EXHIBIT 4.2
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EXECUTION COPY
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LAS VEGAS SANDS CORP.
AND EACH OF THE GUARANTORS PARTY HERETO
6.375% Senior Notes due 2015
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INDENTURE
Dated as of February 10, 2005
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U.S. Bank National Association
Trustee
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310(a)(1)........................................ 7.10
(a)(2)...................................... 7.10
(a)(3)...................................... N.A.
(a)(4)...................................... N.A.
(a)(5)...................................... 7.10
(b)......................................... 7.10
(c)......................................... N.A.
311(a)........................................... 7.11
(b)......................................... 7.11
(c)......................................... N.A.
312(a)........................................... 2.05
(b)......................................... 12.03
(c)......................................... 12.03
313(a)........................................... 7.06
(b)(2)...................................... 7.06; 7.07
(c)......................................... 7.06; 12.02
(d)......................................... 7.06
314(a)........................................... 4.03;12.02; 12.05
(c)(1)...................................... 12.04
(c)(2)...................................... 12.04
(c)(3)...................................... N.A.
(e)......................................... 12.05
(f)......................................... N.A.
315(a)........................................... 7.01
(b)......................................... 7.05; 12.02
(c)......................................... 7.01
(d)......................................... 7.01
(e)......................................... 6.11
316(a) (last sentence)........................... 2.09
(a)(1)(A)................................... 6.05
(a)(1)(B)................................... 6.04
(a)(2)...................................... N.A.
(b)......................................... 6.07
(c)......................................... 2.12
317(a)(1)........................................ 6.08
(a)(2)...................................... 6.09
(b)......................................... 2.04
318(a)........................................... 12.01
(b)......................................... N.A.
(c)......................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions................................................4
Section 1.02 Other Definitions.........................................16
Section 1.03 Incorporation by Reference of Trust Indenture Act.........16
Section 1.04 Rules of Construction.....................................17
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating...........................................17
Section 2.02 Execution and Authentication..............................18
Section 2.03 Registrar and Paying Agent................................18
Section 2.04 Paying Agent to Hold Money in Trust.......................19
Section 2.05 Holder Lists..............................................19
Section 2.06 Transfer and Exchange.....................................19
Section 2.07 Replacement Notes.........................................30
Section 2.08 Outstanding Notes.........................................31
Section 2.09 Treasury Notes............................................31
Section 2.10 Temporary Notes...........................................31
Section 2.11 Cancellation..............................................32
Section 2.12 Defaulted Interest........................................32
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee........................................32
Section 3.02 Selection of Notes to Be Redeemed or Purchased............32
Section 3.03 Notice of Redemption......................................33
Section 3.04 Effect of Notice of Redemption............................34
Section 3.05 Deposit of Redemption or Purchase Price...................34
Section 3.06 Notes Redeemed or Purchased in Part.......................34
Section 3.07 Optional Redemption.......................................34
Section 3.08 Mandatory Redemption......................................35
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes..........................................37
Section 4.02 Maintenance of Office or Agency...........................37
Section 4.03 Reports...................................................37
Section 4.04 Compliance Certificate....................................38
Section 4.05 Intentionally Deleted.....................................39
Section 4.06 Stay, Extension and Usury Laws............................39
Section 4.07 Liens.....................................................39
Section 4.08 Corporate Existence.......................................39
Section 4.09 Offer to Repurchase Upon Change of Control................40
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Section 4.10 Limitation on Sale and Lease-back Transactions............41
Section 4.11 Purchase of Mortgage Notes Validly Tendered
in Tender Offer.......................................42
Section 4.12 Additional Subsidiary Guarantees..........................42
ARTICLE 5
SUCCESSORS
Section 5.01 Consolidation, Merger or Sale.............................42
Section 5.02 Successor Corporation Substituted.........................43
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.........................................44
Section 6.02 Acceleration..............................................45
Section 6.03 Other Remedies............................................47
Section 6.04 Waiver of Past Defaults...................................47
Section 6.05 Control by Majority.......................................47
Section 6.06 Limitation on Suits.......................................47
Section 6.07 Rights of Holders of Notes to Receive Payment.............48
Section 6.08 Collection Suit by Trustee................................48
Section 6.09 Trustee May File Proofs of Claim..........................48
Section 6.10 Priorities................................................48
Section 6.11 Undertaking for Costs.....................................49
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.........................................49
Section 7.02 Rights of Trustee.........................................50
Section 7.03 Individual Rights of Trustee..............................51
Section 7.04 Trustee's Disclaimer......................................51
Section 7.05 Notice of Defaults........................................51
Section 7.06 Reports by Trustee to Holders of the Notes................51
Section 7.07 Compensation and Indemnity................................52
Section 7.08 Replacement of Trustee....................................53
Section 7.09 Successor Trustee by Merger, etc..........................54
Section 7.10 Eligibility; Disqualification.............................54
Section 7.11 Preferential Collection of Claims Against Company.........54
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance..54
Section 8.02 Legal Defeasance and Discharge............................55
Section 8.03 Covenant Defeasance.......................................55
Section 8.04 Conditions to Legal or Covenant Defeasance................55
Section 8.05 Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions..............57
Section 8.06 Repayment to Company......................................57
Section 8.07 Reinstatement.............................................57
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.......................58
Section 9.02 With Consent of Holders of Notes..........................58
Section 9.03 Compliance with Trust Indenture Act.......................60
Section 9.04 Revocation and Effect of Consents.........................60
Section 9.05 Notation on or Exchange of Notes..........................60
Section 9.06 Trustee to Sign Amendments, etc...........................60
ARTICLE 10
SUBSIDIARY GUARANTEES
Section 10.01. Guarantee.................................................60
Section 10.02. Limitation on Guarantor Liability.........................61
Section 10.03. Execution and Delivery of Subsidiary Guarantee............62
Section 10.04. Intentionally Deleted.....................................62
Section 10.05. Releases..................................................62
ARTICLE 11
satisfaction and discharge
Section 11.01 Satisfaction and Discharge................................63
Section 11.02 Application of Trust Money................................64
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls..............................64
Section 12.02 Notices...................................................64
Section 12.03 Communication by Holders of Notes with Other
Holders of Notes......................................65
Section 12.04 Certificate and Opinion as to Conditions Precedent........66
Section 12.05 Statements Required in Certificate or Opinion.............66
Section 12.06 Rules by Trustee and Agents...............................66
Section 12.07 Special Escrow Account....................................66
Section 12.08 No Personal Liability of Directors, Officers,
Employees and Stockholders............................67
Section 12.09 Governing Law.............................................67
Section 12.10 No Adverse Interpretation of Other Agreements.............68
Section 12.11 Successors................................................68
Section 12.12 Severability..............................................68
Section 12.13 Counterpart Originals.....................................68
Section 12.14 Table of Contents, Headings, etc..........................68
Section 12.15 Compliance with Gaming Laws...............................68
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
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INDENTURE dated as of February 10, 2005 among Las Vegas Sands Corp., a
Nevada corporation, the Guarantors (as defined) from time to time party hereto
and U.S. Bank National Association, as trustee.
The Company, the Guarantors from time to time party hereto and the
Trustee agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders (as defined) of the 6.375% Senior Notes due 2015
(the "NOTES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 DEFINITIONS.
"144A GLOBAL NOTE" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"ADDITIONAL NOTES" means an unlimited amount of Notes (other than the
Initial Notes) issued under this Indenture in accordance with Section 2.02
hereof, as part of the same series as the Initial Notes.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "CONTROL"
(including, with correlative meanings, the terms "CONTROLLING," "CONTROLLED by"
and "UNDER COMMON CONTROL WITH"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED, HOWEVER,
that beneficial ownership of 20% or more of the voting securities of a Person
shall be deemed to be control.
"AGENT" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act or any successor provision, except that in
calculating the beneficial ownership of any particular "person" (as that term is
used in Section 13(d)(3) of the Exchange Act), such "person" will be deemed to
have beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only after the passage of time. The
terms "Beneficially Owns" and "Beneficially Owned" have a corresponding meaning.
"BOARD OF DIRECTORS" means:
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(1) with respect to a corporation, the board of directors
of such corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the Board of Directors
of the ultimate general partner of the partnership;
(3) with respect to a limited liability company, the
managing member or members or any controlling committee of managing
members or members thereof; and
(4) with respect to any other Person, the board or
committee of such Person serving a similar function.
"BROKER-DEALER" has the meaning set forth in the Registration Rights
Agreement.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITALIZED LEASE-BACK OBLIGATION" means the total net rental
obligations of the Company or a Subsidiary under any lease entered into as part
of a Sale and Lease-back Transaction involving a Principal Property that would,
at the time any determination is to be made, be required to be capitalized on a
balance sheet in accordance with GAAP.
"CAPITAL STOCK" means with respect to any Person, any and all shares,
interests, participations, rights or other equivalents (however designated) of
equity of such Person, including if such Person is a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, such partnership or limited liability company.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the sale, lease or transfer, in one or a series of
transactions, of all or substantially all of the assets of the Company
and its Subsidiaries, taken as a whole;
(2) the Company becomes aware of (by way of a report or
any other filing pursuant to Section 13(d) of the Exchange Act, proxy,
vote, written notice or otherwise) the acquisition by any person or
group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act, or any successor provision), including any group
acting for the purpose of acquiring, holding or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other
than the Principal Stockholder and its Related Parties, in a single
transaction or in a related series of transactions, by way of merger,
consolidation or other business combination or purchase of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act, or
any successor provision) of 50% or more of the total voting power of
the Voting Stock of the Company;
(3) the first day within any two-year period on which a
majority of the members of the Board of Directors of the Company are
not Continuing Directors; or
(4) the adoption of a plan relating to liquidation or
dissolution of the Company.
For purposes of this definition, any holding company whose
only significant asset is the Capital Stock of the Company shall be disregarded
and the beneficial ownership of such holding company shall be attributed to the
Company and any Person which has entered into an agreement to acquire any
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Capital Stock of the Company shall not be deemed to have any beneficial
ownership of such Capital Stock until the closing of such acquisition.
"CLEARSTREAM" means Clearstream Banking, S.A.
"COMPANY" means Las Vegas Sands Corp., and any and all successors
thereto.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total of all assets
appearing on a consolidated balance sheet of the Company and its Guarantors
prepared in accordance with GAAP as of a date not more than 90 days prior to the
date as of which Consolidated Net Tangible Assets are to be determined, but
excluding (i) the book amount of all intangible assets, (ii) all depreciation,
valuation and other reserves, (iii) current liabilities, (iv) any minority
interest in the stock and surplus of the Company's Subsidiaries, and (v)
deferred income and deferred liabilities. Notwithstanding the foregoing, in the
event any assets are transferred to the Company or any of the Guarantors from
any Subsidiary of the Company that is not a Guarantor or an Affiliate of the
Company that is not a Guarantor (or as a result of the conversion of a
non-Guarantor Subsidiary or Affiliate into a Guarantor), Consolidated Net
Tangible Assets shall be increased, without duplication, by the fair market
value of such assets at the time of such transfer as determined (i) by a
resolution of the Board of Directors of the Company if the fair market value of
such assets is equal to or less than $50.0 million or (ii) based on the opinion
of an investment bank, valuation firm, accounting firm or appraisal firm of
national standing if the fair market value of such assets exceeds $50.0 million.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors who (1) was a member of such Board of Directors
on the Issuance Date, (2) was nominated for election or elected to such Board of
Directors with, or whose election to such Board of Directors was approved by,
the affirmative vote of a majority of the Continuing Directors who were members
of such Board of Directors at the time of such nomination or election or (3) was
appointed or elected to such Board of Directors by the Principal Stockholder or
a Related Party.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" will be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"COOPERATION AGREEMENT" means that certain Second Amended and Restated
Reciprocal Easement, Use and Operating Agreement, dated as of May 17, 2004, as
amended as of July 30, 2004, by and among Venetian Casino Resort, LLC, Lido
Casino Resort, LLC, Grand Canal Shops II, LLC and Interface Group-Nevada, Inc.,
as amended, revised or modified from time to time in accordance with its terms.
"CREDIT AGREEMENT" means that certain credit agreement, dated August
20, 2004, by and among Las Vegas Sands, Inc. and Venetian Casino Resort, LLC, as
borrowers, the lenders party thereto, Xxxxxxx Xxxxx Credit Partners L.P., as
syndication agent, sole lead arranger and sole bookrunner, The Bank of Nova
Scotia, as administrative agent, and Xxxxx Fargo Foothill, Inc., CIT
Group/Equipment Financing, Inc. and Commerzbank AG, as documentation agents,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced, in whole or in part, from
time to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring all or any portion of the indebtedness and
other obligations under such agreement or agreements or any successor or
replacement agreement or agreements, and whether by the same or any other agent,
lender or group of lenders (collectively any such transactions, a
"REFINANCING"), which Refinancing may increase the aggregate principal amount
that may be borrowed under the Credit Agreement (which may be more than one
agreement or facility with the same or different lenders), PROVIDED that the
aggregate principal amount that may be borrowed under the Credit Agreement shall
not be increased in connection with a Refinancing by an
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amount more than the sum of (i) the principal amount of any additional amounts
that may be borrowed if the proceeds thereof will be used to (x) acquire,
develop, construct or improve property of the Company or any of the Guarantors
(including by way of acquiring any Person who is merged or consolidated into the
Company or any Guarantor or who becomes a Guarantor) or (y) repay, redeem or
otherwise retire any secured indebtedness of the Company or any of its
Subsidiaries (other than under the Credit Agreement) so long as the assets that
were securing the indebtedness so repaid, redeemed or retired are directly owned
by the Company or any Guarantor after such Refinancing (for purposes of clarity,
it is understood that the indebtedness secured by the Sands Expo and Convention
Center may be refinanced if the Sands Expo and Convention Center is owned by the
Company or any Guarantor after such Refinancing); PROVIDED, that for purposes of
clause (x) the proceeds of indebtedness up to the cost of the acquisition,
development, construction or improvement of property which is incurred within 24
months after such acquisition, development, construction or improvement will be
deemed to have been for the purpose of acquiring, constructing or improving such
property and may therefore be part of the Credit Agreement, (ii) the amount of
the fees and expenses of such Refinancing (including any prepayment penalties or
premium or accrued and unpaid interest on indebtedness refinanced by such
Refinancing), (iii) any amount required to provide for revolving credit
facilities and term loans under the Credit Agreement with an aggregate maximum
borrowing capacity of up to $400.0 million for revolving credit facilities and
with an aggregate maximum borrowing capacity for term loans not more than $1,270
million, and (iv) $250 million.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"DEFINITIVE NOTE" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature; PROVIDED, HOWEVER,
that any Capital Stock which would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require the Company to
repurchase or redeem such Capital Stock upon the occurrence of a change of
control occurring prior to the final maturity of the Notes shall not constitute
Disqualified Stock if the change of control provisions applicable to such
Capital Stock specifically provide that the Company will not repurchase or
redeem any such stock pursuant to such provisions prior to the Company's
compliance with the provisions of this Indenture.
"DOMESTIC SUBSIDIARY" means any Subsidiary of the Company that was
formed under the laws of the United States or any state of the United States or
the District of Columbia.
"EQUITY OFFERING" means an offer and sale of Capital Stock (other than
Disqualified Stock) of the Company pursuant to a registration statement that has
been declared effective by the SEC pursuant to the Securities Act (other than a
registration statement on Form S-8 or otherwise relating to equity securities
issuable under any employee benefit plan of the Company) or in a private
placement under an exemption
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from the registration requirements of the Securities Act or any capital
contribution in respect of such Capital Stock of the Company.
"ESCROW AND SECURITY AGREEMENT" means the Escrow and Security
Agreement, dated the date hereof, by and among the Company, the Trustee and U.S.
Bank National Association, as escrow agent, as the same may be amended, revised,
modified or restated in accordance with its terms.
"EUROCLEAR" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer pursuant
to Section 2.06(f) hereof.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in
the Registration Rights Agreement.
"EXISTING FACILITY" means the Venetian Casino Resort, a Venetian-themed
hotel, casino, meeting and entertainment complex located at 3355 Las Vegas
Boulevard South, Las Vegas, Xxxxx County, Nevada.
"EXISTING SITE" means the land on which the Existing Facility is
constructed.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
"GAMING AUTHORITY" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or foreign government, any state, province or any city or
other political subdivision, whether now or hereafter existing, or any officer
or official thereof, including without limitation, the Nevada Gaming Commission,
the Nevada State Gaming Control Board, the Xxxxx County Liquor and Gaming
Licensing Board, the Macau Gaming Authorities and any other agency with
authority to regulate any gaming operation (or proposed gaming operation) owned,
managed or operated by the Company or any of its Subsidiaries.
"GAMING LICENSE" means every license, franchise or other authorization
required to own, lease, operate or otherwise conduct activities of the Company
or any of its Subsidiaries, including without limitation, all such licenses
granted under the Nevada Gaming Control Act, and the regulations promulgated
pursuant thereto, and other applicable federal, state, foreign or local laws.
"GLOBAL NOTE LEGEND" means the legend set forth in Section 2.06(g)(2)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A hereto that bear the Global Note Legend
and that have the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Sections 2.01, 2.06(b), 2.06(d) or
2.06(f) hereof.
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"GOVERNMENT SECURITIES" means securities that are (1) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such Government
Security or a specific payment of principal of or interest on any such
Government Security held by such custodian for the account of the holder of such
depository receipt; PROVIDED, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Security or the specific payment of principal of or interest on
the Government Security evidenced by such depository receipt.
"GUARANTOR" means any Subsidiary of the Company that executes a
Subsidiary Guarantee in accordance with the provisions of this Indenture.
"HARRAH'S SHARED ROADWAY AGREEMENT" means the agreement, dated as of
January 16, 1998, between Venetian Casino Resort, LLC and Harrah's Casino
Resort, as amended, revised or modified from time to time in accordance with its
terms.
"HEDGING AGREEMENTS" means (a) currency exchange or interest rate swap
agreements, currency exchange or interest rate cap agreements and currency
exchange or interest rate collar agreements and (b) other agreements or
arrangements designed to protect against fluctuations in currency exchange or
interest rates.
"HOLDER" means a Person in whose name a Note is registered.
"HVAC GROUND LEASE" means the ground lease made effective as of
November 14, 1997, between Venetian and the HVAC Provider, as amended, revised
or modified from time to time in accordance with its terms.
"HVAC PROVIDER" means Sempra Energy Solutions, a California corporation
(successor to Atlantic-Pacific, Las Vegas LLC, a Delaware limited liability
company) or its permitted successors under the HVAC Services Agreements.
"HVAC SERVICES AGREEMENTS" means collectively (a) the Energy Services
Agreement, dated as of November 14, 1997, as amended on July 1, 1999, between
Venetian Casino Resort, LLC and the HVAC Provider, (b) the HVAC Ground Lease,
and (c) all other agreements between the HVAC Provider and the Company and its
Subsidiaries (and any amendments, revisions or modifications of such other
agreements or the agreements described in clauses (a) or (b) above).
"IAI GLOBAL NOTE" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors.
"IMPROVEMENT PHASING AGREEMENT" means the Improvement Phasing
Agreement, dated on or about August 11, 2004, between Xxxxx County, Nevada and
Lido Casino Resort, LLC, as amended, revised or modified from time to time in
accordance with its terms.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
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"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"INITIAL NOTES" means the first $250,000,000 aggregate principal amount
of Notes issued under this Indenture on the date hereof.
"INITIAL PURCHASERS" means Xxxxxxx, Sachs & Co., Xxxxxx Brothers Inc.,
Citigroup Global Markets Inc., X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Scotia Capital (USA) Inc. and UBS
Securities LLC, the initial purchasers of the Initial Notes, and any initial
purchasers of Additional Notes.
"ISSUANCE DATE" means the closing date for the sale and original
issuance of the Initial Notes.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"LIENS" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement or any lease
in the nature thereof).
"MORTGAGE NOTES" means the 11% mortgage notes due 2010 of Las Vegas
Sands, Inc. and Venetian Casino Resort, LLC.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the General Counsel, the Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.
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"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"PERMITTED LIENS" means:
(1) Liens securing obligations under the Credit Agreement;
(2) Liens securing the Mortgage Notes;
(3) Liens on any property acquired, constructed or improved by
the Company or its Subsidiaries to secure or provide for the payment of
any part of the purchase price of the property or the cost of the
construction or improvement, or any Lien on any such property existing
at the time of acquisition thereof;
(4) Liens on any property of another company existing at the
time such company is acquired by merger, consolidation or acquisition
of substantially all of its stock or its assets; PROVIDED, that such
Liens were in existence prior to the consummation of, and were not
entered into in contemplation of, such merger, consolidation or
acquisition and do not extend to any other assets other than those of
the company acquired by, merged into or consolidated with the Company
or such Subsidiary;
(5) Liens incurred or deposits made in the ordinary course of
business or in the construction of any Principal Property in connection
with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the payment of
borrowed money);
(6) easements, rights-of-way, aviational or navigational
servitudes, restrictions, encroachments, and other defects or
irregularities in title and other similar charges or encumbrances, in
each case which do not and will not interfere in any material respect
with the ordinary conduct of the business of the Company or any of its
Subsidiaries;
(7) Liens on real property of the Company arising pursuant to
the Harrah's Shared Roadway Agreement and any similar Liens arising
pursuant to any amendments thereto or required under a lease or other
transaction relating to the construction of a parking garage on real
property owned by Xxxxxx'x Casino Resort adjacent to the Existing Site;
(8) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(9) Liens in connection with tax assessments or other
governmental charges, or as security required by law or governmental
regulation as a condition to the transaction of any business or the
exercise of any privilege or right;
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(10) Liens to secure a stay of process in proceedings to
enforce a contested liability, or required in connection with the
institution of legal proceedings or in connection with any other order
or decree in any such proceeding or in connection with any contest of
any tax or other governmental charge, or deposits with a governmental
agency entitling the Company or a Subsidiary of the Company to maintain
self-insurance or to participate in other specified insurance
arrangements or any judgment attachment or judgment Lien not
constituting an Event of Default;
(11) warehouseman's, suppliers', materialmen's, repairmen's,
mechanics', carriers', workmen's and other like Liens;
(12) any zoning or similar law or right reserved to or vested
in any governmental office or agency to control or regulate the use of
any real property;
(13) licenses of patents, trademarks and other intellectual
property rights granted by the Company or any of its Subsidiaries in
the ordinary course of business and not interfering in any material
respect with the ordinary conduct of the business of the Company or
such Subsidiary;
(14) Liens created under the HVAC Services Agreements;
(15) Liens created under the Predevelopment Agreement and the
Improvement Phasing Agreement;
(16) Liens incurred in connection with Hedging Agreements;
(17) Liens created or contemplated by the Cooperation
Agreement;
(18) Liens incurred in connection with the construction of a
pedestrian bridge over Las Vegas Boulevard and Sands Avenue, PROVIDED
that such Liens will not materially interfere with, impair or detract
from the operation of the business of the Company and its Subsidiaries
or the construction or operation of the Resort Complex;
(19) easements, restrictions, rights of way, encroachments and
other minor defects or irregularities in title incurred in connection
with the traffic study relating to increased traffic on Las Vegas
Boulevard and Sands Avenue as a result of completion of the Resort
Complex;
(20) Liens in connection with any defeasance of the Mortgage
Notes;
(21) Liens securing indebtedness of a Subsidiary of the
Company to the Company or to another Subsidiary of the Company;
(22) Liens on any property existing on the date of this
Indenture;
(23) Liens in favor of the Company and any Guarantor;
(24) leasehold mortgages in favor of parties financing the
lease of space within the Resort Complex, PROVIDED that neither the
Company nor any Guarantor is liable for the payment of any principal
of, or interest or premium on, such financing;
(25) the creation of any other Lien, if, after giving effect
to the creation thereof, the total of (i) the aggregate principal
amount of indebtedness of the Company and its Subsidiaries secured by
all Liens created under this clause (25), plus (ii) the aggregate
amount of Capitalized Lease-Back
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Obligations of the Company and its Subsidiaries under the entire
unexpired terms of all leases entered into in connection with Sale and
Lease-back Transactions which would have been precluded by the
provision for limitations on such transactions described under Section
4.10 hereof, but for the satisfaction of the condition referred to in
clause (2) of such provision, will not exceed an amount equal to 15% of
Consolidated Net Tangible Assets;
(26) leases or subleases in the nature of a Lien granted to
third parties in compliance with the terms of this Indenture and not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of the Guarantors;
(27) Liens securing any extension, renewal, replacement or
refinancing of any indebtedness secured by a Lien permitted by any of
the foregoing clauses (1) through (26) or this clause (27), PROVIDED
the amount secured is not increased, plus reasonable fees and expenses
incurred and any prepayment penalties, premiums and accrued interest
paid in connection with any extension, renewal, replacement or
refinancing;
(28) Liens securing other indebtedness, PROVIDED that the
aggregate outstanding principal amount of indebtedness secured by Liens
under this clause (28) does not exceed $150 million at any one time;
(29) Liens on amounts in the Escrow Account in favor of the
Trustee for the benefit of the Holders of Notes; and
(30) Liens in favor of the Trustee created or contemplated by
the terms of this Indenture.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof
or any other entity.
"PHASE II PROJECT" means an approximately 3,000 room hotel, casino and
meeting complex to be integrated with the Existing Facility and located on
approximately 15 acres of land adjacent to the Existing Facility, which will
exclude the Phase II mall and those retail stores which are leased by Lido
Casino Resort, LLC to Phase II Mall Subsidiary LLC.
"PREDEVELOPMENT AGREEMENT" means the Sands Resort Hotel Casino
Agreement, dated as of February 18, 1997, amended as of September 16, 1997,
between Xxxxx County, Nevada and Las Vegas Sands, Inc., as amended, revised or
modified from time to time in accordance with its terms.
"PRINCIPAL PROPERTY" means any single property directly owned by the
Company or any Guarantor having a gross book value in excess of the greater of
$25.0 million or 2% of Consolidated Net Tangible Assets. Notwithstanding the
foregoing, Principal Property shall exclude all Capital Stock of the Company and
its Subsidiaries; PROVIDED, HOWEVER, that if the Company or any Guarantor
creates any Lien on any Capital Stock of any Subsidiary of the Company that is
directly owned by the Company or any Guarantor, then Principal Property shall
include such Capital Stock. If the inclusion of any Capital Stock within the
definition of "Principal Property" requires the prior approval of any Gaming
Authority, the Company shall, prior to granting any Lien on such Capital Stock,
obtain the approval of such Gaming Authority for the inclusion of such Capital
Stock within the definition of "Principal Property."
"PRINCIPAL STOCKHOLDER" means Xxxxxxx X. Xxxxxxx.
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"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of February 10, 2005 among the Company, the Guarantors and
the other parties named on the signature pages thereof, as such agreement may be
amended, modified or supplemented from time to time, and, with respect to any
Additional Notes, one or more registration rights agreements among the Company,
the Guarantors and the other parties thereto, as such agreement(s) may be
amended, modified or supplemented from time to time, relating to rights given by
the Company to the purchasers of Additional Notes to register such Additional
Notes under the Securities Act.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means a Global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903 of
Regulation S.
"RELATED PARTIES" means (1) any spouse and any child, stepchild,
sibling or descendant of the Principal Stockholder, (2) any estate of the
Principal Stockholder or any person under clause (1), (3) any person who
receives a beneficial interest in the Company from any estate under clause (2)
to the extent of such interest, (4) any executor, personal administrator or
trustee who holds such beneficial interest in the Company for the benefit of, or
as fiduciary for, any person under clauses (1), (2) or (3) to the extent of such
interest, (5) any corporation, partnership, limited liability company, trust, or
similar entity owned or controlled by the Principal Stockholder or any person
referred to in clause (1), (2), (3) or (4) or for the benefit of any person
referred to in clause (1) and (6) the spouse or issue of one or more of the
individuals described in clause (1).
"RESORT COMPLEX" means the Existing Facility and the Phase II Project,
but excluding (i) the Sands Expo and Convention Center, (ii) the heating,
ventilation and air conditioning equipment, including without limitation, any
assets owned by the HVAC Provider under the HVAC Services Agreements or the HVAC
Ground Lease if such assets are acquired by the Company or any Guarantor after
the date of this Indenture, (iii) any of the assets and operations of Venetian
Hotel Operations LLC, Interface Employee Leasing, LLC and Yona Venetian LLC
existing on the date of this Indenture and any aircraft or aircraft operations,
and (iv) other assets determined by the Company to be excluded from the
definition of "Resort Complex," PROVIDED that the aggregate fair market value
(as determined by the Board of Directors of the Company) of the assets excluded
under this clause (iv) does not exceed $25 million, with fair market value to be
determined at the time such assets are determined to be excluded from the
definition of "Resort Complex."
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the 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.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
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"RESTRICTED PERIOD" means the 40-day distribution compliance period as
defined in Regulation S.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary which 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 in effect on the date of
this Indenture.
"SPECIAL INTEREST" means all liquidated damages then owing pursuant to
the Registration Rights Agreement.
"SUBSIDIARY" means, with respect to any Person, (1) any corporation,
association, or other business entity (other than a partnership) of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof and (2) any partnership or
limited liability company of which more than 50% of the partnership's or limited
liability company's capital accounts, distribution rights or general or limited
partnership or membership interests are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof.
"SUBSIDIARY GUARANTEE" means the guarantee by each Guarantor of the
Company's obligations under this Indenture and the Notes, executed pursuant to
the provisions of this Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
xx.xx. 77aaa-77bbbb).
"TREASURY RATE" means the yield to maturity at the time of the
computation of the United States Treasury securities with a constant maturity
(as compiled by and published in the most recent Federal Reserve Statistical
Release H.15(519), which has become publicly available at least two Business
Days prior to the date fixed for prepayment (or, if such Statistical Release is
no longer published, any publicly available source of similar market data) most
nearly equal to the then remaining average life to February 15, 2010; PROVIDED,
HOWEVER, that if the average life of such Note is not equal to the constant
maturity of the United States Treasury security for which weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given, except
that if the average life of such Notes is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
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"TRUSTEE" means U.S. Bank National Association until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"UNRESTRICTED DEFINITIVE NOTE" means a Definitive Note that does not
bear and is not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a Global Note that does not bear and
is not required to bear the Private Placement Legend.
"U.S. PERSON" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"VOTING STOCK" means, with respect to any Person that is a corporation,
any class or series of Capital Stock of such Person that is ordinarily entitled
to vote in the election of directors thereof at a meeting of stockholders called
for such purpose, without the occurrence of any additional event or contingency
and with respect to any other Person that is a limited liability company,
membership interests entitled to manage the operations or business of the
limited liability company.
Section 1.02 OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- -------
"ACCELERATED DEBT" ..................................... 6.01
"AUTHENTICATION ORDER".................................. 2.02
"CHANGE OF CONTROL OFFER"............................... 4.09
"CHANGE OF CONTROL PAYMENT"............................. 4.09
"CHANGE OF CONTROL PAYMENT DATE"........................ 4.09
"COLLATERAL" ........................................... 12.07
"COVENANT DEFEASANCE"................................... 8.03
"DTC"................................................... 2.03
"ESCROW ACCOUNT"........................................ 3.08
"ESCROW BREAK DATE" .................................... 3.08
"EVENT OF DEFAULT"...................................... 6.01
"LEGAL DEFEASANCE"...................................... 8.02
"MAKE-WHOLE PREMIUM" ................................... 3.07
"OFFER PERIOD" ......................................... 4.09
"OFFER STATEMENT"....................................... 4.11
"PAYING AGENT".......................................... 2.03
"PAYMENT DEFAULT" ...................................... 6.01
"REGISTRAR"............................................. 2.03
"SALE AND LEASE-BACK TRANSACTION........................ 4.10
"TENDER OFFER" ......................................... 4.11
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
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"INDENTURE SECURITIES" means the Notes and the Subsidiary Guarantees;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes and the Subsidiary Guarantees means the Company
and the Guarantors, respectively, and any successor obligor upon the Notes and
the Subsidiary Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and
transactions; and
(7) references to sections of or rules under the
Securities Act will be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication will be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note will be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
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(b) GLOBAL NOTES. Notes issued in global form will be
substantially in the form of Exhibit A hereto and shall include the Global Note
Legend and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto. Notes issued in definitive form will be substantially in the form of
Exhibit A hereto but will not include any Global Note Legend and will be without
the "Schedule of Exchanges of Interests in the Global Note" attached thereto.
Each Global Note will represent such of the outstanding Notes as will be
specified therein and each shall provide that it represents the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream Banking" and "Customer Handbook" of Clearstream will be applicable
to transfers of beneficial interests in the Regulation S Global Note that are
held by Participants through Euroclear or Clearstream.
Section 2.02 EXECUTION AND AUTHENTICATION.
One Officer must sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of
the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed
by an Officer (an "AUTHENTICATION ORDER"), authenticate and deliver Notes for
original issue that may be validly issued under this Indenture, including any
Additional Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, except as
provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03 REGISTRAR AND PAYING AGENT.
The Company will maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar will keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company will notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If
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the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company will require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Special Interest, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) will have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee will serve as Paying Agent for the Notes.
Section 2.05 HOLDER LISTS.
The Trustee will preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company will furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA ss. 312(a).
Section 2.06 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not
be transferred except as a whole by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice
from the Depositary;
(2) the Company in its sole discretion determines that
the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; or
(3) there has occurred and is continuing a default or
Event of Default with respect to the Notes.
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Upon the occurrence of either of the preceding events in (1) or (2)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global Notes
will be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes will be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also will require
compliance with either subparagraph (1) or (2) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(1) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
NOTE. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; PROVIDED, HOWEVER, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation
S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).
(2) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL
INTERESTS IN GLOBAL NOTES. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(1) above, the transferor of such beneficial interest must
deliver to the Registrar either:
(A) both:
(i) a written order from a
Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial
interest to be transferred or exchanged; and
(ii) instructions given in accordance
with the Applicable Procedures containing information
regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a
Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged;
and
20
(ii) instructions given by the
Depositary to the Registrar containing information
regarding the Person in whose name such Definitive
Note shall be registered to effect the transfer or
exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER
RESTRICTED GLOBAL NOTE. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and
the Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Global Note,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transferee will take delivery in the
form of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable.
(4) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN AN UNRESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such exchange or transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
21
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE
NOTES.
(1) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
22
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(2) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such exchange or transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
23
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(3) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(2) hereof, the Trustee will cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee
will authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(3) will be registered in such name or names and
in such authorized denomination or denominations as the holder of such
beneficial interest requests through instructions to the Registrar from
or through the Depositary and the Participant or Indirect Participant.
The Trustee will deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(3)
will not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(1) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
24
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI
Global Note.
(2) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such exchange or transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
25
(i) if the Holder of such Definitive
Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has not
yet been issued, the Company will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee will authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar will register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder must present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
26
(A) if the transfer will be made pursuant to
Rule 144A, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer will be made pursuant to
Rule 903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(2) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such exchange or transfer is effected by
a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
27
(3) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not participating in a distribution of
the Exchange Notes and (B) they are not affiliates (as defined in Rule
144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer by Persons
that certify in the applicable Letters of Transmittal that (A) they are
not participating in a distribution of the Exchange Notes and (B) they
are not affiliates (as defined in Rule 144) of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause
the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) LEGENDS. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B)
below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
(B) IN
28
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS."
(B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraphs
(b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f)
of this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) will not bear the Private
Placement Legend.
(2) GLOBAL NOTE LEGEND. Each Global Note will bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
29
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(1) To permit registrations of transfers and exchanges,
the Company will execute and the Trustee will authenticate Global Notes
and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 hereof or at the Registrar's request.
(2) No service charge will be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.09 and 9.05
hereof).
(3) The Registrar will not be required to register the
transfer of or exchange of any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(5) Neither the Registrar nor the Company will be
required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close
of business on the day of selection;
(B) to register the transfer of or to exchange
any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a
Note between a record date and the next succeeding interest
payment date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(7) The Trustee will authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(8) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
Section 2.07 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company will issue and the
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Trustee, upon receipt of an Authentication Order, will authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
will be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; however, Notes held by the Company and not cancelled
shall not be deemed to be outstanding for purposes of Section 3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Guarantor, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned will be so disregarded.
Section 2.10 TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of
this Indenture.
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Section 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else will cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and will destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes will be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
Section 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it will
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date; PROVIDED that no such special record date
may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) will mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at
least 30 days (or such shorter period as may be acceptable to the Trustee) but
not more than 60 days before a redemption date, an Officers' Certificate setting
forth:
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 SELECTION OF NOTES TO BE REDEEMED OR PURCHASED.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee will select Notes for redemption or
purchase on a PRO RATA basis, by lot or by such other method as the Trustee
shall deem fair and appropriate, except:
(1) if the Notes are listed on any national securities
exchange, in which case the Notes will be selected in compliance with
the requirements of the principal national securities exchange on which
the Notes are listed; or
(2) if otherwise required by law.
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In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 30 (or such shorter period as may be acceptable to the
Trustee) nor more than 60 days prior to the redemption or purchase date by the
Trustee from the outstanding Notes not previously called for redemption or
purchase.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
Section 3.03 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption or
purchase date, the Company will mail or cause to be mailed, by first class mail,
postage prepaid, a notice of redemption or purchase to each Holder whose Notes
are to be redeemed or purchased at its registered address, except that
redemption or purchase notices may be mailed more than 60 days prior to a
redemption or purchase date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction and discharge of this Indenture
pursuant to Articles 8 or 11 hereof.
The notice will identify the Notes to be redeemed or purchased and will
state:
(1) the redemption or purchase date;
(2) the redemption or purchase price;
(3) if any Note is being redeemed or purchased in part,
the portion of the principal amount of such Note to be redeemed or
purchased and that, after the redemption or purchase date upon
surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed or unpurchased portion will be issued upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption or purchase must be
surrendered to the Paying Agent to collect the redemption or purchase
price;
(6) that, unless the Company defaults in making such
redemption or purchase payment, interest on Notes called for redemption
or purchase ceases to accrue on and after the redemption or purchase
date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption or purchase
are being redeemed or purchased; and
(8) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Company's request, the Trustee will give the notice of
redemption or purchase in the Company's name and at its expense; PROVIDED,
HOWEVER, that the Company has delivered to the Trustee, at
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least 45 days (or such shorter period as may be acceptable to the Trustee) prior
to the redemption or purchase date, an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption or purchase is mailed in accordance with
Section 3.03 hereof, Notes called for redemption or purchase become irrevocably
due and payable on the redemption or purchase date at the redemption or purchase
price. A notice of redemption or purchase may not be conditional.
Section 3.05 DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or prior to the redemption or purchase date, the Company will
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption or purchase price of and accrued interest and Special Interest, if
any, on all Notes to be redeemed or purchased on that date. The Trustee or the
Paying Agent will promptly return to the Company any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary to
pay the redemption or purchase price of, and accrued interest and Special
Interest, if any, on, all Notes to be redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption or purchase date, interest will cease to accrue on
the Notes or the portions of Notes called for redemption or purchase. If a Note
is redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is
not so paid upon surrender for redemption or purchase because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption or purchase date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 NOTES REDEEMED OR PURCHASED IN PART.
Upon surrender of a Note that is redeemed or purchased in part, the
Company will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 OPTIONAL REDEMPTION.
(a) On or prior to February 15, 2008, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
(including Additional Notes, if any) at a redemption price of 106.375% of the
principal amount thereof, plus accrued and unpaid interest and Special Interest,
if any, thereon, to the redemption date, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date, with the proceeds of one or more Equity Offerings; PROVIDED that:
(1) at least 65% of the aggregate principal amount of
Notes (including Additional Notes, if any, but excluding Notes held by
the Company and not cancelled) remains outstanding immediately after
the occurrence of such redemption; and
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(2) the redemption occurs within 60 days of the date of
the closing of such Equity Offering.
(b) At any time prior to February 15, 2010, the Company may, at
its option, redeem all or a part of the Notes at a redemption price equal to
100% of the principal amount of Notes redeemed plus the applicable Make-Whole
Premium, plus, to the extent not included in the Make-Whole Premium, accrued and
unpaid interest and Special Interest, if any, to the applicable date of
redemption, subject to the rights of Holders on the relevant record date to
receive interest due on the relevant interest payment date. For purposes of the
foregoing, "MAKE-WHOLE PREMIUM" means, with respect to a Note, an amount equal
to the greater of:
(1) 1.000% of the outstanding principal amount of such
Note; and
(2) the excess of:
(i) the present value of the remaining interest,
premium and principal payments due on such Note as if such
Note were redeemed on February 15, 2010, computed using a
discount rate equal to the Treasury Rate plus 50 basis points,
over
(ii) the outstanding principal amount of such
Note.
(c) Except pursuant to the preceding paragraphs (a) and (b)
hereof, the Notes will not be redeemable at the Company's option prior to
February 15, 2010.
(d) On or after February 15, 2010, the Company may, at its option,
redeem all or a part of the Notes upon not less than 30 nor more than 60 days'
prior notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest and Special Interest,
if any, on the Notes redeemed to the applicable redemption date, if redeemed
during the twelve-month period beginning on February 15 of the years indicated
below, subject to the rights of Holders on the relevant record date to receive
interest on the relevant interest payment date:
YEAR PERCENTAGE
---- ----------
2010.................................................. 103.188%
2011.................................................. 102.125%
2012.................................................. 101.063%
2013 and thereafter................................... 100.000%
(e) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 MANDATORY REDEMPTION.
(a) MANDATORY GAMING REDEMPTION.
(1) Notwithstanding any other provision in this
Indenture, if any Gaming Authority requires that a Holder or beneficial
owner of the Notes must be licensed, qualified or found suitable under
any applicable gaming laws in order to maintain any gaming license or
franchise of the Company or any of its Subsidiaries under any
applicable gaming laws, and the Holder or beneficial owner fails to
apply for a license, qualification or finding of suitability within 30
days after being
35
requested to do so by the Gaming Authority (or such lesser period that
may be required by such Gaming Authority) or if such Holder or
beneficial owner is not so licensed, qualified or found suitable, the
Company shall have the right, at its option, (1) to require such Holder
or beneficial owner to dispose of such Holder's or beneficial owner's
Notes within 30 days of receipt of such finding by the applicable
Gaming Authority (or such earlier date as may be required by the
applicable Gaming Authority) or (2) to call for redemption of the Notes
of such Holder or beneficial owner at a redemption price equal to (i)
the lesser of (a) 100% of the principal amount thereof, (b) the price
at which such Holder or beneficial owner acquired the Notes or (c) the
fair market value of the Notes as determined in good faith by the Board
of Directors of the Company, together with, in each case, accrued and
unpaid interest and Special Interest, if any, to the earlier of the
date of redemption or such earlier date as may be required by the
Gaming Authority or, the date of the finding of unsuitability by such
Gaming Authority, which may be less than 30 days following the notice
of redemption if so ordered by such Gaming Authority or (ii) such other
price as may be ordered by the Gaming Authority. In connection with any
such redemption, and except as may be required by a Gaming Authority,
the Company shall comply with the procedures contained in the Notes for
redemption of the Notes. Immediately upon a determination that a Holder
or beneficial owner will not be licensed, qualified or found suitable,
the Holder or beneficial owner will have no further rights (a) to
exercise any right conferred by the Notes, directly or indirectly,
through any trustee, nominee or any other Person or (b) to receive any
interest or other distribution or payment with respect to the Notes
except the redemption price of the Notes described above.
(2) Other than as specifically provided in this Section
3.08(a) or as may be required by a Gaming Authority, any redemption
pursuant to this Section 3.08(a) shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
(3) The Company shall not be required to pay or reimburse
any Holder of the Notes or beneficial owner who is required to apply
for such license, qualification or finding of suitability for the costs
of the licensure or investigation for such qualification or finding of
suitability. Such expenses shall be the obligation of such Holder or
beneficial owner.
(b) MANDATORY REDEMPTION FROM ESCROW.
(1) The gross proceeds of the issuance and sale of the
Initial Notes shall be placed in an escrow account (the "ESCROW
ACCOUNT") pursuant to the terms and conditions of the Escrow and
Security Agreement and shall be released to the Trustee or the Company
pursuant to the terms and conditions of the Escrow and Security
Agreement.
(2) In the event that any of the conditions for the
release of the funds in the Escrow Account set forth under Section 9 of
the Escrow and Security Agreement shall not have been satisfied on or
prior to the date that is 30 days after the Issuance Date, as such date
may be extended under the terms of the Escrow and Security Agreement
(such date, the "ESCROW BREAK DATE"), the Company shall be required to
redeem all of the Notes on the second Business Day immediately
following the Escrow Break Date, at a redemption price equal to 99.089%
of the principal amount of the Notes, plus accrued and unpaid interest
and amortization of original issue discount to the date of redemption.
The Company shall provide the Trustee with at least two Business Days'
notice prior to any such redemption.
(3) Other than as specifically provided in this Section
3.08(b) or in the Escrow and Security Agreement, any redemption
pursuant to this Section 3.08(b) shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
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(c) OTHER MANDATORY REDEMPTION. Except as otherwise provided in
Sections 3.08(a) and (b) hereof, the Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE 4
COVENANTS
Section 4.01 PAYMENT OF NOTES.
The Company will pay or cause to be paid the principal of, premium, if
any, and interest and Special Interest, if any, on, the Notes on the dates and
in the manner provided in this Indenture and the Notes. Principal, premium, if
any, and interest and Special Interest, if any will be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. The Company will pay all
Special Interest, if any, in the same manner on the dates and in the amounts set
forth in the Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest (without regard to any applicable grace period) at the same
rate to the extent lawful.
Section 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange 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
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission will in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03
hereof.
Section 4.03 REPORTS.
(a) Whether or not the Company is then subject to Section 13(a) or
15(d) of the Exchange Act, so long as any Notes are outstanding, the Company
will, within the time periods specified in the SEC's rules and regulations if
the Company were subject to Section 13(a) or 15(d) of the Exchange Act, file the
following reports with the SEC, even if it is not required by the SEC to do so:
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(1) all quarterly and annual reports that would be
required to be filed with the SEC on Forms 10-Q and 10-K if the Company
were required to file reports pursuant to Section 13(a) or 15(d) of the
Exchange Act, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Company's certified
independent accountants; and
(2) all current reports that would be required to be
filed with the SEC on Form 8-K if the Company were required to file
such reports pursuant to Section 13(a) or 15(d) of the Exchange Act.
If, notwithstanding the foregoing, the SEC will not accept the
Company's filings for any reason, the Company will post the reports referred to
in the preceding paragraph on its website within the time periods that would
apply if the Company were required to file those reports with the SEC pursuant
to Section 13(a) or 15(d) of the Exchange Act. If such filings with the SEC are
not then permitted by the SEC, and such filings are not generally available on
the Internet free of charge within the time periods in which the Company would
be required to file a report if it were subject to Section 13(a) or 15(d) of the
Exchange Act, the Company will, without charge to the Holders, furnish the
Holders with copies of any such reports. The Company will at all times comply
with TIA ss. 314(a).
(b) If the parent company of the Company guarantees the Notes and
such parent company is a reporting company under Section 13(a) or 15(d) of the
Exchange Act, the Company need not comply with the reporting obligations above
if the parent company makes such filings or provides such information and any
required financial information concerning the Company under Regulation S-X is
included in the parent company's Exchange Act reports.
(c) For so long as any Notes remain outstanding and constitute
"restricted securities" under Rule 144, if at any time it is not required to
file with the SEC the reports required by paragraph (a) of this Section 4.03,
the Company shall furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04 COMPLIANCE CERTIFICATE.
(a) The Company and each Guarantor (to the extent that such
Guarantor is so required under the TIA) shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to his or her
knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a default or Event of Default has occurred, describing all such defaults or
Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of
38
such financial statements, nothing has come to their attention that would lead
them to believe that the Company has violated any provisions of Article 4 or
Article 5 hereof or, if any such violation has occurred, specifying the nature
and period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Company shall
deliver to the Trustee, within 30 days upon any Officer becoming aware of any
default or Event of Default, an Officers' Certificate specifying such default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05 INTENTIONALLY DELETED
Section 4.06 STAY, EXTENSION AND USURY LAWS.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (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, by resort to any such law, 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 has been enacted.
Section 4.07 LIENS.
The Company and the Guarantors will not create any Lien upon any
Principal Property (other than Permitted Liens) (the "Initial Lien") without
securing the Notes equally with such Principal Property and ratably with all
other indebtedness secured thereby for so long as such indebtedness is so
secured. Any Lien created for the benefit of the Holders pursuant to the
preceding sentence shall provide that such Lien shall be automatically and
unconditionally released and discharged upon the release and discharge of the
Initial Lien.
Section 4.08 CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate,
partnership or other existence of each of the Guarantors, in accordance
with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Guarantor;
PROVIDED, HOWEVER, that the Company shall not be required to preserve
its corporate existence, or the corporate, partnership or other
existence of any of the Guarantors, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and the Guarantors, taken as a
whole, and that the loss thereof would not have a material adverse
effect on the Holders of the Notes; and
(2) the material rights (charter and statutory), licenses
and franchises of the Company and the Guarantors; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right,
license or franchise, if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Company and the Guarantors, taken as
39
a whole, and that the loss thereof would not have a material adverse
effect on the Holders of the Notes.
Section 4.09 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer (the "CHANGE OF CONTROL OFFER") to each Holder of Notes to
purchase all or any part (equal to $1,000 or an integral multiple thereof) of
the Notes at a price in cash (the "CHANGE OF CONTROL PAYMENT") equal to 101% of
the aggregate principal amount thereof, plus accrued and unpaid interest and
Special Interest, if any, to the date of purchase, subject to the rights of
Holders on the relevant record date to receive interest due on the relevant
interest payment date. No later than 30 days following any Change of Control,
the Company shall mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and stating the following:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.09 and all Notes properly tendered pursuant
to such Change of Control Offer will be accepted for payment;
(2) that the Change of Control Offer shall remain open
for a period of 20 Business Days following its commencement and no
longer, except to the extent that a longer period is required by
applicable law (the "OFFER PERIOD");
(3) the purchase price and the purchase date, which shall
be no earlier than 30 days and not later than 60 days from the date
such notice is mailed, except as may be otherwise required by
applicable law (the "CHANGE OF CONTROL PAYMENT DATE");
(4) that any Note not properly tendered shall remain
outstanding and continue to accrue interest;
(5) that, unless the Company defaults in the payment of
the Change of Control Payment, all Notes accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
(6) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase"
attached to the Notes completed, or transfer by book entry transfer, to
the Paying Agent (which may be the Company) specified in the notice at
the address specified in the notice prior to the close of business on
the third business day preceding the Change of Control Payment Date;
(7) that Holders shall be entitled to withdraw their
tendered Notes and their election to require the Company to purchase
the Notes, PROVIDED, that the Paying Agent receives, not later than the
close of business on the last day of the Offer Period, an electronic or
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes tendered for purchase, and a statement
that such Holder is withdrawing his tendered Notes and his election to
have such Notes purchased; and
(8) that Holders whose Notes are being purchased only in
part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple
thereof.
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The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws or regulations are applicable in connection with the repurchase
of the Notes pursuant to a Change of Control Offer.
(b) On the Change of Control Payment Date, the Company shall, to
the extent permitted by law:
(1) accept for payment all Notes or portions of Notes
properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
aggregate Change of Control Payment in respect of all Notes or portions
of Notes so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for
cancellation the Notes properly accepted together with an Officers'
Certificate stating the aggregate principal amount of Notes or portions
of Notes being purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes properly
tendered the Change of Control Payment for such Notes, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any, PROVIDED, that each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.09,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if (1) a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.09 and purchases all Notes properly tendered and not withdrawn
under the Change of Control Offer, or (2) notice of redemption has been given
pursuant to Section 3.07 hereof, unless and until there is a default in payment
of the applicable redemption price.
Section 4.10 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
Neither the Company nor any Guarantor may enter into any arrangement
with any Person providing for the leasing by the Company or any Guarantor of any
Principal Property (except for temporary leases of a term of not more than three
years and except for leases between the Company and its Subsidiaries or between
Subsidiaries of the Company) which property has been or is to be sold or
transferred by the Company or such Guarantor to such Person more than 180 days
after the later of the acquisition thereof or the completion of construction and
commencement of full operation thereof (a "SALE AND LEASE-BACK TRANSACTION"),
unless either:
(1) the Company applies an amount equal to the greater of
the fair value (as determined by the Company's Board of Directors) of
such property or the net proceeds of such sale, within 180 days, to the
retirement of the Notes or other indebtedness ranking on a parity with
the Notes, or to the acquisition, construction, development or
improvement of properties, facilities or equipment used for operating
purposes that are owned by the Company or any Guarantor, or to the
acquisition of another Person provided such Person becomes a Guarantor
or merges with the Company or another Guarantor; or
(2) at the time of entering into such transaction, such
Principal Property could have been subjected to a Lien securing
indebtedness in a principal amount equal to the Capitalized Lease-Back
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Obligation with respect to such Principal Property under clause (25) of
the definition of "Permitted Liens" without securing the Notes as
contemplated by that provision.
Section 4.11 PURCHASE OF MORTGAGE NOTES VALIDLY TENDERED IN TENDER OFFER.
After the gross proceeds of the issuance and sale of the Initial Notes
are released from the Escrow Account, the Company shall cause Las Vegas Sands,
Inc. and Venetian Casino Resort, LLC to accept and pay for any Mortgage Notes
validly tendered and not withdrawn in the offer by Las Vegas Sands, Inc. and
Venetian Casino Resort, LLC to purchase all of their outstanding Mortgage Notes
for cash (the "Tender Offer") pursuant to the Offer Statement, subject to the
conditions and pursuant to the terms set forth in the "Offer to Purchase Any and
All Outstanding 11% Mortgage Notes due 2010 (CUSIP No. 92264N AF4) and
Solicitation of Consents to Amendments to the Related Indenture," dated January
31, 2005 (the "Offer Statement"), used in connection with the Tender Offer.
Section 4.12 ADDITIONAL SUBSIDIARY GUARANTEES.
Upon the satisfaction of all of the conditions for the release of the
funds in the Escrow Account to the Company as provided under Section 9(a) of the
Escrow and Security Agreement on or prior to the Escrow Break Date and the
release of such proceeds from the Escrow Account to the Company, the Company
shall cause each Domestic Subsidiary that guarantees, or is a borrower under,
the Credit Agreement, or owns any of the assets or operations of the Resort
Complex, to execute a Subsidiary Guarantee in the form attached as Exhibit E
hereto and a supplemental indenture in the form attached as Exhibit F hereto and
deliver an Opinion of Counsel to the Trustee to the effect that such
supplemental indenture and Subsidiary Guarantee have been duly authorized,
executed and delivered by that Domestic Subsidiary and constitute a valid and
binding agreement or obligation of that Domestic Subsidiary, enforceable in
accordance with its terms (subject to customary exceptions).
Upon the satisfaction of all of the conditions for the release of the
funds in the Escrow Account to the Company as provided under Section 9(a) of the
Escrow and Security Agreement on or prior to the Escrow Break Date and the
release of such proceeds from the Escrow Account to the Company, if (i) the
Company or any of its Subsidiaries acquires or creates another Domestic
Subsidiary after the date of this Indenture and such Subsidiary guarantees, or
is a borrower under, the Credit Agreement, or owns any of the assets or
operations of the Resort Complex or (ii) an existing Domestic Subsidiary becomes
a guarantor of, or a borrower under, the Credit Agreement or owns any of the
assets or operations of the Resort Complex, then the Company shall cause, within
10 Business Days of the date on which it guaranteed such indebtedness or becomes
the owner of any of the assets or operations of the Resort Complex, such
Domestic Subsidiary to execute a Subsidiary Guarantee in the form attached as
Exhibit E hereto and a supplemental indenture in the form attached as Exhibit F
hereto and deliver an Opinion of Counsel to the Trustee to the effect that such
supplemental indenture and Subsidiary Guarantee have been duly authorized,
executed and delivered by that Domestic Subsidiary and constitute a valid and
binding agreement or obligation of that Domestic Subsidiary, enforceable in
accordance with its terms (subject to customary exceptions).
ARTICLE 5
SUCCESSORS
Section 5.01 CONSOLIDATION, MERGER OR SALE.
The Company shall not, directly or indirectly: (i) consolidate or merge
with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey or
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otherwise dispose of all or substantially all of the properties or assets of the
Company, in one or more related transactions, to another Person, unless:
(1) immediately after such transaction, no default or
Event of Default exists:
(2) such transaction will not result in the loss or
suspension or material impairment of any material Gaming License of the
Company or its Subsidiaries;
(3) such transaction would not require any Holder of
Notes (other than any Person acquiring the Company or its assets and
any affiliate thereof) to obtain a gaming license or be qualified under
the law of any applicable gaming jurisdiction; PROVIDED that such
Holder would not have been required to obtain a gaming license or be
qualified under the laws of any applicable gaming jurisdiction in the
absence of such transaction;
(4) in case of any such consolidation or merger, the
Person resulting from such consolidation or any Person into which such
merger shall be made (in each case other than the Company) shall
succeed to this Indenture and be substituted for the Company with the
same effect as if it had been named herein as a party hereto and shall
become liable and be bound for, and shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee, the due
and punctual payment of the principal of, premium, if any, and
interest, if any, on the Notes and the performance and observance of
each and every covenant and condition of the Indenture on the part of
the Company to be performed or observed; and
(5) as a condition of any such sale and transfer of the
property and assets of the Company as, or substantially as, an
entirety, the Person to which such property and assets shall be sold
shall (i) expressly assume the due and punctual payment of the
principal of, premium, if any, and interest, if any, on the Notes and
the performance and observance of each and every covenant and condition
of this Indenture on the part of the Company to be performed or
observed, and (ii) simultaneously with the delivery to it of the
conveyances or instruments of transfer of such property and assets,
execute and deliver to the Trustee a supplemental indenture, in form
reasonably satisfactory to the Trustee, whereby such Person shall so
assume the due and punctual payment of the principal of, premium, if
any, and interest, if any, on the Notes and the performance and
observance of each and every covenant and condition of this Indenture
on the part of the Company to be performed or observed, to the same
extent that the Company is bound and liable.
Any act or proceeding by any provision of this Indenture required or
permitted to be done by the Board of Directors or any Officer of the Company may
be done with like force and effect by the like Board of Directors or Officer of
any Person that shall at the time be the successor of the Company hereunder.
Section 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or assets of the Company in a transaction that is subject to, and
that complies with the provisions of, Section 5.01 hereof, the successor Person
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor Person and not to the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company
43
herein; PROVIDED, HOWEVER, that in the event and only in the event of the sale
by the Company of all or substantially all of its properties and assets in a
transaction that is subject to, and that complies with the provisions of,
Section 5.01 hereof, the Company shall be released from all of its liabilities
and obligations under this Indenture and under the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
Each of the following shall constitute an "EVENT OF DEFAULT":
(1) default in payment when due and payable, upon
redemption or otherwise, of principal or premium, if any, on the Notes
or under any Subsidiary Guarantee;
(2) default for 30 days or more in the payment when due
of interest on, or Special Interest, if any, with respect to the Notes
or under any Subsidiary Guarantee;
(3) failure by the Company or any Guarantor to offer to
purchase or to purchase the Notes, in each case when required under an
offer made pursuant to Section 4.09 hereof;
(4) failure by the Company or any Guarantor for 60 days
after receipt of written notice from the Trustee to comply with any of
its other agreements in this Indenture, the Notes or the Subsidiary
Guarantees;
(5) default under any mortgage, indenture or instrument
under which there is issued or by which there is secured or evidenced
any indebtedness for money borrowed by the Company or any Guarantor or
default on any guarantee by the Company or any Guarantor of
indebtedness of a third party, whether such indebtedness or guarantee
now exists or is created after the Issuance Date, which default:
(A) is caused by a failure to pay when due at
final maturity (giving effect to any grace period or waiver
related thereto) the principal of such indebtedness (a
"PAYMENT DEFAULT"); or
(B) results in the acceleration of such
indebtedness prior to its final maturity ("ACCELERATED DEBT"),
and, in each case, the principal amount of any such
indebtedness, together with the principal amount of any other
such indebtedness under which a Payment Default then exists or
with respect to which the maturity thereof has been so
accelerated or which has not been paid at maturity, aggregates
$50.0 million or more;
(6) failure by the Company or any Guarantor to pay final
judgments entered by a court of competent jurisdiction aggregating in
excess of $50.0 million, which final judgments remain unpaid,
undischarged or unstayed for a period of more than 60 days;
(7) (A) except as permitted by this Indenture, any
Subsidiary Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid, or shall cease for any reason to be in full
force and effect and such default continues for 30 days after written
notice; or (B) the Company or any Guarantor, or any Person acting on
behalf of the Company or any Guarantor, shall
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affirmatively deny or disaffirm its obligations under any Subsidiary
Guarantee, in each of clauses (A) and (B), which would materially and
adversely impair the benefits to the Trustee or the Holders of the
Notes hereunder;
(8) the Company or any Guarantor that is a Significant
Subsidiary of the Company or any group of Guarantors that together
would constitute a Significant Subsidiary of the Company pursuant to or
within the meaning of the Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a custodian
of it or for all or substantially all of its property;
(D) makes a general assignment for the benefit
of its creditors; or
(E) generally is not paying, or shall admit in
writing its inability to pay, its debts as they become due
and, in each case, a period of 30 days shall have elapsed; or
(9) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Guarantor that is a Significant Subsidiary or any group of
Guarantors that would together constitute a Significant
Subsidiary of the Company in an involuntary case;
(B) appoints a custodian of the Company or any
Guarantor that is a Significant Subsidiary or any group of
Guarantors that would together constitute a Significant
Subsidiary of the Company or for all or substantially all of
the property of the Company or any Guarantor that is a
Significant Subsidiary or any group of Guarantors that would
together constitute a Significant Subsidiary of the Company;
or
(C) orders the liquidation of the Company or any
Guarantor that is a Significant Subsidiary of the Company or
any group of Guarantors that would together constitute a
Significant Subsidiary of the Company;
and the order or decree remains unstayed and in effect for 60
consecutive days; and
(10) revocation, termination, suspension or other
cessation of effectiveness of any Nevada or Macau Gaming License, which
results in the cessation or suspension of gaming operations for a
period of more than 90 consecutive days.
Section 6.02 ACCELERATION.
(a) If any Event of Default (other than an Event of Default
specified in clause (8) or (9) of Section 6.01 hereof with respect to the
Company or any Guarantor that is a Significant Subsidiary or any group of
Guarantors that would together constitute a Significant Subsidiary of the
Company) occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare the principal,
premium and Special Interest, if any, interest and any other monetary
obligations on all the Notes to be due and payable immediately. Notwithstanding
the foregoing, if an Event of Default
45
specified in clause (8) or (9) of Section 6.01 hereof occurs with respect to the
Company or any Guarantor that is a Significant Subsidiary or any group of
Guarantors that would together constitute a Significant Subsidiary of the
Company, the principal, premium and Special Interest, if any, interest and any
other monetary obligations on all of the outstanding Notes will become due and
payable immediately without further action or notice.
Notwithstanding the foregoing, the Trustee shall have no obligation to
accelerate the Notes if in the best judgment of the Trustee acceleration is not
in the best interest of the Holders of the Notes.
If an Event of Default occurs by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
and for the purpose of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes pursuant to
Section 3.07 hereof, then, upon acceleration of the Notes, an equivalent premium
shall also become and be immediately due and payable to the extent permitted by
law, anything in this Indenture or in the Notes to the contrary notwithstanding.
(b) To the fullest extent permitted by law, the Trustee, and each
Holder by accepting a Note, agrees that in the event that the outstanding
principal amount of the Notes becomes due and payable (whether at maturity, by
acceleration or otherwise) and is not paid when due, then, before seeking,
directly or indirectly through any court, the sale, liquidation or seizure of
the Capital Stock of any direct or indirect Subsidiary of the Company, the
Trustee and such Holder will (for the 60-day period beginning on the date when
the outstanding principal amount of the Notes first became due and payable) seek
first to sell, liquidate or seize assets of the Company or any of the Guarantors
before seeking to sell, liquidate or seize the Capital Stock of any direct or
indirect Subsidiary of the Company; provided, HOWEVER, that nothing herein shall
prevent (i) the Trustee or such Holder from seeking or claiming proceeds from
the sale, liquidation or seizure of any Capital Stock of any direct or indirect
Subsidiary of the Company ordered by any court or governmental authority or
pursuant to a sale, liquidation or seizure initiated by the Company, any
Guarantor or any other person (other than the Holder or the Trustee in
contravention of this paragraph (b)), (ii) the Trustee or such Holder from
seeking the appointment of a trustee, receiver or custodian for the assets of
the Company or any of the Guarantors (PROVIDED, that the Trustee or such Holder
may not petition or request that such appointed trustee, receiver or custodian
sell or liquidate any Capital Stock of any direct or indirect Subsidiary of the
Company during the 60-day period commencing on the date that the Notes first
become due and payable, whether at maturity, by acceleration or otherwise) or
(iii) any bankruptcy or insolvency court acting in a manner for the benefit of
any creditor (including the Trustee and such Holder) or any governmental
authority having jurisdiction acting in accordance with its powers in the
exercise of its discretion or judgment in the application of law; PROVIDED
FURTHER, that the provisions of this paragraph (b) shall have no further force
or effect commencing on the date that is 60-days after the Notes first become
due and payable, whether at maturity, by acceleration or otherwise.
(c) In the event that there is a declaration of acceleration as a
result solely of an Event of Default specified in clause (5) of Section 6.01
hereof, such acceleration of the Notes will be automatically rescinded and
cancelled, if within 30 days of such declaration of acceleration of the Notes,
(i) all Payment Defaults are cured or waived, (ii) any acceleration of
Accelerated Debt is rescinded or cancelled (or such Accelerated Debt is paid in
full) and (iii) no Event of Default has occurred and is then continuing (other
than any Event of Default specified in clause (5) Section 6.01 hereof where the
related Payment Default has been cured or waived or where the acceleration of
the Accelerated Debt has been rescinded or cancelled or where the Accelerated
Debt has been paid in full).
46
Section 6.03 OTHER REMEDIES.
Subject to the provisions of Section 6.02 hereof, if an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal, premium and Special Interest, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. Subject to the
provisions of Section 6.02 hereof, all remedies are cumulative to the extent
permitted by law.
Section 6.04 WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing default or Event of Default and its
consequences hereunder, except a continuing default or Event of Default in the
payment of the principal of, premium and Special Interest, if any, or interest
on, any Note held by a non-consenting Holder (including in connection with an
offer to purchase); PROVIDED, HOWEVER, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related Payment Default that
resulted from such acceleration. Upon any such waiver, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Section 6.05 CONTROL BY MAJORITY.
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
Section 6.06 LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if:
(1) such Holder gives to the Trustee written notice that
an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested,
provide to the Trustee security or indemnity reasonably satisfactory to
the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of security or
indemnity; and
(5) during such 60-day period, Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with such request.
47
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and Special Interest,
if any, and interest on the Note, on or after the respective due dates expressed
in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
Section 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Special Interest, if any, and interest
remaining unpaid on, the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6 or
pursuant to Section 5(b)(iii) of the Escrow and Security Agreement, it shall pay
out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
48
SECOND: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Special Interest, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium and Special Interest, if any and interest, respectively; and
THIRD: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee will examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
49
(2) the Trustee will not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee will not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to
expend or risk its own funds or incur any liability. The Trustee will be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder has offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee will not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any of the Guarantors. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
Section 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
will not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel will be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and will
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee will not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any Guarantor will be
sufficient if signed by an Officer of the Company or such Guarantor, as the case
may be.
(f) The Trustee will 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 unless such Holders have offered to the Trustee reasonable
indemnity or security against the losses, liabilities and expenses that might be
incurred by it in compliance with such request or direction.
(g) Except with respect to Section 4.01 hereof, the Trustee shall
have no duty to inquire as to the performance of the Company with respect to the
covenants contained in Article 4 hereof. In addition, the Trustee shall not be
deemed to have knowledge of an Event of Default, except for (i) any default or
Event
50
of Default occurring pursuant to Sections 4.01, 6.01(1) or 6.01(2) or (ii) any
default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
(h) Delivery of reports, information and documents to the Trustee
under Section 4.03 hereof is for informational purposes only and the Trustee's
receipt of the foregoing shall not constitute constructive knowledge of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of their covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee (if this Indenture has been qualified under
the TIA) or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 NOTICE OF DEFAULTS.
If a default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
default or Event of Default within 90 days after it occurs. Except in the case
of a default or Event of Default in payment of principal of, premium or Special
Interest, if any, or interest on, any Note, the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Notes.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
will comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA ss. 313(c).
(b) A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed by the Trustee to the Company and filed by the
Trustee with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA ss. 313(d). The Company will promptly notify the Trustee
when the Notes are listed on any stock exchange.
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(c) At the expense of the Company, the Trustee or, if the Trustee
is not the Registrar, the Registrar, shall report the names of record Holders of
the Notes to any Gaming Authority when requested to do so by the Company.
At the express direction of the Company and at the Company's expense,
the Trustee will provide any Gaming Authority with:
(i) copies of all notices, reports and other written
communications which the Trustee gives to Holders;
(ii) a list of all of the Holders promptly after the
original issuance of the Notes and periodically thereafter if the
Company so directs;
(iii) notice of any default under this Indenture, any
acceleration of the indebtedness evidenced hereby, the institution of
any legal actions or proceedings before any court or governmental
authority in respect of a default or Event of Default hereunder;
(iv) notice of the removal or resignation of the Trustee
within five Business Days of the effectiveness thereof;
(v) notice of any transfer or assignment of rights under
this Indenture or the Subsidiary Guarantees known to the Trustee within
five Business Days thereof; and
(vi) a copy of any amendment to the Notes or this
Indenture within five Business Days of the effectiveness thereof.
To the extent requested by the Company and at the Company's expense,
the Trustee shall cooperate with any Gaming Authority in order to provide such
Gaming Authority with the information and documentation requested and as
otherwise required by applicable law.
Section 7.07 COMPENSATION AND INDEMNITY.
(a) The Company will pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder in accordance with a written schedule provided by the Trustee to the
Company. The Trustee's compensation will not be limited by any law on
compensation of a trustee of an express trust. The Company will reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses will include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
(b) The Company and the Guarantors will indemnify the Trustee
against any and all losses, liabilities or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, including the costs and expenses of enforcing this Indenture
against the Company and the Guarantors (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company, the
Guarantors, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its
negligence, willful misconduct or bad faith. The Trustee will notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company will not relieve the Company or any of the Guarantors of
their obligations hereunder. The Company or such Guarantor will defend the claim
and the Trustee will cooperate in the defense. To the extent there exists a
conflict or potential conflict of interest, the Trustee
52
may have separate counsel and the Company will pay the reasonable fees and
expenses of such counsel. Neither the Company nor any Guarantor need pay for any
settlement made without its consent, which consent will not be unreasonably
withheld.
(c) The obligations of the Company and the Guarantors under this
Section 7.07 will survive the satisfaction and discharge of this Indenture.
(d) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(8) or (9) hereof occurs, the expenses
and the compensation for the services (including the reasonable fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
(e) The Trustee will comply with the provisions of TIA ss.
313(b)(2) to the extent applicable.
Section 7.08 REPLACEMENT OF TRUSTEE.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment and taking of office as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in aggregate principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may by written action appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
(d) If any Gaming Authority requires a Trustee to be approved,
licensed or qualified and the Trustee fails or declines to do so, such approval,
license or qualification shall be obtained upon the request of, and at the
expense of, the Company unless the Trustee declines to do so, or, if the
Trustee's relationship with either the Company or the Guarantors may, in the
Company's discretion, jeopardize any material gaming license or franchise or
right or approval granted thereto, the Trustee shall resign, and, in addition,
the Trustee may at its option resign if the Trustee in its sole discretion
determines not to be so approved, licensed or qualified.
(e) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, and Guarantor or the Holders of at least 10% in aggregate
53
principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10 hereof,
such Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
(g) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture and the Escrow and Security Agreement. The successor
Trustee will mail a notice of its succession to Holders. The retiring Trustee
will promptly transfer all property held by it as Trustee to the successor
Trustee; PROVIDED all sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 hereof will continue for the benefit of the
retiring Trustee.
Section 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act will be the successor Trustee;
PROVIDED such corporation shall be otherwise eligible and qualified under this
Article 7.
Section 7.10 ELIGIBILITY; DISQUALIFICATION.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may at any time, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
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Section 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and the Guarantors will, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from their respective obligations with respect to all
outstanding Notes and any Subsidiary Guarantees on the date the conditions set
forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose,
Legal Defeasance means that the Company and the Guarantors shall be deemed to
have paid and discharged the entire indebtedness represented by the outstanding
Notes and the Subsidiary Guarantees and cured all existing Events of Default,
which will thereafter be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other Sections of this Indenture referred to in
clauses (a) and (b) below, and to have satisfied all their other obligations
under such Notes, Subsidiary Guarantees and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive payments in respect of the principal of, or
interest or premium and Special Interest, if any, on such Notes when such
payments are due from the trust referred to in Section 8.04 hereof; (b) the
Company's and the Guarantors' obligations with respect to such Notes under
Article 2 and Section 4.02 hereof; (c) the rights, powers, trusts, duties and
immunities of the Trustee, and the Company's and the Guarantors' obligations in
connection therewith; and (d) the provisions of this Article 8 pertaining to
Legal Defeasance. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.03, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11 and 4.12, clauses (1), (2) and
(3) of Section 5.01, Section 5.02 and Article 10 hereof (hereinafter, "COVENANT
DEFEASANCE"), and the Notes will thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but will
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes will not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Subsidiary Guarantees, the Company and the Guarantors may
omit to comply with and will have no liability in respect of any term, condition
or limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply will not constitute a default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes and Subsidiary Guarantees will be
unaffected thereby. In addition, upon the Company's exercise under Section 8.01
hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(3) through 6.01(7) and Section 6.01(10) hereof will not constitute Events
of Default.
Section 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
55
(1) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient to pay the principal of, premium
and Special Interest, if any, and interest on, the outstanding Notes on
the stated date for payment thereof or on the applicable redemption
date, as the case may be, and the Company must specify whether the
Notes are being defeased to such stated date for payment or to a
particular redemption date;
(2) in the case of an election under Section 8.02 hereof,
the Company must deliver to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions:
(A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has
been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, subject to customary
assumptions and exclusions, the Holders of the outstanding
Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Legal Defeasance and
will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof,
the Company must deliver to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders of the outstanding
Notes will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such Covenant Defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(4) no default or Event of Default shall have occurred
and be continuing pursuant to Section 6.01(1), (2), (3), (8) or (9)
hereof on the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance will not
result in a material breach or violation of, or constitute a material
default under, any material agreement or instrument (other than this
Indenture) to which the Company or any of its Guarantors is a party or
by which the Company or any of its Guarantors is bound;
(6) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
56
Section 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"TRUSTEE") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will be held in trust and applied by the Trustee, 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 Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Special Interest, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof 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.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which are in excess of the amount thereof that would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06 REPAYMENT TO COMPANY.
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, premium or Special
Interest, if any, or interest on, any Note and remaining unclaimed for two years
after such principal, premium or Special Interest, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) will be discharged from such trust; and the Holder of such
Note will thereafter be permitted to 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, will
thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Guarantors' obligations under this
Indenture and the Notes and the Subsidiary Guarantees will be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.02 or 8.03 hereof, as the case may be;
PROVIDED, HOWEVER, that, if the Company or any Guarantor makes any payment of
principal of, premium or Special Interest, if any, or interest on, any Note
following the reinstatement of its obligations, the Company or any Guarantor
will be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
or the Subsidiary Guarantees without the consent of any Holder of Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 hereof;
(3) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(4) to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders of the Notes and Subsidiary
Guarantees by a successor to the Company or such Guarantor pursuant to
Article 5 or Article 10 hereof;
(5) to make any change that would provide any additional
rights or benefits to the Holders of the Notes (including to provide
for additional guarantees or collateral) or that does not adversely
affect the legal rights hereunder of any Holder;
(6) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(7) to conform the text of this Indenture or the Notes to
any provision of the "Description of Notes" section of the Company's
Offering Circular dated February 3, 2005, relating to the initial
offering of the Notes, to the extent that such provision in that
"Description of Notes" was intended to be a verbatim recitation of a
provision of this Indenture, the Subsidiary Guarantees or the Notes;
(8) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the
date hereof; or
(9) to allow any Guarantor to execute a supplemental
indenture and/or a Subsidiary Guarantee with respect to the Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee will join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture (including, without limitation,
Section 4.09 hereof), the Notes and the Subsidiary Guarantees with the consent
of the Holders of at least a majority in aggregate principal amount
58
of the then outstanding Notes (including, without limitation, Additional Notes,
if any) voting as a single class (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing
default or Event of Default (other than a default or Event of Default in the
payment of the principal of, premium or Special Interest, if any, or interest
on, the Notes, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture, the Notes or
the Subsidiary Guarantees may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes (including,
without limitation, Additional Notes, if any) voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof
shall determine which Notes are considered to be "outstanding" for purposes of
this Section 9.02. Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee will join with the Company and the Guarantors in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture directly affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but will not be obligated to, enter into such amended or
supplemental indenture.
It is not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it is sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company will mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, will not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes or the
Subsidiary Guarantees. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect to
any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity
of any Note or alter or waive the provisions with respect to the
redemption of the Notes (other than the provisions of Section 4.09
hereof);
(3) reduce the rate of or change the time for payment of
interest on any Note;
(4) waive a default or Event of Default in the payment of
principal of, premium and Special Interest, if any, or interest on the
Notes (except a rescission of acceleration of the Notes by the Holders
of at least a majority in aggregate principal amount of the Notes and a
waiver of the payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated
in the Notes;
59
(6) make any change in the provisions of this Indenture
relating to waivers of past defaults or the rights of Holders of Notes
to receive payments of principal of, or interest or premium and Special
Interest, if any, on the Notes; or
(7) make any change in the preceding amendment and waiver
provisions.
Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes will be
set forth in a amended or supplemental indenture that complies with the TIA as
then in effect.
Section 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amended or supplemental indenture until the Board of Directors
of the Company approves it. In executing any amended or supplemental indenture,
the Trustee will be entitled to receive and (subject to Section 7.01 hereof)
will be fully protected in relying upon, in addition to the documents required
by Section 12.04 hereof, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SUBSIDIARY GUARANTEES
SECTION 10.01. GUARANTEE.
(a) Subject to this Article 10, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that:
60
(1) the principal of, premium and Special Interest, if
any, and interest on, the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Notes, if any,
if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will
be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same. Each Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
(b) To the fullest extent permitted by law, the Guarantors hereby
agree that their obligations hereunder are unconditional, irrespective of the
validity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
(other than complete performance) which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes and this
Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated
in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 6.02
hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Section 6.02 hereof, such
obligations (whether or not due and payable) will forthwith become due and
payable by the Guarantors for the purpose of this Subsidiary Guarantee. The
Guarantors will have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Subsidiary Guarantee.
SECTION 10.02. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will be limited to the maximum amount
61
that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 10, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance. Each beneficiary under the Subsidiary
Guarantees, by accepting the benefits hereof, confirms its intention that, in
the event of a bankruptcy, reorganization or other similar proceeding of the
Company or any Guarantor in which concurrent claims are made upon such Guarantor
hereunder, to the extent such claims will not be fully satisfied, each such
claimant with a valid claim against the Company shall be entitled to a ratable
share of all payments by such Guarantor in respect of such concurrent claims.
SECTION 10.03. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
To evidence its Subsidiary Guarantee set forth in Section 10.01 hereof,
each Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form attached as Exhibit E hereto will be endorsed by an
Officer of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture will be executed on behalf of such Guarantor by
one of its Officers.
Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in
Section 10.01 hereof will remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee will
be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, will constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Guarantors.
In the event that the Company or any of its Subsidiaries creates or
acquires any Domestic Subsidiary after the date of this Indenture, if required
by Section 4.12 hereof, the Company will cause such Domestic Subsidiary to
comply with the provisions of Section 4.12 hereof and this Article 10, to the
extent applicable.
SECTION 10.04. INTENTIONALLY DELETED.
SECTION 10.05. RELEASES.
In the event (i) of any sale, transfer or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise; (ii) of a sale, transfer or other disposition of all
or substantially all of the Capital Stock of any Guarantor; (iii) any Guarantor
ceases to guarantee, or be a borrower under, the Credit Agreement; or (iv) of a
sale of Capital Stock or other transaction which results in any Guarantor
ceasing to be a Subsidiary and such Guarantor ceases to guarantee, or be a
borrower under, the Credit Agreement, then such Guarantor (in the event of a
sale or other disposition, by way of merger, consolidation or otherwise, of all
of the Capital Stock of such Guarantor) or the Person acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) will be released and relieved of any obligations under
its Subsidiary Guarantee. Upon delivery by the Company to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that any
transaction or action in the preceding sentence has occurred and such sale or
other disposition was made by the Company in accordance with the provisions of
this Indenture, the Trustee will execute
62
any documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Subsidiary Guarantee.
(b) Upon Legal Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance with Article 11
hereof, each Guarantor will be released and relieved of any obligations under
its Note Guarantee and the Trustee will execute any documents reasonably
required in order to evidence the release of such Guarantors from their
respective obligations under their respective Subsidiary Guarantees.
(c) Any Guarantor not released from its obligations under its
Subsidiary Guarantee as provided in this Section 10.05 will remain liable for
the full amount of principal of and interest and premium and Special Interest,
if any, on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article 10.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 SATISFACTION AND DISCHARGE.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated,
except lost, stolen or destroyed Notes that have been replaced or paid
and Notes for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Company, have been delivered to the
Trustee for cancellation; or
(b) all Notes that have not been delivered to
the Trustee for cancellation have (i) become due and payable by reason
of the mailing of a notice of redemption or otherwise, (ii) will become
due and payable within one year, or (iii) are to be called for
redemption within 12 months under arrangements reasonably satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the reasonable expense of the Company, and the Company
or any Guarantor has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, without
consideration of any reinvestment of interest, to pay and discharge the
entire Indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium and Special Interest, if any, and
accrued and unpaid interest to the date of maturity or redemption;
(2) no default or Event of Default has occurred and is
continuing on the date of such deposit (other than a default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) and the deposit will not result in a breach or violation of,
or constitute a default under, any other material instrument to which
the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be
paid all sums payable by it under this Indenture; and
63
(4) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward
the payment of the Notes at maturity or on the redemption date, as the
case may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 11.01, the provisions of Sections 11.02 and 8.06 hereof will
survive. In addition, nothing in this Section 11.01 will be deemed to discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 11.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 8.06 hereof, all money deposited
with the Trustee pursuant to Section 11.01 hereof 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 and
Special Interest, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01 hereof; PROVIDED that if the Company or any Guarantor
has made any payment of principal of, premium or Special Interest, if any, or
interest on, any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the Trustee
or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties will control.
Section 12.02 NOTICES.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or by
first class mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next day delivery, to the
others' address:
64
If to the Company and/or any Guarantor:
Las Vegas Sands Corp.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
If to the Trustee:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) will
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication will also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it will not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it will mail
a copy to the Trustee and each Agent at the same time.
Section 12.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Guarantors, the Trustee, the Registrar and anyone else shall have the protection
of TIA ss. 312(c).
65
Section 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or the Guarantors to the
Trustee to take any action under this Indenture, the Company or the Guarantors
shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 12.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been satisfied; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 12.05 hereof) stating that, subject to
customary assumptions and conclusions, in the opinion of such counsel,
all such conditions precedent and covenants have been satisfied.
Section 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) must comply with the provisions of TIA ss. 314(e)
and must include:
(1) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
Section 12.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07 SPECIAL ESCROW ACCOUNT.
(a) Each Holder of each Note, by its acceptance thereof, consents
and agrees to the terms of the Escrow and Security Agreement with respect to the
Escrow Account, as each may be in effect or may be amended from time to time in
accordance with its terms, and authorizes and directs the Escrow Agent and the
Trustee to enter into the Escrow and Security Agreement and to perform their
respective obligations and exercise their respective rights thereunder in
accordance therewith. The Company shall deliver to the Trustee copies of the
Escrow and Security Agreement, and shall do or cause to be done all such acts
and things as may be necessary or proper, or as may be required by the
provisions of the Escrow and Security Agreement, to assure and confirm to the
Trustee (acting on behalf of the Holders of the Notes) the security interest in
the Escrow Account and all funds and securities combined therein and any and all
proceeds of the foregoing (the "COLLATERAL"), so as to render the same available
for the security and
66
benefit of this Indenture with respect to, and of, such Notes, according to the
intent and purposes expressed in the Escrow and Security Agreement. The Company
shall take any and all actions reasonably required to cause the Escrow Account
to create and maintain (to the extent possible under applicable law), as
security for the obligations of the Issuer hereunder, a valid and enforceable
perfected first (to the extent such concept is recognized by applicable law)
security Lien in and on all the Collateral with respect to the Notes, in favor
of the Trustee (acting on behalf of the Holders of the Notes) for the benefit of
the Holders of such Notes, superior to and prior to the rights of all third
Persons (to the extent such concept is recognized by applicable law) and subject
to no other Liens.
(b) The Trustee may in the name and on behalf of the Holders of
such Notes, without the consent of the Holders of the Notes, take all actions it
deems necessary or appropriate in order to (i) enforce any of the terms of the
Escrow and Security Agreement as permitted under the Escrow and Security
Agreement and this Indenture, and (iii) collect and receive any and all amounts
payable in respect of the obligations of the Company hereunder. The Trustee
shall have the power to institute and maintain such suits and proceedings as it
may deem expedient to prevent any impairment of the Collateral by any acts that
may be unlawful or in violation of the Escrow and Security Agreement or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders of the Notes
in the Collateral with respect to such Notes (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders of such Notes or of the Trustee), in
each case, to the extent permitted by this Indenture and the Escrow and Security
Agreement.
(c) The Trustee is authorized to receive any funds for the benefit
of the Holders of the Notes disbursed under the Escrow and Security Agreement,
and to make further distributions of such funds to the Holders of Notes
according to the provisions of this Indenture.
Section 12.08 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, member,
incorporator or stockholder of the Company or any Guarantor, as such, will have
any liability for any obligations of the Company or the Guarantors under the
Notes, this Indenture, the Subsidiary Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the
Subsidiary Guarantees. The waiver shall not be effective to waive liabilities
under the federal securities laws.
Section 12.09 GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY,
EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF NEVADA LAW, INCLUDING
THE NEVADA GAMING CONTROL ACT AND THE REGULATIONS PROMULGATED THEREUNDER.
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Section 12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 12.11 SUCCESSORS.
All agreements of the Company in this Indenture and the Notes will bind
its successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 10.05 hereof.
Section 12.12 SEVERABILITY.
In case any provision in this Indenture, the Notes or the Subsidiary
Guarantees is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
Section 12.13 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
Section 12.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and will in no
way modify or restrict any of the terms or provisions hereof.
Section 12.15 COMPLIANCE WITH GAMING LAWS.
Each Holder of Notes, by accepting any such Notes, agrees to be bound
by the requirements imposed on the holders of the Company's debt securities by
any Gaming Authority.
[Signatures on following page]
68
SIGNATURES
Dated as of February 10, 2005
LAS VEGAS SANDS CORP.,
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel and
Secretary
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT A
[Face of Note]
================================================================================
CUSIP/CINS ____________
6.375% Senior Notes due 2015
No. ___ $____________
LAS VEGAS SANDS CORP.
promises to pay to [______________] or registered assigns,
the principal sum of ________________________________________________ DOLLARS
on February 15, 2015
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Dated: _______________, 200_
LAS VEGAS SANDS CORP.
By:
______________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Authorized Signatory
================================================================================
A-1
[Back of Note]
6.375% Senior Notes due 2015
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. Las Vegas Sands Corp., a Nevada corporation
(the "COMPANY"), promises to pay interest on the principal amount of
this Note at 6.375% per annum from ________________, 20__ until
maturity and shall pay the Special Interest, if any, payable pursuant
to Section 5 of the Registration Rights Agreement referred to below.
The Company will pay interest and Special Interest, if any,
semi-annually in arrears on February 15 and August 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business
Day (each, an "INTEREST PAYMENT DATE"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if
no interest has been paid, from the date of issuance; PROVIDED that if
there is no existing default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED
FURTHER that the first Interest Payment Date shall be _____________,
20__. The Company will pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per
annum in excess of the rate then in effect to the extent lawful; it
will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and
Special Interest, if any (without regard to any applicable grace
periods), from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on
the Notes (except defaulted interest) and Special Interest, if any, to
the Persons who are registered Holders of Notes at the close of
business on the February 1 or August 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal, premium and Special Interest, if
any, and interest at the office or agency of the Company maintained for
such purpose within or without the City and State of New York, or, at
the option of the Company, payment of interest and Special Interest, if
any, may be made by check mailed to the Holders at their respective
addresses set forth in the register of Holders; PROVIDED that payment
by wire transfer of immediately available funds will be required with
respect to principal of and interest, premium and Special Interest, if
any, on, all Global Notes and all other Notes the Holders of which will
have provided wire transfer instructions to the Company. Such payment
will be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private
debts.
(3) PAYING AGENT AND REGISTRAR. Initially, U.S. Bank
National Association, the Trustee under the Indenture, will act as
Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
A-2
(4) INDENTURE. The Company issued the Notes under an
Indenture dated as of February 10, 2005, as it may be amended from time
to time (the "INDENTURE"), among the Company, the Guarantors from time
to time party thereto and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (the "TIA").
The Notes are subject to all such terms, and Holders are referred to
the Indenture and the TIA for a statement of such terms. To the extent
any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are unsecured obligations of the Company. The
Indenture does not limit the aggregate principal amount of Notes that
may be issued thereunder.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this
paragraph 5, the Company will not have the option to redeem the Notes prior to
February 15, 2010. On or after February 15, 2010, the Company will have the
option to redeem all or a part of the Notes upon not less than 30 nor more than
60 days' prior notice, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest and Special
Interest, if any, on the Notes redeemed to the applicable redemption date, if
redeemed during the twelve-month period beginning on February 15 of the years
indicated below, subject to the rights of Holders on the relevant record date to
receive interest on the relevant interest payment date:
YEAR PERCENTAGE
---- ----------
2010............................................... 103.188%
2011............................................... 102.125%
2012............................................... 101.063%
2013 and thereafter................................ 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this
paragraph 5, on or prior to February 15, 2008, the Company may on any one or
more occasions redeem up to 35% of the aggregate principal amount of Notes
(including Additional Notes, if any) at a redemption price of 106.375% of the
principal amount thereof, plus accrued and unpaid interest and Special Interest,
if any, thereon, to the redemption date, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date, with the proceeds of one or more Equity Offerings; PROVIDED that at least
65% of the aggregate principal amount of Notes (including Additional Notes, if
any, but excluding Notes held by the Company and not cancelled) remains
outstanding immediately after the occurrence of such redemption and that such
redemption occurs within 60 days of the date of the closing of such Equity
Offering.
(c) Notwithstanding the provisions of subparagraph (a) of this
paragraph 5, at any time prior to February 15, 2010, the Company may, at its
option, redeem all or a part of the Notes at a redemption price equal to 100% of
the principal amount of Notes redeemed plus the applicable Make-Whole Premium,
plus, to the extent not included in the Make-Whole Premium, accrued and unpaid
interest and Special Interest, if any, to the applicable date of redemption,
subject to the rights of Holders on the relevant record date to receive interest
due on the relevant interest payment date. For purposes of the foregoing,
"MAKE-WHOLE PREMIUM" means, with respect to a Note, an amount equal to the
greater of:
(i) 1.000% of the outstanding principal amount of such
Note; and
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(ii) the excess of:
(A) the present value of the remaining interest,
premium and principal payments due on such Note as if such
Note were redeemed on February 15, 2010, computed using a
discount rate equal to the Treasury Rate plus 50 basis points,
over
(B) the outstanding principal amount of such Note.
(6) MANDATORY REDEMPTION.
(a) MANDATORY GAMING REDEMPTION.
(i) Notwithstanding any other provision in the Indenture,
if any Gaming Authority requires that a Holder or beneficial owner of
the Notes must be licensed, qualified or found suitable under any
applicable gaming laws in order to maintain any gaming license or
franchise of the Company or any of its Subsidiaries under any
applicable gaming laws, and the Holder or beneficial owner fails to
apply for a license, qualification or finding of suitability within 30
days after being requested to do so by the Gaming Authority (or such
lesser period that may be required by such Gaming Authority) or if such
Holder or beneficial owner is not so licensed, qualified or found
suitable, the Company shall have the right, at its option, (1) to
require such Holder or beneficial owner to dispose of such Holder's or
beneficial owner's Notes within 30 days of receipt of such finding by
the applicable Gaming Authority (or such earlier date as may be
required by the applicable Gaming Authority) or (2) to call for
redemption of the Notes of such Holder or beneficial owner at a
redemption price equal to (i) the lesser of (a) 100% of the principal
amount thereof, (b) the price at which such Holder or beneficial owner
acquired the Notes or (c) the fair market value of the Notes as
determined in good faith by the Board of Directors of the Company,
together with, in each case, accrued and unpaid interest and Special
Interest, if any, to the earlier of the date of redemption or such
earlier date as may be required by the Gaming Authority or, the date of
the finding of unsuitability by such Gaming Authority, which may be
less than 30 days following the notice of redemption if so ordered by
such Gaming Authority or (ii) such other price as may be ordered by the
Gaming Authority. In connection with any such redemption, and except as
may be required by a Gaming Authority, the Company shall comply with
the procedures contained in the Notes for redemption of the Notes.
Immediately upon a determination that a Holder or beneficial owner will
not be licensed, qualified or found suitable, the Holder or beneficial
owner will have no further rights (a) to exercise any right conferred
by the Notes, directly or indirectly, through any trustee, nominee or
any other Person or (b) to receive any interest or other distribution
or payment with respect to the Notes except the redemption price of the
Notes described above.
(ii) The Company shall not be required to pay or reimburse
any Holder of the Notes or beneficial owner who is required to apply
for such license, qualification or finding of suitability for the costs
of the licensure or investigation for such qualification or finding of
suitability. Such expenses shall be the obligation of such Holder or
beneficial owner.
(iii) Other than as specifically provided in Section
3.08(a) of the Indenture or as may be required by a Gaming Authority,
any redemption pursuant to Section 3.08(a) of the Indenture shall be
made pursuant to the provisions of Sections 3.01 through 3.06 thereof.
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(b) MANDATORY REDEMPTION FROM ESCROW.
(i) The gross proceeds of the issuance and sale of the
Initial Notes shall be placed in an escrow account pursuant to the
terms and conditions of an escrow and security agreement (the "ESCROW
AND SECURITY AGREEMENT"), by and among the Company, the Trustee and
U.S. Bank National Association, as escrow agent, until each of the
conditions set forth in the Escrow and Security Agreement shall have
been satisfied.
(ii) Upon the occurrence of certain events set forth in the
Escrow and Security Agreement and the Indenture, the Company shall
redeem all of the Notes on the second Business Day immediately
following such event, at a redemption price equal to 99.089% of the
principal amount of the Notes, plus accrued and unpaid interest and
amortization of original issue discount to the date of redemption.
(iii) Other than as specifically provided in Section 3.08(b)
of the Indenture or in the Escrow and Security Agreement, any
redemption pursuant to Section 3.08(b) of the Indenture shall be made
pursuant to the provisions of Sections 3.01 through 3.06 thereof.
(c) OTHER MANDATORY REDEMPTION. Except as otherwise provided in
Sections 3.08(a) and (b) of the Indenture, the Company shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER. If there is a
Change of Control, the Company shall be required to make an offer (a
"CHANGE OF CONTROL OFFER") to each Holder to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's
Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Special
Interest, if any, thereon to the date of purchase, subject to the
rights of Holders on the relevant record date to receive interest due
on the relevant interest payment date (the "CHANGE OF CONTROL
PAYMENT"). No later than 30 days following any Change of Control, the
Company shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.
(8) NOTICE OF REDEMPTION. Notice of redemption or
purchase will be mailed at least 30 days but not more than 60 days
before the redemption or purchase date to each Holder whose Notes are
to be redeemed or purchased at its registered address, except that
redemption or purchase notices may be mailed more than 60 days prior to
a redemption or purchase date if the notice is issued in connection
with a defeasance of the Notes or a satisfaction or discharge of the
Indenture. Notes in denominations larger than $1,000 may be redeemed or
purchased in part but only in whole multiples of $1,000, unless all of
the Notes held by a Holder are to be redeemed or purchased.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
may be transferred or exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company
may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register
the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part.
Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be
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redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a
Note may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Notes and the Subsidiary Guarantees may
be amended or supplemented with the consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes,
including Additional Notes, if any, voting as a single class
(including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes), and any
existing default or Event or Default (other than a default or Event of
Default in the payment of the principal of, premium or Special
Interest, if any, or interest on, the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance
with any provision of the Indenture, the Notes or the Subsidiary
Guarantees may be waived with the consent of the Holders of a majority
in aggregate principal amount of the then outstanding Notes including
Additional Notes, if any, voting as a single class (including, without
limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes). Without the consent of
any Holder of a Note, the Indenture or the Notes or the Subsidiary
Guarantees may be amended or supplemented to cure any ambiguity, defect
or inconsistency; to comply with Article 5 of the Indenture; to provide
for uncertificated Notes in addition to or in place of certificated
Notes; to provide for the assumption of the Company's or a Guarantor's
obligations to the Holders of the Notes and Subsidiary Guarantees by a
successor to the Company or such pursuant to Article 5 or Article 10 of
the Indenture; to make any change that would provide any additional
rights or benefits to the Holders of the Notes (including to provide
for additional guarantees or collateral) or that does not adversely
affect the legal rights under the Indenture of any such Holder; to
comply with the requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA; to conform the text
of the Indenture or the Notes to any provision of the "Description of
Notes" section of the Company's Offering Circular dated February 3,
2005, relating to the initial offering of the Notes, to the extent that
such provision in that "Description of Notes" was intended to be a
verbatim recitation of a provision of the Indenture, the Subsidiary
Guarantees or the Notes; to provide for the issuance of Additional
Notes in accordance with the limitations set forth in the Indenture; or
to allow any Guarantor to execute a supplemental indenture to the
Indenture and/or a Subsidiary Guarantee with respect to the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i)
default in payment when due and payable, upon redemption or otherwise,
of principal or premium, if any, on the Notes or under any Subsidiary
Guarantee; (ii) default for 30 days or more in the payment when due of
interest on, or Special Interest, if any, with respect to the Notes or
under any Subsidiary Guarantee; (iii) failure by the Company or any
Guarantor to offer to purchase or to purchase the Notes, in each case
when required under an offer made pursuant to Section 4.09 of the
Indenture; (iv) failure by the Company or any Guarantor for 60 days
after receipt of written notice from the Trustee to comply with any of
its other agreements in the Indenture, the Notes or the Subsidiary
Guarantees; (v) default under any mortgage, indenture or instrument
under which there is issued or by which there is secured or evidenced
any indebtedness for money borrowed by the Company or any Guarantor or
default on any guarantee by the Company or any Guarantor of
indebtedness of a third party, whether such indebtedness or guarantee
now exists or is created after the Issuance Date, which default: (a) is
caused by a failure to pay when due at final maturity (giving effect to
any grace period or waiver related thereto) the principal of such
indebtedness (a "PAYMENT DEFAULT") or (b) results in the acceleration
of such indebtedness prior to its final maturity ("ACCELERATED DEBT"),
and,
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in each case, the principal amount of any such indebtedness, together
with the principal amount of any other such indebtedness under which a
Payment Default then exists or with respect to which the maturity
thereof has been so accelerated or which has not been paid at maturity,
aggregates $50.0 million or more; (vi) failure by the Company or any
Guarantor to pay final judgments entered by a court of competent
jurisdiction aggregating in excess of $50.0 million, which final
judgments remain unpaid, undischarged or unstayed for a period of more
than 60 days; (vii) (a) except as permitted by the Indenture, any
Subsidiary Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid, or shall cease for any reason to be in full
force and effect and such default continues for 30 days after written
notice; or (b) the Company or any Guarantor, or any Person acting on
behalf of the Company or any Guarantor, shall affirmatively deny or
disaffirm its obligations under any Subsidiary Guarantee, in each of
clauses (a) and (b), which would materially and adversely impair the
benefits to the Trustee or the Holders of the Notes thereunder; (viii)
certain events of bankruptcy or insolvency with respect to the Company
or any Guarantor that is a Significant Subsidiary of the Company or of
any group of Guarantors that together would constitute a Significant
Subsidiary of the Company as provided for in Sections 6.01(8) and (9)
of the Indenture; and (ix) revocation, termination, suspension or other
cessation of effectiveness of any Nevada or Macau Gaming License, which
results in the cessation or suspension of gaming operations for a
period of more than 90 consecutive days. If any Event of Default (other
than by reason of bankruptcy or insolvency) occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare the principal, premium and Special
Interest, if any, interest and any other monetary obligations on all
the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain
events of bankruptcy or insolvency, with respect to the Company, any
Guarantor that is a Significant Subsidiary or any group of Guarantors
that together would constitute a Significant Subsidiary of the Company,
the principal, premium and Special Interest, if any, interest and any
other monetary obligations on all of the outstanding Notes will become
due and payable without further action or notice. Holders of the Notes
may not enforce the Indenture or the Notes except as provided in the
Indenture. Under the Indenture, to the fullest extent permitted by law,
in the event that the outstanding principal amount of the Notes becomes
due and payable (whether at maturity, by acceleration or otherwise) and
is not paid when due, then, before seeking, directly or indirectly
through any court, the sale, liquidation or seizure of the Capital
Stock of any direct or indirect Subsidiary of the Company, the Trustee
and each Holder is required to (for the 60-day period beginning on the
date when the outstanding principal amount of the Notes first became
due and payable) seek first to sell, liquidate or seize assets of the
Company or any of the Guarantors before seeking to sell, liquidate or
seize the Capital Stock of any direct or indirect Subsidiary of the
Company, subject to certain exceptions. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes
may direct the Trustee in its exercise of any trust power. The Trustee
may withhold from Holders of Notes notice of any continuing default or
Event of Default (except a default or Event of Default relating to the
payment of principal or interest) if it determines that withholding
notice is in their interest. In addition, the Trustee shall have no
obligation to accelerate the Notes if it is in the best judgment of the
Trustee that acceleration is not in the best interest of the Holders of
Notes. The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may, on behalf of the
Holders of all of the Notes, rescind an acceleration or waive any
existing default or Event of Default and its consequences under the
Indenture except a continuing default or Event of Default in the
payment of interest or premium or Special Interest, if any, on, or the
principal of, any Note held by a non-consenting Holder. The Company is
required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required, within
thirty days, upon becoming aware of any default or Event of Default to
deliver to the Trustee a statement specifying such default or Event of
Default.
A-7
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
the Trustee.
(14) NO RECOURSE AGAINST OTHERS. A director, officer,
employee, incorporator, member or stockholder of the Company or any of
the Guarantors, as such, will not have any liability for any
obligations of the Company or the Guarantors under the Notes, the
Subsidiary Guarantees or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of
the Notes and the Subsidiary Guarantees.
(15) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
NOTES AND RESTRICTED DEFINITIVE Notes. In addition to the rights
provided to Holders of Notes under the Indenture, Holders of Restricted
Global Notes and Restricted Definitive Notes will have all the rights
set forth in the Registration Rights Agreement dated as of February 10,
2005, among the Company, the Guarantors and the other parties named on
the signature pages thereof or, in the case of Additional Notes,
Holders of Restricted Global Notes and Restricted Definitive Notes will
have the rights set forth in one or more registration rights
agreements, if any, among the Company, the Guarantors and the other
parties thereto, relating to rights given by the Company and the
Guarantors to the purchasers of any Additional Notes (collectively, the
"REGISTRATION RIGHTS AGREEMENT").
(18) CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the
Notes, and the Trustee may use CUSIP numbers in notices of redemption
as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption, and reliance may be placed only on the
other identification numbers placed thereon.
(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW
YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND
THE SUBSIDIARY GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY, EXCEPT AS
OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF NEVADA LAW, INCLUDING THE
NEVADA GAMING CONTROL ACT AND THE REGULATIONS PROMULGATED THEREUNDER.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
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Las Vegas Sands Corp.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:____________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.09 of the Indenture, check the box below:
[_] Section 4.09
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.09 of the Indenture, state the amount you elect to
have purchased:
$_______________
Date: _______________
Your Signature:____________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.: ___________________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
PRINCIPAL AMOUNT
AMOUNT OF DECREASE AMOUNT OF INCREASE IN OF THIS GLOBAL NOTE SIGNATURE OF
IN PRINCIPAL AMOUNT PRINCIPAL AMOUNT FOLLOWING SUCH AUTHORIZED OFFICER
OF OF DECREASE OF TRUSTEE OR
DATE OF EXCHANGE THIS GLOBAL NOTE THIS GLOBAL NOTE (OR INCREASE) CUSTODIAN
* THIS SCHEDULE SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
A-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Las Vegas Sands Corp.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
[REGISTRAR ADDRESS BLOCK]
Re: 6.375% Senior Notes due 2015
Reference is hereby made to the Indenture, dated as of February 10,
2005 (the "INDENTURE"), among Las Vegas Sands Corp., as issuer (the "COMPANY"),
the Guarantors from time to time party thereto and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
___________________, (the "TRANSFEROR") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "TRANSFER"),
to ___________________________ (the "TRANSFEREE"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO
RULE 144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for
its own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE
PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a Person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the
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restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Restricted Definitive Note and in the
Indenture and the Securities Act.
3. [_]CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [_] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
Subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d) [_] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144, Rule
903 or Rule 904, and the Transferor hereby further certifies that it
has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit
D to the Indenture and (2) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with
the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI
Global Note and/or the Restricted Definitive Notes and in the Indenture
and the Securities Act.
4. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [_] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private
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Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [_] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [_] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
____________________________________
[Insert Name of Transferor]
By: _______________________________
Name:
Title:
Dated: _______________________
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP _________); or
(b) [_] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP _________); or
(iv) [_] Unrestricted Global Note (CUSIP _________); or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Las Vegas Sands Corp.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
[REGISTRAR ADDRESS BLOCK]
Re: 6.375% Senior Notes due 2015
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of February 10,
2005 (the "INDENTURE"), among Las Vegas Sands Corp., as issuer (the "COMPANY"),
the Guarantors from time to time party thereto and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
__________________________, (the "OWNER") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "EXCHANGE"). In
connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the Securities Act of 1933,
as amended (the "SECURITIES ACT"), (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in
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compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] 144A Global Note, Regulation S Global Note, IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________________
[Insert Name of Transferor]
By: _________________________________
Name:
Title:
Dated: ______________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Las Vegas Sands Corp.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
[REGISTRAR ADDRESS BLOCK]
Re: 6.375% Senior Notes due 2015
Reference is hereby made to the Indenture, dated as of February 10,
2005 (the "INDENTURE"), among Las Vegas Sands Corp., as issuer (the "COMPANY"),
the Guarantors from time to time party thereto and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Note, or
(b) [_] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any Subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $250,000, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
Person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
______________________________________
[Insert Name of Transferor]
By: _________________________________
Name:
Title:
Dated: _______________________
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of February 10, 2005, as it may be amended
from time to time (the "INDENTURE"), among Las Vegas Sands Corp., (the
"COMPANY"), the Guarantors from time to time party thereto and U.S. Bank
National Association, as trustee (the "Trustee"), (a) the due and punctual
payment of the principal of, premium and Special Interest, if any, and interest
on, the Notes, whether at maturity, by acceleration, redemption or otherwise,
the due and punctual payment of interest on overdue principal of and interest on
the Notes, if any, if lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth
in Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Subsidiary Guarantee.
Capitalized terms used but not defined herein have the meanings given
to them in the Indenture.
[NAME OF GUARANTOR(S)]
By: __________________________________
Name:
Title:
E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
________________, 200__, among __________________ (the "GUARANTEEING
SUBSIDIARY"), a subsidiary of Las Vegas Sands Corp. (or its permitted
successor), a Nevada corporation (the "COMPANY"), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and U.S. Bank
National Association, as trustee under the Indenture referred to below (the
"TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "INDENTURE"), dated as of February 10, 2005 providing
for the issuance of 6.375% Senior Notes due 2015 (the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "SUBSIDIARY GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees to provide an unconditional Guarantee on the terms and subject to the
conditions set forth in the Subsidiary Guarantee and in the Indenture including
but not limited to Article 10 thereof and agrees to be bound as a Guarantor
under the Indenture.
4. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, member, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guarantor under the Notes, any Subsidiary Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the
Subsidiary Guarantees. Such waiver shall not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
5. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY, EXCEPT AS OTHERWISE REQUIRED BY
MANDATORY PROVISIONS OF NEVADA
F-1
LAW, INCLUDING THE NEVADA GAMING CONTROL ACT AND THE REGULATIONS PROMULGATED
THEREUNDER.
6. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
F-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: ______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: ______________________________
Name:
Title:
LAS VEGAS SANDS CORP.,
a Nevada corporation
By: ______________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: ______________________________
Name:
Title:
F-3
