of Article 5;
(b) to remove the Trustee and appoint a successor Trustee pursuant to the
provisions of Article 6;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 11.2; or
(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of the Outstanding Notes,
under any other provision of this Indenture or under applicable law.
Section 9.2 CALL OF MEETINGS BY TRUSTEE.
The Trustee may at any time call a meeting of holders of Notes to take any
action specified in Section 9.1, to be held at such time or times and at such
place or places as the Trustee shall determine. Notice of every meeting of the
holders of Notes, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given to
holders of the Notes in the manner and to the extent provided in Section 16.2.
Such notice shall be given not less than 10 days nor more than 90 days prior to
the date fixed for the meeting.
Section 9.3 CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
holders of at least 10% in aggregate principal amount of the Outstanding Notes
shall have requested the Trustee to call a meeting of holders of Notes by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have given the notice of such
meeting within 10 days after the receipt of such request, then the Company or
such holders may determine the time or times and the place or places for such
meetings and may call such
44
meetings to take any action authorized in Section 9.1, by giving notice thereof
as provided in Section 9.2.
Section 9.4 QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of holders, a Person shall be (a) a
holder of a Note that is not a Disqualified Holder or (b) a Person appointed by
an instrument in writing as agent or proxy by such holder. The only Persons who
shall be entitled to be present or to speak at any meeting of holders shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 9.5 REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
holders of Notes, in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by holders of Notes as provided in Section 9.3, in which case the
Company or the holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by at least a majority vote of the
meeting.
Subject to the provisos in the definition of "Outstanding," at any meeting
each holder of a Note or proxy therefor shall be entitled to one vote for each
$1,000 principal amount of Notes held or represented by such holder; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Note challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Outstanding Notes held by him or her or instruments in
writing duly designating him or her as the person to vote on behalf of holders
of Notes. Any meeting of holders with respect to which a meeting was duly called
pursuant to the provisions of Section 9.2 or 9.3 may be adjourned from time to
time by at least a majority of such holders present and the meeting may be held
as so adjourned without further notice.
Section 9.6 VOTING.
The vote upon any resolution submitted to any meeting of holders of Notes
with respect to which such meeting is being held shall be by written ballots on
which shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the Notes held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of holders shall be taken
and there shall be attached to said record the original reports of
45
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was transmitted as provided
in Section 9.2. The record shall show the serial numbers of the Notes voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.7 NO DELAY OF RIGHTS BY MEETING.
Nothing contained in this Article 9 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any holder under any of the provisions of this Indenture or of the
Notes.
ARTICLE 10
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with, merge with or into, or sell,
assign, convey, transfer or lease its properties and assets substantially in
their entirety (computed on a consolidated basis) to any Person, unless:
(a) either (i) the Company is the surviving entity or (ii) the successor
or transferee (the "successor corporation") is a corporation organized and
existing under the laws of the United States, any State thereof or the District
of Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, all of the obligations of the Company
under the Notes and this Indenture;
(b) immediately after giving effect to such transaction, no Event of
Default or Default shall exist; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel conforming to the provisions of Section 1.2 hereof and
each stating that such consolidation, merger, conveyance, transfer or lease and
such supplemental indenture comply with this provision and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
46
Section 10.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially in their entirety in accordance with Section 10.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
ARTICLE 11
SUPPLEMENTAL INDENTURES
Section 11.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form reasonably satisfactory to
the Trustee, for any of the following purposes:
(a) to evidence the succession of another corporation to the rights of the
Company or any Subsidiary Guarantor and the assumption by such successor of the
covenants and obligations of the Company or any Subsidiary Guarantor contained
herein and in the Notes; or
(b) to add to the covenants of the Company and the Subsidiary Guarantors,
for the benefit of the holders of Notes, or to surrender any right or power
herein conferred upon the Company or the Subsidiary Guarantors; or
(c) to add any additional Events of Default; or
(d) to secure the Notes and Guarantees, to provide for additional
collateral for the Notes or the Guarantees or to provide that any of the
Company's obligations under any of the Notes or this Indenture shall be
guaranteed (including adding additional Subsidiary Guarantors as contemplated by
Article 15) and the terms and conditions for the release or substitution of such
security or guarantee; provided that any such action as to any Guarantee shall
not modify the provisions of Article 15 in a manner that would adversely affect
the interests of the holders of Notes in any material respect; or
(e) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and discharge of
Notes pursuant to Article 4 or 14, provided that any such action shall not
adversely affect the interests of the holders of Notes in any material respect;
or
(f) to establish the form or terms of the Notes as permitted by this
Indenture; or
47
(g) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Notes, and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one trustee;
or
(h) to comply with the requirements of the Commission in connection with
the qualification of this Indenture under the Trust Indenture Act; or
(i) to cure any ambiguity; or
(j) to correct or supplement any provision herein which may be defective
or inconsistent with any other provision herein; or
(k) to eliminate any conflict between the terms of this Indenture and the
Notes and the Trust Indenture Act; or
(l) to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with any provision
of this Indenture; provided such other provisions shall not adversely affect the
interests of the holders of Outstanding Notes.
The terms of any document entered into pursuant to this Section shall be
subject to prior approval, if required, of any applicable Gaming Authority.
Section 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the holders of not less than at least a
majority in principal amount of the Outstanding Notes, by Act of said holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto, or amendments to the Guarantees for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or the Guarantees or of modifying in any manner the rights of
the holders of the Notes under this Indenture or the Guarantees; provided,
however, that no such supplemental indenture shall, without the consent of the
holder of each Outstanding Note affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Note, or reduce the principal amount thereof or
the rate (or extend the time for payment) of interest thereon or any premium
payable upon redemption thereof, or change the currency in which the principal
of (and premium, if any) or interest on such Note is denominated or payable, or
impair the right to institute suit for the enforcement of any payment on or
after the Stated Maturity thereof (including, in the case of redemption, on or
after the Redemption Date), or alter any redemption provisions in a manner
adverse to the holders of Notes or release any Subsidiary Guarantor under any
Guarantee or any collateral securing the Notes (except in accordance with the
terms of the Indenture or the Guarantees); or
(b) reduce the percentage in principal amount of the Outstanding Notes,
the consent of whose holders is required for any supplemental indenture, or the
consent of whose holders is
48
required for any waiver of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences provided for in this
Indenture; or
(c) modify any of the provisions of this Section, Section 5.13, or Section
12.6, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the holder of each Outstanding Note affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any holder with
respect to changes in the references to "the Trustee" and concomitant changes in
this Section, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 11.1(h); or
(d) modify any of the provisions of this Indenture which by their terms
expressly require the consent of each affected holder of Notes to modify.
It shall not be necessary for any Act of holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The terms of any document entered into pursuant to this Section shall be
subject to prior approval, if required, of any applicable Gaming Authority. To
the extent required by applicable Gaming Laws, Notes held by a Disqualified
Holder shall, so long as held by such a Person, be disregarded for purposes of
providing consents and determining the sufficiency of consents under this
Section 11.2.
Section 11.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which adversely affects
the Trustee's own rights, duties or immunities under this Indenture or otherwise
in a material way.
Section 11.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section 11.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
49
Section 11.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE 12
COVENANTS
Section 12.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Notes, that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Notes in accordance with the terms of the Notes and this Indenture.
Section 12.2 OFFICER'S CERTIFICATE AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a certificate of the principal executive officer, principal
financial officer or principal accounting officer of the Company stating whether
or not, to the knowledge of the signer thereof, the Company is in compliance
with all covenants and conditions under this Indenture, and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof
of which such signer may have knowledge. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
Section 12.3 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange, where Notes that are
convertible may be surrendered for conversion, if applicable, and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. If the Notes are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Notes in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Notes are listed on such exchange, and subject to
any laws or regulations applicable thereto, in a Place of Payment located
outside the United States an office or agency where any Notes may be surrendered
for registration of transfer, where Notes may be surrendered for exchange or
redemption and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company
50
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 and the Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
Section 12.4 MONEY FOR NOTES; PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to the Notes, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Notes, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
the Notes, it will, by or on each due date of the principal (and premium, if
any) or interest on any Notes, deposit with any such Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due (in same day funds and, if a Global Note is Outstanding, by 10:00 a.m., New
York City time, in order for the Trustee to make payment to the U.S. Depositary
for such Note in accordance with rules of such U.S. Depositary), such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless any
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent with respect to the Notes other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Notes) in the making of any payment of principal (and premium,
if any) or interest on the Notes; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any
51
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company upon Company Request, or (if then held by the Company) shall
be discharged from such trust; and the holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense of the Company cause
to be transmitted in the manner and to the extent provided by Section 16.2,
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, any unclaimed balance of such money then remaining will be repaid
to the Company upon Company Request.
Section 12.5 CORPORATE EXISTENCE.
Subject to Articles 10 and 15, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its and each
Subsidiary Guarantor's corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and the Subsidiary Guarantors, taken as a whole.
Section 12.6 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 12.3 through 12.5 or 12.7 through
12.9 if before the time for such compliance the holders of at least a majority
in principal amount of the Outstanding Notes shall, by Act of such holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent expressly so waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect; provided that no waiver of any requirement to
provide a Guarantee or collateral shall be effective without the Act of the
holder of each Outstanding Note affected thereby.
Section 12.7. GUARANTEES.
(a) The Company shall from time to time (i) cause each Subsidiary of the
Company that is not an Excluded Subsidiary to become, on the Issue Date or, if
such Subsidiary is acquired or created after the Issue Date or such Subsidiary
was an Excluded Subsidiary but thereafter is
52
not an Excluded Subsidiary, at the later of (A) the time of the acquisition,
creation or change in status of such Subsidiary and (B) the time at which such
Subsidiary Incurs Indebtedness or such Subsidiary guarantees or secures any
Indebtedness of the Company, a guarantor of the obligations of the Company under
this Indenture and the Notes by executing this Indenture (directly or by
supplemental indenture) as a Subsidiary Guarantor or by executing a Guarantee in
substantially the form of Article 15 (provided that the provision of a Guaranty
by a Subsidiary after the Issue Date shall be subject to compliance with any
applicable Gaming Laws and the Company agrees that (subject to Section 12.7(b))
it shall not have any such Subsidiary that is not an Excluded Subsidiary unless
it is permitted to give such Guarantee under applicable Gaming Laws) and (ii)
deliver to the Trustee an Opinion of Counsel, in form reasonably satisfactory to
the Trustee, that such Guarantee is the valid, binding and enforceable
obligation of such Subsidiary Guarantor, subject to customary exceptions for
bankruptcy, fraudulent transfer and equitable principles.
(b) The actions set forth in Section 12.7(a) shall be taken within 10 days
of the time on which any Person is required to become a Subsidiary Guarantor,
provided that if such Person is not permitted to give a Guarantee under
applicable Gaming Laws, then, unless such Person has become a guarantor of the
Credit Facilities, any Existing Senior Notes or any Additional Notes, such
period shall be extended as long as the Company continues to use best efforts to
obtain the requisite consents for such Guarantee from the applicable Gaming
Authority. Each Note issued after the date of execution by any additional
Subsidiary Guarantor of a Guarantee shall be endorsed with a form of Guarantee
that has been executed by such Subsidiary Guarantor. However, the failure of any
Note to have endorsed thereon a Guarantee executed by such Subsidiary Guarantor
shall not affect the validity or enforceability of such Guarantee. In the case
of a Subsidiary that becomes a Subsidiary Guarantor after the Issue Date as a
result of its guarantee of Indebtedness of the Company (and not as a result of
its Incurrence of Indebtedness), if such Subsidiary thereafter no longer
guarantees any Indebtedness and has not Incurred any Indebtedness, then, upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel, to the effect that such conditions to release of the
Subsidiary Guarantee by such Subsidiary have been satisfied, the Trustee shall
execute any documents reasonably required in order to evidence the release of
such Subsidiary Guarantor from its Guarantee Obligations under its Subsidiary
Guarantee.
Section 12.8 LIMITATION ON LIENS.
(a) Other than as provided in Section 12.8(d) below, neither the Company
nor any Subsidiary Guarantor will, directly or indirectly, issue, assume or
guarantee any Indebtedness secured by a Lien upon any Principal Property or on
any evidences of Indebtedness or shares of capital stock of, or other ownership
interests in, any Subsidiaries (regardless of whether the Principal Property,
Indebtedness, capital stock or ownership interests were acquired before or after
the date hereof) without effectively providing that the Notes shall be secured
equally and ratably with (or prior to) the Indebtedness so long as such
Indebtedness shall be so secured, except that this restriction will not apply
to:
(i) Liens existing on the date of original issuance of the Notes;
53
(ii) Liens affecting property of a corporation or other entity
existing at the time it becomes a Subsidiary Guarantor or at the time it is
merged into or consolidated with the Company or a Subsidiary Guarantor
(provided that such Liens are not incurred in connection with, or in
contemplation of, such entity becoming a Subsidiary Guarantor or such
merger or consolidation and do not extend to or cover property of the
Company or any Subsidiary Guarantor other than property of the entity so
acquired or which becomes a Subsidiary Guarantor);
(iii) Liens (including purchase money Liens) existing at the time of
acquisition thereof on property acquired after the date hereof 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 of property acquired after the date hereof (provided that such Liens
do not extend to or cover any property of the Company or any Subsidiary
Guarantor other than the property so acquired);
(iv) 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;
(v) Liens which secure Indebtedness of a Subsidiary of the Company
to the Company or to a Subsidiary Guarantor or which secure Indebtedness of
the Company to a Subsidiary Guarantor;
(vi) Liens on the stock, partnership or other equity interest of the
Company or Subsidiary Guarantor in any Joint Venture or any Subsidiary
which owns an equity interest in such Joint Venture to secure Indebtedness,
provided the amount of such Indebtedness is contributed and/or advanced
solely to such Joint Venture;
(vii) Liens to government entities, including pollution control or
industrial revenue bond financing;
(viii) Liens required by any contract or statute in order to permit
the Company or a Subsidiary of the Company to perform any contract or
subcontract made by it with or at the request of a governmental entity;
(ix) mechanic's, materialman's, carrier's or other like Liens,
arising in the ordinary course of business;
(x) Liens for taxes or assessments and similar charges;
(xi) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property and other minor
irregularities of title; and
(xii) any extension, renewal, replacement or refinancing of any
Indebtedness secured by a Lien permitted by any of the foregoing clauses
(i) through (vi).
(b) Notwithstanding the foregoing, Section 12.8(a) shall not be effective
to the extent it constitutes an agreement not to encumber the equity securities
issued by any Subsidiary of the
54
Company (except for equity securities issued by any Subsidiary that is a
Subsidiary Guarantor on the Issue Date), unless and until such agreement is
approved by the applicable Gaming Authority, to the extent the Gaming Laws of
the applicable jurisdiction require such approval; provided that if any of the
Existing Senior Notes are hereafter secured by any Liens on any of the assets of
the Company or any Subsidiary Guarantor, then the Company and the Subsidiary
Guarantor shall, substantially concurrently with the granting of such Liens,
subject to such Liens having been approved by all applicable Gaming Authorities
to the extent the Gaming Laws of the applicable jurisdiction require such
approval, grant perfected Liens in the same collateral to secure the Notes,
equally, ratably and on a pari passu basis. The Company shall use its best
efforts to obtain such approvals. The Liens granted pursuant to this provision
shall be (i) granted concurrently with the granting of any such Liens, and (ii)
granted pursuant to instruments, documents and agreements which are no less
favorable to the Trustee and the holders of the Notes than those granted to
secure the Existing Senior Notes. In connection with the granting of any such
Liens, the Company and each Subsidiary Guarantor shall provide to the Trustee
(y) policies of title insurance on customary terms and conditions, to the extent
that policies of title insurance on the corresponding property are provided to
the holders of the Existing Senior Notes or their trustee (and in an insured
amount that bears the same proportion to the aggregate outstanding amount
thereof), and (z) legal opinions and other assurances as the Trustee may
reasonably request.
(c) Thereafter, if the Company and the Subsidiary Guarantors become
entitled to the release of all of the equal, ratable and pari passu Liens
securing the Existing Senior Notes, and provided that no Default or Event of
Default has then occurred and remains continuing, the Company and the Subsidiary
Guarantors may in their sole discretion request that the Trustee release any
Liens securing the Notes, and the Trustee shall so release such Liens.
(d) Notwithstanding the foregoing, the Company or any Subsidiary Guarantor
may create, assume or suffer to exist Liens not otherwise permitted as described
above, provided that at the time of such incurrence, assumption or sufferance,
after giving effect to such Lien, the sum of outstanding Indebtedness secured by
such Liens (not including Liens permitted under Section 12.8(a) above) plus all
Attributable Debt in respect of Sale and Lease-Back Transactions entered into
(not including Sale and Lease-Back Transactions expressly permitted under
Section 12.9(a) below), measured, in each case, at the time the Lien is
incurred, does not exceed 15% of Consolidated Net Tangible Assets, provided that
the foregoing shall not apply to any Liens that may at any time secure any of
the Existing Senior Notes.
Section 12.9 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
(a) Other than as provided in Section 12.9(b) below, neither the Company
nor any Subsidiary Guarantor will enter into any Sale and Lease-Back
Transaction, unless either:
(i) the Company or such Subsidiary Guarantor would be entitled,
pursuant to the provisions described in clauses (i) through (xii) of
Section 12.8(a) above, to create, assume or suffer to exist a Lien on the
property to be leased without equally and ratably securing the Notes; or
55
(ii) an amount equal to the greater of the net cash proceeds of such
sale or the fair market value of such property (in the good faith opinion
of the Board of Directors) is applied within 120 days to the retirement or
other discharge of its Funded Debt.
(b) Notwithstanding the foregoing, the Company or any Subsidiary Guarantor
may enter into Sale and Lease-Back Transactions not otherwise permitted as
described above, provided that at the time of entering into such Sale and Lease-
Back Transaction, after giving effect to such Sale and Lease-Back Transaction,
the sum of outstanding Indebtedness secured by Liens (not including Liens
permitted under Section 12.8) plus all Attributable Debt in respect of Sale and
Lease-Back Transactions entered into (not including Sale and Lease-Back
Transactions permitted under Section 12(a) above), measured, in each case, at
the time any such Sale and Lease-Back Transaction is entered into, does not
exceed 15% of Consolidated Net Tangible Assets, provided that the foregoing
shall not apply to any Liens that may at any time secure any of the Existing
Senior Notes.
ARTICLE 13
REDEMPTION OF NOTES
Section 13.1 OPTIONAL REDEMPTION.
The Notes are redeemable at the option of the Company, in whole or in part
at any time at a redemption price (the "Redemption Price") equal to the greater
of:
. 100% of the principal amount thereof; or
. as determined by an Independent Investment Banker, the sum of the
present values of the remaining scheduled payments of principal and
interest on the Notes to be redeemed (not including any portion of
such payments of interest accrued to the Redemption Date)
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 25 basis points,
plus, in either of the above cases, accrued and unpaid interest to the
Redemption Date on the Notes to be redeemed.
"Adjusted Treasury Rate" means, with respect to any Redemption Date:
. the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently
published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant
Maturities," for the maturity corresponding to the Comparable
Treasury Issue (if no maturity is within three months before or
after the Remaining Life (as defined below), yields for the two
56
published maturities most closely corresponding to the Comparable
Treasury Issue shall be determined and the Adjusted Treasury Rate
shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month); or
. if such release (or any successor release) is not published during
the week preceding the calculation date or does not contain such
yields, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated
using 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. The Adjusted Treasury Rate
shall be calculated on the third Business Day preceding the
Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker 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 securities ("Remaining Life").
"Comparable Treasury Price" means (1) the average of four Reference
Treasury Dealer Quotations for such Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
"Reference Treasury Dealer" means:
. each of Xxxxxx Xxxxxxx & Co. Incorporated and Banc of America
Securities LLC 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 another Primary Treasury
Dealer and
. any other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, 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 Independent Investment Banker at 5:00
p.m., New York City time, on the third Business Day preceding such Redemption
Date.
Section 13.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem the Notes shall be evidenced by a
Board Resolution. The Company shall, not less than 30 nor more than 60 days
before the Redemption
57
Date fixed by the Company, notify the Trustee of such Redemption Date, the
Redemption Price, the CUSIP numbers and the principal amount of Notes to be
redeemed.
Section 13.3 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
If less than all the Notes are to be redeemed at the election of the
Company, the particular Notes to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding Notes not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Notes or any integral
multiple thereof) of the principal amount of Notes in a denomination larger than
the minimum authorized denomination for Notes pursuant to Section 3.2 in the
currency in which the Notes are denominated. The portions of the principal
amount of Notes so selected for partial redemption shall be equal to the minimum
authorized denominations for Notes pursuant to Section 3.2 in the currency in
which the Notes are denominated or any integral multiple thereof. In any case
when more than one Note is registered in the same name, the Trustee, in its
discretion, may treat the aggregate principal amount so registered as if it were
represented by one Note.
The Trustee shall promptly notify the Company and the U.S. Depositary for
the Notes (if other than itself) in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Notes shall relate, in the case of
any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
Section 13.4 NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or at the Company's
written request, by the Trustee in the name and at the expense of the Company,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the holders of the Notes to be redeemed pursuant to this Article 13, in the
manner provided in Section 16.2. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice. Failure to give such notice, or any defect in such notice to the holder
of any Note, in whole or in part, shall not affect the sufficiency of any notice
of redemption with respect to the holder of any other Note.
All notices of redemption shall identify the Notes to be redeemed
(including CUSIP number) and shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) that Notes are being redeemed by the Company pursuant to provisions
contained in this Indenture or the terms of the Notes, together with a brief
statement of the facts permitting such redemption,
58
(d) that all Outstanding Notes are to be redeemed,
(e) that on the Redemption Date the Redemption Price will become due and
payable upon each such Note to be redeemed, and that interest thereon, if any,
shall cease to accrue on and after said date, and
(f) the Place or Places of Payment where such Notes are to be surrendered
for payment of the Redemption Price.
Section 13.5 DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m., New York City time, on the Redemption Date for
any Notes, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 12.4) an amount of money in the currency in which
such Notes are denominated sufficient to pay the Redemption Price of such Notes
which are to be redeemed on that date.
Section 13.6 NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, any Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price in the currency in which the Notes are payable, and from and after such
date (unless the Company shall default in the payment of the Redemption Price)
such Notes shall cease to bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the
Company at the Redemption Price; provided, however, that installments of
interest on Notes which have a Stated Maturity on or prior to the Redemption
Date for such Notes shall be payable according to the terms of such Notes and
the provisions of Section 3.7.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Note.
Section 13.7 NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be surrendered at the
Corporate Trust Office with, if the Company, the U.S. Depositary for the Notes
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the U.S. Depositary for the Notes
and the Trustee duly executed by, the holder thereof or such holder's attorney
duly authorized in writing, and the Company shall execute, and the Trustee shall
authenticate and deliver to the holder of such Note without service charge, a
new Note or Notes, of like tenor and form, of any authorized denomination as
requested by such holder in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Note so surrendered. In the
case of a Note providing appropriate space for such notation, at the option of
the holder thereof, the Trustee, in lieu of delivering a new Note or Notes as
aforesaid, may make a notation on such Note of the payment of the redeemed
portion thereof.
59
ARTICLE 14
DEFEASANCE
Section 14.1 APPLICABILITY OF ARTICLE.
Except as otherwise provided in Section 14.2, the Company may terminate its
obligations under the Notes and this Indenture as set forth in Section 14.2.
Section 14.2 DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT OBLIGATIONS.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Notes
and the Subsidiary Guarantors shall be deemed to have been discharged from their
obligations under their Guarantees ("legal defeasance option") or (b) the
Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Sections 10.1, 12.2, 12.7, 12.8 and 12.9
with respect to Notes and the Subsidiary Guarantors shall cease to be under any
obligation to comply with any term, provision or condition set forth in Section
15.11 (or comparable provisions of its Guarantee if not set forth in Article 15)
with respect to their Guarantees ("covenant defeasance option") at any time
after the applicable conditions set forth below have been satisfied:
(a) The Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the Notes (i) money in an
amount, or (ii) U.S. Government Obligations (as defined below) which through the
payment of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient, in the
opinion (with respect to (i) and (ii)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of and premium, if any, and
interest on, the Outstanding Notes on the dates such installments of interest or
principal and premium are due;
(b) Such deposit shall not cause the Trustee to have a conflicting
interest as defined in Section 6.8 and for purposes of the Trust Indenture Act;
(c) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company or any Subsidiary Guarantor is a party or by which it is
bound;
(d) If the Notes are then listed on any national securities exchange, the
Company shall have delivered to the Trustee an Opinion of Counsel or a letter or
other document from such exchange to the effect that the Company's exercise of
its option under this Section would not cause such Notes to be delisted;
60
(e) No Event of Default or Default shall have occurred and be continuing
on the date of such deposit and, with respect to the legal defeasance option
only, no Event of Default under Section 5.1(f) or Section 5.1(g) or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 5.1(f) or Section 5.1(g) shall have occurred and be
continuing on the 91st day after such date;
(f) The Company shall have delivered to the Trustee an Opinion of Counsel
or a ruling from the Internal Revenue Service to the effect that the holders of
the Notes will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.1(f) or Section 5.1(g) or event
which, with the giving of notice or lapse of time, or both, would become an
Event of Default under Section 5.1(f) or Section 5.1(g) shall have occurred and
be continuing on the 91st day after the date of such deposit, the obligations of
the Company and the Subsidiary Guarantors referred to under the definition of
covenant defeasance option with respect to such Notes shall be reinstated; and
(g) The Company shall have delivered to the Trustee an Officers'
Certificate certifying the conditions set forth in clauses (a) through (f) of
this Section 14.2 have been satisfied.
"Discharged" means that the Company and the Subsidiary Guarantors shall be
deemed to have paid and discharged the entire indebtedness represented by, and
obligations under, the Notes and the Guarantees and to have satisfied all the
obligations under this Indenture (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except (i)
the rights of holders of Notes to receive, from the trust fund described in
clause (a) above, payment of the principal of (and premium, if any) and interest
on such Notes when such payments are due, (ii) the Company's obligations with
respect to the Notes under Sections 3.4, 3.5, 3.6, 12.3 and 14.3 and (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the 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 the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof prior to the final Maturity
Date of the Notes, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
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 U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
61
Section 14.3 DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 14.2 in respect of Notes shall be held in trust and applied
by it, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the holders of
such Notes, of all sums due and to become due thereon for principal (and
premium, if any) and interest, if any, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 14.2 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the holders of the Outstanding Notes.
Section 14.4 REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Notes for which money or U.S. Government
Obligations have been deposited pursuant to Section 14.2.
The provisions of the last paragraph of Section 12.4 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any Notes for which money or U.S.
Government Obligations have been deposited pursuant to Section 14.2.
ARTICLE 15
GUARANTEE
Section 15.1 GUARANTEE.
(a) In consideration of good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each of the Subsidiary Guarantors,
jointly and severally, hereby unconditionally guarantees (each such guarantee,
together with any future guarantees executed pursuant to Section 12.7 hereof,
being a "Guarantee"), to each holder of a Note authenticated and delivered by
the Trustee and to the Trustee, irrespective of the validity and enforceability
of this Indenture, the Note or the obligations of the Company under this
Indenture or the Note, that: (i) the principal of and interest on the Note will
be paid in full when due, whether at the maturity or interest payment date, by
acceleration, call for redemption, upon a purchase offer or otherwise, and
interest on the overdue principal and interest, if any, of the Note, if lawful,
and all other obligations of the Company to the holders or the Trustee under
this Indenture or the Note will be promptly paid in full or performed, all in
accordance with the terms of this Indenture and the Note; and (ii) in case of
any extension of time of payment or renewal of any securities or any of such
other obligations, they will be paid in full when due or performed in accordance
with the
62
terms of the extension or renewal, whether at maturity, by acceleration, call
for redemption, upon a purchase offer or otherwise (collectively, the
"Guaranteed Obligations"). The Guarantee is a guarantee of payment and not of
collection.
Failing payment when due of any amount so guaranteed for whatever reason,
the Subsidiary Guarantors shall be jointly and severally obligated to pay the
same before failure to so pay becomes an Event of Default.
(b) Each Subsidiary Guarantor agrees that (i) its obligations with regard
to this Guarantee shall be unconditional, irrespective of the validity,
regularity or enforceability of the Note or this Indenture, any amendments to
the Indenture or the Notes (other than this Article 15), the absence of any
action to enforce the same, any delays in obtaining or realizing upon (or
failures to obtain or realize upon) the recovery of any judgment against the
Company, any action to enforce the same or any other circumstances that might
otherwise constitute a legal or equitable discharge or defense of a guarantor
and (ii) this Guarantee will not be discharged except by complete performance of
the obligations contained in the Note and this Indenture. Each of the Subsidiary
Guarantors hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company or right to require the
prior disposition of the assets of the Company to meet its obligations, protest,
notice and all demands whatsoever. Without limiting the generality of the
foregoing, each of the Subsidiary Guarantors hereby waives, to the extent
permitted under Nev. Rev. Stat. 40.495, any rights arising out of Nev. Rev.
Stat. 40.430.
(c) If any holder or the Trustee is required by any court or otherwise to
return to either the Company or any Subsidiary Guarantor, or any Custodian,
Trustee, or similar official acting in relation to either the Company or any
Subsidiary Guarantor, any amount paid by either the Company or any of the
Subsidiary Guarantors to the Trustee or such holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each of the Subsidiary Guarantors agrees that it will not be entitled to any
right of subrogation in relation to the holders in respect of any obligations
guaranteed hereby except as set forth in Section 15.5 hereof.
(d) Each of the Subsidiary Guarantors agrees that (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 5.2
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration as to the Company of the
obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of those obligations as provided in Section 5.2, 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 Guarantee.
Section 15.2. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 15.1, each of the Subsidiary
Guarantors agrees that a notation of such Guarantee substantially in the form of
the notation included in the Note annexed hereto as Exhibit A shall be endorsed
on each Note authenticated and delivered by
63
the Trustee and that this Indenture shall be executed on behalf of such
Subsidiary Guarantor by a duly authorized officer.
Each of the Subsidiary Guarantors agrees that its Guarantee set forth in
Section 15.1 shall remain in full force and effect and apply to all the Notes
notwithstanding any failure to endorse on each Note a notation of such
Guarantee.
If an Officer whose facsimile signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note on which a Guarantee is
endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Subsidiary Guarantors.
Section 15.3. LIMITATION OF 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 Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any federal or state law. To effectuate
the foregoing intention, the holders and each Subsidiary Guarantor hereby
irrevocably agree that the obligations of each such Subsidiary Guarantor under
the 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 after giving effect 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 Guarantee or pursuant to Section 15.4,
result in the obligations of such Subsidiary Guarantor under the Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. This Section 15.3 is for the benefit of the creditors of each
Subsidiary Guarantor.
Section 15.4. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
--------
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Guarantee, such Funding Guarantor shall be
entitled to a contribution from each other Subsidiary Guarantor in a pro rata
--- ----
amount based on the net worth of each Subsidiary Guarantor (including the
Funding Guarantor) for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Notes or any other Subsidiary Guarantor's obligations with respect to the
Guarantee.
Section 15.5. RIGHTS UNDER THE GUARANTEE.
(a) Each of the Subsidiary Guarantors waives notice of the issuance, sale
and purchase of the Note and notice from the Trustee or the holders from time to
time of any of the Note of their acceptance and reliance on this Guarantee.
64
(b) Notwithstanding any payment or payments made by the Subsidiary
Guarantors by reason of this Guarantee, the Subsidiary Guarantors shall not be
subrogated to any rights of the Trustee or any holder against the Company until
all the Note shall have been paid or deemed to have been paid within the meaning
of the Indenture. Any payment made by the Subsidiary Guarantors by reason of
this Guarantee shall be in all respects subordinated to the full and complete
payment or discharge under this Indenture of all obligations guaranteed hereby,
and no payment by the Subsidiary Guarantors by reason of this Guarantee shall
give rise to any claim of the Subsidiary Guarantors against the Trustee or any
holder of the Note. Unless and until the Note shall have been paid or deemed to
have been paid within the meaning of the Indenture, neither the Subsidiary
Guarantors nor any of them will assign or otherwise transfer any such claim
against the Company to any other person.
(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) which any Subsidiary Guarantor may
have or assert against the Trustee or any holder of any Note shall be available
hereunder to such Subsidiary Guarantor against the Trustee.
(d) Each Subsidiary Guarantor agrees to pay all costs, expenses and fees,
including all reasonable attorneys' fees and expenses, which may be incurred by
the Trustee in enforcing or attempting to enforce the Guarantee or protecting
the rights of the Trustee or the holders of the Notes, if any, in accordance
with this Indenture.
Section 15.6. PRIMARY OBLIGATIONS.
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 Company or any other guarantor, and that a
separate action may be brought against each Subsidiary Guarantor, whether such
action is brought against the Company or any other Subsidiary Guarantor or
whether the Company or any other 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 the Notes of whatever remedies they may have against the Company or
any other guarantor. Each Subsidiary Guarantor agrees that any release which
may be given by the Trustee or the holders of the Notes to the Company or any
other guarantor shall not release such Subsidiary Guarantor. Each Subsidiary
Guarantor consents and agrees that the Trustee shall be under no obligation to
marshal any property or assets of the Company or any other guarantor in favor of
such Subsidiary Guarantor, or against or in payment of any or all of the
Guaranteed Obligations.
Section 15.7. WAIVERS.
(a) Each Subsidiary Guarantor hereby waives any right to receive, or any
claim or defense based on failure to receive: (i) notice of the amount of the
Guaranteed Obligations; (ii) notice of any adverse change in the financial
condition of the Company or of any other fact that might increase such
Subsidiary Guarantor's risk hereunder; (iii) notice of a Default or Event of
Default; and (iv) all other notices (except if such notice is specifically
required to be given to such Subsidiary Guarantor under this Indenture) and
demands to which such Subsidiary Guarantor might otherwise be entitled.
65
(b) Each Subsidiary Guarantor hereby waives the right by statute or
otherwise to require the Trustee or the holders to institute suit against the
Company (or against any other Person) or to exhaust any rights and remedies
which the Trustee or the holders have or may have against the Company (or
against any other Person). In this regard, each Subsidiary Guarantor agrees
that it is bound to the payment of each and all of the Guaranteed Obligations,
whether now existing or hereafter arising, as fully as if such Guaranteed
Obligations were directly owing to the guaranteed party by such Subsidiary
Guarantor. Each Subsidiary Guarantor further waives any defense arising by
reason of any disability or other defense (other than the defense that the
Guaranteed Obligations shall have been fully and finally performed and
indefeasibly paid) of the Company or by reason of the cessation from any cause
whatsoever of the liability of the Company in respect thereof.
(c) Each Subsidiary Guarantor hereby waives: (i) any claim or defense
directly or indirectly arising from or caused by any election of remedies by the
Trustee or holders of the Notes, whether or not such election of remedies
directly or indirectly results in impairment or loss of rights or claims of such
Subsidiary Guarantor against the Company or other Persons; and (ii) any defenses
based on suretyship law or impairment of collateral.
Section 15.8. RELEASES.
Each Subsidiary Guarantor consents and agrees that, without notice to or by
such Subsidiary Guarantor and without affecting or impairing the obligations of
such Subsidiary Guarantor hereunder, the Trustee may, by action or inaction,
compromise or settle, extend the period of duration or the time for the payment,
or discharge the performance of, or may refuse to, or otherwise not enforce, or
may, by action or inaction, release all or any one or more parties to, any one
or more of the terms and provisions of this Indenture or may grant other
indulgences to the Company in respect thereof, or may, by action or inaction,
release or substitute any other guarantor, if any, of the Guaranteed
Obligations, or may enforce, exchange, release, or waive, by action or inaction,
any security for the Guaranteed Obligations or any other guaranty of the
Guaranteed Obligations, or any portion thereof.
Section 15.9. NO ELECTION.
The Trustee shall have the right to seek recourse against each Subsidiary
Guarantor to the fullest extent provided for herein and no election by the
Trustee to proceed in one form of action or proceeding, or against any party, or
on any obligation, shall constitute a waiver of Trustee's right to proceed in
any other form of action or proceeding, or against other parties unless the
Trustee has expressly waived such right in writing.
Section 15.10. FINANCIAL CONDITION OF THE COMPANY.
Each Subsidiary Guarantor represents and warrants to the Trustee and
holders that it is currently informed of the financial condition of the Company
and, of all other circumstances which a diligent inquiry would reveal and which
bear upon the risk of nonpayment of the Guaranteed Obligations. Each Subsidiary
Guarantor further represents and warrants to the Trustee and holders that it has
read and understands the terms and conditions of this Indenture. Each
Subsidiary Guarantor hereby covenants that it will continue to keep itself
informed of the
66
Company's financial condition, the financial condition of other guarantors, if
any, and of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations.
Section 15.11. CONSOLIDATION, MERGER, ETC., ONLY ON CERTAIN TERMS.
No Subsidiary Guarantor shall consolidate with, merge with or into, or
sell, assign, convey, transfer or lease its properties and assets substantially
in their entirety (computed on a consolidated basis) to any Person, unless:
(i) subject to the following paragraph, the Person formed by or
surviving any such consolidation or merger (if other than the Subsidiary
Guarantor, another Subsidiary Guarantor or the Company) is a corporation
organized and existing under the laws of the United States, any State
thereof or the District of Columbia and assumes, by supplemental indenture
hereto, all of the obligations of such Subsidiary Guarantor under the
Guarantee and this Indenture;
(ii) immediately after giving effect to such transaction, no Event of
Default or Default shall exist; and
(iii) such Person executing the supplemental indenture required
pursuant to clause (i) above, has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel conforming to the provisions of
Section 1.2 hereof and each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this provision and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Notwithstanding the preceding paragraph, in the event of (a) a sale or
other disposition of all of the assets of any Subsidiary Guarantor, by way of
merger, consolidation or otherwise or (b) a sale or other disposition of all of
the capital stock of any Subsidiary Guarantor, then the Subsidiary Guarantor (in
the event of a sale or other disposition, by way of such a merger, consolidation
or otherwise, of all of the capital stock of such Subsidiary Guarantor) or the
corporation acquiring the property (in the event of a sale or other disposition
of all of the assets of the Subsidiary Guarantor) will be released and relieved
of any obligations under its Subsidiary Guarantee, except in the event of a sale
or other disposition to the Company, any other Subsidiary Guarantor or any
Affiliate thereof. Upon delivery by the Company to the Trustee of an Officers'
Certificate and Opinion of Counsel conforming to the provisions of Section 1.2
hereof, to the effect that such sale or other disposition was made by the
Company or such Subsidiary Guarantor in accordance with the provisions of this
Indenture, the Trustee shall execute any documents reasonably required in order
to evidence the release of any such Subsidiary Guarantor from its Guaranteed
Obligations under its Subsidiary Guarantee.
67
ARTICLE 16
MISCELLANEOUS
Section 16.1 NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of holders of Notes or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Note holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Finance Group, or
(b) the Company by the Trustee or by any Note holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid or airmail postage prepaid if
sent from outside the United States, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument, to the attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language, except
that any published notice may be in an official language of the country of
publication.
Section 16.2 NOTICE TO HOLDERS; WAIVER.
When this Indenture provides for notice to holders of Notes of any event,
such notice shall be sufficiently given to holders (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid (or
via certified or registered mail, facsimile or overnight delivery service), to
such holders as their names and addresses appear in the Note Register, within
the time prescribed.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers or
by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular holder shall
68
affect the sufficiency of such notice with respect to other holders, and any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given. In any case where notice to holders is given
by publication, any defect in any notice so published as to any particular
holder shall not affect the sufficiency of such notice with respect to other
holders, and any notice which is published in the manner herein provided shall
be conclusively presumed to have been duly given.
Section 16.3 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
Section 16.4 COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS.
This Indenture may be executed in any number of counterparts, each of which
when executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture. The Article and Section
headings herein and in the Table of Contents are for convenience only and shall
not affect the construction hereof.
Section 16.5 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the parties hereto shall
bind their respective successors and assigns and inure to the benefit of their
permitted successors and assigns, whether so expressed or not.
Section 16.6 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 16.7 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall give
to any Person, other than the parties hereto, any Note Registrar, any Paying
Agent and their successors hereunder, and the holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 16.8 GOVERNING LAW.
This Indenture and the Notes shall be deemed to be contracts made and to be
performed entirely in the State of Nevada, and for all purposes shall be
governed by and construed in accordance with the internal laws of said State
without regard to the conflicts of law rules of said State.
69
Section 16.9 LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.1 or in any Note, in any
case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Note shall not be a Business Day at any Place of Payment for the Notes, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of principal (and premium, if any) or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date or at the Stated Maturity, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day if such payment is made or duly provided for on such Business Day.
Section 16.10 NO RECOURSE AGAINST OTHERS.
No direct or indirect incorporator, employee, stockholder, director or
officer, as such, past, present or future of the Company or any successor
corporation or any of the Company's Affiliates, shall have any personal
liability in respect of the obligations of the Company under the Notes or this
Indenture, either directly or through the Company, by reason of his, her or its
status as such incorporator, stockholder, employee, director or officer. Each
holder by accepting a Note waives and releases all such liability. Such waiver
and release are part of the consideration for the issuance of the Notes.
Section 16.11 GAMING LAWS.
If the Company becomes the holding company of a New Jersey casino licensee,
this Indenture and the Notes will be subject to the Casino Control Act of the
State of New Jersey and the rules and regulations promulgated thereunder.
Section 16.12 NO PARENT LIABILITY.
In the event (a) there is any Default, Event of Default or other default or
alleged default by the Company, any Subsidiary Guarantor or any Affiliate of any
thereof under this Indenture, the Notes, any Guarantee or any other document,
instrument or agreement arising out of or relating to any of the foregoing
(collectively, the "Transaction Documents") or (b) the Trustee, any holder of
any Note, any other Beneficiary or any Affiliate of any of the foregoing has or
may have any claim arising from or relating to the terms of any Transaction
Document, neither the Trustee, such holder, such other Beneficiary or such
Affiliate shall commence any lawsuit or otherwise seek to impose any liability
whatsoever in respect thereof against Tracinda Corporation or its shareholder
(hereinafter collectively referred to as "Tracinda"). Tracinda shall not have
any liability whatsoever with respect to any Transaction Document or any matters
relating to or arising from any Transaction Document. None of the Trustee, any
holder of any Note, any other Beneficiary or any Affiliate of any of the
foregoing shall assert or permit any Person claiming through any of them to
assert a claim or impose any liability against Tracinda as to any matter or
thing arising out of or relating to any Transaction Document or any alleged
breach or default of any Transaction Document by the Company, any Subsidiary
Guarantor or any Affiliate thereof. Tracinda is not a party to any Transaction
Document and is not liable for
70
any alleged breach or default of any Transaction Document by the Company, any
Subsidiary Guarantor or any Affiliate of any thereof. The terms of this Section
16.12 shall control, notwithstanding anything to the contrary appearing in any
Transaction Document.
71
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and delivered all as of the day and year first above written.
MGM MIRAGE
By:___________________________
Name:_________________________
Title:________________________
U.S. Trust Company, National
Association, as Trustee
By:___________________________
Name:_________________________
Title:________________________
72
SUBSIDIARY GUARANTORS:
MGM Grand Hotel, Inc., a Nevada corporation
MGM Grand Movieworld, Inc., a Nevada corporation
Grand Laundry, Inc., a Nevada corporation
MGM Grand Advertising, Inc., a Nevada corporation
MGM Dist., Inc., a Nevada corporation
Destron, Inc., a Nevada corporation
Destron Marketing, Inc., a Nevada corporation
MGM Grand Merchandising, Inc., a Nevada corporation
MGM Grand Entertainment, Inc., a Nevada corporation
MGM Grand Atlantic City, Inc., a New Jersey corporation
MGM Grand Development, Inc., a Nevada corporation
MGM Grand Detroit, Inc., a Delaware corporation
New York-New York Hotel & Casino, LLC, a Nevada limited
liability company
PRMA, LLC, a Nevada limited liability company
The Primadonna Company, LLC, a Nevada limited liability
company
PRMA Land Development Co., a Nevada corporation
New PRMA Las Vegas, Inc., a Nevada corporation
PRMA-MS, Inc., a Mississippi corporation
AC Holding Corp., a Nevada corporation
AC Holding Corp. II, a Nevada corporation
The Xxxxx Xxxx Companies, a Nevada corporation
Beau Rivage Distribution Corp., a Mississippi corporation
Beau Rivage Marketing Corp., a Nevada corporation
Beau Rivage Resorts, Inc., a Mississippi corporation
Bellagio, a Nevada corporation
Boardwalk Casino, Inc., a Nevada corporation
Bungalow, Inc., a Mississippi corporation
Country Star Las Vegas, LLC, a Nevada limited liability
company
DAP Corporation, a Pennsylvania corporation
EGARIM, Inc., an Alabama corporation
GN Marketing Corp., New York corporation
GNL, Corp., a Nevada corporation
GNLV, Corp., a Nevada corporation
GNLV Marketing Corp. - Canada, a Nevada corporation
GNS Finance Corp., a Nevada corporation
Golden Nugget (ASIA) Ltd., a Nevada corporation
Golden Nugget Aviation Corp., a Nevada corporation
Golden Nugget Finance Corp., a Nevada corporation
Golden Nugget Marketing Corp., a California corporation
Golden Nugget Marketing Corp., a Texas corporation
Golden Nugget Marketing Corp. - Illinois, a Nevada
corporation
Golden Nugget Manufacturing Corp., a Nevada corporation
73
LV Concrete Corp., a Nevada corporation
MAC, Corp., a New Jersey corporation
MCD Gaming Corp., a Michigan corporation
MH, Inc., a Nevada corporation
M.I.R. Travel, a Nevada corporation
MGM Mirage Advertising, Inc., a Nevada corporation
MGM Mirage Design Group, a Nevada corporation
MGM Mirage Entertainment and Sports, a Nevada corporation
MGM Mirage Retail, a Nevada corporation
The Mirage Casino-Hotel, a Nevada corporation
The Mirage-Golden Nugget Hong Kong, Ltd., a Nevada
corporation
The Mirage-Golden Nugget Taiwan, Ltd., a Nevada corporation
Mirage Hawaii Marketing Corp., a Nevada corporation
Mirage International, a Nevada corporation
Mirage Laundry Services Corp., a Nevada corporation
Mirage Leasing Corp., a Nevada corporation
Mirage Resorts of Maryland, Inc., a Maryland corporation
Mirage Resorts, Incorporated, a Nevada corporation
Mirage Resorts Risk Management, a Nevada corporation
MRGS Corp., a Nevada corporation
Restaurant Ventures of Nevada, Inc., a Nevada corporation
SHCR Corp., a Texas corporation
See Saw Sign Corp., a Nevada corporation
Treasure Island Corp., a Nevada corporation
Treasure Island Productions, Inc., a Nevada corporation
VidiAd, a Nevada corporation
By:_________________________________
Name: Xxxxx Xxxxxxxx
Title: Secretary/Treasurer
74
