EXHIBIT 4.1
INDENTURE
AMONG
MGM GRAND, INC., AS ISSUER,
THE GUARANTORS PARTIES HERETO
AND
PNC BANK, NATIONAL ASSOCIATION, AS TRUSTEE
DATED AS OF FEBRUARY 2, 1998
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...................................................... 1
Section 1.1 DEFINITIONS.............................................................................................. 1
Section 1.2 COMPLIANCE CERTIFICATES AND OPINIONS..................................................................... 15
Section 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE................................................................... 15
ARTICLE 2 FORM OF NOTES................................................................................................ 16
Section 2.1 FORMS GENERALLY.......................................................................................... 16
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.......................................................... 16
Section 2.3 NOTE IN GLOBAL FORM...................................................................................... 17
ARTICLE 3 THE NOTES.................................................................................................... 17
Section 3.1 AMOUNT................................................................................................... 17
Section 3.2 DENOMINATIONS............................................................................................ 21
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING........................................................... 21
Section 3.4 TEMPORARY NOTES; EXCHANGE OF TEMPORARY GLOBAL NOTES FOR DEFINITIVE
NOTES; GLOBAL NOTES REPRESENTING NOTES................................................................... 22
Section 3.5 REGISTRATION, TRANSFER AND EXCHANGE...................................................................... 24
Section 3.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.................................................... 25
Section 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED........................................................... 26
Section 3.8 CANCELLATION............................................................................................. 27
Section 3.9 COMPUTATION OF INTEREST.................................................................................. 27
Section 3.10 EXCHANGE UPON DEFAULT.................................................................................... 28
Section 3.11 MANDATORY DISPOSITION OF NOTES PURSUANT TO GAMING LAWS................................................... 28
ARTICLE 4 SATISFACTION AND DISCHARGE................................................................................... 29
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.................................................................. 29
Section 4.2 APPLICATION OF TRUST MONEY............................................................................... 30
ARTICLE 5 REMEDIES..................................................................................................... 30
Section 5.1 EVENTS OF DEFAULT........................................................................................ 30
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT....................................................... 32
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.......................................... 33
Section 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM......................................................................... 34
Section 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT SECURITIES......................................... 35
Section 5.6 APPLICATION OF MONEY COLLECTED........................................................................... 35
Section 5.7 LIMITATION ON SUITS...................................................................................... 35
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST................................ 36
Section 5.9 RESTORATION OF RIGHTS AND REMEDIES....................................................................... 36
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE........................................................................... 36
Section 5.11 DELAY OR OMISSION NOT WAIVER............................................................................. 37
Section 5.12 CONTROL BY HOLDERS....................................................................................... 37
Section 5.13 WAIVER OF PAST DEFAULTS.................................................................................. 37
Section 5.14 UNDERTAKING FOR COSTS.................................................................................... 38
Section 5.15 WAIVER OF STAY OR EXTENSION LAWS......................................................................... 38
Section 5.16 DISQUALIFIED HOLDERS..................................................................................... 38
ARTICLE 6 THE TRUSTEE................................................................................................... 39
Section 6.1 CERTAIN DUTIES AND RESPONSIBILITIES...................................................................... 39
Section 6.2 NOTICE OF DEFAULTS....................................................................................... 40
Section 6.3 CERTAIN RIGHTS OF TRUSTEE................................................................................ 40
Section 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES........................................................ 42
Section 6.5 MAY HOLD NOTES........................................................................................... 42
Section 6.6 MONEY HELD IN TRUST...................................................................................... 42
Section 6.7 COMPENSATION AND REIMBURSEMENT........................................................................... 42
Section 6.8 DISQUALIFICATION; CONFLICTING INTERESTS.................................................................. 43
Section 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.................................................................. 43
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR........................................................ 43
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................................................................... 45
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.............................................. 45
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY........................................................ 46
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT...................................................................... 49
Section 6.15 APPOINTMENT OF CO-TRUSTEE................................................................................ 50
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................................................. 51
Section 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS................................................ 51
Section 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.................................................... 52
Section 7.3 REPORTS BY TRUSTEE....................................................................................... 53
Section 7.4 REPORTS BY COMPANY....................................................................................... 55
ARTICLE 8 CONCERNING THE HOLDERS........................................................................................ 56
Section 8.1 ACTS OF HOLDERS.......................................................................................... 56
Section 8.2 PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS BY................................................. 56
Section 8.3 PERSONS DEEMED OWNERS.................................................................................... 57
Section 8.4 REVOCATION OF CONSENTS; FUTURE HOLDERS
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BOUND.................................................................................................... 57
ARTICLE 9 HOLDERS' MEETINGS............................................................................................. 57
Section 9.1 PURPOSES OF MEETINGS..................................................................................... 57
Section 9.2 CALL OF MEETINGS BY TRUSTEE.............................................................................. 58
Section 9.3 CALL OF MEETINGS BY COMPANY OR HOLDERS................................................................... 58
Section 9.4 QUALIFICATIONS FOR VOTING................................................................................ 58
Section 9.5 REGULATIONS.............................................................................................. 58
Section 9.6 VOTING................................................................................................... 59
Section 9.7 NO DELAY OF RIGHTS BY MEETING............................................................................ 59
ARTICLE 10 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE......................................................... 60
Section 10.1 COMPANY MAY CONSOLIDATE, ET.............................................................................. 60
Section 10.2 SUCCESSOR CORPORATION SUBSTITUTED........................................................................ 60
ARTICLE 11 SUPPLEMENTAL INDENTURES....................................................................................... 61
Section 11.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS....................................................... 61
Section 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.......................................................... 62
Section 11.3 EXECUTION OF SUPPLEMENTAL INDENTURES..................................................................... 63
Section 11.4 EFFECT OF SUPPLEMENTAL INDENTURES........................................................................ 63
Section 11.5 CONFORMITY WITH TRUST INDENTURE ACT...................................................................... 64
Section 11.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES............................................................ 64
ARTICLE 12 COVENANTS.................................................................................................... 64
Section 12.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST............................................................... 64
Section 12.2 OFFICER'S CERTIFICATE AS TO COMPLIANCE................................................................... 64
Section 12.3 MAINTENANCE OF OFFICE OR AGENCY.......................................................................... 64
Section 12.4 MONEY FOR NOTES; PAYMENTS TO BE HELD IN TRUST............................................................ 65
Section 12.5 CORPORATE EXISTENCE...................................................................................... 66
Section 12.6 WAIVER OF CERTAIN COVENANTS.............................................................................. 66
Section 12.7 GUARANTEE AND COLLATERAL MATTERS......................................................................... 67
Section 12.8 CONDITIONAL COLLATERAL................................................................................... 68
Section 12.9 LIMITATIONS ON LIENS..................................................................................... 69
Section 12.10 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS............................................................ 70
Section 12.11 COLLATERAL EVENT AFTER COLLATERAL RELEASE DATE........................................................... 70
Section 12.12 SPECIAL ASSET SALES...................................................................................... 71
ARTICLE 13 REDEMPTION OF NOTES.......................................................................................... 76
Section 13.1 OPTIONAL REDEMPTION...................................................................................... 76
Section 13.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.................................................................... 77
Section 13.3 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED............................................................. 77
Section 13.4 NOTICE OF REDEMPTION..................................................................................... 77
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Section 13.5 DEPOSIT OF REDEMPTION PRICE.............................................................................. 78
Section 13.6 NOTES PAYABLE ON REDEMPTION DATE......................................................................... 78
Section 13.7 NOTES REDEEMED IN PART................................................................................... 78
ARTICLE 14 DEFEASANCE................................................................................................... 79
Section 14.1 APPLICABILITY OF ARTICLE................................................................................. 79
Section 14.2 DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT OBLIGATIONS......................................... 79
Section 14.3 DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST..................................... 81
Section 14.4 REPAYMENT TO COMPANY..................................................................................... 81
ARTICLE 15 COLLATERAL AND SECURITY...................................................................................... 81
Section 15.1 EXECUTION OF COLLATERAL DOCUMENTS........................................................................ 81
Section 15.2 COLLATERAL DOCUMENTS..................................................................................... 82
Section 15.3 RECORDING AND OPINIONS................................................................................... 83
Section 15.4 RELEASE AND SUBORDINATION OF COLLATERAL.................................................................. 84
Section 15.5 CERTIFICATES OF THE COMPANY.............................................................................. 86
Section 15.6 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE COLLATERAL DOCUMENTS....................... 87
Section 15.7 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE COLLATERAL DOCUMENTS.......................... 87
ARTICLE 16 GUARANTEE.................................................................................................... 87
Section 16.1 GUARANTEE................................................................................................ 87
Section 16.2 EXECUTION AND DELIVERY OF GUARANTEE...................................................................... 89
Section 16.3 LIMITATION OF GUARANTOR'S LIABILITY...................................................................... 89
Section 16.4 CONTRIBUTION............................................................................................. 90
Section 16.5 RIGHTS UNDER THE GUARANTEE............................................................................... 90
Section 16.6 PRIMARY OBLIGATIONS...................................................................................... 90
Section 16.7 WAIVERS.................................................................................................. 91
Section 16.8 RELEASES................................................................................................. 91
Section 16.9 NO ELECTION.............................................................................................. 92
Section 16.10 FINANCIAL CONDITION OF THE COMPANY....................................................................... 92
ARTICLE 17 MISCELLANEOUS................................................................................................ 92
Section 17.1 NOTICES, ETC............................................................................................. 92
Section 17.2 NOTICE TO HOLDERS; WAIVER................................................................................ 93
Section 17.3 CONFLICT WITH TRUST INDENTURE ACT........................................................................ 93
Section 17.4 COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS................................................... 93
Section 17.5 SUCCESSORS AND ASSIGNS................................................................................... 94
Section 17.6 SEPARABILITY CLAUSE...................................................................................... 94
Section 17.7 BENEFITS OF INDENTURE.................................................................................... 94
Section 17.8 GOVERNING LAW............................................................................................ 94
Section 17.9 LEGAL HOLIDAYS........................................................................................... 94
Section 17.10 NO RECOURSE AGAINST OTHERS............................................................................... 94
Section 17.11 GAMING LAWS.............................................................................................. 95
Section 17.12 NO PARENT LIABILITY...................................................................................... 95
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Reconciliation between Trust Indenture Act of 1939 and Indenture, dated as
of February 2, 1998.
Trust Indenture
Act Section Indenture Section
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Section 310
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(a)(1).................................................... 6.9
(a)(2).................................................... 6.9
(a)(3).................................................... 6.15
(a)(4).................................................... Not Applicable
(a)(5).................................................... 6.9
(b)....................................................... 6.8, 6.10
(c)....................................................... Not Applicable
Section 311
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(a)....................................................... 6.13(a)
(b)....................................................... 6.13(b)
(c)....................................................... Not Applicable
Section 312
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(a)....................................................... 7.1, 7.2(a)
(b)....................................................... 7.2(b)
(c)....................................................... 7.2(c)
Section 313
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(a)....................................................... 7.3(a)
(b)....................................................... 7.3(b)
(c)....................................................... 7.3(a), 7.3(c)
(d)....................................................... 7.3(d)
Section 314
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(a)....................................................... 7.4, 12.2
(b)....................................................... 15.3(c), 15.3(e)
(c)(1).................................................... 1.2
(c)(2).................................................... 1.2
(c)(3).................................................... Not Applicable
(d)....................................................... 15.5, 15.4(b)
(e)....................................................... 1.2
Section 315
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(a)....................................................... 6.1(a), 6.1(c)
(b)....................................................... 6.2, 7.3(a)(7)
(c)....................................................... 6.1(b)
(d)....................................................... 6.1(c)
(d)(1).................................................... 6.1(c)(1)
(d)(2).................................................... 6.1(c)(2)
(d)(3).................................................... 6.1(c)(3)
(e)....................................................... 5.14
Section 316
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(a)(1)(A)................................................. 5.12
(a)(1)(B)................................................. 5.13
(a)(2).................................................... Not Applicable
(b)....................................................... 5.8
(c)....................................................... Not Applicable
Section 317
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(a)(1).................................................... 5.3
(a)(2).................................................... 5.4
(b)....................................................... 12.4
Section 318............................................... 1.6
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Note: This reconciliation shall not, for any purpose, be deemed to be a part of
the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), which provides that the
provisions of Sections 310 to and including 317 of the Trust Indenture Act are a
part of and govern every qualified indenture, whether or not physically
contained therein.
INDENTURE dated as of February 2, 1998, by and between MGM GRAND, INC., a
Delaware corporation (the "Company"), having its principal executive office at
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, the Guarantors party
hereto and PNC BANK, NATIONAL ASSOCIATION, a national banking association (the
"Trustee"), having its Corporate Trust Office at Xxx Xxxxx Xxxxxx Xxxxxxxxx,
00xx Xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000.
RECITALS OF THE COMPANY
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The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 6.95% Senior Collateralized Notes
due 2005 (the "Notes"), to be issued as provided in this Indenture.
The Guarantors have duly authorized the execution and delivery of this
Indenture to provide for the guarantee of the Notes by the Guarantors as
provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are deemed incorporated into this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary have been done to make the Notes, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture, when
executed by the Company and each Guarantor, a valid agreement of the Company and
each such Guarantor, in each case in accordance with the terms of the Notes and
this Indenture, respectively.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Notes by the
holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all holders of Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles or
as provided with respect to any Notes, and, except as otherwise herein provided
or as provided with respect to any Notes, the term "generally accepted
accounting principles" or "GAAP" with respect to any computation required or
permitted hereunder with respect to any Notes, shall mean such as set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession which are in
effect as of the date of determination;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision and the word "including" when used herein
means "including without limitation" except when expressly stated to the
contrary;
(e) certain terms, used principally in Article 3 or Article 6, are defined
in those respective Articles; and
(f) "Act" when used with respect to any holder, has the meaning specified
in Section 8.1.
"Additional Pari Passu Notes" means a series of securities issued by the
Company (together with any guarantees thereof by any Guarantors) under an
indenture or supplemental indenture after the date hereof that provides for
Liens on collateral on a pari passu basis with the Liens securing the Notes and
the Guarantees and with the Liens securing the Facility, in an aggregate
principal amount not exceeding $200,000,000.
"Adjusted Treasury Rate" means, with respect to any Redemption Date or
Asset Sale Purchase Date, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date or Asset Sale
Purchase Date, plus 0.15%.
"Administrative Agent" means Bank of America National Trust and Savings
Association, in its capacity as Administrative Agent under the Facility (and its
successors and assigns from time to time).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") as used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
agreement or otherwise.
"Asset Sale Offer" has the meaning specified in Section 12.12(d).
"Asset Sale Offer Amount" has the meaning specified in Section 12.12(e).
"Asset Sale Offer Period" has the meaning specified in Section 12.12(e).
"Asset Sale Purchase Date" has the meaning specified in Section 12.12(e).
"Asset Sale Purchase Price" has the meaning specified in Section 12.12(d).
"Atlantic City" means MGM Grand Atlantic City, Inc., a New Jersey
corporation.
"Attributable Value'' means, with respect to any sale and leaseback
transaction, as of the time
2
of determination, the present value of the minimum rental payments called for
during the term of the lease constituting part of such transaction (including
any period for which such lease has been extended), determined in accordance
with GAAP, discounted at a rate that, at the inception of the lease, the lessee
would have incurred to borrow over a similar term the funds necessary to
purchase the leased assets.
"Australia" means , collectively, (a) MGM Grand Diamond, Inc., a Nevada
corporation, (b) its wholly owned Subsidiary, MGM Grand Australia Pty., Ltd., a
corporation organized under the laws of the Northern Territory of Australia, and
(c) each Subsidiary of MGM Grand Australia Pty., Ltd, their successors and
assigns (other than the Company or any Guarantor).
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal, state
or foreign law for the relief of debtors.
"Beneficiaries" means the holders of the Notes, the Trustee and the
Collateral Agent.
"Board of Directors" means either the board of directors of the Company or
any committee of that board or any other committee of the Company, duly
authorized by the board of directors of the Company to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day which is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in Nevada,
Pennsylvania, New Jersey or New York are authorized or obligated by law to
close.
"Cash Equivalents" shall have the meaning set forth from time to time in
the Facility (or, if the Facility is terminated, the meaning set forth in the
Facility on the date hereof).
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means any assets and interests in assets now owned or
hereafter acquired by the Company or any Guarantor in or upon which a Lien is
granted for the benefit of the Beneficiaries (whether directly or by way of
assignment of a Lien granted to the Company or any Guarantor) under any of the
Collateral Documents.
"Collateral Agent" means PNC Bank, National Association, in its capacity as
Collateral Agent for the Trustee and the holders of the Notes under the
Collateral Documents.
3
"Collateral Documents" means, collectively, the Company Security Agreement,
the Company Pledge Agreement, each Subsidiary Security Agreement, each
Subsidiary Pledge Agreement, each Mortgage, the Trademark Security Interest
Assignment, the Intercreditor Agreement, and any agreements, documents, or
instruments (including UCC financing statements) required to be executed
pursuant to the foregoing and relating to the Collateral referred to therein, in
each case as amended or modified from time to time.
"Collateral Event" means the occurrence of (a) any reduction in the credit
rating assigned by Standard & Poor's to the Notes (or, if Standard Poor's does
not rate the Notes, its corporate rating of the Company) to an unsecured credit
rating which is below BBB- or (b) any reduction in the credit rating assigned by
Moody's to the Notes (or, if Moody's does not rate the Notes, its corporate
rating of the Company) to an unsecured credit rating which is below Baa3.
"Collateral Release" means a release of all Collateral following a
Collateral Release Date.
"Collateral Release Date" means any date on which the Company delivers
notice to the Collateral Agent requesting a release of all Liens under the
Collateral Documents which is accompanied by (i) letters from both Moody's and
Standard & Poor's indicating that, following the release of all Collateral
securing the Notes and all collateral securing the Facility, both the Notes and
the Facility will receive investment grade ratings and that such release will
not result in a reduction in the ratings of the Notes or the Facility issued by
either Moody's or Standard & Poor's below the respective ratings in effect on
the Issue Date, (ii) a letter from the Administrative Agent confirming that the
Liens securing the Facility will be released concurrently with the release of
the Liens securing the Notes and the Guarantees (and evidence satisfactory to
the Trustee that any Liens securing any Additional Pari Passu Notes are being
concurrently released) and (iii) evidence reasonably satisfactory to the Trustee
(in the form of an Officers' Certificate attaching a form of amendment to the
Facility or otherwise) that the Facility will permit the creation of perfected
Liens securing the Notes and Guarantees, pari passu with Liens securing the
Facility, upon a Collateral Event.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, of the Company in favor of the Trustee, in substantially the form
attached hereto as Exhibit D, as amended or modified from time to time.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman of the Board of
Directors, the President or an Executive or Senior Vice President and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
4
"Company Security Agreement" means the Security Agreement, dated as of the
date hereof, by the Company in favor of the Trustee, in substantially the form
attached hereto as Exhibit B as amended or modified from time to time.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed or purchased that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date or
Asset Sale Purchase Date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such Redemption Date or
Asset Sale Purchase Date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or
(ii) if such release (or any successor release) is not published or does not
contain such prices on such Business Day, (a) the average of the Reference
Treasury Dealer Quotations for such Redemption Date or such Asset Sale Purchase
Date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations or (b) if the Company obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations.
"Conditional Collateral" means the stock of MGM Grand Hotel, Inc., unless
and until all necessary consents from the respective Gaming Authorities are
obtained for the grant of a Lien in favor of the Beneficiaries in such stock,
and any assets of Detroit LLC, unless and until any necessary registration of a
Guaranty by Detroit LLC with the Commission is completed.
"Consolidated Net Tangible Assets" means the total amount of assets
(including investments in Joint Ventures) of the Company and its subsidiaries
(less applicable depreciation, amortization and other valuation reserves) after
deducting therefrom (a) all current liabilities of the Company and its
subsidiaries (excluding any Indebtedness having a maturity of less than 12
months, from the date of the most recent consolidated balance sheet of the
Company filed with the Commission as of the time as of which the amount thereof
is being computed, which is by its terms renewable or extendible at the option
of the obligor thereon to a time beyond 12 months from such date) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and any
other like intangibles, all as set forth on the most recent consolidated balance
sheet of the Company and computed in accordance with GAAP.
"Corporate Trust Office" means the corporate trust office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of execution of this instrument is located at Xxx Xxxxx
Xxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000.
"Corporate Trust Operations Office" means the corporate trust operations
office of the Trustee at which any particular time operations specified herein
in connection with its corporate trust office shall be administered, which
office at the date of execution of this instrument is located at Xxxxx X, 000
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 15222-2707.
"corporation" means a corporation, association, company or business trust.
5
"Default" means any event that after notice or lapse of time, or both,
would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7(b).
"Detroit" means MGM Grand Detroit, Inc., a Delaware corporation.
"Detroit LLC" means MGM Grand Detroit, LLC, a Delaware limited
liability company.
"Discharged" has the meaning specified in Section 14.2.
"Disposition" means the voluntary sale, transfer or other disposition of
any asset of the Company or any of the Guarantors other than the voluntary sale,
transfer or other disposition of (a) Cash, Cash Equivalents, Investments (other
than Investments in a Guarantor, New York, Monorail or Australia), inventory or
other assets sold, leased or otherwise disposed of in the ordinary course of
business of the Company or any of the Guarantors, (b) equipment sold or
otherwise disposed of where substantially similar equipment in replacement
thereof has theretofore been acquired, or thereafter within 90 days is acquired,
by the Company or any of the Guarantors, or where the Company or the Guarantors
determine in good faith that the failure to replace such equipment will not be
detrimental in any material respect to the business of the Company or any of its
Restricted Subsidiaries, or (c) any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, to the Company of
any of the Guarantors. As used in this definition, "Cash" means, when used in
connection with any Person, all monetary and non-monetary items owned by that
Person that are treated as cash in accordance with GAAP, consistently applied,
and "Investment" means, when used in connection with any Person, any investment
by or of that Person, whether by means of purchase or other acquisition of stock
or other securities of any other Person or by means of a loan, advance creating
a debt, capital contribution, guaranty or other debt or equity participation or
interest in any other Person.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States that, at the time of payment, is legal tender for
the payment of public and private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Event of Loss" means, with respect to any property or asset, any loss,
destruction or damage of or to such property or asset, or any actual
condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such property or asset, if the sale of such property or asset, for
the amount attributable to such loss, destruction, damage, condemnation, seizure
or taking, would not be a Permitted Disposition.
"Excess Proceeds" has the meaning specified in Section 12.12(b) and (c).
"Excluded Subsidiary" means New York, Monorail, Australia, any Foreign
Holding Company Subsidiary and any Foreign Subsidiary; provided that if any
Excluded Subsidiary becomes subject to the covenants in the Facility applicable
to Restricted Subsidiaries or grants any Liens to secure the Facility, such
Excluded Subsidiary will thereafter not be an Excluded Subsidiary.
"Exemption" has the meaning specified in Section 15.5(b).
"Exemption Date" has the meaning specified in Section 15.5(b).
6
"Facility" means the Amended and Restated Loan Agreement dated as of July
17, 1997 among the Company, Atlantic City, the banks, managing agents and co-
agent therein named therein and the Administrative Agent (and their successors
and assigns from time to time party thereto), including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, in each case as amended, modified, renewed, extended,
refunded, replaced or refinanced from time to time.
"Foreign Holding Company Subsidiary" means any Subsidiary of the Company
that has no operations and assets other than stock, equity interests and
intercompany obligations of Foreign Subsidiaries (including on the date hereof
MGM Grand South Africa, Inc., a Nevada corporation).
"Foreign Subsidiary" means any Subsidiary of the Company that exists under
laws other than the laws of the United States, any State thereof or the District
of Columbia, that owns no tangible assets that are located in the United States
or that consist of stock or equity interests of any Person owning tangible
assets located in the United States.
"Gaming Authority" means the Nevada Gaming Commission, the Nevada State
Gaming Control Board, the New Jersey Casino Control Commission, the New Jersey
Division of Gaming Enforcement or any similar commission or agency which has, or
may at any time after the date of this Indenture have, jurisdiction over the
gaming activities of the Company or a Subsidiary (other than an Excluded
Subsidiary) of the Company or any successor thereto.
"Gaming Laws" means the gaming laws of a jurisdiction or jurisdictions to
which the Company or a Subsidiary of the Company is, or may at any time after
the date of this Indenture be, subject.
"Gaming Licenses" means every material license, permit, franchise,
registration or other material approval held by, or issued at any time after the
date of this indenture, to the Company or any of its Subsidiaries authorizing
the Company or any of its Subsidiaries to own, lease, operate or otherwise
conduct or manage gaming in any state or jurisdiction.
"Global Note" means a registered Note evidencing all or part of the Notes,
including, without limitation, any temporary or permanent Global Note.
"Guarantee" has the meaning specified in Section 16.1.
"Guaranteed Obligations" has the meaning specified in Section 16.1.
"Guarantor" means (i) MGM Grand Hotel, Inc., (ii) Atlantic City, (iii)
Monorail Inc., (iv) each of the other corporations identified as a Guarantor on
the signature pages hereof and (v) each Subsidiary of the Company that becomes a
Guarantor in accordance with Section 12.7 or by executing a supplemental
indenture in which such Subsidiary agrees to be bound by the terms of this
Indenture as a Guarantor, together with their permitted successors and assigns
provided that if the Guarantee of a Guarantor is withdrawn or cancelled pursuant
--------
to Section 12.7(c), such Person shall no longer be a Guarantor hereunder.
"Indebtedness" means notes, bonds, debentures or other similar evidences of
indebtedness for borrowed money or any guarantee of any of the foregoing.
"Indenture" means this instrument as originally executed, or as it may from
time to time be
7
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including the provisions
relating to the Guarantees from time to time contained herein and, unless the
context otherwise requires, shall include the terms of the Notes.
"Intercreditor Agreement" means the Intercreditor Agreement between the
Trustee and the Administrative Agent, in substantially the form attached hereto
as Exhibit I, as amended or modified from time to time.
"Interest Payment Date" with respect to any Note means February 1 and
August 1 of each year, commencing August 1, 1998, provided that if such Interest
Payment Date is not a Business Day, interest due on such Interest Payment Date
shall be payable on the next succeeding Business Day.
"Issue Date" means February 2, 1998 or any other date as the Company and
the Trustee may mutually agree.
"Joint Venture" means any partnership, corporation or other entity, in
which up to and including 50% of the partnership interests, outstanding voting
stock or other equity interests is owned, directly or indirectly, by the Company
and/or one or more Subsidiaries of the Company.
"License Revocation" means the revocation, failure to renew or suspension
of, or the appointment of a receiver, supervisor or similar official with
respect to, any casino, gambling or gaming license issued by any Gaming
Authority covering MGM Grand Las Vegas, or, after the Completion Date for any
Material Project, each Guarantor which owns any material portion of that
Material Project. As used in this definition, "Completion Date" means as to any
Material Project the date upon which that Material Project is licensed to
conduct gaming and open for business to the general public with (a) at least 95%
of the hotel rooms provided for in the construction plans ready for occupancy,
(b) at least 95% of the square footage of casino space provided for in the
construction plans ready for gaming and (c) substantially all other planned
amenities substantially complete.
"Lien" means, with respect to any asset, any mortgage, lien, encumbrance or
other security interest in respect of such asset, whether or not filed, recorded
or otherwise perfected under applicable law, in each case to secure payment of
Indebtedness.
"Material Project" means, as of each date of determination, (a) the
proposed MGM Grand Hotel and Casino in Atlantic City, New Jersey (which may be
the result of new construction or of the redevelopment of existing hotel/casino
properties), and (b) each other casino, hotel and/or entertainment complex
project proposed by the Company or any Guarantor which at that date has a
development and capital expenditure budget in excess of $250,000,000.
"Maturity" when used with respect to any Note means the date on which the
principal of such Note or an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment or otherwise.
"MGM Grand Hotel, Inc." means MGM Grand Hotel, Inc., a Nevada corporation.
"MGM Grand Las Vegas" means the MGM Grand Hotel and Casino in Las Vegas,
Nevada.
"Monorail" means The MGM Grand - Bally's Monorail Limited Liability
Company, a Nevada limited liability company, its successors and assigns (other
than the Company or any
8
Guarantor).
"Monorail Inc." means MGM Grand Monorail, Inc., a Nevada corporation,
its successors and assigns (other than the Company or any Guarantor).
"Moody's" means Xxxxx'x Investor Service, Inc.
"Mortgage" means the Nevada Deed of Trust, the New Jersey Mortgage or
any other fee or leasehold mortgage instrument or deed of trust with any related
security agreements and assignments of lease and rents that may be included in
the Collateral Documents after the Issue Date, with such changes to such forms
as may be necessary or desirable to conform such forms to the local laws or
customs applicable to property in the jurisdiction where such mortgage
instrument or deed of trust is to be recorded, as amended or modified from time
to time.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Subsidiaries in respect of any Special Asset Sale or Event of Loss
(including any cash received upon the sale or other disposition of any non-cash
consideration received in any Special Asset Sale or Event of Loss and insurance
proceeds), net of the direct costs relating to such Special Asset Sale or Event
of Loss (including legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof, taxes
paid or payable as a result thereof (taking into account any available tax
credits or deductions and any tax sharing arrangements), amounts required to be
applied to the repayment of Indebtedness (other than the Facility) secured by a
Lien on the asset or assets that were the subject of such Special Asset Sale and
any reserve established by the Company or any of its Subsidiaries in accordance
with GAAP against any liabilities associated with such Special Asset Sale and
retained by the Company or any of its Subsidiaries, as the case may be, after
such Special Asset Sale.
"Nevada Deed of Trust" means the Construction and Permanent Deed of Trust
with Assignment of Rents, Security Agreement and Fixture Filing among MGM Grand
Hotel, Inc., as trustor, First American Title Company of Nevada, as trustee, and
the Trustee, as beneficiary, dated as of the date hereof, with respect to the
MGM Grand Las Vegas and the other real property and improvements described
therein, in substantially the form attached hereto as Exhibit F, as amended or
modified from time to time.
"New Jersey Mortgage" means, collectively, (i) the Mortgage, dated as of
the date hereof, by Atlantic City, as mortgagor, to the Trustee, as mortgagee,
and (ii) the Assignment of Rents, Income and Profits, dated as of the date
hereof by Atlantic City to the Trustee, with respect to the real property in
Atlantic City, New Jersey owned by Atlantic City as of that date, and the other
real property and improvements described therein, in substantially the form
attached hereto as Exhibit G, as amended or modified from time to time.
"New York" means New York-New York Hotel & Casino LLC, a Nevada limited
liability company, its successors and assigns (other than the Company or any
Guarantor).
"Non-Wholly Owned Entities" has the meaning specified in Section 12.9.
"Note Register" and "Note Registrar" have the respective meanings specified
in Section 3.5(a).
"Notes" has the meaning stated in the first recital of this Indenture and
includes any Notes
9
(including any Global Note) authenticated and delivered under this Indenture. In
the event any Additional Pari Passu Notes are issued hereunder after the date
hereof, as contemplated by Section 3.1, references to "Notes" shall also include
such Additional Pari Passu Notes to the extent set forth in the supplemental
indenture providing for such Additional Pari Passu Notes.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, the President or an Executive or Senior Vice President and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
to the Company (including an employee of the Company).
"Outstanding" when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the holders of
such Notes; provided, however, that if such Notes are to be redeemed, then
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made and the date for
such redemption has passed;
(iii) Notes, except to the extent provided in Section 14.2, with
respect to which the Company has effected defeasance as provided in Article 14;
and
(iv) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in whose
hands such Notes are valid obligations of the Company;
Provided, however, that in determining whether the holders of the requisite
principal amount of Notes Outstanding have performed any Act hereunder, Notes
owned by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding (provided, that in connection with any offer by the Company or any
obligor to purchase Notes, Notes rendered by a holder shall be Outstanding until
the date of purchase), except that, in determining whether the Trustee shall be
protected in relying upon any such Act, only Notes which the Trustee knows to be
so owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.
"Permitted Disposition" means a Disposition of the type that is permitted
under Section 6.2
10
of the Facility as in effect on the date hereof, without regard to any waiver by
the lenders under the Facility of any default or event of default under the
Facility that exists or would result from such Disposition.
"Permitted Encumbrances" means the Permitted Encumbrances as defined in the
Facility as in effect on the date hereof.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" when used with respect to the Notes means the Corporate
Trust Operations Office of the Trustee or such other location as may be
established under Section 12.3.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.6 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Property" means any real estate or other physical facility or
depreciable asset (or securities acquired with the proceeds of Special Asset
Sales), the net book value of which on the date of determination exceeds the
greater of $25 million or 2% of the Consolidated Net Tangible Assets of the
Company.
"Pro Rata Amount" means, with respect to any Special Asset Sale, the amount
of Net Proceeds from such Special Asset Sale multiplied by a fraction, the
numerator of which is the aggregate amount of outstanding obligations under the
Notes and the Indenture (and under the Additional Pari Passu Notes, if any)
immediately before such Special Asset Sale and the denominator of which is the
sum of the numerator plus the aggregate amount of outstanding obligations under
the Facility immediately before such Special Asset Sale.
"Quotation Agent" means one of the Reference Treasury Dealers appointed by
the Company and certified to the Trustee by the Company.
"Redemption Date" means the date fixed for redemption of any Note pursuant
to this Indenture.
"Redemption Price" has the meaning specified in Section 13.1.
"Reference Treasury Dealer" means each of BancAmerica Xxxxxxxxx Xxxxxxxx,
Deutsche Xxxxxx Xxxxxxxx Inc. and CIBC Xxxxxxxxxxx Corp. and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government Securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury
Dealer and certify same to the Trustee; and any other Primary Treasury Dealer
selected by the Company and certified to the Trustee by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date or Asset Sale Purchase Date,
the average, as determined by the Company and certified to the Trustee by the
Company, of the bid and asked prices for the
11
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Company by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding such Redemption Date or
Asset Sale Purchase Date.
"Regular Record Date" for the interest payable on the Notes on any Interest
Payment Date means the January 15 or July 15 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means any vice
president, the secretary, any assistant secretary or any assistant vice
president or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Subsidiaries" shall have the meaning set forth in the Facility
from time to time and shall in any event include any Subsidiary that guaranties
the obligations of the Company under the Facility, grants Liens on its assets
securing the Facility or becomes subject to the covenants in the Facility
applicable to Restricted Subsidiaries.
"Significant Subsidiary" means, with respect to any Person, any Subsidiary
of that Person that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933,
as amended, as such Regulation is in effect on the date hereof..
"Special Asset Sale" means any Disposition of Collateral other than a
Permitted Disposition.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7(b).
"Stated Maturity" when used with respect to any Note or any payment of
principal thereof or premium thereon or interest thereon means the date
specified in such Note or in this Indenture, as the date on which the principal
of such Note or such payment of principal, premium or interest is due and
payable.
"Subsidiary" means, with respect to any person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of capital stock or other equity interests entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
"Subsidiary Pledge Agreement" means, collectively or individually, as the
context requires, the Subsidiary Pledge Agreements dated as of the date hereof
(or hereafter if executed and delivered at a later date), from each Guarantor in
favor of the Trustee, in substantially the form attached hereto as Exhibit E as
amended or modified from time to time.
"Subsidiary Security Agreement" means, collectively or individually, as the
context requires, the Subsidiary Security Agreements dated as of the date hereof
(or hereafter if executed and delivered at a later date), from each Guarantor in
favor of the Trustee, in substantially the form attached hereto as Exhibit C as
amended or modified from time to time.
12
"Supplemental Interest" shall have the meaning given such term in Section
12.8.
"S&P" means Standard & Poor's Ratings Group (a division of McGraw Hill,
Inc.).
"Trademark Security Interest Assignment" means the Trademark Security
Interest Assignment, dated as of the date hereof, among the Company and certain
Guarantors which are parties thereto and the Trustee, in substantially the form
attached hereto as Exhibit H as amended or modified from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder. Except where the context
otherwise requires, "Trustee" shall include the Trustee in its capacity as
Paying Agent, Note Registrar, Collateral Agent and any co-Trustee to the extent
provided pursuant to Section 6.15.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as it may be
amended from time to time.
"United States" means the United States of America (including the States
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"U.S. Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in
either case be the U.S. Depositary designated in the form of Note attached as
Exhibit A hereto until a successor U.S. Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "U.S.
Depositary" shall mean or include each Person who is then a U.S. Depositary
hereunder.
"U.S. Government Obligations" has the meaning specified in Section 14.2.
"Vice President" includes, with respect to the Company, any Executive or
Senior Vice President and includes, with respect to the Trustee, any Vice
President, whether or not designated by a number or word or words added before
or after the title "Vice President."
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture or the Collateral Documents, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture and the Collateral
Documents relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture or the Collateral
Documents relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture and the Collateral Documents (other than
certificates provided pursuant to Section 12.2) shall include:
13
(a) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to enable
that individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
provided, however, that with respect to matters of law, an Officers' Certificate
may be based upon an Opinion of Counsel, unless the signers know, or in the
exercise of reasonable care should know, that such Opinion of Counsel is
erroneous, and provided, further, that with respect to matters of fact an
Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials, unless the signer knows, or in the exercise of reasonable care
should know, that any such document is erroneous.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
ARTICLE 2
FORM OF NOTES
SECTION 2.1 FORMS GENERALLY.
The Notes shall be substantially in the form of Exhibit A hereto or in
such other form as shall be established in or pursuant to a Board Resolution or
one or more indentures supplemental hereto, and shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which any of the Notes may be listed, or to
conform to usage, all as determined by the officers executing such Notes as
conclusively evidenced by their execution of such Notes. If the form of Notes
(or any Global Note) is established in or pursuant to
14
a Board Resolution, a copy of such Board Resolution shall be delivered to the
Trustee, together with an Officers' Certificate setting forth the form of such
Notes, at or prior to the delivery of the Company Order contemplated by Section
3.3 for the authentication and delivery of such Notes (or any such Global Note).
Subject to Section 3.4, the definitive Notes shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Notes, as conclusively evidenced by their
execution of such Notes.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be borne by
the Notes shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within
mentioned Indenture.
PNC BANK, NATIONAL ASSOCIATION, as Trustee
By:
Authorized Signatory
SECTION 2.3 NOTE IN GLOBAL FORM.
If any Note is issued as a Global Note, such Global Note may provide that
it shall represent the aggregate amount of Outstanding Notes from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Notes represented thereby may from time to time be reduced to reflect exchanges.
Any endorsement of a Global Note to reflect the amount, or any increase or
decrease in the amount, of Outstanding Notes represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note. Any
instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.2.
Global Notes will be issued in registered form and in either temporary or
permanent form. Permanent Global Notes will be issued in definitive form.
Every Global Note authenticated and delivered hereunder shall bear a
legend in substantially the following form:
THIS NOTE IS AGLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEROF.
THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO
TRANSFER OF THE NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEROF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
15
ARTICLE 3
THE NOTES
SECTION 3.1 AMOUNT.
The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is limited to $300,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.3, 3.3, 3.4, 3.6, 11.6,
12.12, or 13.7 and except for any Additional Pari Passu Notes that may be issued
under this Indenture after the date hereof.
The Notes shall be known and designated as the "6.95% Senior
Collateralized Notes due 2005" of the Company. Their Stated Maturity shall be
February 1, 2005, and they shall bear interest at a rate per annum equal to
6.95%, accruing from the Issue Date or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, payable in cash semi-
annually on each Interest Payment Date, commencing August 1, 1998, until the
principal thereof is paid or duly provided for. In addition, if all the
Conditional Collateral is not included in the Collateral as contemplated by
Section 12.8, then, until such time as is provided in Section 12.8, the Notes
shall also bear Supplemental Interest, accruing from the Issue Date, payable in
cash semi-annually on each Interest Payment Date in each year.
The principal of (and premium, if any) and interest (including
Supplemental Interest) on the Notes shall be payable at such office or agency of
the Company as may be maintained for such purpose under Section 12.3, which
initially shall be the Place of Payment.
The payment of the Notes is guaranteed pursuant to the Guarantees in
favor of the Beneficiaries.
The Notes and the Guarantee are secured by and entitled to the
benefits of the Liens in the Collateral provided by the Collateral Documents.
The Notes shall be repurchased by the Company, at the option of the
holders of the Notes, pursuant to Section 12.12.
The Notes shall be redeemable as provided in Article 13.
All Notes shall be substantially identical except as to denomination,
subject to the provisions set forth below in respect of Additional Pari Passu
Notes that may be issued pursuant to this Indenture.
The Additional Pari Passu Notes may be issued under the Indenture as
part of the same series as the Notes or as one or more separate series, as
contemplated by Section 11.1. If the Additional Pari Passu Notes are being so
issued, there shall be established in one or more indentures supplemental
hereto, prior to the issuance thereof:
(a) The title of such Additional Pari Passu Notes (which, if a separate
series, shall distinguish such series from all other series of securities issued
under this Indenture);
16
(b) The aggregate principal amount of such Additional Pari Passu Notes and
any limit on the aggregate principal amount thereof which may be authenticated
and delivered under this Indenture (except for Notes authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Notes of such series
pursuant to Sections 2.3, 3.3, 3.4, 3.5, 3.6, 11.6, 12.12 or 13.7);
(c) The percentage of the principal amount at which such Additional Pari
Passu Notes will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of acceleration
of the maturity or upon redemption thereof or the method by which such portion
shall be determined;
(d) The date or dates on which, or periods during which, such Additional
Pari Passu Notes may be issued, and the date or dates or the method by which
such date or dates will be determined, on which the principal of (and premium,
if any, on) such Additional Pari Passu Notes are or may be payable (which, if so
provided in such Board Resolution or supplemental indenture, may be determined
by the Company from time to time as set forth in the such Additional Pari Passu
Notes issued from time to time);
(e) The rate or rates (which may be fixed or variable) at which such
Additional Pari Passu Notes shall bear interest, if any, or the method by which
such rate or rates shall be determined, the date or dates from which such
interest, if any, shall accrue or the method by which such date or dates shall
be determined (which, in either case or both, if so provided in such Board
Resolution or supplemental indenture, may be determined by the Company from time
to time and set forth in such Additional Pari Passu Notes issued from time to
time) and the circumstances, if any, in which the Company may defer interest
payments; and the Interest Payment Dates on which such interest shall be payable
(or the method of determination thereof), and the Regular Record Dates, if any,
for the interest payable on such Interest Payment Dates and the notice, if any,
to holders regarding the determination of interest, the manner of giving such
notice, the basis upon which interest shall be calculated if other than that of
a 360-day year of twelve 30-day months and any conditions or contingencies as to
the payment of interest in cash or otherwise, if any;
(f) The place or places, if any, in addition to or instead of the
Corporate Trust Operations Office of the applicable Trustee where the principal
of (and premium, if any) and interest on such Additional Pari Passu Notes shall
be payable and where such Additional Pari Passu Notes may be surrendered for
registration of transfer or exchange; the extent to which, or the manner in
which, any interest payable on any Global Note on an Interest Payment Date will
be paid, if other than in the manner provided in Section 3.7; the extent, if
any, to which the provisions of the last sentence of Section 12.1 shall apply to
such Additional Pari Passu Notes; and the manner in which any principal of, or
premium, if any, on, any Global Note will be paid, if other than as set forth
elsewhere herein and whether any Global Note will require any notation to
evidence payment of principal or interest;
(g) The obligation, if any, of the Company to redeem, repay, purchase or
offer to purchase such Additional Pari Passu Notes pursuant to any mandatory
redemption, sinking fund, asset sale offer or analogous provisions or upon other
conditions or at the option of the holder thereof and the period or periods
within which or the dates on which, the prices at which and the terms and
conditions upon which such Additional Pari Passu Notes shall be redeemed,
repaid, purchased or offered to be purchased, in whole or in part, pursuant to
such obligation;
(h) The right, if any, of the Company to redeem such Additional Pari Passu
Notes at its option and the period or periods within which, or the date or dates
on which, the price or prices at
17
which, and the terms and conditions upon which, such Additional Pari Passu Notes
may be redeemed, if any, in whole or in part, at the option of the Company or
otherwise;
(i) If the coin or Currency in which such Additional Pari Passu Notes shall
be issuable is in Dollars, the denominations of such Additional Pari Passu Notes
if other than denominations of $1,000 and any integral multiple thereof (except
as provided in Section 3.4);
(j) Additional provisions, if any, for the defeasance or discharge of
certain of the Company's obligations with respect to such Additional Pari Passu
Notes of the series, which provisions may be in addition to, or in substitution
for, or in modification of (or any combination of the foregoing), the provisions
of the Indenture;
(k) Whether provisions for payment of additional amounts or tax redemptions
shall apply and, if such provisions shall apply, such provisions;
(l) The date as of which such Additional Pari Passu Notes shall be dated;
(m) If the amount of payments of principal of (and premium, if any) or
interest on such Additional Pari Passu Notes may be determined with reference to
an index, including, but not limited to, an index based on a Currency or
Currencies other than that in which such Additional Pari Passu Notes are
denominated or payable, or any other type of index, the manner in which such
amounts shall be determined;
(n) The applicable overdue rate, if any;
(o) If such Additional Pari Passu Notes do not bear interest, the
applicable dates for purposes of Section 7.1;
(p) Any addition to, or modification or deletion of, any Event of Default
or covenant provided for in this Indenture with respect to such Additional Pari
Passu Notes;
(q) Whether such Additional Pari Passu Notes shall be issued in whole
or in part in the form of one or more Global Notes and, in such case, the U.S.
Depositary for such Global Note or Notes; and the manner in which and the
circumstances under which Global Notes representing such Additional Pari Passu
Notes may be exchanged for Debt Securities in definitive form, if other than, or
in addition to, the manner and circumstances specified in Section 3.4(b);
(r) The designation, if any, of any depositaries, trustees (other than
the Trustee), Paying Agents, Authenticating Agents, Note Registrars, Collateral
Agents (other than the Trustee) or other agents with respect to the such
Additional Pari Passu Notes;
(s) If such Additional Pari Passu Notes will be issuable in definitive
form only upon receipt of certain certificates or other documents or upon
satisfaction of certain conditions, the form and terms of such certificates,
documents or conditions;
(t) Whether such Additional Pari Passu Notes will be convertible into
shares of common stock or other securities or property of the Company, and, if
so, the terms and conditions, which may be in addition to or in lieu of the
provisions contained in this Indenture, upon which such Additional Pari Passu
will be so convertible, including the conversion price and the conversion
period;
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(u) The portion of the principal amount of such Additional Pari Passu Notes
which will be payable upon declaration of acceleration of the maturity thereof,
if other than the principal amount thereof;
(v) The terms, if any, on which such Additional Pari Passu Notes will be
subordinate to other debt of the Company;
(w) The provisions, if any, relating to the collateral provided for such
Additional Pari Passu Notes; and
(x) Any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and (subject to Section 3.3) set forth in such
Officers' Certificate, or in any such indenture supplemental hereto. All
securities of any one series need not be issued at the same time, and unless
otherwise provided, a series may be reopened for issuance of additional
securities of such series.
SECTION 3.2 DENOMINATIONS.
The Notes shall be issuable only as Notes in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its Chairman of the
Board of Directors, its President, one of its Executive or Senior Vice
Presidents or its Treasurer, under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who were at
any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes, executed by the Company, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes and the Trustee in accordance with the Company Order
shall authenticate and deliver such Notes. If any Note shall be represented by a
permanent Global Note, then, for purposes of this Section and Section 3.4, the
notation of a beneficial owner's interest therein upon original issuance of such
Note or upon exchange of a portion of a temporary Global Note shall be deemed to
be delivery in connection with the original issuance of such beneficial owner's
interest in such permanent Global Note.
The Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Notes, (i) the Board Resolution by or pursuant to which the form
and terms of such Notes have been approved, (ii) an Officers' Certificate
stating that all conditions precedent provided for in the Indenture have been
complied with and that, to the best knowledge of the signers of such
certificates, no Event of Default with respect to any of
19
the Notes shall have occurred and be continuing and (iii) an Opinion of Counsel
substantially to the effect that:
(a) the forms and terms of such Notes, have been established in conformity
with the provisions of this Indenture; and
(b) such Notes, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee in accordance with the Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent transfer and similar
laws affecting creditors' rights generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
The Trustee shall not be required to authenticate such Notes if the
issuance of such Notes pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Notes and this Indenture in a manner
which is not reasonably acceptable to the Trustee.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in one of the forms provided for herein duly
executed by the Trustee or by an Authenticating Agent, and such certificate upon
any Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture. Notwithstanding the foregoing, if any Note shall have been
duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Note to the Trustee for cancellation
as provided in Section 3.8 together with a written statement (which need not
comply with Section 1.2) stating that such Note has never been issued and sold
by the Company, for all purposes of this Indenture such Note shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION 3.4 TEMPORARY NOTES; EXCHANGE OF TEMPORARY GLOBAL NOTES FOR DEFINITIVE
NOTES; GLOBAL NOTES REPRESENTING NOTES.
(a) Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination for Notes, substantially of
the tenor of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as conclusively evidenced by their
execution of such Notes. Every such temporary Note shall be executed by the
Company and shall be authenticated and delivered by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes in lieu of which they are issued.
Except in the case of temporary Global Notes (which shall be exchanged in
accordance with the provisions of the following paragraphs), if temporary Notes
are issued, the Company will cause
20
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes, of a like Stated Maturity and with like terms and provisions,
upon surrender of the temporary Notes at the office or agency of the Company in
a Place of Payment, without charge to the holder, except as provided in Section
3.5 in connection with a transfer. Upon surrender for cancellation of any one or
more temporary Notes, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations and of a like Stated Maturity and
like terms and provisions. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
(b) The Notes are initially to be issued in the form of one or more Global
Notes. The Company shall execute and the Trustee shall, in accordance with
Section 3.3 and the Company Order, authenticate and deliver one or more Global
Notes in temporary or permanent form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Notes to be represented by such Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially as
set forth in Section 2.3.
Notwithstanding any other provision of this Section or Section 3.5, unless
and until it is exchanged in whole or in part for Notes in definitive form, a
Global Note representing the Notes may not be transferred except as a whole by
the U.S. Depositary to a nominee of such depositary or by a nominee of such
depositary to such depositary or another nominee of such depositary or by such
depositary or any such nominee to a successor U.S. Depositary or a nominee of
such successor depositary.
If at any time the U.S. Depositary for the Notes notifies the Company that
it is unwilling or unable to continue as U.S. Depositary for the Notes or if at
any time the U.S. Depositary for Notes shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Notes. If a successor U.S.
Depositary for the Notes is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Notes, will authenticate and deliver,
Notes in definitive form in an aggregate principal amount equal to the principal
amount of the Global Note or Notes in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that the
Notes issued in the form of one or more Global Notes shall no longer be
represented by such Global Note or Notes. In such event, the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Notes, will authenticate and deliver, Notes in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes in exchange for such Global Note or Notes.
If the Notes shall have been issued in the form of one or more Global Notes
and if an Event of Default with respect to the Notes shall have occurred and be
continuing, upon request by the Trustee (which shall be made upon request of any
Person or Persons having a beneficial interest in at least 25% in principal
amount of the Global Notes or, if Section 3.10 is applicable, any Person having
a beneficial interest in the Global Notes), the Company will promptly execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Notes,
21
will authenticate and deliver, Notes in definitive form and in an aggregate
principal amount equal to the principal amount of the Global Note or Notes (or
such lesser principal amount as the Trustee may request with respect to a
specified Person's beneficial interest in the Global Note, in which case the
Trustee will authenticate and deliver a new Global Note or Notes in a
denomination equal to the difference between the principal amount of the
surrendered Global Note or Notes and the such lesser principal amount requested
by the Trustee), in exchange for such Global Note or Notes.
The U.S. Depositary for the Notes may surrender a Global Note for the
Notes in exchange in whole or in part for the Notes in definitive form on such
terms as are acceptable to the Company and such depositary. Thereupon, the
Company shall execute and the Trustee shall authenticate and deliver, without
charge:
(i) to each Person specified by the U.S. Depositary a new Note or Notes, of
any authorized denomination as requested by such Person in an aggregate
principal amount equal to and in exchange for such Person's beneficial interest
in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal to
the difference, if any, between the principal amount of the surrendered Global
Note and the aggregate principal amount of Notes delivered to holders thereof.
Upon the exchange of a Global Note for Notes in definitive form, such
Global Note shall be cancelled by the Trustee. Notes issued in exchange for a
Global Note pursuant to this subsection (c) shall be registered in such names
and in such authorized denominations as the U.S. Depositary for such Global
Note, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Notes to
the Persons in whose names such Notes are so registered.
SECTION 3.5 REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust Operations
Office of the Trustee (or at the appropriate office of any other Note Registrar
appointed hereunder) a register (the registers maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Note Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Notes and of transfers and exchanges of Notes. Pursuant to
Section 6.16, the Company shall appoint a "Note Registrar" for the purpose of
registering Notes and registering transfers and exchanges of Notes as herein
provided.
Upon surrender for registration of transfer of any Note at the office or
agency of the Company maintained for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee, one or more new Notes of like aggregate principal amount of such
denominations as are authorized for Notes and of a like Stated Maturity and with
like terms and conditions.
Except as otherwise provided in Section 3.4 and this Section 3.5, at the
option of the holder, Notes may be exchanged for other Notes of like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Notes which the
holder making the exchange is
22
entitled to receive.
(b) All Notes issued upon any transfer or exchange of Notes shall be valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered for such transfer or
exchange.
Every Note presented or surrendered for transfer or exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Note Registrar, duly executed, by the holder thereof or his or her attorney duly
authorized in writing.
No service charge will be made for any transfer or exchange of Notes
except as provided in Section 3.6. The Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration, transfer or exchange of Notes, other than
those expressly provided in this Indenture to be made at the Company's own
expense or without expense or without charge to the holders.
The Company, the Trustee and the Note Registrar shall not be required (i)
to register, transfer or exchange Notes during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Notes selected for redemption under Section 13.3 and ending at the close of
business on the day of such transmission, or (ii) to register, transfer or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If (i) any mutilated Note is surrendered to the Trustee at its Corporate
Trust Operations Office, or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent harmless, and neither
the Company nor the Trustee receives notice that such Note has been acquired by
a bona fide purchaser, then the Company shall execute and upon Company Request,
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Note, a new Note of like Stated
Maturity and with like terms and conditions and like principal amount, bearing a
number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Note, pay the amount due on such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in respect thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
23
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Note which is payable and is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Note) is registered at the close of
business on the Regular Record Date for such interest notwithstanding the
cancellation of such Note upon any transfer or exchange subsequent to the
Regular Record Date. Payment of interest on Notes shall be made at the Place of
Payment or, at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Note Register.
(b) Any interest on any Note which is payable but is not punctually paid or
duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered holder on the
relevant Regular Record Date by virtue of his having been such registered
holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names such Notes (or their respective Predecessor Note) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Note and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage
prepaid, to the holders of such Notes at their addresses as they appear in the
Note Register, not less than 15 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Notes (or their respective Predecessor Note)
are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on Notes in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each Note
delivered under this
24
Indenture upon transfer of, in exchange for, or in lieu of, any other Note shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
SECTION 3.8 CANCELLATION.
All Notes surrendered for payment, redemption, purchase under Section
12.12, transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee at its Corporate Trust Operations Office.
All Notes so delivered shall be promptly cancelled by the Trustee. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Company has not issued, and all Notes so delivered shall be
promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of
or in exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Notes held by the Trustee
shall be delivered to the Company upon Company Request. The acquisition of any
Notes by the Company shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Notes are surrendered to
the Trustee for cancellation. Permanent Global Notes shall not be destroyed
until exchanged in full for definitive Notes or until payment thereon is made in
full.
SECTION 3.9 COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 3.10 EXCHANGE UPON DEFAULT.
If default is made in the payments referred to in Section 12.1, then
the Company hereby undertakes that, upon presentation and surrender of a
permanent Global Note to the Trustee (or to any other Person or at any other
address as the Company may designate in writing), on any Business Day on or
after the maturity date thereof, the Company will issue and the Trustee will
authenticate and deliver to the bearer of such permanent Global Note duly
executed and authenticated definitive Notes with the same issue date and
maturity date as set out in such permanent Global Note.
SECTION 3.11 MANDATORY DISPOSITION OF NOTES PURSUANT TO GAMING LAWS.
Each holder and beneficial owner, by accepting or otherwise acquiring an
interest in the Notes, shall be deemed to have agreed that if the Gaming
Authority of any jurisdiction in which the Company or any of its subsidiaries
conducts or proposes to conduct gaming requires that a Person who is a holder or
beneficial owner must be licensed, qualified or found suitable under the
applicable Gaming Laws, such holder or beneficial owner shall apply for a
license, qualification or a finding of suitability within the required time
period. If such Person fails to apply or become licensed or qualified or is
found unsuitable (a "Disqualified Holder"), then the Company shall have the
right, at its option, notwithstanding any other provision of this Indenture (i)
to require such Person to dispose of its Notes or beneficial interest therein
within 30 days of receipt of notice of the Company's election or such earlier
date as may be requested or prescribed by such Gaming Authority
25
or (ii) to redeem such Notes at a redemption price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest (including
Supplemental Interest, if any) to the earlier of the redemption date and the
date of the finding of unsuitability, which may be less than 30 days following
the notice of redemption if so requested or prescribed by the Gaming Authority,
or such lesser amount as may be required by applicable Gaming Laws or by order
of any Gaming Authority. The Company shall notify the Trustee in writing of any
such Disqualified Holder status or redemption as soon as practicable. The
Company shall not be responsible for any costs or expenses any such holder or
beneficial owner may incur in connection with its application for a license,
qualification or a finding of suitability. Notwithstanding any other provision
of this Indenture, immediately upon the imposition of a requirement to dispose
of Notes by a Gaming Authority, such Person shall, to the extent required by
applicable Gaming Laws, have no further right (i) to exercise, directly or
indirectly, through any trustee, nominee or any other person or entity, any
right conferred by the Notes or (ii) to receive any interest, dividends or any
other distributions or payments with respect to the Notes or any remuneration in
any form with respect to the Notes from the Company or the Trustee, except the
redemption price.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to the Notes (except as to any surviving rights of
registration of transfer or exchange of such Notes herein expressly provided for
and rights to receive payments of principal (and premium, if any) and interest
on such Notes) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when:
(a) either
(1) all Notes theretofore authenticated and delivered (other than (i)
Notes which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6, and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 12.4) have been delivered to the Trustee for cancellation;
or
(2) all Notes not theretofore delivered to the Trustee for
cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice by the
Trustee in the name, and at the expense, of the Company;
(b) the Company, in the case of subclause (i), (ii) or (iii) of clause
(a)(2) of this Section, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such
26
purpose an amount sufficient to pay and discharge the entire indebtedness on
such Notes for principal (and premium, if any) and interest to the date of such
deposit (in the case of Notes which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be; provided, however, in
the event a petition for relief under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or state bankruptcy,
insolvency or other similar law, is filed with respect to the Company within 91
days after the deposit and the Trustee is required to return the deposited money
to the Company, the obligations of the Company under this Indenture with respect
to such Notes shall not be deemed terminated or discharged;
(c) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(d) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with; and
(e) the Company has delivered to the Trustee an Opinion of Counsel or
a ruling by the Internal Revenue Service to the effect that holders of the Notes
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.1, and, if money shall have been deposited with the
Trustee pursuant to clause (b) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 12.4, shall survive.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 12.4, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Notes, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE 5
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to the Notes
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law, pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest (including any Supplemental
Interest) upon any Note when it becomes due and payable, and continuance of such
default for a period of 30 days; or
27
(b) default in the payment of the principal of (and premium, if any, on)
any Note at its Maturity; or
(c) failure by the Company to make or consummate an Asset Sale Offer
when or as required under this Indenture or to comply with the provisions
described under Section 10.1; or
(d) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with) or in the Collateral Documents, and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in principal amount of the Outstanding Notes, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the failure by the Company or any Guarantor to pay when due (after
applicable grace periods as provided in any applicable instrument governing such
debt) the principal of any Indebtedness of the Company or any Guarantor (a
"Payment Default") or a default (after applicable grace periods as provided in
any applicable instrument governing such debt) that results in or requires the
acceleration of the maturity of, or the repurchase, redemption or defeasance of
any Indebtedness of the Company or any Guarantor, or requires that the Company
or any Guarantor offer to take any of the foregoing actions ("an Acceleration")
and, in each case the aggregate principal amount of such Indebtedness that is
subject to a Payment Default or an Acceleration, together with the principal
amount of any other such Indebtedness which is subject to a Payment Default or
an Acceleration, aggregates $25 million or more, if such overdue Indebtedness is
not discharged or such Acceleration is not annulled within 30 days after written
notice to the Company by the Trustee or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Outstanding Notes;
(f) the entry of a decree or order for relief in respect of the Company or
any Significant Subsidiary by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, or a decree or order adjudging the Company or any Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Significant Subsidiary under any applicable Federal or
State law, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or any Significant
Subsidiary or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(g) the commencement by the Company or any Significant Subsidiary of a
voluntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, or the consent by it to the entry of an order for relief in
an involuntary case under any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any substantial
part of its property, or the making by it of an assignment for the benefit of
its creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action; or
28
(h) breach by the Company or any Guarantor or any of the Company's
Subsidiaries of any material representation or warranty set forth in this
Indenture or the Collateral Documents, which breach is not cured by the Company
or any Guarantor or such Subsidiary or waived within 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the holders of at least 25% in principal amount
of the Outstanding Notes, a written notice specifying such breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(i) repudiation by the Company or any of the Guarantors of their
obligations under the Collateral Documents or the Guarantees or the Company or
any Guarantor takes any action that causes, or asserts, or fails to timely take
any action that it knows, or has been notified by the Trustee, is necessary to
prevent, the unenforceability of the Collateral Documents or the Guarantees
against the Company or any of the Guarantors for any reason, or is necessary to
maintain the perfection of the material Liens of the Collateral Documents,
except for such matters as are expressly permitted under this Indenture or the
Collateral Documents; or
(j) the occurrence of a License Revocation which continues for a
period of more than 90 consecutive days; or
(k) the Company or any Guarantor shall suffer any final judgments which
individually or in the aggregate exceed $25 million and remain unstayed,
unsatisfied, not bonded and undischarged for a period of 60 consecutive days
after notice to the Company from the Trustee or notice to the Company and the
Trustee from the holders of at least 25% in principal amount of the Outstanding
Notes.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Notes at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the holders of
not less than 25% in principal amount of the Outstanding Notes may declare the
principal amount of all the Notes to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by holders), and upon any
such declaration such principal amount (or specified amount) plus accrued and
unpaid interest (and premium, if payable) shall become immediately due and
payable. Upon payment of such amount all obligations of the Company in respect
of the payment of principal of the Notes shall terminate.
At any time after such a declaration of acceleration with respect to Notes
has been made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
holders of at least a majority in principal amount of the Outstanding Notes, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(1) all overdue installments of interest on all Notes,
(2) the principal of (and premium, if any, on) any Notes which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed
29
therefor in such Notes,
(3) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest on each Note at the rate or rates
prescribed therefor in such Notes, and
(4) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all Events of Default with respect to Notes, other than the
nonpayment of the principal of Notes which has become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that, if:
(a) default is made in the payment of any installment of interest on
any Note when such interest or payment becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of principal of (or premium, if any, on)
any Note at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to it, for the benefit of
the holders of such Notes, the amount then due and payable on such Notes for the
principal (and premium, if any) and interest (including Supplemental Interest),
if any, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Notes wherever situated.
In addition, if an Event of Default occurs and is continuing, the Trustee shall
have the remedies set forth in the Collateral Documents and Section 15.6 hereof.
If an Event of Default with respect to Notes occurs and is continuing, then
the Trustee may, in its discretion, proceed to protect and enforce its rights
and the rights of the holders of Notes by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or the Collateral Documents or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
The Trustee shall be under no duty to the Company or any Guarantor to
make or give any presentment, demand for performance, notice of nonperformance,
protest, notice of protect, notice
30
of dishonor, or other notice or demand in connection with any Collateral, or to
take any steps necessary to preserve any rights against prior parties except as
expressly provided in this Indenture. The Trustee shall not be liable to the
Company or the Guarantors for failure to collect or realize upon any or all of
the Collateral, or for any delay in so doing, nor shall the Trustee be under any
duty to the Company or the Guarantors to take any action with regard thereto.
The Trustee shall have no duty to the Company or the Guarantors to comply with
any recording, filing, or other legal requirements necessary to establish or
maintain the validity, priority or enforceability of the security interests in,
or the Trustee's rights in or to, any of the Collateral.
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
Bankruptcy Laws, as now or hereafter constituted, relative to the Company or any
Guarantor, or the property of the Company or of any Guarantor or their
creditors, the Trustee (irrespective of whether the principal of such Notes
shall then be due and payable as therein expressed or by declaration of
acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company or any Guarantor for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including Supplemental Interest, if any) owing
and unpaid in respect of the Notes and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the holders of such
Notes allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any holder thereof, or to authorize the Trustee to vote in respect
of the claim of any holder in any such proceeding.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT SECURITIES.
All rights of action and claims under this Indenture or the Notes or
Guarantees may be
31
prosecuted and enforced by the Trustee without the possession of any of such
Notes or Guarantees or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name, as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the holders of the Notes in respect of which such judgment
has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Notes and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest (including Supplemental Interest, if any) on
the Notes ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal (and premium, if any) and
interest, respectively;
THIRD: without duplication, to holders of Notes for any other obligations
owing to the holders of Notes under the Notes, this Indenture or the Collateral
Documents; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7 LIMITATION ON SUITS.
No holder of any Note shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, the Guarantees or the
Collateral Documents, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless:
(a) such holder has previously given written notice to the Trustee of
a continuing Event of Default;
(b) the holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such holder or holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the holders of at least a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such holders shall have
any right in any
32
manner whatever by virtue of, or by availing of, any provision of this
Indenture, the Guarantees or the Collateral Documents to affect, disturb or
prejudice the rights of any other such holders, or to obtain or to seek to
obtain priority or preference over any other of such holders or to enforce any
right under this Indenture, the Guarantees or the Collateral Documents, except
in the manner herein provided and for the equal and ratable benefit of all of
such holders. For the protection and enforcement of the provisions of this
Section 5.7, each and every holder of Notes and the Trustee shall be entitled to
such relief as can be given at law or in equity.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, except for
restrictions imposed by Gaming Laws or Gaming Authorities on payments by
entities holding Gaming Licenses, the holder of any Note shall have the right,
which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.7 and Section 3.11) interest on such
Note on the respective Stated Maturity or Maturities expressed in such Note (or,
in the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment and interest thereon, and such right shall not
be impaired without the consent of such holder except that no holder shall have
the right to institute any such suit, if and to the extent that the institution
or prosecution thereof or the entry of judgment therein would under applicable
law result in the surrender, impairment, waiver, or loss of the Liens of the
Collateral Documents upon any property subject to the Lien in favor of the
Beneficiaries.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such holder, then and in every such case the Company, the Trustee and the
holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law (including Gaming Laws),
be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or any acquiescence
therein. Every right and remedy given by this Indenture or by law to the Trustee
or to the holders may be exercised from time to time, and as often as may be
33
deemed expedient, by the Trustee or by the holders, as the case may be.
SECTION 5.12 CONTROL BY HOLDERS.
The holders of at least a majority in principal amount of the Outstanding
Notes shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Notes, provided that:
(a) such direction shall not be in conflict with any rule of law
(including Gaming Laws) or with this Indenture;
(b) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would be unjustly prejudicial to the
holders of Notes not joining in any such direction; and
(c) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
The holders of not less than a majority in aggregate principal amount of
the Outstanding Notes, by notice to the Trustee, may, on behalf of the holders
of all the Notes, waive any past default hereunder and its consequences, except
a default:
(a) in the payment of the principal of (or premium, if any) or interest on
any Note,
(b) in respect of a covenant or provision hereof which, pursuant to
Article 11, cannot be modified or amended without the consent of the holder of
each Outstanding Note affected, or
(c) in respect of a covenant or provision which Article 11 provides cannot
be modified or amended without the consent of the holders of not less than 66-K%
in aggregate principal amount (in which case the holders of such percentage may,
on behalf of all the Notes, waive any past default hereunder and its
consequences).
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of the Notes under this Indenture, but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit other than the Trustee of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
34
party litigant, but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any holder or group of
holders holding in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any holder of a Note for the
enforcement of the payment of the principal of (or premium, if any) or interest
(including Supplemental Interest, if any) on such Note on or after the
respective Stated Maturity or Maturities expressed in such Note (or, in the case
of redemption, on or after the Redemption Date).
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 5.16 DISQUALIFIED HOLDERS.
To the extent required by applicable Gaming Laws, Notes held by a
Disqualified Holder shall, so long as held by such Person, be disregarded for
purposes of providing notices, directions, waivers or other actions and
determining the sufficiency of such notices, directions, waivers or actions
under this Article 5.
ARTICLE 6
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect to
the Notes,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) 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; but in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to Notes has occurred and is
continuing, the Trustee shall, with respect to the Notes, exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability
35
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Notes in good faith in
accordance with the direction of the holders of at least a majority in principal
amount of the Outstanding Notes relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture; and
(4) the Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(5) the Trustee shall cooperate and comply with any order or
directive of a Gaming Authority in connection with this Indenture, including
that the Trustee submit an application for any license, finding of suitability
or other approval pursuant to any Gaming Laws and will cooperate fully and
completely in any proceeding related to such application; provided the Company
agrees to prepare (or cause the Guarantors to prepare) all documentation in
connection with any such order, directive, application and proceeding and to
reimburse the Trustee for all costs and expenses incurred by it in connection
therewith.
(d) Whether or not therein expressly so provided, every provision of this
Indenture or the Collateral Documents relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section. In the event of any conflict or ambiguity between
this Indenture and any of the Collateral Documents (including the Intercreditor
Agreement), the provisions of this Indenture shall govern and control with
respect to the Trustee's rights, responsibilities and duties. The provisions of
this Indenture with respect to the Trustee's rights, responsibilities and duties
are incorporated by reference into each of the Collateral Documents (including
the Intercreditor Agreement) and shall apply with respect to the Trustee's
performance thereunder (whether in the capacity as Trustee or Collateral Agent)
as if set forth therein.
SECTION 6.2 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect
to Notes, the Trustee shall give notice to all holders of Notes of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest on any Note, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the holders of Notes; and provided,
36
further, that in the case of any default of the character specified in Section
5.1(d) with respect to Notes, no such notice to holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Notes.
Notice given pursuant to this Section 6.2 shall be transmitted by mail:
(a) to all registered holders, as the names and addresses of the
registered holders appear in the Note Register; and
(b) to each holder of a Note whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a) of this Indenture.
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.1:
(a) the Trustee may rely, and shall be protected in acting or refraining
from acting, upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the holders of Notes pursuant to this Indenture, unless such holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties
37
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) Except with respect to Section 12.1, the Trustee shall have no duty to
inquire as to the performance of the Company's covenants in Article 12 hereof.
In addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Default or Event of Default occurring pursuant
to Section 5.1(a), (b) or (c) or (ii) any Default or Event of Default of which
the Trustee shall have received written notification or obtained actual
knowledge.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture,
the Guarantees, the Collateral Documents or of the Notes. The Trustee shall not
be accountable for the use or application by the Company of any Notes or the
proceeds thereof. The Trustee makes no representation as to the validity, value
or condition of any property covered or intended to be covered by the Lien of
the Collateral Documents or any part thereof or as to the title of the Company
to such property or as to the security afforded by the Collateral Documents or
hereby. The Trustee has not prepared or participated in the negotiation of any
of the Collateral Documents, and each holder, by the purchase of a Note, shall
be deemed to have requested and authorized the Trustee to execute and deliver
each Collateral Document.
SECTION 6.5 MAY HOLD NOTES.
The Trustee, any Paying Agent, the Note Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 6.8 and 6.13, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Note Registrar or such other agent.
SECTION 6.6 MONEY HELD IN TRUST.
Money in any Currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation in
Dollars for all services rendered by it hereunder and under the Collateral
Documents (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses, disbursements
and advances incurred or made by the
38
Trustee in accordance with any provision of this Indenture and the Collateral
Documents (including costs incurred in connection with applications to any
Gaming Authority and including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify in Dollars the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder or under the
Collateral Documents, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Notes, upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of amounts due on the Notes.
The obligations of the Company under this Section 6.7 to compensate and
indemnify the Trustee for reasonable expenses, disbursements and advances shall
constitute additional indebtedness under this Indenture and shall survive the
satisfaction and discharge of this Indenture and any rejection or termination of
this Indenture under any Bankruptcy Law. When the Trustee incurs expenses or
renders services after an Event of Default specified in Section 5.1(f) or (g)
occurs, the expenses and the compensation for the services of the Trustee are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall comply with the relevant provisions of the TIA with
respect to conflicts of interest and disqualification. If such provisions
require the Trustee to resign with respect to the Notes, the Company shall take
prompt steps to have a successor appointed, in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000, subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any Affiliate of the Company
shall serve as Trustee upon any Notes.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
Subject to compliance with applicable Gaming Laws:
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor
39
Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Notes by giving
written notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes and a
successor Trustee appointed by Act of the holders of at least a majority in
principal amount of the Outstanding Notes, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8(a) with respect
to the Notes after written request therefor by the Company or by any holder who
has been a bona fide holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 with
respect to the Notes and shall fail to resign after written request therefor by
the Company or by any such holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Notes, or (ii) subject to Section 5.14, any holder
who has been a bona fide holder of a Note for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Notes.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Notes, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Notes and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Notes shall be appointed by Act of the
holders of at least a majority in principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Notes and, to that extent, supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Notes shall have been so appointed by the Company or the holders and
accepted appointment in the manner hereinafter provided, any holder who has been
a bona fide holder of a Note for at least six months may, subject to Section
5.7, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Notes.
(f) The Company shall give notice of each resignation and each removal of
the Trustee
40
with respect to the Notes and each appointment of a successor Trustee with
respect to the Notes in the manner and to the extent provided in Section 17.2 to
the holders of Notes. Each notice shall include the name of the successor
Trustee with respect to the Notes and the address of its Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Subject to compliance with applicable Gaming Laws:
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Notes, each such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee, but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.7.
(b) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) of this Section, as the case may be.
(c) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder and
under the Collateral Documents, provided that such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Notes shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the Notes
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes. In case any Notes shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Notes, in either its own name or that of its predecessor Trustee,
with the full force and effect which this Indenture provides for the certificate
of authentication of the Trustee.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to
41
a default, as defined in subsection (c) of this Section, or subsequent to such
default, then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the holders of the Notes and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as against the
Company and its other creditors, except any such reduction resulting from the
receipt or disposition of any property described in paragraph (2) of this
subsection, or from the exercise of any right of set-off which the Trustee could
have exercised if a voluntary or involuntary case had been commenced in respect
of the Company under the Federal Bankruptcy Laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such three-month period, or an
amount equal to the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to
a third Person, and (iii) distributions made in cash, securities or other
property in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings or reorganization pursuant to the Federal
Bankruptcy Laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three-
month period and such property was received as security therefor simultaneously
with the creation thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in subsection (c) of this
Section, would occur within three months, or
(D) to receive payment on any claim referred to in paragraph (b)
or (c) against the release of any property held as security for such claim as
provided in paragraph (b) or (C), as the case may be, to the extent of the fair
value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as
42
such creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned among the
Trustee, the holders and the holders of other indenture securities in such
manner that the Trustee, the holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee and the holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law, but after
crediting thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this paragraph,
with respect to any claim, the term "dividends" shall include any distribution
with respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal Bankruptcy Laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee and the holders and the holders
of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the holders and the holders
of other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claim, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this
Section a creditor relationship arising from:
43
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or more
at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving any
property which shall at any time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances thereon, if notice of
such advances and of the circumstances surrounding the making thereof is given
to the holders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar, custodian,
paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented, or an indebtedness created as a result of goods or securities
sold in a cash transaction as defined in subsection (c) of this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act, as
amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Notes or upon the other indenture
securities when and as such principal or interest becomes due and payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under which
the Trustee is also trustee, (ii) which contains provisions substantially
similar to the provisions of this Section, and (iii) under which a default
exists at the time of the apportionment of the funds and property held in such
special account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks and payable upon demand.
(4) The term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation.
44
(5) The term "Company" means any obligor upon the Notes including any
Guarantor.
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Notes remain Outstanding, upon a Company Request, there
shall be an authenticating agent (the "Authenticating Agent") appointed, for
such period as the Company shall elect, by the Trustee to act as its agent on
its behalf and subject to its direction in connection with the authentication
and delivery of the Notes. Notes authenticated by such Authenticating Agent
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by such Trustee. Wherever
reference is made in this Indenture to the authentication and delivery of Notes
by the Trustee or to the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on
behalf of such Trustee by such Authenticating Agent, except that only the
Trustee may authenticate Notes upon original issuance and pursuant to Section
3.6 hereof. Such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $100,000,000 and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to the Notes for which it served as Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such Authenticating Agent. Any Authenticating Agent may at any time, and if
it shall cease to be eligible shall, resign by giving written notice of
resignation to the applicable Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to the Notes,
the Trustee shall, upon Company Request, appoint a successor Authenticating
Agent, and the Company shall provide notice of such appointment to all holders
of Notes in the manner and to the extent provided in Section 17.2. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein. The Trustee for the Notes agrees to pay to the Authenticating Agent from
time to time reasonable compensation for its services, and the Trustee shall be
entitled to be reimbursed for such payment, subject to the provisions of Section
6.7. The Authenticating Agent for the Notes shall have no responsibility or
liability for any action taken by it as such at the direction of the Trustee,
except arising out of its negligence or willful misconduct.
45
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the within
mentioned Indenture.
PNC BANK, NATIONAL ASSOCIATION As Trustee
By: _____________________________
As Authenticating Agent
By: _____________________________
Authorized Signatory
SECTION 6.15. APPOINTMENT OF CO-TRUSTEE.
Subject to compliance with applicable Gaming Laws and Section 310(a)(3) of
the Trust Indenture Act, if the Trustee deems it necessary or desirable in
connection with the Collateral and/or the enforcement of the Collateral
Documents, the Trustee may appoint a co-Trustee with such powers of the Trustee
as may be designated by the Trustee at the time of such appointment, and the
Company and each Guarantor shall, on request, execute and deliver to such co-
Trustee any deeds, conveyances or other instruments required by such co-Trustee
so appointed by the Trustee to more fully and certainly vest in and confirm to
such co-Trustee its rights, powers, trusts, duties and obligations hereunder,
including duties and obligations under Section 6.1(c)(5).
SECTION 6.16. PAYING AGENT; NOTE REGISTRAR.
(a) Each Paying Agent or Note Registrar (other than the Company)
shall be a corporation organized and doing business under the laws of the United
States of America or of any State and having a combined capital and surplus of
at least $500,000,000.
(b) Each Paying Agent or Note Registrar may resign at any time by
giving written notice thereof to the Company. The Company, by a Board
Resolution and upon giving written notice thereof to the Paying Agent or Note
Registrar, may remove such Paying Agent or Note Registrar at any time.
(c) If any Paying Agent or Note Registrar shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of any
Paying Agent or Note Registrar for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Paying Agent or Note Registrar.
(d) The Company shall give notice of each resignation and each
removal of any Paying Agent or Note Registrar and each appointment of a
successor Paying Agent or Note Registrar by mailing written notice of such event
by first-class mail, postage prepaid, to the Trustee. Each notice shall include
the name and address of the successor Paying Agent or Note Registrar.
(e) The Trustee is hereby initially appointed Paying Agent and Note
Registrar.
(f) The Company shall enter into an appropriate written agency
agreement with any Paying Agent or Note Registrar not a party to this Indenture,
which agreement shall implement
46
the provisions of this Indenture that relate to such Paying Agent or Note
Registrar, including the provisions of Section 6.1(c)(5). The Company shall
notify the Trustee in writing of the name and address of any such Paying Agent
or Note Registrar.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the Notes, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the registered holders as of the date 15 days next preceding each
such Regular Record Date (or such semi-annual dates, as the case may be); and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
Provided, however, that if and so long as the Trustee shall be the Note
Registrar, no such list need be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.3(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was compiled from information received
by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy, not earlier than two years after filing, any information
filed with it pursuant to Section 7.3(c)(2).
(b) If three or more holders (hereinafter referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Note for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other holders of Notes with respect to
their rights under this Indenture or under the Notes and is accompanied by a
copy of the form of proxy or other
47
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of holders of
all Notes, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 7.2(a), and as to the approximate
cost of mailing to such holders the form of proxy or other communication,
specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written request of such applicants,
mail to the holders of Notes, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a), a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five Business Days after such
tender, the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the holders of Notes, or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the holders in accordance with Section 7.2(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing of any material
pursuant to a request made under Section 7.2(b).
SECTION 7.3 REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year, commencing with the first
May 15 after the first issuance of Notes pursuant to this Indenture, the Trustee
shall, to the extent required by the Trust Indenture Act, transmit to all
holders of Notes, in the manner hereinafter provided in this Section 7.3, a
brief report dated such date with respect to any of the following events which
may have occurred within the previous 12 months (but if no such event has
occurred within such period, no report need be transmitted):
(1) any change to its eligibility under Section 6.9 and its
qualifications under Section 6.8;
(2) the creation of or any material change to a relationship
specified in
48
paragraph (1) through (10) of Section 6.8(c) of this Indenture;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made by
the Trustee (as such) which remain unpaid on the date of such report, and for
the reimbursement of which it claims or may claim a lien or charge, prior to
that of the Notes, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount of the Outstanding Notes on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or any other obligor on the Notes,
including any Guarantor) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor relationship
arising in any manner described in Section 6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Notes which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which, in its opinion,
materially affects the Notes, except action in respect of a default, notice of
which has been or is to be withheld by the Trustee in accordance with Section
6.2.
(b) The Trustee shall transmit by mail to all holders of Notes (whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 7.2 (a)), as hereinafter provided, a brief
report with respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) since the date of the last report transmitted
pursuant to subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Notes, on property or funds held or collected by it as Trustee, and which it
has not previously reported pursuant to this subsection, except that the Trustee
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Notes Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Gaming License Requirements. To the extent required by Gaming Laws,
the Trustee will provide any applicable Gaming Authority with:
(1) copies of all notices, reports and other written communications
which the Trustee gives to holders of Notes;
(2) a list of holders of Notes promptly after the original issuance
of the Notes, eight months and two months prior to the expiration date of each
then-current Gaming License held by the Company or its Subsidiaries, and upon
demand;
49
(3) notice of any Event of Default under this Indenture or of any
Default, any acceleration of the indebtedness evidenced or secured hereby, the
institution of any legal actions or proceedings before any court or governmental
authority in respect of this Indenture and any rescission, annulment or waiver
in respect of an Event of Default;
(4) notice of the removal or resignation of the Trustee within five
Business Days thereof;
(5) notice of any transfer or assignment of rights under this
Indenture (but no transfers or assignments of the Notes) within five Business
Days thereof; and
(6) a copy of any amendment to the Notes or this Indenture within
five Business Days of the effectiveness thereof.
The notice specified in clause (3) above shall be in writing and, except as set
forth below, shall be given within five Business Days after the trustee has
transmitted the notice required by Section 6.2. In the case of any notice in
respect of any Event of Default, such Notice shall be accompanied by a copy of
any notice from the holders of the Notes, or a representative thereof or the
Trustee, to the Company and, if accompanied by any such notice to the Company,
shall be given simultaneously with the giving of any such notice to the Company.
In the case of any legal actions or proceedings, such notice shall be
accompanied by a copy of the complaint or other initial pleading or document.
The Trustee shall in accordance with the limitations set forth herein
cooperate with any applicable Gaming Authority in order to provide such Gaming
Authority with information and documentation relevant to compliance with clause
(3) above and as otherwise required by any applicable Gaming Laws.
The Company will advise the Trustee of the expiration date of any then-
current Gaming License held by the Company or its subsidiaries at least nine
months prior to the expiration thereof and the Trustee until so advised may
assume that such Gaming License has not expired.
(d) Reports pursuant to this Section 7.3 shall be transmitted by mail:
(1) to all holders of Notes, as the names and addresses of such
holders of Notes appear in the Note Register; and
(2) except in the cases of reports pursuant to subsection (b) of this
Section 7.3, to each holder of a Note whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a).
A copy of each such report shall, at the time of such transmission to
holders, be filed by the Trustee with each stock exchange upon which any Notes
are listed, with the Commission and also with the Company. The Company will
notify the Trustee when any of the Notes are listed on any stock exchange.
SECTION 7.4 REPORTS BY COMPANY.
The Company will file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports which the Company may be
required to file with the Commission pursuant to
50
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended.
ARTICLE 8
CONCERNING THE HOLDERS
SECTION 8.1 ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by holders of Notes
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such holders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the holders signing
such instrument or instruments. Whenever in this Indenture it is provided that
the holders of a specified percentage in aggregate principal amount of the
Outstanding Notes may take any Act, the fact that the holders of such specified
percentage have joined therein may be evidenced (a) by the instrument or
instruments executed by holders in person or by agent or proxy appointed in
writing, or (b) by the record of holders voting in favor thereof at any meeting
of such holders duly called and held in accordance with the provisions of
Article 9, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of holders.
SECTION 8.2 PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS BY HOLDER.
The ownership of Notes shall be proved by the Note Register or by a
certificate of the Note Registrar.
Subject to the provisions of Sections 6.1, 6.3 and 9.5, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a holder or his agent or proxy shall be sufficient and conclusive
in favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any instrument may
be proved by the certificate of any notary public or other officer authorized to
take acknowledgments of deeds, that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such officer. Where such
execution is by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership, as the
case may be, or by any other Person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
The record of any holders' meeting shall be proved in the manner provided
in Section 9.6.
The Trustee may in any instance require further proof with respect to any
of the matters referred to in this Section so long as the request is a
reasonable one.
51
SECTION 8.3 PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Note is registered as the owner of such Note
for the purpose of receiving payment of the principal of (and premium, if any)
and (subject to Section 3.7) interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any holder, or upon his
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such Note.
SECTION 8.4 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any Act by the holders of the
percentage in aggregate principal amount of the Outstanding Notes specified in
this Indenture in connection with such Act, any holder of a Note the number,
letter or other distinguishing symbol of which is shown by the evidence to be
included in the Notes the holders of which have consented to such Act may, by
filing written notice with the Trustee at the Corporate Trust Office and upon
proof of ownership as provided in Section 8.2, revoke such Act so far as it
concerns such Note. Except as aforesaid, any such Act taken by the holder of any
Note shall be conclusive and binding upon such holder and, subject to the
provisions of Section 5.8, upon all future holders of such Note and of any Notes
issued on transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Note or such other Notes.
ARTICLE 9
HOLDERS' MEETINGS
SECTION 9.1 PURPOSES OF MEETINGS.
A meeting of holders of Notes may be called at any time and from time to
time pursuant to the provisions of this Article 9 for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
holders pursuant to any of the provisions of Article 5;
(b) to remove the Trustee and appoint a successor Trustee pursuant to the
provisions of Article 6;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 11.2; or
(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of the Outstanding Notes,
under any other provision of this Indenture or under applicable law.
52
SECTION 9.2 CALL OF MEETINGS BY TRUSTEE.
The Trustee may at any time call a meeting of holders of Notes to take any
action specified in Section 9.1, to be held at such time or times and at such
place or places as the Trustee shall determine. Notice of every meeting of the
holders of Notes, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given to
holders of the Notes in the manner and to the extent provided in Section 17.2.
Such notice shall be given not less than 10 days nor more than 90 days prior to
the date fixed for the meeting.
SECTION 9.3 CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
holders of at least 10% in aggregate principal amount of the Outstanding Notes
shall have requested the Trustee to call a meeting of holders of Notes by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have given the notice of such
meeting within 10 days after the receipt of such request, then the Company or
such holders may determine the time or times and the place or places for such
meetings and may call such meetings to take any action authorized in Section
9.1, by giving notice thereof as provided in Section 9.2.
SECTION 9.4 QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of holders, a Person shall be (a) a
holder of a Note that is not a Disqualified Holder or (b) a Person appointed by
an instrument in writing as agent or proxy by such holder. The only Persons who
shall be entitled to be present or to speak at any meeting of holders shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 9.5 REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
holders of Notes, in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by holders of Notes as provided in Section 9.3, in which case the
Company or the holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by at least a majority vote of the
meeting.
Subject to the provisos in the definition of "Outstanding," at any meeting
each holder of a Note or proxy therefor shall be entitled to one vote for each
$1,000 principal amount of Notes held or represented by such holder; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Note challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Outstanding Notes held by him or her or instruments in
writing duly designating him or her as the person to vote on behalf of holders
of Notes. Any meeting of holders with respect to
53
which a meeting was duly called pursuant to the provisions of Section 9.2 or 9.3
may be adjourned from time to time by at least a majority of such holders
present and the meeting may be held as so adjourned without further notice.
SECTION 9.6 VOTING.
The vote upon any resolution submitted to any meeting of holders of Notes
with respect to which such meeting is being held shall be by written ballots on
which shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the Notes held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of holders shall be taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.2. The record shall show the serial numbers of the Notes voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.7 NO DELAY OF RIGHTS BY MEETING.
Nothing contained in this Article 9 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any holder under any of the provisions of this Indenture or of the
Notes.
ARTICLE 10
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 10.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with, merge with or into, or sell,
assign, convey, transfer or lease its properties and assets substantially in
their entirety (computed on a consolidated basis) to any Person, unless:
(a) either (a) the Company is the surviving entity or (b) the successor or
transferee (the "successor corporation") is a corporation organized and existing
under the laws of the United States, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, all of the obligations of the Company
under the Notes and this Indenture;
(b) immediately after giving effect to such transaction, no Event of
Default or Default shall exist; and
54
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this provision and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
The Trustee is hereby authorized to take any action deemed by it to be
necessary or desirable to confirm or ensure the validity, perfection and
priority of the Lien in favor of the Beneficiaries on the Collateral as a result
of any such transaction; provided, that this sentence shall create no obligation
-------- ----
on the Trustee to take any such action.
SECTION 10.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially in their entirety in accordance with Section 10.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
ARTICLE 11
SUPPLEMENTAL INDENTURES
SECTION 11.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto or amendments to the Collateral
Documents, in form reasonably satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another corporation to the rights of the
Company and the assumption by such successor of the covenants and obligations of
the Company and the Guarantors contained herein, in the Collateral Documents and
in the Notes; or
(b) to add to the covenants of the Company and the Guarantors, for the
benefit of the holders of Notes, or to surrender any right or power herein
conferred upon the Company or the Guarantors; or
(c) to add any additional Events of Default; or
(d) to secure the Notes and Guarantees, to provide for additional
collateral for the Notes or the Guarantees or to provide that any of the
Company's obligations under any of the Notes or this Indenture shall be
guaranteed and the terms and conditions for the release or substitution of such
security or guarantee; provided that any such action to release or substitute
such security or guaranty shall not adversely affect the interests of the
holders of Notes in any material respect; or
(e) to supplement any of the provisions of this Indenture or the
Collateral Documents to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of Notes
55
pursuant to Article 4 or 14, provided that any such action shall not adversely
affect the interests of the holders of Notes in any material respect; or
(f) to establish the form or terms of Additional Pari Passu Notes, as
contemplated by Section 3.1, provided that such form or terms shall not change
the form or terms of Outstanding Notes or modify the rights of the holders of
the Notes under this Indenture, the Guarantees or the Collateral Documents
unless the supplemental indenture including such change or modification has been
authorized by this Indenture other than under this clause (f) and, provided
further that, subject to the limit on the aggregate principal amount of
Additional Pari Passu Notes and the terms providing that Liens on Collateral
securing the Outstanding Notes and the Additional Pari Passu Notes shall be pari
passu, setting forth terms and provisions for the Additional Pari Passu Notes
that are substantially the same as the terms theretofore applicable to the
Outstanding Notes (including Sections 12.7, 12.8, 12.9, 12.10, 12.10, 12.11 and
12.12), or including such Additional Pari Passu Notes in the definition of Notes
herein (for some or all purposes hereunder) or for purposes of any Guarantees or
Collateral Documents, shall not be deemed to be a change in the terms of
Outstanding Notes or a modification of the rights of the holders of the Notes
under this Indenture, the Guarantees or the Collateral Documents; or
(g) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Notes and the Collateral Documents, and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee; or
(h) to comply with the requirements of the Commission in connection with
the qualification of this Indenture under the Trust Indenture Act; or
(i) to cure any ambiguity, to correct or supplement any provision herein
or in any Collateral Document which may be defective or inconsistent with any
other provision herein or therein or to make any other provisions with respect
to matters or questions arising under this Indenture or the Collateral Documents
which shall not be inconsistent with any provision of this Indenture or the
Collateral Documents; provided such other provisions shall not adversely affect
the interests of the holders of Outstanding Notes; or
(j) to comply with the TIA in connection with the Lien granted in any
Collateral Documents; or
(k) to make amendments or supplements required by Article 15.
The terms of any document entered into pursuant to this Section shall be
subject to prior approval, if required, of any applicable Gaming Authority.
SECTION 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the holders of not less than at least a
majority in principal amount of the Outstanding Notes, by Act of said holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto, or amendments to the Guarantees or the Collateral Documents
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the
56
provisions of this Indenture, the Guarantees or the Collateral Documents or of
modifying in any manner the rights of the holders of the Notes under this
Indenture, the Guarantees or the Collateral Documents; provided, however, no
such supplemental indenture shall release all or substantially all of the
Collateral from the Lien of the Indenture or the Collateral Documents (except in
accordance with the terms of the Indenture or the Collateral Documents), without
the written consent of the holders of not less than 66-K% in principal amount of
the Outstanding Notes; and provided further, that no such supplemental indenture
shall, without the consent of the holder of each Outstanding Note affected
thereby,
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Note, or reduce the principal amount thereof or
the rate (or extend the time for payment) of interest thereon or any premium
payable upon redemption thereof, or change the Currency or Currencies in which
the principal of (and premium, if any) or interest on such Note is denominated
or payable, or impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or alter any redemption provisions in a manner
adverse to the holders of Notes or release any Guarantor under any Guarantee
(except in accordance with the terms of the Indenture, the Guarantees or the
Collateral Documents); or
(b) reduce the percentage in principal amount of the Outstanding Notes,
the consent of whose holders is required for any supplemental indenture, or the
consent of whose holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(c) modify any of the provisions of this Section, Section 5.13, or Section
12.6, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the holder of each Outstanding Note affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any holder with
respect to changes in the references to "the Trustee" and concomitant changes in
this Section, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 11.1(g).
It shall not be necessary for any Act of holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The terms of any document entered into pursuant to this Section shall be
subject to prior approval, if required, of any applicable Gaming Authority. To
the extent required by applicable Gaming Laws, Notes held by a Disqualified
Holder shall, so long as held by such a Person, be disregarded for purposes of
providing consents and determining the sufficiency of consents under this
Section 11.2.
SECTION 11.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and the Collateral Documents. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which adversely affects the Trustee's own
57
rights, duties or immunities under this Indenture or otherwise in a material
way.
SECTION 11.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 11.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 11.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE 12
COVENANTS
SECTION 12.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Notes, that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Notes in accordance with the terms of the Notes and this Indenture.
SECTION 12.2 OFFICER'S CERTIFICATE AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a certificate of the principal executive officer, principal
financial officer or principal accounting officer of the Company stating whether
or not, to the knowledge of the signer thereof, the Company is in compliance
with all covenants and conditions under this Indenture, and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof
of which such signer may have knowledge. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 12.3 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer
58
or exchange, where Notes that are convertible may be surrendered for conversion,
if applicable, and where notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served. If the Notes are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland, the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Notes in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Notes are listed on such
exchange, and subject to any laws or regulations applicable thereto, in a Place
of Payment located outside the United States an office or agency where any Notes
may be surrendered for registration of transfer, where Notes may be surrendered
for exchange or redemption and where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee and the
Company hereby appoints the Trustee as its agent to receive all presentations,
surrenders, notices and demands.
The Company may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
SECTION 12.4 MONEY FOR NOTES; PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to the Notes, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Notes, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
the Notes, it will, by or on each due date of the principal (and premium, if
any) or interest on any Notes, deposit with any such Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due (in same day funds and, if a Global Note is Outstanding, by such time as is
sufficient for the Trustee to make payment to the U.S. Depositary for such Note
in accordance with rules of such U.S. Depositary), such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent with respect to the Notes other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid
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to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Notes) in the making of any payment of principal (and premium,
if any) or interest on the Notes; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company upon Company Request, or (if then held by the Company) shall
be discharged from such trust; and the holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be transmitted in the manner and to the extent provided by Section 17.2, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 12.5 CORPORATE EXISTENCE.
Subject to Article 10, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company.
SECTION 12.6 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 12.1, 12.3 through 12.5 or 12.7
through 12.12 if before the time for such compliance the holders of at least a
majority in principal amount of the Outstanding Notes shall, by Act of such
holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent
expressly so waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect; provided
that no waiver of any requirement to provide a Guarantee shall be effective
without the Act of the holder of each Outstanding Note affected thereby and no
waiver of any requirement to provide all or substantially
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all of the Collateral subject or to be subject to the Lien of the Indenture
shall be effective without the Act of at least 66-K% in principal amount of the
Outstanding Notes.
SECTION 12.7. GUARANTEE AND COLLATERAL MATTERS.
(a) The Company shall from time to time (i) cause each Subsidiary of the
Company that is designated herein as a Guarantor or becomes a Restricted
Subsidiary after the Issue Date to become a guarantor of the obligations of the
Company under this Indenture and the Notes by executing this Indenture (directly
or by supplemental indenture) as a Guarantor or by executing a Guarantee in
substantially the form of Article 16 (provided that the provision of a Guaranty
by a Restricted Subsidiary after the Issue Date shall be subject to compliance
with any applicable Gaming Laws and the Company agrees that (subject to Section
12.7(b)) it shall not have any such Restricted Subsidiary unless it is permitted
to give such Guarantee under applicable Gaming Laws) and (ii) deliver to the
Trustee an Opinion of Counsel, in form reasonably satisfactory to the Trustee,
that such Guarantee is the valid, binding and enforceable obligation of such
Guarantor, subject to customary exceptions for bankruptcy, fraudulent transfer
and equitable principles.
(b) The actions set forth in Section 12.7(a) shall be taken within 10 days
of any Person's becoming a Restricted Subsidiary, provided that, if such Person
is not permitted to give a Guarantee under applicable Gaming Laws, then, unless
such Person has become a guarantor of the Facility or any Additional Pari Passu
Notes, such period shall be extended as long as the Company continues to use
best efforts to obtain the requisite consents for such Guarantee from the
applicable Gaming Authority. Each Note issued after the date of execution by any
Restricted Subsidiary of a Guarantee shall be endorsed with a form of Guarantee
that has been executed by such Restricted Subsidiary. However, the failure of
any Note to have endorsed thereon a Guarantee executed by such Restricted
Subsidiary shall not affect the validity or enforceability of such Guarantee.
(c) The Company will not, and will not permit any Subsidiary to, directly
or indirectly, sell any stock or other equity interests of a Guarantor, except
pursuant to a Disposition of all the stock and equity interests of such
Guarantor (subject to Section 12.12 to the extent applicable), or issue any
stock or equity interests of any Guarantor to any Person other than the Company
or another Guarantor, provided that, as to any Subsidiary that becomes a
Guarantor after the Issue Date, the applicability of the foregoing provision in
this subdivision (c) shall be subject to compliance with any applicable Gaming
Laws and the Company agrees that it shall not have any such Subsidiary unless
the applicability of such provision to it is permitted. If the Company shall
subsequently sell or otherwise transfer all of the stock and equity interests of
a Guarantor, the Guarantee required hereby may be withdrawn or cancelled,
provided that the proceeds of any such sale are applied in the manner and to the
extent required by Section 12.12 and provided further that such Guarantee shall
not be released or withdrawn if such sale or transfer is made to the Company,
any other Guarantor or any Affiliate thereof.
(d) Prior to the Collateral Release Date (or thereafter if a Collateral
Event has occurred and the Collateral Release Date has not again occurred), the
Company from time to time shall cause each Guarantor to (i) execute a Subsidiary
Security Agreement, a Subsidiary Pledge Agreement and Mortgages as may be
necessary to grant a security interest in all of the assets and properties,
whether real, personal or mixed, or tangible or intangible, of such Guarantor to
secure its Guarantee, and to execute and deliver all documents, and take all
such other actions as may be necessary or reasonably requested by the Trustee to
grant the Trustee a valid, enforceable and perfected Lien on all of the assets
and properties of the Guarantor included in the Collateral, pari passu with
Liens thereon
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securing the Facility (and, if issued, any Additional Pari Passu Notes),
provided that the provision of such Collateral Documents and such Collateral by
a Subsidiary that becomes a Guarantor after the Issue Date (or the pledge of
stock of any new Subsidiary that becomes subject to applicable Gaming Laws)
shall be subject to compliance with any applicable Gaming Laws and the Company
agrees that it shall not have any such Subsidiary unless it is permitted to
provide such Collateral Documents and Collateral (or such pledge of stock) under
applicable Gaming Laws, and (ii) deliver to the Trustee an Opinion of Counsel,
in form reasonably satisfactory to the Trustee, that such Subsidiary Security
Agreement, Subsidiary Pledge Agreement and Mortgages, as the case may be, are
the valid, binding and enforceable obligations of such Guarantor, subject to
customary exceptions for bankruptcy, fraudulent transfer and equitable
principles, and create valid and perfected Liens on the Collateral therein
securing such Guarantor's Guarantee.
(e) Prior to the Collateral Release Date (or thereafter if a Collateral
Event has occurred and the Collateral Release Date has not again occurred), the
Company will not, and will not permit any Subsidiary to create, incur or suffer
to exist any Lien upon any of their properties or assets (including capital
stock), that secures the Facility, without making effective provision to secure
all of the Notes and Guarantees then outstanding by such Lien, equally and
ratably with (or prior to) the Facility, so long as the Facility shall be so
secured.
(f) A Collateral Release shall not constitute or be construed as a release
(or to require the release) of the Guarantee of any Guarantor. The Company will
not, and will not permit any Subsidiary to create or acquire or have any
Subsidiary that is not an Excluded Subsidiary without making effective provision
for such Subsidiary to become a Guarantor under this Indenture.
SECTION 12.8. CONDITIONAL COLLATERAL.
Prior to the Collateral Release Date, the Company shall use best efforts to
obtain all necessary consents from the applicable Gaming Authorities to xxxxx x
Xxxx on the Conditional Collateral in favor of the Collateral Agent pursuant to
the Collateral Documents (or in the case of Detroit LLC to complete any
necessary registration with the Commission of a Detroit LLC Guarantee) and, upon
receipt of all consents needed to grant such Lien on any Conditional Collateral
(or upon completion of such registration in the case of Detroit LLC), the
Company shall promptly take all action (or cause the Guarantors to take all
action) necessary (including execution and delivery of Collateral Documents or
supplements thereto) in order to grant and perfect in favor of the Collateral
Agent a Lien on such Conditional Collateral, pari passu with the Lien on such
Conditional Collateral securing the Facility. If the Company fails to obtain all
necessary consents from the applicable Gaming Authorities (or to complete such
registration with the Commission) and to grant and perfect such a Lien in favor
of the Collateral Agent upon or in all such Conditional Collateral by July 30,
1998, then the Company agrees to pay, as liquidated damages and not as a penalty
and together with semi-annual payments of interest hereunder and under the
Notes, additional interest ("Supplemental Interest") on the Notes at the rate of
0.25% per annum, from the period commencing on the Issue Date and continuing up
to and including the earliest of the Collateral Release Date, the date on which
such Detroit LLC Guarantee and such Lien on all Conditional Collateral in favor
of the Collateral Agent has been granted and perfected and the date on which the
principal of the Outstanding Notes has been paid or made available for payment.
No investments in Detroit LLC, whether by means of purchase or other acquisition
of stock or other securities, or by means of a loan, advance creating a debt,
capital contribution, guaranty or other debt or equity participation or
interest, shall be made by the Company or any Guarantor until Detroit LLC is a
Guarantor and a party to the relevant Collateral Documents.
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SECTION 12.9 LIMITATION ON LIENS.
The Company will not, and will not permit any Subsidiary of the Company
(other than any Excluded Subsidiary) to, create, incur, issue, assume or
guarantee any Indebtedness of the Company or any Subsidiary secured by a Lien
upon any Principal Property, or upon shares of capital stock or evidences of
Indebtedness issued by any such Subsidiary which owns or leases a Principal
Property and which are owned by the Company or any such Subsidiary (whether such
Principal Property, shares or evidences of Indebtedness are now owned or are
hereafter acquired by the Company of such Subsidiary), without making effective
provision to secure all of the Notes or Guarantees, as the case may be, then
outstanding by such Lien, equally and ratably with (or prior to) any and all
other Indebtedness thereby secured, so long as such Indebtedness shall be so
secured.
The foregoing restrictions shall not apply, however, to: (a) Liens existing
on the date of original issuance of the Notes; (b) Liens affecting property of a
corporation or other entity existing at the time it becomes a Subsidiary of the
Company or at the time it is merged into or consolidated with the Company or a
Subsidiary of the Company (provided that such Liens are not incurred in
connection with, or in contemplation of, such entity becoming a Subsidiary or
such merger or consolidation and do not extend to or cover any property or
assets of the Company or any Guarantor other than the property of the entity so
acquired); (c) Liens on property existing at the time of acquisition thereof or
incurred to secure payment of all or a part of the purchase price of property
(including the cost of improvements or construction of property) or to secure
Indebtedness incurred prior to, at the time of, or within 24 months after the
acquisition for the purpose of financing all or part of the purchase price
(including the cost of improvements or construction) thereof (provided that such
Liens do not extend to or cover any property or assets of the Company or any
Guarantor other than the property so acquired); (d) Liens to secure Indebtedness
of limited liability companies, joint ventures, partnerships or corporations
which are less than wholly-owned by the Company and its Subsidiaries ("Non-
Wholly Owned Entities"), to the extent such Liens are solely on property or
assets of, or equity interests in, such Non-Wholly Owned Entities; and (e) any
extension, renewal, replacement or refunding of any Lien referred to in the
foregoing clauses (a) through (d), provided that the aggregate principal amount
of Indebtedness secured thereby and not otherwise authorized by the foregoing
clauses shall not exceed the aggregate principal amount of Indebtedness, plus
any premium or fee payable in connection with any such extension, renewal,
replacement or refunding, so secured at the time of such extension, renewal,
replacement or refunding.
Notwithstanding the foregoing, the Company and its Subsidiaries may create,
incur, issue, assume or guarantee Indebtedness secured by Liens without equally
and ratably securing the Notes then outstanding, provided that at the time of
such creation, incurrence, issuance, assumption or guarantee, after giving
effect thereto and to the retirement of any Indebtedness which is concurrently
being retired, the aggregate amount of all outstanding Indebtedness secured by
Liens so incurred (other than those Liens permitted by the preceding paragraph),
together with all outstanding Attributable Value of all sale and leaseback
transactions permitted by the last paragraph of Section 12.10 (if Section 12.10
is then in effect), does not exceed 15% of the Consolidated Net Tangible Assets
of the Company.
SECTION 12.10 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
After the Collateral Release Date, the Company will not, and will not
permit any Subsidiary of the Company (other than any Excluded Subsidiary) to,
enter into any sale and leaseback transaction involving any Principal Property
unless the Company or such Subsidiary shall apply, or
63
cause to be applied, to the retirement of its secured Indebtedness within 120
days after the effective date of the sale and leaseback transaction, an amount
not less than the greater of (i) the Net Proceeds of the sale of the Principal
Property leased pursuant to such arrangement or (ii) the fair market value of
the Principal Property so leased. The restriction will not apply to sale and
leaseback transaction involving the taking back of lease for a period of less
than three years.
Notwithstanding the foregoing, the Company or any such Subsidiary may enter
into a sale and leaseback transaction, provided that at the time of such
transaction, after giving effect thereto, the Attributable Value thereof,
together with all Indebtedness secured by Liens permitted pursuant to Section
12.9 (other than those Liens permitted by the second paragraph of Section 12.9,
and other than the Attributable Value of the sale and leaseback transactions
permitted by the preceding paragraph) does not exceed 15% of the Consolidated
Net Tangible Assets of the Company or if the sale and leaseback transaction
would be a Permitted Disposition.
SECTION 12.11 COLLATERAL EVENT AFTER COLLATERAL RELEASE DATE.
Company shall, and shall cause each of the Guarantors to, within 30 days
following the occurrence of such Collateral Event (provided that such Collateral
Event is then continuing) and in any event not later than the granting of any
Liens in such collateral to secure the Facility or any Additional Pari Passu
Notes, grant Liens in substantially all assets and properties, whether real,
personal or mixed, or tangible or intangible, of the Company and the Guarantors
to secure the Notes and Guarantees, provided that the Company and the Guarantors
--------
shall not be obligated to provide Liens in any assets and properties unless and
until all approvals of Gaming Authorities required for Liens in the respective
assets and properties are obtained but, if approvals of Gaming Authorities are
not required (or have been obtained) to provide Liens in any such assets or
properties to secure the Facility or any Additional Pari Passu Notes, the
Company and the Guarantors shall not provide Liens in such assets or properties
to secure the Facility or any Additional Pari Passu Notes until the required
approvals of Gaming Authorities are obtained for the Liens in such assets or
properties to secure the Notes and the Guarantees. The Company shall, and shall
cause each Guarantor to, use its best efforts to obtain all necessary consents
from the applicable Gaming Authorities to grant such Liens to secure the Notes
and Guarantees and, upon receipt of all consents needed to grant such a Lien,
shall promptly take all action (or cause the Guarantors to take all action)
necessary (including execution and delivery of Collateral Documents) in order to
grant and perfect such a Lien. The Liens granted pursuant to this Section 12.11
shall be equal, ratable and pari passu with any Liens securing the Facility (and
any Additional Pari Passu Notes) and shall be granted pursuant to instruments,
documents and agreements which are (i) substantially in the form of the
Collateral Documents in effect as of the date hereof or otherwise reasonably
acceptable to the Trustee and (ii) no less favorable, in any material respect,
to the holders of the Notes than the form of instruments, documents and
agreements provided to secure the Facility. Each holder of the Outstanding
Notes, by its acceptance of a Note, consents and agrees to the terms of such
Collateral Documents (including, without limitation, the provisions providing
for foreclosure and release of Collateral) that are deemed by the Trustee to be
reasonably acceptable and, without limitation, authorizes the Trustee to make
changes to the form of the Collateral Documents in effect as of the date hereof
in order to provide appropriate exceptions from representations, warranties and
covenants for any intervening Liens permitted under Section 12.9 and to conform
to corresponding changes made to the form of instruments, documents and
agreements securing the Facility in effect as of the date hereof. In connection
with the granting of any such Liens, the Company and the Guarantors shall
contemporaneously provide to the Trustee
64
policies of title insurance on customary terms and conditions, to the extent
policies of title insurance on the corresponding assets and properties are
provided to the Administrative Agent under the Facility (and in an insured
amount that bears the same proportion to the aggregate principal amount of the
Outstanding Notes as the insured amount in the policies provided to the
Administrative Agent bears to the aggregate amount of the Facility), Opinions of
Counsel required under Section 314(b) of the TIA and other assurances as the
Trustee may reasonably request.
SECTION 12.12 SPECIAL ASSET SALES.
Prior to the Collateral Release Date (or thereafter if a Collateral Event
has occurred and the Collateral Release Date has not again occurred):
(a) The Company shall not, and shall not permit any of its Subsidiaries
(other than Excluded Subsidiaries) to, in one transaction or a series of related
transactions, consummate any Special Asset Sale, unless (i) no Default or Event
of Default shall have occurred and be continuing at the time of, or would occur
after giving effect to, such Special Asset Sale, (ii) the Company (or the
Subsidiary, as the case may be) receives consideration at the time of such
Special Asset Sale at least equal to the fair value (evidenced by an Officers'
Certificate delivered to the Trustee contemporaneous with such Special Asset
Sale) of the assets sold or otherwise disposed of and (iii) at least 80% of the
value of such consideration for such Special Asset Sale consists of Cash
Equivalents; provided that each of
(x) the amount of any liabilities (as shown on the Company's or such
Subsidiary's most recent balance sheet or in the notes thereto) of the Company
or any Subsidiary (other than liabilities that are by their terms subordinated
to the Notes or any Guarantee thereof) that are assumed by the transferee of any
such assets,
(y) the amount of any notes or other obligations received by the Company
or any such Subsidiary from any such transferee that are immediately
converted by the Company or such Subsidiary into cash or as to which
the Company or such Subsidiary has received at or prior to the
consummation of the Special Asset Sale a commitment from a nationally
recognized investment, merchant or commercial bank to convert into
cash within 90 days of the consummation of such Special Asset Sale
unless not actually converted into cash within such 90-day period (to
the extent of the cash received or receivable pursuant to any such
commitment) and
(z) an amount equal to the fair value (evidenced by an Officers'
Certificate delivered to the Trustee contemporaneous with such
Special Asset Sale) of operating assets to be used or useful in the
business of the Company or any Subsidiary with respect to which the
Trustee has received a fully perfected Lien (pari passu with any
Liens securing the Facility or any Additional Pari Passu Notes),
will be deemed to be Cash Equivalents for purposes of this provision. For
purposes of subdivision (b) below and clause (iii) of this subdivision (a), an
Event of Loss suffered by the Company or any Subsidiary (other than Excluded
Subsidiaries) shall constitute a Special Asset Sale and the Company will be
required to apply the Net Proceeds from such Event of Loss as set forth below.
65
(b) Subject to the first sentence of subdivision (c) below, within 24
months after the receipt of any Net Proceeds from a Special Asset Sale
(including Net Proceeds from an Event of Loss), the Company or any of its
Subsidiaries (other than Excluded Subsidiaries) may
(i) apply an amount equal to such Net Proceeds to (A) the making of a
capital expenditure or the acquisition of other tangible assets, in
each case, that is used or useful in any business of the Company or
such Subsidiary and/or (B) acquisitions of publicly traded securities
of gaming, hotel or related companies, upon consummation of which the
Trustee shall have received a fully perfected security interest (pari
passu with any Liens securing the Facility or any Additional Pari
Passu Notes) in the property, securities or assets acquired by the
Company or such Subsidiary in connection therewith,
(ii) contractually commit to apply such Net Proceeds to the payment of
either the purchase price of publicly traded securities of gaming,
hotel or related companies or the costs of construction of real
property improvements of property used or useful in any business of
the Company or such Subsidiary, in which the Trustee shall receive or
retain a fully perfected security interest (pari passu with any Liens
securing the Facility or any Additional Pari Passu Notes) in the
property, securities or assets being acquired by the Company or such
Subsidiary in connection therewith, or
(iii) segregate a portion of such Net Proceeds as a reserve account against
budgeted costs of construction of real property improvements of any
property used or useful in any business of the Company or such
Subsidiary, provided construction of such improvements has begun at
the time of such segregation and the Trustee shall receive or retain
a fully perfected security interest (pari passu with any Liens
securing the Facility or any Additional Pari Passu Notes) in such
property.
Pending the final application (which for purposes of clauses (ii) and (iii) of
the immediately preceding sentence shall be deemed to occur upon payment of such
Net Proceeds pursuant to the contractual commitment or for such budgeted costs
referred to therein (or, if such contractual commitment or budgeted costs are
terminated or cancelled, upon such termination or cancellation)) of any Net
Proceeds, the Company or such Subsidiary will invest such Net Proceeds in Cash
Equivalents held in an account in which the Trustee shall have received or
retain a fully perfected security interest (pari passu with any Liens securing
the Facility or any Additional Pari Passu Notes); provided that, pending such
final application (and without reducing the required amount of such final
application) the Company may obtain a release from such invested Cash
Equivalents to repay revolving loans under the Facility, in an aggregate amount
that does not include any of the Pro Rata Amount of Net Proceeds and provided
that the interests of the Administrative Agent on behalf of the Facility in the
remaining Cash Equivalents are correspondingly reduced. A Pro Rata Amount of
any Net Proceeds from Special Asset Sales that are not applied, segregated or
invested as provided in the first sentence of this subdivision (b), or upon
final application as contemplated by the immediately preceding sentence of this
subdivision (b), will be deemed to constitute "Excess Proceeds."
(c) Notwithstanding subdivisions (a) and (b) of this Section 12.12, if
prior to the Collateral Release Date (or thereafter if a Collateral Event has
occurred and the Collateral Release Date has not again occurred) a Special Asset
Sale occurs that results in a repayment of obligations under the Facility while
a default exists thereunder (without regard to any waiver of defaults that
66
may be given connection with such repayment) or results in a reduction of the
aggregate commitments under the Facility, a Pro Rata Amount of Net Proceeds from
such Special Asset Sale will be deemed to constitute "Excess Proceeds" upon such
repayment or reduction.
(d) When the aggregate amount of Excess Proceeds exceeds $25,000,000, the
Company shall make an offer to all holders of Notes to purchase Notes (an "Asset
Sale Offer") in an amount equal to the maximum principal amount of Notes that
may be prepaid, purchased or redeemed out of the Excess Proceeds, less (i) the
amount of such Excess Proceeds multiplied by a fraction, the numerator of which
is the aggregate amount of outstanding obligations under any Additional Pari
Passu Notes and the indenture therefor immediately before the initial Special
Asset Sale giving rise to such Excess Proceeds and the denominator of which is
the sum of the numerator plus the aggregate amount of outstanding obligations
under the Notes and the Indenture immediately before such Special Asset Sale and
(ii) the aggregate principal amount of any Notes that were redeemed under
Article 13 after the initial Special Asset Sale giving rise to such Excess
Proceeds and before such Asset Sale Offer that has not otherwise reduced any
calculation of Excess Proceeds under this subdivision (d). Such Asset Sale Offer
shall be at a price (the "Asset Sale Purchase Price") in cash equal to the
greater of (A) 100% of the principal amount of the Notes or (B) as determined by
a Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest thereon including Supplemental Interest, if
any, discounted to the purchase date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus in
each case accrued and unpaid interest including Supplemental Interest, if any,
to the date of purchase. Such Asset Sale Offer shall be made in accordance with
the procedures set forth in subdivision (e) of this Section 12.12.
(e) In the event that, pursuant to subdivision (d) of this Section 12.12,
the Company shall be required to commence an Asset Sale Offer, the Company and
the Trustee shall follow the procedures specified below:
(i) The Asset Sale 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 "Asset Sale
Offer Period"). No later than five Business Days after the
termination of the Asset Sale Offer Period (the "Asset Sale Purchase
Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to subdivision (d) above (the
"Asset Sale Offer Amount") or, if less than the Asset Sale Offer
Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the
same manner as interest payments are made.
(ii) If the Asset Sale Purchase Date is on or after an Regular Record Date
or Special Record Date and on or before the related Interest Payment
Date, any accrued and unpaid interest shall be paid to the Person in
whose name a Note is registered at the close of business on such
record date, and no additional interest shall be payable to holders
who tender Notes pursuant to the Asset Sale Offer.
(iii) Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the holders
of Notes. The notice shall contain all instructions and materials
necessary to enable such holders to tender Notes pursuant to the
Asset Sale Offer, including a form of "Option of Holder to Elect
Purchase" reasonably acceptable to the Trustee to be completed by
holders
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electing to accept the Asset Sale Offer. The Asset Sale Offer shall
be made to all holders of Notes. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:
(A) that the Asset Sale Offer is being made pursuant to this
Section 12.12 and the length of time the Asset Sale Offer shall remain
open;
(B) the Asset Sale Offer Amount, the Asset Sale Purchase Price
and the Asset Sale Purchase Date;
(C) that any Note not properly tendered or accepted for payment
shall remain outstanding and continue to accrue interest;
(D) that, unless the Company defaults in making such payment,
all Notes accepted for purchase pursuant to the Asset Sale Offer shall
cease to accrue interest after the Asset Sale Purchase Date;
(E) that holders electing to have a Note purchased pursuant to
an Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" included with the
Asset Sale Offer completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the Company, or a Paying Agent
at the address specified in the notice prior to the close of business
on the second Business Day preceding the Asset Sale Purchase Date;
(F) that holders of Notes shall be entitled to withdraw their
tendered Notes and their election to require the Company to purchase
the Notes if the Company, the depositary or the Paying Agent, as the
case may be, receives, not later than the expiration of the Asset Sale
Offer Period, a telegram, telex, 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
its tendered Notes and its election to have such Notes purchased;
(G) that, if the aggregate principal amount of Notes surrendered
(or transferred by book-entry transfer) by holders exceeds the Asset
Sale Offer Amount, the Trustee shall select the Notes to be purchased
in such manner as the Trustee shall deem fair and appropriate; and
(H) 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 (or transferred by book-entry
transfer).
(iv) On or before the Asset Sale Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a basis deemed fair and
appropriate by the Trustee to the extent necessary, the Asset Sale
Offer Amount of Notes or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Asset Sale Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an
Officers' Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of
this Section 12.12. On or prior to the Asset Sale Purchase Date for
any Notes, the Company shall deposit with the Trustee
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or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 12.4) an
amount of money in the Currency or Currencies in which such Notes are
denominated sufficient to pay the Asset Sale Purchase Price of such
Notes or any portions thereof which are to be purchased on that date.
The Company, the depositary or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five days after the
Asset Sale Purchase Date) mail or deliver to each tendering holder of
Notes an amount equal to the purchase price of the Notes tendered by
such holder and accepted by the Company for purchase, and the Company
shall promptly issue a new Note, and the Trustee, upon written request
from the Company, shall authenticate and mail or deliver such new Note
to such holder, in a principal amount equal to any unpurchased portion
of the Note surrendered. Any Note not so accepted shall be promptly
mailed or delivered by the Company to the holder thereof. The Company
shall publicly announce the results of the Asset Sale Offer on the
Asset Sale Purchase Date.
(v) If notice of an Asset Sale Offer is given under clause (iii) above,
the Asset Sale Purchase Price of any Notes to be so purchased shall,
on the Asset Sale Purchase Date, become due and payable, in the
Currency in which the Notes are payable, and from and after such date
(unless the Company shall default in the payment of the Asset Sale
Purchase Price) such Notes shall (to the extent purchased) cease to
bear interest.
(f) To the extent that the aggregate amount of Notes tendered pursuant to
an Asset Sale Offer is less than the Excess Proceeds attributable to the Notes,
the Company may use any remaining proceeds for general corporate purposes. If
the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is
greater than the Excess Proceeds attributable to the Notes, the Trustee shall
select the Notes to be purchased in such manner as it shall deem fair and
appropriate. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
(g) If a Collateral Release Date occurs, any Collateral held under this
Section 12.12 shall be released and any obligation to make an Asset Sale Offer
shall terminate, provided that if a Collateral Event thereafter occurs, this
Section 12.12 shall apply to Special Asset Sales made thereafter (unless and
until a Collateral Release Date again occurs).
(h) The Company will comply with the requirements of Rule 14e-1
promulagated under the Securities Exchange Act of 1934, as amended, any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the purchase of the Notes as a
result of a Special Asset Sale.
ARTICLE 13
REDEMPTION OF NOTES
SECTION 13.1 OPTIONAL REDEMPTION.
The Notes are redeemable, in accordance with this Article in whole or in
part, at the option of the Company at any time at a redemption price (the
"Redemption Price") equal to the greater of
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(i) 100% of the principal amount of the Notes so redeemed or (ii) as determined
by a Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest thereon including Supplemental Interest, if
any) discounted to the redemption date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in
each case, accrued interest thereon (including Supplemental Interest, if any) to
the Redemption Date.
SECTION 13.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes shall be evidenced by a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Notes pursuant to Section 13.3, the Company shall, at least
30 days before the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Notes to be redeemed. In the case of any
redemption of Notes prior to the expiration of any restriction on such
redemption provided in the terms of such Notes or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restrictions.
SECTION 13.3 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
Except in the case of a redemption in whole of the Notes, if less than all
the Notes are to be redeemed at the election of the Company, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Notes or any integral multiple thereof) of
the principal amount of Notes in a denomination larger than the minimum
authorized denomination for Notes pursuant to Section 3.2 in the Currency in
which the Notes are denominated. The portions of the principal amount of Notes
so selected for partial redemption shall be equal to the minimum authorized
denominations for Notes pursuant to Section 3.2 in the Currency in which the
Notes are denominated or any integral multiple thereof. In any case when more
than one Note is registered in the same name, the Trustee, in its discretion,
may treat the aggregate principal amount so registered as if it were represented
by one Note.
The Trustee shall promptly notify the Company and the Note Registrar (if
other than itself) in writing of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Notes shall relate, in the case of
any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
SECTION 13.4 NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or at the Company's
request, by the Trustee in the name and at the expense of the Company, not less
than 30 days and not more than 60 days prior to the Redemption Date to the
holders of the Notes to be redeemed in whole or in part pursuant to this Article
13, in the manner provided in Section 17.2. Any notice so given shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice.
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Failure to give such notice, or any defect in such notice to the holder of any
Note, in whole or in part, shall not affect the sufficiency of any notice of
redemption with respect to the holder of any other Note.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) that Notes are being redeemed by the Company pursuant to provisions
contained in this Indenture or the terms of the Notes, together with a brief
statement of the facts permitting such redemption,
(d) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Notes to be redeemed,
(e) that on the Redemption Date the Redemption Price will become due and
payable upon each such Note to be redeemed, and that interest thereon, if any,
shall cease to accrue on and after said date, and
(f) the Place or Places of Payment where such Notes are to be surrendered
for payment of the Redemption Price.
SECTION 13.5 DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date for any Notes, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 12.4) an amount
of money in the Currency or Currencies in which such Notes are denominated
sufficient to pay the Redemption Price of such Notes or any portions thereof
which are to be redeemed on that date.
SECTION 13.6 NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, any Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price in the Currency in which the Notes are payable, and from and after such
date (unless the Company shall default in the payment of the Redemption Price)
such Notes shall cease to bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the
Company at the Redemption Price; provided, however, that installments of
interest on Notes which have a Stated Maturity on or prior to the Redemption
Date for such Notes shall be payable according to the terms of such Notes and
the provisions of Section 3.7.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Note.
SECTION 13.7 NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be surrendered at the
Corporate Trust
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Operations Office with, if the Company, the Note Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Note Registrar and the Trustee duly executed
by, the holder thereof or such holder's attorney duly authorized in writing, and
the Company shall execute, and the Trustee shall authenticate and deliver to the
holder of such Note without service charge, a new Note or Notes, of like tenor
and form, of any authorized denomination as requested by such holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Note so surrendered. In the case of a Note providing
appropriate space for such notation, at the option of the holder thereof, the
Trustee, in lieu of delivering a new Note or Notes as aforesaid, may make a
notation on such Note of the payment of the redeemed portion thereof.
ARTICLE 14
DEFEASANCE
SECTION 14.1 APPLICABILITY OF ARTICLE.
Except as otherwise provided in Section 14.2, the Company may terminate its
obligations under the Notes and this Indenture as set forth in Section 14.2.
SECTION 14.2 DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT OBLIGATIONS.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Notes
("legal defeasance option") or (b) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in Sections
10.1, 12.2, 12.7, 12.8, 12.9, 12.10, 12.11 and 12.12 with respect to Notes
("covenant defeasance option") at any time after the applicable conditions set
forth below have been satisfied:
(a) The Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the Notes (i) money in an
amount, or (ii) U.S. Government Obligations (as defined below) which through the
payment of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient, in the
opinion (with respect to (i) and (ii)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of and premium, if any, and
interest (including any Supplemental Interest) on, the Outstanding Notes on the
dates such installments of interest or principal and premium are due;
(b) Such deposit shall not cause the Trustee to have a conflicting
interest as defined in Section 6.8 and for purposes of the Trust Indenture Act;
(c) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
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(d) If the Notes are then listed on any national securities exchange, the
Company shall have delivered to the Trustee an Opinion of Counsel or a letter or
other document from such exchange to the effect that the Company's exercise of
its option under this Section would not cause such Notes to be delisted;
(e) No Event of Default or Default shall have occurred and be continuing
on the date of such deposit and, with respect to the legal defeasance option
only, no Event of Default under Section 5.1(f) or Section 5.1(g) or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 5.1(f) or Section 5.1(g) shall have occurred and be
continuing on the 91st day after such date; and
(f) The Company shall have delivered to the Trustee an Opinion of Counsel
or a ruling from the Internal Revenue Service to the effect that the holders of
the Notes will not recognize income, gain or loss for United States Federal
income tax purposes as a result of such deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.1(f) or Section 5.1(g) or event
which, with the giving of notice or lapse of time, or both, would become an
Event of Default under Section 5.1(f) or Section 5.1(g) shall have occurred and
be continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Notes shall be reinstated.
Upon Discharge (or if the Company exercised its covenant defeasance option
and no Event of Default under Section 5.1(f) or Section 5.1(g) or event which,
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 5.1(f) or Section 5.1(g) shall have occurred and be
continuing on the 91st day after the requisite deposit, then on such 91st day
(or, if earlier, on the Collateral Release Date)) the Collateral pledged under
the Collateral Documents will be released and the Trustee, on demand of the
Company, shall execute such documents as shall be necessary to release the
Collateral and to terminate the obligations of the Company under the Collateral
Documents (and, upon Discharge (or such 91st day), the obligations of the
Company and the Guarantors under Article 15 shall terminate).
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Notes and to have satisfied all the obligations under this Indenture and the
Collateral Documents (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except (i) the rights of
holders of Notes to receive, from the trust fund described in clause (a) above,
payment of the principal of (and premium, if any) and interest on such Notes
when such payments are due, (ii) the Company's obligations with respect to the
Notes under Sections 3.4, 3.5, 3.6, 12.3 and 14.3 and (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and under the Collateral
Documents.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the
73
holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
SECTION 14.3 DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 14.2 in respect of Notes shall be held in trust and applied
by it, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the holders of
such Notes, of all sums due and to become due thereon for principal (and
premium, if any) and interest, if any, but such money need not be segregated
from other funds except to the extent required by law.
SECTION 14.4 REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Notes for which money or U.S. Government
Obligations have been deposited pursuant to Section 14.2.
The provisions of the last paragraph of Section 12.4 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any Notes for which money or U.S.
Government Obligations have been deposited pursuant to Section 14.2.
ARTICLE 15
COLLATERAL AND SECURITY
SECTION 15.1 EXECUTION OF COLLATERAL DOCUMENTS.
The Trustee, at the Company's expense, will execute and deliver and the
Company and each Guarantor will execute, deliver, file and record all
instruments and do all acts and other things as may be reasonably necessary to
provide for the liens under the Collateral Documents, in accordance with the
terms of the Intercreditor Agreement and this Indenture; provided that, with
respect to any Collateral Documents that may be executed after the Issue Date
and that are not subject to approvals under applicable Gaming Laws that have
been obtained by the Company, the Trustee, the Company and each Guarantor will
comply with applicable Gaming Laws in connection with such Collateral Documents.
The Trustee, at the Company's expense, will cooperate reasonably with the
Company and each Guarantor in doing all such acts and things required by the
preceding sentence.
SECTION 15.2 COLLATERAL DOCUMENTS.
The due and punctual payment of the principal of, premium, if any, and
interest on the Notes when and as the same shall be due and payable, whether on
an interest payment date, at maturity, by acceleration, repurchase, redemption
or otherwise, and interest on the overdue principal of and interest (to the
extent permitted by law), if any, on the Notes and performance of all other
obligations
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of the Company and the Guarantors to the holders of the Outstanding Notes or the
Trustee under this Indenture, the Guarantees and the Notes, according to the
terms hereunder or thereunder, shall be secured as provided in the Collateral
Documents, subject to Section 15.4 hereof. Each holder of the Outstanding Notes,
by its acceptance of a Note, consents and agrees to the terms of the Collateral
Documents (including, without limitation, the provisions providing for
foreclosure and release of Collateral) as the same may be in effect or may be
amended from time to time in accordance with the terms thereof and hereof and
authorizes and directs the Trustee to enter into each of the Collateral
Documents (including, without limitation, the Intercreditor Agreement and, if
deemed appropriate by the Trustee to assure that the Liens securing the Notes
and the Guarantees and the Liens securing the Additional Pari Passu Notes shall
be pari passu Liens, an intercreditor agreement with the trustee under the
indenture for the Additional Pari Passu Notes and the Administrative Agent) and
to perform its respective obligations and exercise its respective rights
thereunder in accordance therewith. The Company and each Guarantor 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 Collateral Documents, to assure and
confirm to the Trustee the security interest in the Collateral contemplated
hereby and by the Collateral Documents, as from time to time constituted, so as
to render the same available for the security and benefit of this Indenture and
of the Notes secured hereby, according to the intent and purposes herein
expressed. The Company and each Guarantor shall take any and all actions
necessary, or reasonably requested by the Trustee, to cause the Collateral
Documents to create and maintain, as security of the Obligations of the Company
and each Guarantor under this Indenture and the Notes, valid and enforceable,
perfected (except as expressly provided therein), Liens in and on all the
Collateral (and in all assets and properties of the Company and any Guarantor,
whether real, personal or mixed, tangible or intangible, which under this
Indenture or any Collateral Documents is required to be included in the
Collateral), in favor of the Trustee, superior to and prior to the rights of all
third Persons except as permitted by Section 12.9 and the Collateral Documents
and except for Permitted Encumbrances that do not secure Indebtedness, and
subject to no other Liens.
Unless an Event of Default shall have occurred and be continuing, the
Trustee shall (in the absence of bad faith) not be required to take any action,
or to require the Company to take any action, to maintain the priority or
perfection of any Liens in the Collateral, other than as set forth in the
following two sentences. In the event that the Trustee receives an Opinion of
Counsel or an Officer's Certificate or a written notice from the Company or any
holder of Outstanding Notes delivered pursuant to this Indenture requesting the
Trustee to take any action, or stating that any action is required to be taken,
in order to maintain the priority or perfection of any of the Liens of the
Trustee in the Collateral, the Trustee shall take such actions, or cause such
actions to be taken, as are set forth in such Opinion of Counsel, Officer's
Certificate or written notice. In the absence of bad faith on the part of the
Trustee, the Trustee shall be deemed not to know of any change in the law
requiring the taking of such action unless such change is set forth in a
subsequent Opinion of Counsel or Officer's Certificate delivered pursuant to
this Indenture or the Collateral Documents or a written notice from the Company
or holder of Outstanding Notes.
SECTION 15.3. RECORDING AND OPINIONS.
(a) On the Issue Date and in connection with any Mortgage securing the
Indenture required thereafter prior to the Collateral Release Date (or, if a
Collateral Event shall occur, thereafter to the extent provided in Section
12.11), the Company shall furnish to the Trustee, with respect to each Mortgage,
a policy of title insurance (or a commitment to issue such a policy) insuring
(or committing to insure) the Lien of such Mortgage as a valid mortgage Lien,
subject only to Liens permitted under Section 12.9 and Permitted Encumbrances
that do not secure Indebtedness,
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on the real property and fixtures described therein (whether such estate is a
fee simple or a leasehold estate) in an amount not less than the lesser of the
fair market value thereof and the principal amount of the Outstanding Notes,
which policy (or commitment) shall (a) be issued by a reputable title company,
(b) include such reinsurance arrangements, if any (with provisions for direct
access), as shall be customary in the same general area and for transactions of
this type, (c) have been supplemented by such endorsements as are customary in
the same general area and for transactions of this type or, where such
endorsements are not available at commercially reasonable premium costs, opinion
letters of reputable architects or other reputable professionals (including
endorsements or opinion letters on matters relating to contiguity, first loss,
and so-called comprehensive coverage over covenants and restrictions, if
available) and (d) contain only such exceptions to title as shall be customary
in the same general area and for transactions of this type; provided that, with
respect to the New Jersey Mortgage, the Company shall be required to furnish a
policy of title insurance only when a policy of title insurance is delivered to
the Administrative Agent under the Facility with respect to the New Jersey
Mortgage (and only to the same extent and on the same basis as set forth in such
policy). For purposes hereof, the reinsurance arrangements, endorsements and
exceptions to title included in or supplementing the title insurance issued to
the holders of the Liens securing the Facility shall be "customary in the same
general area and for transactions of this type." In the absence of bad faith on
its part, the Trustee shall be entitled to rely on an Opinion of Counsel or
Officers' Certificate with respect to the Company's compliance with the
provisions of this Section 15.3(a).
(b) On the Issue Date and in connection with any Liens securing the
Indenture required after a Collateral Event, the Company and each Guarantor
shall have executed, delivered, filed and recorded or shall execute, deliver,
file and record, all instruments and documents, and shall have done or shall do
all such acts and other things, at the expense of the Company and each
Guarantor, as are necessary to subject the Collateral to the Liens of the
Collateral Documents. Each of the Company and every Guarantor shall execute,
deliver, file and record all instruments and do all acts and other things as may
be reasonably necessary or advisable to perfect, maintain and protect the Liens
of the Collateral Documents.
(c) The Company shall furnish to the Trustee upon the execution and
delivery of this Indenture and as soon as practicable after a Collateral Event,
an Opinion of Counsel either (i) stating that in the opinion of such counsel all
action has been taken with respect to the recording, registering and filing of
this Indenture, financing statements or other instruments necessary to make
effective the Lien intended to be created by the Collateral Documents, and
reciting the details of such action, or (ii) stating that, in the opinion of
such counsel, no such action is necessary to make such Lien effective.
(d) The Company shall furnish to the Trustee at the time of execution and
delivery of any Mortgage, Subsidiary Security Agreement or Subsidiary Pledge
Agreement, or any amendments or supplements thereto, after the Issue Date by any
Guarantor under Section 12.7, an Opinion of Counsel to the effect set forth in
subsection (c) of this 10.02, but relating only to such additional Collateral
Documents or new parties thereto.
(e) Prior to the Collateral Release Date (or after a Collateral Event has
occurred), the Company shall furnish to the Trustee on or prior to each
anniversary of the date hereof and delivery of any Collateral Document, an
Opinion of Counsel, dated as of such date, stating that either (i) (A) all
action has been taken with respect to the recording, registering, filing,
rerecording and refiling of the Indenture, all supplemental indentures, the
Collateral Documents, financing statements,
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continuation statements or other Collateral and all other instruments as are
necessary or appropriate fully to maintain, protect and preserve the Liens and
the rights of the holders, the Collateral Agent and the Trustee hereunder and
under the Collateral Documents, and reciting the details of such action or
referring to prior opinions of Counsel in which such details are given and (B)
based on relevant laws as in effect on the date of such Opinion of Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months fully to
preserve and protect, to the extent such protection and preservation are
possible by filing, the rights of the holders, the Collateral Agent and the
Trustee hereunder and under the Collateral Documents with respect to their Liens
in the Collateral, or (ii) no such action is necessary to maintain, preserve and
protect the Liens and the rights of the holders, the Collateral Agent and the
Trustee hereunder and under the Collateral Documents during such period. Such
Opinion of' Counsel shall be required in addition to, and not in lieu of, any
Officers' Certificate required under this Indenture or the Collateral Documents.
SECTION 15.4. RELEASE AND SUBORDINATION OF COLLATERAL.
(a) Subject to subsections (b) and (c) of this Section 15.4, Collateral
may be released from the Lien and security interest created by the Collateral
Documents at any time or from time to time at the sole cost and expense of the
Company only (i) upon payment in full of the Note in accordance with the terms
thereof and of this Indenture and all other obligations of the Company and each
Guarantor then due and owing under this Indenture, the Notes and the Collateral
Documents, (ii) upon the sale or other disposition of such Collateral, provided
that, if applicable, the Company is in compliance with Section 12.12 in
connection with such sale or other disposition at the time of such release of
Collateral and provided further that, except as expressly otherwise provided in
this Indenture or the Collateral Documents, the Lien of the Collateral Documents
shall attach any and all proceeds of such sale or other disposition, or (iii)
upon the Collateral Release Date, provided that the Trustee shall not be
obligated to effectuate a Collateral Release at any time when a Collateral Event
exists, a Default or Event of Default has then occurred and remains construing
or if the Administrative Agent (or the trustee in respect of any Additional Pari
Passu Notes) is not concurrently releasing the Liens securing the Facility (or
the Additional Pari Passu Notes). Except as provided in subdivision (b) of this
Section 15.4, the Trustee shall not release any Lien on any Collateral pursuant
to clauses (i), (ii) or (iii) above unless and until it shall have received from
the Company an Officers' Certificate certifying that all conditions precedent
hereunder have been met and that such release is not in violation of any
applicable Gaming Laws and such other documents required by Section 15.5 hereof.
Upon compliance with the foregoing provisions, the Trustee shall execute,
deliver or acknowledge any necessary or proper instruments of termination,
satisfaction or release to evidence the release of any Collateral permitted to
be released pursuant to this Indenture or the Collateral Documents.
(b) The Company and the Guarantors may, in the ordinary course of
business, without any release or consent by the Trustee or any holder of the
Notes and, from and after the Exemption Date, without any documents required by
Section 314(d) to the extent provided in the Exemption, (i) sell, lease,
transfer, assign or otherwise dispose of inventory, (ii) sell, lease, transfer,
assign or otherwise dispose of any assets that are damaged, worn out, obsolete
or no longer necessary for the proper conduct of the business of the Company or
such Guarantor, provided that (A) such assets are
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replaced by new Collateral being subject to the Lien of the Indenture and the
Collateral Documents and having at least equal value and utility as the disposed
assets (whether or not being the same character) or (B) such assets (if not
replaced) are not, in the aggregate, material to the conduct of the business of
the Company or such Guarantor, (iii) collect and dispose of accounts receivable
and checks and (iv) utilize cash on deposit in the accounts of the Company and
the Guarantors (for the purposes contemplated by Section 12.12 in the case of
any cash on deposit thereunder). In each such case, the Lien of this Indenture
and the Collateral Documents shall be deemed automatically released without any
action on the part of the Trustee, provided that the Lien of the Indenture and
the Collateral Documents shall attach to any and all proceeds of such
disposition. In connection with any such release, upon delivery by the Company
to the Trustee of an Officers' Certificate requesting release of assets under
this Section 15.4(b)
(A) specifically describing the proposed released assets and (B) certifying that
such asset disposition complies with the terms and conditions of this Section
15.4(b), the Trustee shall execute a release, without recourse, of the
aforementioned items of Collateral in the form provided by the Company or the
applicable Guarantor. To the extent that may be provided in the Exemption, the
fair value of Collateral released from the Liens of the Indenture and the
Collateral Documents under this Section 15.5(b) shall not be considered in
determining whether the aggregate fair value of Collateral released from the
Liens of the Indenture and the Collateral Documents in any calendar year exceeds
the 10% threshold specified in Section 314(d)(1) of the TIA; provided that the
Company's right to rely on this sentence at any time is conditioned upon the
Company having furnished to the Trustee all certificates described in
subdivision (c) of Section 15.5 hereof that were required to be furnished to the
Trustee at or prior to such time.
(c) No release of Collateral pursuant hereto shall be effective as against
the holders of Notes, no Collateral shall be released pursuant to Section
15.4(a), and none of the Pro Rata Amount of any Net Proceeds pledged under
Section 12.12 shall be released pursuant to Section 15.4(b), without the prior
written consent of the Trustee, at any time when an Event of Default shall have
occurred and be continuing and either (i) the maturity of the Notes shall have
been accelerated (whether by declaration or otherwise), or (ii) such Event of
Default is an Event of Default pursuant to clause (f) or (g) of Section 5.1. In
addition, at any time when an Event of Default shall have occurred and be
continuing and such Event of Default is an Event of Default pursuant to clause
(a), (b) or (c), or clause (e) in respect of obligations under the Facility of
Section 5.1, the Trustee may, and shall upon the request of the holders of
Outstanding Notes of at least 25% in principal amount of the Notes then
outstanding, by notice to the Company, prohibit any release or disposition of
Collateral otherwise permitted by subsections (a) or (b) of this Section 15.4.
(d) With respect to Liens on assets referred to in clause (c) of Section
12.9 over which a Lien has been or shall be granted in favor of the Trustee, if
requested by the Company and upon receipt of an Officer's Certificate certifying
that no Default or Event of Default has occurred and is continuing and that the
Administrative Agent (and any trustee for any Additional Pari Passu Notes) is
concurrently executing and delivering a similar subordination agreement, the
Trustee will execute and deliver to the lender under the Indebtedness secured by
the Liens on such assets a subordination agreement, in form and substance
reasonably satisfactory to the Trustee, subordinating the Lien in favor of the
Trustee in such assets, in order of priority, to the lien in favor of such
lender.
SECTION 15.5 CERTIFICATES OF THE COMPANY.
(a) The Company shall furnish to the Trustee prior to each proposed
release of Collateral
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pursuant to the Collateral Documents, all documents required by TIA (S) 314(d),
except as provided in subdivision (b) of Section 15.4. The Trustee may, to the
extent permitted by Sections 6.1 and 6.3 hereof, accept as conclusive evidence
of compliance with the foregoing provisions the appropriate statements contained
in such instruments. Any certificate or opinion required by TIA (S) 314(d) may
be made by an Officer of the Company except in cases where TIA (S) 314(d)
requires that such certificate or opinion be made by an independent engineer,
appraiser or other expert within the meaning of TIA (S) 314(d). The release of
any Collateral from the Lien of any Collateral Document or the subordination of
any Lien of any Collateral Document shall not be deemed to impair such Lien or
the Collateral under the Collateral Documents in contravention of the provisions
of this Indenture or such Collateral Document if and to the extent the
Collateral or Lien is released or subordinated pursuant to, and in accordance
with, this Indenture and such Collateral Document.
(b) The Company may from time to time file with the Commission a request
for an exemption (an "Exemption") from the requirements of Section 314(d) of the
TIA for purposes of the releases of Collateral described in subdivision (b) of
Section 15.4, shall provide the Trustee with an Officer's Certificate setting
forth the effective date (the "Effective Date") of the Exemption, if granted,
and shall provide the Trustee with a copy of any Exemption granted by the
Commission and promptly inform the Trustee of any amendment to, or any
rescission or termination of, the Exemption.
(c) In the case of transactions permitted by subdivision (b) of Section
15.4 hereof, the Company shall deliver to the Trustee, within 15 days after the
end of each of the six-month periods ended on January 31 and July 31 in each
year, an Officers' Certificate to the effect that all transactions effected
pursuant to subdivision (b) of Section 15.4 hereof during the preceding six-
month period were made by the Company and the Guarantors in the ordinary course
of business and that all proceeds therefrom were used by the Company and the
Guarantors in connection with their respective businesses or to make payments on
the Notes or as otherwise permitted under this Indenture and the Collateral
Documents.
SECTION 15.6 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
COLLATERAL DOCUMENTS.
Subject to Section 5.12 and compliance with any applicable Gaming Laws, the
Trustee may, in its sole discretion and without the consent of the holders of
Outstanding Notes, on behalf of the holders of Outstanding Notes, take all
actions it deems necessary or appropriate in order to (a) enforce any of the
terms of the Collateral Documents and (b) 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 to maintain such suits and
proceedings as it may reasonably deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Collateral
Documents or this Indenture, and such suits and proceedings as the Trustee may
reasonably deem expedient to preserve or protect its interest and the interests
of the holders of Outstanding Notes in the Collateral (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
Outstanding Notes or the Trustee).
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SECTION 15.7. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
COLLATERAL DOCUMENTS.
The Trustee is authorized to receive any funds for the benefit of the
holders of Outstanding Notes distributed under the Collateral Documents, and to
make further distributions or such funds to the holders of Outstanding Notes
according to the provisions of this Indenture and the Collateral Documents.
ARTICLE 16
GUARANTEE
SECTION 16.1 GUARANTEE.
(a) In consideration of good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each of the Guarantors, jointly and
severally, hereby unconditionally guarantees, which guarantee shall be secured
as provided in the Collateral Documents (each such guarantee, together with any
future guarantees executed pursuant to Section 12.7 hereof, being a
"Guarantee"), to each holder of a Note authenticated and delivered by the
Trustee and to the Trustee, irrespective of the validity and enforceability of
this Indenture, the Note or the obligations of the Company under this Indenture
or the Note, that: (i) the principal of and interest an the Note will be paid in
full when due, whether at the maturity or interest payment date, by
acceleration, call for redemption, upon a purchase offer or otherwise, and
interest on the overdue principal and interest, if any, of the Note, if lawful,
and all other obligations of the Company to the holders or the Trustee under
this Indenture or the Note will be promptly paid in full or performed, all in
accordance with the terms of this Indenture and the Note; and (ii) in case of
any extension of time of payment or renewal of any securities or any of such
other obligations, they will be paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at maturity, by
acceleration, call for redemption, upon a purchase offer or otherwise
(collectively, the "Guaranteed Obligations"). The Guarantee is a guarantee of
payment and not of collection.
Notwithstanding any other provision of this Indenture, the obligations of
Detroit LLC under its Guarantee (and under any Collateral Documents securing
such Guarantee) shall be limited to the amount of proceeds of the Notes
contributed or otherwise made available to Detroit LLC.
Failing payment when due of any amount so guaranteed for whatever reason,
the Guarantors shall be jointly and severally obligated to pay the same before
failure to so pay becomes an Event of Default.
(b) Each Guarantor agrees that (i) its obligations with regard to this
Guarantee shall be unconditional, irrespective of the validity, regularity or
enforceability of the Note or this Indenture, any amendments to the Indenture,
the Notes or the Collateral Documents (other than (A) this Article 16, and other
than (B) Article 15 or any Collateral Document to the extent such amendment is
not executed and delivered by such Guarantor and adversely affects, or increases
the obligations of, such Guarantor under Article 15 or such Collateral
Document), the absence of any action to enforce the same, any delays in
obtaining or realizing upon (or failures to obtain or realize upon) Collateral,
the recovery of any judgment against the Company, any action to enforce the same
or any other circumstances that might otherwise constitute a legal or equitable
discharge or defense of a guarantor and (ii) this Guarantee will not be
discharged except by complete performance of the obligations contained in the
Note and this Indenture. Each of the Guarantors hereby waives diligence,
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presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company or right to require the prior disposition of the assets of
the company to meet its obligations, protest, notice and all demands whatsoever.
Without limiting the generality of the foregoing, each of the Guarantors hereby
waives, to the extent permitted under Nev. Rev. Stat. 40.495, any rights arising
out of Nev. Rev. Stat. 40.430.
(c) If any holder or the Trustee is required by any court or otherwise
to return to either the Company or any Guarantor, or any Custodian, Trustee, or
similar official acting in relation to either the Company or any Guarantor, any
amount paid by either the Company or any of the Guarantors to the Trustee or
such holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each of the Guarantors agrees that it will
not be entitled to any right of subrogation in relation to the holders in
respect of any obligations guaranteed hereby except as set forth in Section 16.5
hereof.
(d) Each of the Guarantors agrees that (i) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 5.2 hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration as to the Company of the obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
those obligations as provided in Section 5.2, those obligations (whether or not
due and payable) will forthwith become due and payable by each of the Guarantors
for the purpose of this Guarantee.
SECTION 16.2. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 16.1, each of the Guarantors
agrees that a notation of such Guarantee substantially in the form of the
notation included in the Note annexed hereto as Exhibit A shall be endorsed on
each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by a duly authorized officer.
Each of the Guarantors agrees that its Guarantee set forth in Section 16.1
shall remain in full force and effect and apply to all the Notes notwithstanding
any failure to endorse on each Note a notation of such Guarantee.
If an Officer whose facsimile signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note on which a Guarantee is
endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Guarantors.
SECTION 16.3 LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and by its acceptance hereof each holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any federal or state law. To effectuate the foregoing
intention, the holders and each Guarantor hereby irrevocably agree that the
obligations of each such Guarantor under the Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to
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any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 16.4, result in the obligations of such Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. This Section 16.3 is for the benefit of the creditors of
each Guarantor.
SECTION 16.4. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
--------
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from each
other Guarantor in a pro rata amount based on the net worth of each Guarantor
--- ----
(including the Funding Guarantor but, in the case of Detroit LLC, not in excess
of the amount of proceeds of the Notes contributed or otherwise made available
to Detroit LLC) for all payments, damages and expenses incurred by that Funding
Guarantor in discharging the Company's obligations with respect to the Notes or
any other Guarantor's obligations with respect to the Guarantee.
SECTION 16.5. RIGHTS UNDER THE GUARANTEE.
No payment by any Guarantor pursuant to the provisions hereof to the
Trustee shall entitle such Guarantor to any payment out of any Collateral held
by the Trustee under this Indenture or any Collateral Documents.
(a) Each of the Guarantors waives notice of the issuance, sale and
purchase of the Note and notice from the Trustee or the holders from time to
time of any of the Note of their acceptance and reliance on this Guarantee.
(b) Notwithstanding, any payment or payments made by the Guarantors by
reason of this Guarantee, the Guarantors shall not be subrogated to any rights
of the Trustee, the Collateral Agent or any holder against the Company until all
the Note shall have been paid or deemed to have been paid within the meaning of
the Indenture. Any payment made by the Guarantors by reason of this Guarantee
shall be in all respects subordinated to the full and complete payment or
discharge under this Indenture of all obligations guaranteed hereby, and no
payment by the Guarantors by reason of this Guarantee shall give rise to any
claim of the Guarantors against the Trustee or any holder of the Note. Unless
and until the Note shall have been paid or deemed to have been paid within the
meaning of the Indenture, neither the Guarantors nor any of them will assign or
otherwise transfer any such claim against the Company to any other person.
(c) No set-off, counterclaim, reduction or diminution of any obligation or
any defense of any kind or nature (other than performance by the Guarantors of
their obligations hereunder) which any Guarantor may have or assert against the
Trustee or any holder of any Note shall be available hereunder to such Guarantor
against the Trustee.
(d) Each Guarantor agrees to pay all costs, expenses and fees, including
all reasonable attorneys' fees, which may be incurred by the Trustee in
enforcing or attempting to enforce the Guarantee or protecting the rights of the
Trustee, the Collateral Agent or the holders of the Notes, if any, in accordance
with this Indenture.
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SECTION 16.6. PRIMARY OBLIGATIONS.
Each Guarantor agrees that it is directly liable to each holder hereunder,
that the obligations of each Guarantor hereunder are independent of the
obligations of the Company or any other guarantor, and that a separate action
may be brought against each Guarantor, whether such action is brought against
the Company or any other Guarantor or whether the Company or any other guarantor
is joined in such action. Each Guarantor agrees that its liability hereunder
shall be immediate and shall not be contingent upon the exercise or enforcement
by the Trustee or the holders of the Notes of whatever remedies they may have
against the Company or any other guarantor, or the enforcement of any Lien or
realization upon any Collateral the Trustee may at any time possess. Each
Guarantor agrees that any release which may be given by the Trustee or the
holders of the Notes to the Company or any other guarantor shall not release
such Guarantor. Each Guarantor consents and agrees that the Trustee shall be
under no obligation to marshal any property or assets of the Company or any
other guarantor in favor of such Guarantor, or against or in payment of any or
all of the Guaranteed Obligations.
SECTION 16.7. WAIVERS.
(a) Each Guarantor hereby waives any right to receive, or any claim or
defense based on failure to receive: (i) notice of the amount of the Guaranteed
Obligations; (ii) notice of any adverse change in the financial condition of the
Company or of any other fact that might increase such Guarantor's risk
hereunder; (iii) notice of a Default or Event of Default; and (iv) all other
notices (except if such notice is specifically required to be given to such
Guarantor under this Indenture or any of the Collateral Documents to which such
Guarantor is a party) and demands to which such Guarantor might otherwise be
entitled.
(b) Each Guarantor hereby waives the right by statute or otherwise to
require the Trustee or the holders to institute suit against the Company (or
against any other Person) or to exhaust any rights and remedies which the
Trustee or the holders have or may have against the Company (or against any
other Person). In this regard, each Guarantor agrees that it is bound to the
payment of each and all of the Guaranteed Obligations, whether now existing or
hereafter arising, as fully as if such Guaranteed Obligations were directly
owing to Guaranteed Party by such Guarantor. Each Guarantor further waives any
defense arising by reason of any disability or other defense (other than the
defense that the Guaranteed Obligations shall have been fully and finally
performed and indefeasibly paid) of the Company or by reason of the cessation
from any cause whatsoever of the liability of the Company in respect thereof.
(c) Each Guarantor hereby waives: (i) any claim or defense directly or
indirectly arising from or caused by any election of remedies by the Trustee or
holders of the Notes, whether or not such election of remedies directly or
indirectly results in impairment or loss of rights or claims of such Guarantor
against the Company or other Persons; and (ii) any defenses based on suretyship
law or impairment of collateral.
SECTION 16.8. RELEASES.
Each Guarantor consents and agrees that, without notice to or by such
Guarantor and without affecting or impairing the obligations of such Guarantor
hereunder, the Trustee may, by action or inaction, compromise or settle, extend
the period of duration or the time for the payment, or discharge the performance
of, or may refuse to, or otherwise not enforce, or may, by action or
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inaction, release all or any one or more parties to, any one or more of the
terms and provisions of this Indenture or the Collateral Documents or may grant
other indulgences to the Company in respect thereof, or may, by action or
inaction, release or substitute any other guarantor, if any, of the Guaranteed
Obligations, or may enforce, exchange, release, or waive, by action or inaction,
any security for the Guaranteed Obligations or any other guaranty of the
Guaranteed Obligations, or any portion thereof.
SECTION 16.9. NO ELECTION.
The Trustee shall have the right to seek recourse against each Guarantor to
the fullest extent provided for herein and no election by the Trustee to proceed
in one form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of Trustee's right to proceed in any other form of
action or proceeding, or against other parties unless the Trustee has expressly
waived such right in writing.
SECTION 16.10. FINANCIAL CONDITION OF THE COMPANY.
Each Guarantor represents and warrants to the Trustee and holders that it
is currently informed of the financial condition of the Company and, of all
other circumstances which a diligent inquiry would reveal and which bear upon
the risk of nonpayment of the Guaranteed Obligations. Each Guarantor further
represents and warrants to the Trustee and holders that it has read and
understands the terms and conditions of this Indenture and the Collateral
Documents. Each Guarantor hereby covenants that it will continue to keep itself
informed of the Company's financial condition, the financial condition of other
guarantors, if any, and of all other circumstances which bear upon the risk of
nonpayment or nonperformance of the Guaranteed Obligations.
ARTICLE 17
MISCELLANEOUS
SECTION 17.1 NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of holders of Notes or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Note holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or
(b) the Company by the Trustee or by any Note holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid or airmail postage prepaid if
sent from outside the United States, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument, to the attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language, except
that any published notice may be in an official language of the country of
publication.
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SECTION 17.2 NOTICE TO HOLDERS; WAIVER.
When this Indenture provides for notice to holders of Notes of any event,
such notice shall be sufficiently given to holders (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid (or
via certified or registered mail, telegraph, telefax, cable or overnight
delivery service), to such holders as their names and addresses appear in the
Note Register, within the time prescribed.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers or
by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular holder shall affect the sufficiency of such notice with
respect to other holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to holders is given by publication, any defect in any notice so
published as to any particular holder shall not affect the sufficiency of such
notice with respect to other holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
SECTION 17.3 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
SECTION 17.4 COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS.
This Indenture may be executed in any number of counterparts, each of which
when executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture. The Article and Section
headings herein and in the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 17.5 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the parties hereto shall
bind their respective successors and assigns and inure to the benefit of their
permitted successors and assigns, whether so expressed or not.
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SECTION 17.6 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 17.7 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall give
to any Person, other than the parties hereto, any Note Registrar, any Paying
Agent and their successors hereunder, and the holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 17.8 GOVERNING LAW.
This Indenture and the Notes shall be deemed to be contracts made and to be
performed entirely in the State of Nevada, and for all purposes shall be
governed by and construed in accordance with the internal laws of said State
without regard to the conflicts of law rules of said State.
SECTION 17.9 LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.1 or in any Note, in any
case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Note shall not be a Business Day at any Place of Payment for the Notes, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of principal (and premium, if any) or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date or at the Stated Maturity, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day if such payment is made or duly provided for on such Business Day.
SECTION 17.10 NO RECOURSE AGAINST OTHERS.
No direct or indirect incorporator, employee, stockholder, director or
officer, as such, past, present or future of the Company or any successor
corporation or any of the Company's Affiliates, shall have any personal
liability in respect of the obligations of the Company under the Notes or this
Indenture, either directly or through the Company, by reason of his, her or its
status as such incorporator, stockholder, employee, director or officer. Each
holder by accepting a Note waives and releases all such liability. Such waiver
and release are part of the consideration for the issuance of the Notes.
SECTION 17.11 GAMING LAWS.
If the Company becomes the holding company of a New Jersey casino licensee,
this Indenture and the Notes will be subject to the Casino Control Act of the
State of New Jersey and the rules and regulations promulgated thereunder.
SECTION 17.12 NO PARENT LIABILITY.
In the event (a) there is any Default, Event of Default or other default or
alleged default by
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the Company, any Guarantor or any Affiliate of any thereof under this Indenture,
the Notes, any Guarantee, any Collateral Document or any other document,
instrument or agreement arising out of or relating to any of the foregoing
(collectively, the "Transaction Documents") or (b) the Trustee, any holder of
any Note, any other Beneficiary or any Affiliate of any of the foregoing has or
may have any claim arising from or relating to the terms of any Transaction
Document, neither the Trustee, such holder, such other Beneficiary or such
Affiliate shall commence any lawsuit or otherwise seek to impose any liability
whatsoever in respect thereof against Tracinda Corporation or its shareholder
(hereinafter collectively referred to as "Tracinda"). Tracinda shall not have
--------
any liability whatsoever with respect to any Transaction Document or any matters
relating to or arising from any Transaction Document. None of the Trustee, any
holder of any Note, any other Beneficiary or any Affiliate of any of the
foregoing shall assert or permit any Person claiming through any of them to
assert a claim or impose any liability against Tracinda as to any matter or
thing arising out of or relating to any Transaction Document or any alleged
breach or default of any Transaction Document by the Company, any Guarantor or
any Affiliate thereof. Tracinda is not a party to any Transaction Document and
is not liable for any alleged breach or default of any Transaction Document by
the Company, any Guarantor or any Affiliate of any thereof. The terms of this
Section 17.2 shall control, notwithstanding anything to the contrary appearing
in any Transaction Document.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
MGM GRAND, INC.
By: /s/ Xxxxx Xxxxxxxx
Name:
Title:
[SEAL]
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxx
_____________________________
Title: Vice President
_____________________________
PNC BANK, NATIONAL ASSOCIATION, AS
TRUSTEE
By: /s/ X. Xxxxxxxxx-Xxxxxx
Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
[SEAL]
ATTEST:
By: /s/ Xxxxxxx X. Xxxxx
_______________________________
Name: Xxxxxxx X. Xxxxx
_____________________________
Title: Vice President
_____________________________
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GUARANTORS:
MGM GRAND HOTEL, INC.
By:/s/ Xxxxx Xxxxxxxx
_____________________________
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxxx
________________________
Name: Xxxxxx X. Xxxxxxxx
________________________
Title: Secretary
________________________
MGM GRAND MOVIEWORLD, INC.
By:/s/ Xxxxx Xxxxxxxx
_____________________________
ATTEST:
By: /s/ Xxxxx Xxxxxxx
_________________________
Name: Xxxxx Xxxxxxx
_________________________
Title: Treasurer
_________________________
GRAND LAUNDRY, INC.
By:/s/ Xxxxx Xxxxxxxx
_____________________________
ATTEST:
By: /s/ Xxxxx Xxxxxxx
_________________________
Name: Xxxxx Xxxxxxx
_________________________
Title: Treasurer
_________________________
MGM GRAND MONORAIL, INC.
By:/s/ Xxxxx Xxxxxxxx
_____________________________
ATTEST:
By: /s/ Xxxxxx X. Xxxx
___________________________
Name: Xxxxxx X. Xxxx
___________________________
Title: President & Chief Executive Officer
_______________________________________
89
MGM DIST., INC.
By: /s/ Xxxxx Xxxxxxxx
__________________
ATTEST:
By: /s/ Xxxxxx X. Xxxx
_______________________________________
Name: Xxxxxx X. Xxxx
_______________________________________
Title: President & Chief Operating Officer
_______________________________________
DESTRON, INC.
By: /s/ Xxxxx Xxxxxxxx
__________________
ATTEST:
By: /s/ Xxxxxx X. Xxxx
_______________________________________
Name: Xxxxxx X. Xxxx
_______________________________________
Title: President & Chief Operating Officer
_______________________________________
DESTRON MARKETING, INC.
By: /s/ Xxxxx Xxxxxxxx
__________________
ATTEST:
By: /s/ Xxxxxx X. Xxxx
____________________________________
Name: Xxxxxx X. Xxxx
____________________________________
Title: Vice President & Treasurer
____________________________________
90
MGM GRAND MERCHANDISING, INC.
By: /s/ Xxxxx Xxxxxxxx
_____________________________
ATTEST:
By: /s/ Xxx Xxxxxx
_________________________
Name: Xxx Xxxxxx
_________________________
Title: President
_________________________
MGMG TRADING CO.
By: /s/ Xxxxx Xxxxxxxx
___________________
ATTEST:
By: /s/ Xxx Xxxxxx
_________________________
Name: Xxx Xxxxxx
_________________________
Title: President
_________________________
MGM GRAND ATLANTIC CITY, INC.
By: /s/ Xxxxx Xxxxxxxx
__________________
ATTEST:
By: /s/ J. Xxxxxxxx Xxxxx
________________________
Name: J. Xxxxxxxx Xxxxx
________________________
Title: Chairman
________________________
MGM GRAND DEVELOPMENT, INC.
By: /s/ Xxxxx Xxxxxxxx
__________________
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxx
________________________
Name: Xxxxxx X. Xxxxxxx
________________________
Title: Vice President
________________________
91
MGM GRAND DETROIT, INC.
By: /s/ Xxxxx Xxxxxxxx
_____________________________
ATTEST:
By: /s/ J. Xxxxxxxx Xxxxx
________________________
Name: J. Xxxxxxxx Xxxxx
________________________
Title: Chairman
________________________
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