<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 22, 1995
REGISTRATION NO. 33-[ ]
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CIRCUS CIRCUS ENTERPRISES, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
NEVADA 88-0121916
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
</TABLE>
2880 LAS VEGAS BOULEVARD SOUTH
LAS VEGAS, NEVADA 89109
(702) 734-0410
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
--------------------------
MIKE SLOAN, GENERAL COUNSEL
CIRCUS CIRCUS ENTERPRISES, INC.
2880 LAS VEGAS BOULEVARD SOUTH
LAS VEGAS, NEVADA 89109
(702) 734-0410
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
COPIES TO:
Mary Ellen Kanoff, Esq.
Latham & Watkins
633 West Fifth Street
40th Floor
Los Angeles, CA 90071
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this
Registration Statement as determined by market conditions.
--------------------------
If the only securities being registered on this Form are being offered
pursuant to a dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
investment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) UNIT (1)(2) PRICE(1)(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities................................... $400,000,000 100% $400,000,000 $137,932
</TABLE>
(1) Pursuant to Rule 457 under the Securities Act of 1933, as amended (the
"Securities Act"), which permits the registration fee to be calculated on
the basis of the maximum offering price of all the securities listed, the
table does not specify by each class information as to the amount to be
registered, proposed maximum offering price per unit or proposed maximum
aggregate offering price.
(2) Estimated in accordance with Rule 457 solely for the purpose of computing
the registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED DECEMBER 22, 1995
PROSPECTUS
$400,000,000
CIRCUS CIRCUS ENTERPRISES, INC.
DEBT SECURITIES
------------------
Circus Circus Enterprises, Inc., a Nevada corporation (the "Company"), may
offer from time to time in one or more series its debt securities consisting of
debentures, notes or other evidence of indebtedness (the "Debt Securities"), in
amounts as may be sold for an aggregate public offering price of up to
$400,000,000, or, if Debt Securities are issued at an original issue discount,
such greater amount as shall result in aggregate proceeds of $400,000,000 to the
Company, on terms to be determined at the time of the offering. At the option of
the Company, the Debt Securities may be issued as senior secured Debt
Securities, as senior unsecured Debt Securities, as senior subordinated Debt
Securities or as subordinated Debt Securities, and in any combination thereof.
The general terms and conditions of the Debt Securities are described under
"Description of Debt Securities" in this Prospectus. Debt Securities may be
offered separately or together, in separate series, in amounts, at prices and on
terms determined by market conditions at the time of sale and to be set forth in
one or more supplements to this Prospectus (each, a "Prospectus Supplement").
The specific terms of the Debt Securities for which this Prospectus is being
delivered will be set forth in the applicable Prospectus Supplement which will
include, where applicable, the specific title, aggregate principal amount, form
(which may be certificated or global), authorized denominations, maturity (which
may be fixed or extendible), interest rate or rates (which may be fixed or
variable) (or manner of calculation thereof), if any, the time of payment of
interest, if any, any terms of redemption at the option of the Company or
repayment at the option of the holder, any terms for sinking fund payments,
additional covenants, initial public offering price, purchase price and other
terms with respect to the Debt Securities. The Debt Securities may be issued as
original issue discount securities to be sold at a substantial discount below
their principal amount and, if issued, certain terms thereof will be set forth
in the Prospectus Supplement related thereto. See "Description of Debt
Securities."
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Debt Securities
covered by such Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
NEITHER THE NEVADA GAMING COMMISSION, THE NEVADA STATE GAMING CONTROL BOARD
NOR ANY OTHER GAMING REGULATORY AUTHORITY HAS PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS OR THE INVESTMENT MERITS OF THE
SECURITIES OFFERED HEREBY. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
------------------------
The Debt Securities may be offered directly to one or more purchasers,
through agents designated from time to time by the Company or to or through
underwriters or dealers. If any agents or underwriters are involved in the sale
of the Debt Securities, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, will be set forth, or
will be calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution." No Debt Securities may be sold without
delivery of a Prospectus Supplement describing the method and terms of the
offering of such Debt Securities.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1996
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C., and at the Commission's regional offices at 7 World Trade
Center, 13th Floor, New York, New York 10048 and Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the Commission at its principal office at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549. In addition, the Company's Common Stock is
listed on the New York Stock Exchange and the Pacific Stock Exchange and similar
information concerning the Company can be inspected and copied at the New York
Stock Exchange, 20 Broad Street, New York, New York 10005 and at the Pacific
Stock Exchange, 301 Pine Street, San Francisco, California 94104.
------------------------
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's (File No. 1-8570) (i) Annual Report on Form 10-K for the
fiscal year ended January 31, 1995, (ii) Quarterly Report on Form 10-Q for the
fiscal quarter ended April 30, 1995, (iii) Current Report on Form 8-K dated June
1, 1995, (iv) Amendment No. 1 on Form 8-K/A to the Company's Current Report on
Form 8-K dated June 1, 1995, (v) Quarterly Report on Form 10-Q for the fiscal
quarter ended July 31, 1995 and (vi) Quarterly Report on Form 10-Q for the
fiscal quarter ended October 31, 1995, each filed by the Company with the
Commission, are incorporated in this Prospectus by reference.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Debt Securities
hereunder shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of the filing of such reports and documents. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document, as the case may be, which also is
or is deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a Prospectus is delivered, upon written or oral request of such person, a
copy of the Indentures (as hereinafter defined) or any document incorporated
herein by reference (other than exhibits to such documents). Requests should be
directed to David R. Belding, Secretary, Circus Circus Enterprises, Inc., 2880
Las Vegas Boulevard South, Las Vegas, Nevada 89109, telephone number (702)
734-0410.
------------------------
The Company will furnish each holder of the Debt Securities annual reports
containing audited financial statements, quarterly reports containing unaudited
financial information and such other reports as may be required by applicable
law.
2
<PAGE>
THE COMPANY
Circus Circus Enterprises, Inc. (the "Company"), which was incorporated in
1974, owns and operates, through wholly owned subsidiaries, 10 hotel-casino
properties with approximately 16,000 rooms in the State of Nevada, including
four properties in Las Vegas (Circus Circus-Las Vegas, Luxor, Excalibur and the
Hacienda Hotel and Casino), two properties in Jean (Gold Strike Hotel and
Gambling Hall and Nevada Landing), the Circus Circus Hotel and Casino in Reno,
the Railroad Pass in Henderson, and the Colorado Belle Hotel and Casino and the
Edgewater Hotel and Casino which are located on the Colorado River in Laughlin.
The Company also owns and operates a dockside casino situated on a 24-acre site
in Tunica County, Mississippi and operates two smaller casinos on the Las Vegas
Strip, Slots-A-Fun (which the Company also owns) and the Silver City Casino
(which the Company operates under a long-term lease).
The Company, through wholly owned subsidiaries, also owns interests in three
joint ventures which own operating casinos. The Grand Victoria, a riverboat
casino and land-based entertainment complex, is located in Elgin, Illinois and
is operated and managed by the Company. The Company and an affiliate of Hyatt
Development Corporation each have a 50% interest in the venture. The Silver
Legacy Hotel and Casino, is located in Reno, Nevada, and is Reno's first Las
Vegas-styled themed resort. This resort, themed as a turn-of-the-century silver
mining town, is owned in equal shares by the Company and an affiliate of
Eldorado Hotel and Casino. The Company and affiliates of ITT Destinations, Inc.
and Hilton Hotels Corporation own in equal shares a joint venture which is
operating both an interim land-based casino and a recently opened dockside
casino in Windsor, Ontario, Canada. The Company and its joint venture partners
are presently in negotiations for the construction of a permanent 300 room
hotel-casino facility in Windsor.
The Company also holds a 50% interest, through a wholly owned subsidiary, in
a joint venture with an affiliate of Mirage Resorts, Incorporated which is
developing Monte Carlo, a major destination resort under construction on the Las
Vegas Strip for which it serves as the managing venturer. This project, which is
scheduled to open in the summer of 1996, will feature approximately 3,000 rooms
and a 90,000 square-foot casino, with a palatial style reminiscent of the Belle
Epoque, the French Victorian architecture of the late 19th Century. The Monte
Carlo has an estimated cost of $344 million (including land, capitalized
interest and preopening expenses), and the Company is obligated to fund any
portion of such cost in excess of certain equity contributions and the funding
provided by a $200 million construction loan. The Company's total equity
contribution is anticipated to be approximately $63 million, of which $35.1
million had been funded as of October 31, 1995.
As part of its growth strategy, the Company currently expects to expand
Luxor, renovate parts of Excalibur and commence construction of a multi-faceted
gaming and entertainment complex initially involving the Hacienda Hotel parcel
and certain undeveloped land to the south. It also expects to expand and
renovate Circus Circus Las Vegas and renovate parts of the Circus Circus Hotel
and Casino in Reno. While the Company intends to effect the preceding
expansions, renovations and construction in a manner intended to minimize the
impact such activities may have on the operations and earnings of the subject
properties, no assurances can be given that during the pendancy of such
activities the operations and/or earnings of the subject properties will not be
adversely effected.
Construction of the Luxor expansion is currently scheduled to commence in
January 1996. As currently contemplated, the expansion will involve an
approximately 2,000 room addition arranged in two high-rise, stepped-pyramid
towers between Luxor and Excalibur, raising the total rooms at Luxor to
approximately 4,500, and will include additional casino space, retail area,
restaurants and a multi-purpose showroom, as well as a signature ride. The
additional rooms are expected to be completed by the end of 1996. The estimated
cost of this expansion is expected to be approximately $240 million.
The Excalibur renovations are currently scheduled to commence in early 1996
and are contemplated to include the refurbishment of all of the over 4,000
rooms, the construction of additional retail space, the relocation of certain
restaurants, the construction of a moving walkway between Luxor and
3
<PAGE>
Excalibur and the re-engineering of the pedestrian overpasses over Las Vegas
Boulevard and Tropicana Avenue to provide more direct pedestrian access to
Excalibur. The estimated cost of the Excalibur renovations is anticipated to be
approximately $40-50 million.
The first step in the Company's effort to create a multi-faceted gaming and
entertainment complex is currently anticipated to commence in 1996 with the
construction of a hotel-casino facility on the Hacienda Hotel parcel and
approximately 73 acres of undeveloped land south of that parcel at the northwest
corner of Russell Road and the Las Vegas Strip. Ultimately, the Company
contemplates expanding the complex to include portions of the Luxor and
Excalibur parcels.
Construction of the Circus Circus Las Vegas expansion is currently scheduled
to commence in January 1996. As contemplated, the expansion will involve the
construction of an approximately 1,000 room high-rise tower adjacent to Grand
Slam Canyon, the refurbishment of approximately 1,200 rooms in the Skyrise Tower
and the improvement of the casino and midway. The estimated cost of the
foregoing expansion is expected to be approximately $50-60 million.
The Company also intends to commence construction of a major renovation at
Circus Circus Hotel and Casino in Reno in 1996. The renovation is currently
expected to involve the refurbishment of the casino and all of the rooms, as
well as the construction of a parking structure. The estimated cost of the
foregoing renovation is expected to be approximately $35 million.
The Company follows a marketing and operating philosophy which emphasizes
high volume business by providing reasonably priced hotel rooms, food and
alternative entertainment in combination with the Company's gaming activity. The
Company also maintains stringent cost controls which are exemplified by a
general policy of offering virtually no credit for gaming customers. Management
believes that this philosophy distinguishes the Company from its principal
competitors.
The Company's executive offices are located at 2880 Las Vegas Boulevard
South, Las Vegas, Nevada 89109, and its telephone number is (702) 734-0410.
Unless the context otherwise indicates, all references herein to the Company are
to Circus Circus Enterprises, Inc. and its subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to fixed charges for
the Company for the nine months ended October 31, 1995 and each of the fiscal
years 1995, 1994, 1993, 1992 and 1991.
<TABLE>
<CAPTION>
YEAR ENDED JANUARY 31,
NINE MONTHS ENDED -----------------------------------------------------
OCTOBER 31, 1995 1995 1994 1993 1992 1991
- --------------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
3.87(1) 5.38 5.40 6.48 4.40 3.03
</TABLE>
For purposes of computing this ratio, earnings consist of income before
income taxes plus fixed charges (excluding capitalized interest) and minority
interests (relating to subsidiaries whose fixed charges are included in the
computation), excluding equity in undistributed earnings of less than 50% owned
investments. Fixed charges include interest, whether expensed or capitalized,
amortization of debt expense, discount or premium related to indebtedness and
such portion of rental expense deemed by the Company to be representative of
interest.
- ------------------------
(1) During the second quarter of fiscal 1996, the Company wrote-off $45.1
million of costs associated with various assets which were disposed of or
whose values had otherwise become impaired. The ratio of earnings to fixed
charges for the nine months ended October 31, 1995, excluding this
write-off, would be 4.79.
4
<PAGE>
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the Debt
Securities for general corporate purposes, which may include acquisitions,
capital expenditures and working capital requirements; to repay, redeem or
repurchase outstanding indebtedness; or for such other purposes as may be
specified in the Prospectus Supplement. A description of any indebtedness to be
refinanced with the proceeds of the Debt Securities will be set forth in the
applicable Prospectus Supplement.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent to which such general
provisions may apply to the Debt Securities will be described in a Prospectus
Supplement relating to such Debt Securities.
The Debt Securities may constitute either senior secured debt ("Senior
Secured Debt Securities"), senior unsecured debt ("Senior Unsecured Debt
Securities"), senior subordinated debt ("Senior Subordinated Debt Securities")
or subordinated debt ("Subordinated Debt Securities"), or any combination
thereof, of the Company. Each such series of Debt Securities will be issued
under a separate indenture (the "Senior Secured Debt Indenture," the "Senior
Unsecured Debt Indenture," the "Senior Subordinated Debt Indenture," and the
"Subordinated Debt Indenture," respectively), in each case, between the Company,
as obligor, and First Interstate Bank of Nevada, N.A., as Trustee (the
"Trustee"). The Senior Secured Debt Indenture, the Senior Unsecured Debt
Indenture, the Senior Subordinated Debt Indenture and the Subordinated Debt
Indenture are sometimes hereinafter referred to individually as an "Indenture"
and collectively as the "Indentures."
The terms of the Debt Securities include those stated in the applicable
Indenture and those made part of such Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and holders of
the Debt Securities are referred to the Indentures and the Trust Indenture Act
for a statement thereof. A copy of the form of each Indenture is filed as an
exhibit to the Registration Statement of which this Prospectus is a part. The
following summaries of certain provisions of the Debt Securities and the
Indentures, while including a discussion of all material aspects or features
thereof, do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all the provisions of the Debt Securities and
the Indentures, including the definitions therein of certain terms which are not
otherwise defined in this Prospectus. Wherever particular provisions or defined
terms of the Indentures are referred to, such provisions or defined terms are
incorporated herein by reference.
GENERAL
The Indentures will not limit the aggregate principal amount of Debt
Securities which may be issued thereunder. Debt Securities may be issued
thereunder from time to time as a single series or in two or more separate
series up to the aggregate principal amount from time to time authorized by the
Company for each series. As of the date of this Prospectus, the Company has
authorized the issuance under the Indentures of up to $400 million aggregate
principal amount of the Debt Securities, or, if Debt Securities are issued at an
original issue discount, such greater amount as shall result in aggregate
proceeds of $400 million to the Company.
The applicable Prospectus Supplement or Prospectus Supplements will
describe, among other things, the following terms of the Debt Securities, if
applicable to such Debt Securities: (1) the title of the Debt Securities; (ii)
any limit on the aggregate principal amount of the Debt Securities and whether
they will constitute Senior Secured Debt Securities, Senior Unsecured Debt
Securities, Senior Subordinated Debt Securities or Subordinated Debt Securities;
(iii) the price or prices (expressed as a percentage of the aggregate principal
amount thereof) at which the Debt Securities will be issued; (iv) the date or
dates on which the principal of the Debt Securities is payable or the method of
5
<PAGE>
determination thereof; (v) the rate or rates (which may be fixed or variable) at
which the Debt Securities will bear interest (which rate may be zero in the case
of certain Debt Securities issued at an issue price representing a discount from
the principal amount payable at maturity), and the date or dates from which such
interest, if any, will accrue, and the circumstances, if any, in which the
Company may defer interest payments; (vi) the interest payment dates, if any, on
which any interest on the Debt Securities will be payable, and the record date
for any interest payable on any Debt Securities; (vii) the right or obligation,
if any, of the Company to redeem or purchase Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of a holder thereof, or
otherwise, the conditions, if any, giving rise to such right or obligation, and
the period or periods within which, and the price or prices at which and the
terms and conditions upon which Debt Securities shall be redeemed or purchased,
in whole or in part, and any provisions for the marketing of such Debt
Securities; (viii) if the amount of payments of principal of, premium, if any,
and interest, if any, on the Debt Securities is to be determined by reference to
an index, formula or other method, the manner in which such amounts are to be
determined and the calculation agent, if any, with respect thereto; (ix) if
other than the principal amount thereof, the portion of the principal amount of
the Debt Securities which will be payable upon declaration or acceleration of
the stated maturity thereof pursuant to an Event of Default; (x) whether the
Debt Securities will be issued in certificated or book-entry form and, if so,
the identity of the depository for the Debt Securities; (xi) any listing of the
Debt Securities on a securities exchange; (xii) any additional restrictive
covenants included for the benefit of Holders of such Debt Securities; (xiii)
any additional events of default provided with respect to such Debt Securities;
and (xiv) any other material terms of the Debt Securities. Any such Prospectus
Supplement will also describe any special provisions for the payment of
additional amounts with respect to the Debt Securities.
GAMING REGULATION
The ownership and operation of casino gaming facilities are subject to
extensive state and local regulation. The states of Illinois, Mississippi and
Nevada and the applicable local authorities, and the Province of Ontario, Canada
require various licenses, findings of suitability, registrations, permits and
approvals (individually a "Gaming License" and collectively "Gaming Licenses")
to be held by the Company and its subsidiaries and joint ventures that are
engaged in gaming operations. The Illinois Gaming Board, the Mississippi Gaming
Commission, the Nevada Gaming Commission and the Ontario Gaming Control
Commission (collectively the "Gaming Authorities"), may, among other things,
limit, condition, suspend or revoke a Gaming License or approval to own the
stock or joint venture interests of any of the Company's Illinois, Mississippi,
Nevada and Ontario operations, respectively, for any cause deemed reasonable by
such licensing authority. Substantial fines or forfeiture of assets for
violations of gaming laws or regulations may be levied against the Company, such
subsidiaries and joint ventures and the persons involved. The suspension or
revocation of any of the Company's Gaming Licenses or the levy on the Company of
substantial fines or forfeiture of assets could have a material adverse effect
on the business of the Company.
To date, the Company has obtained all Gaming Licenses necessary for the
operation of its gaming activities. However, Gaming Licenses and related
approvals are deemed to be privileges under Illinois, Mississippi, Nevada and
Ontario law, and no assurances can be given that any new Gaming Licenses that
may be required in the future will be granted or that existing Gaming Licenses
will not be revoked or suspended.
The Nevada Gaming Commission may, in its discretion, require the holder of
any Debt Security issued by the Company to file applications, be investigated
and be found suitable to own such Debt Security. If the Nevada Gaming Commission
determines that a person is unsuitable to own such Debt Security, then pursuant
to the Nevada Gaming Control Act, the Company can be sanctioned, including the
loss of its approvals, if without the prior approval of the Nevada Gaming
Commission, it: (i) pays to the unsuitable person any dividend, interest, or any
distribution whatsoever; (ii) recognizes any voting right by such unsuitable
person in connection with such securities; (iii) pays the unsuitable person
remuneration in any form; or (iv) makes any payment to the unsuitable person by
way of
6
<PAGE>
principal, redemption, conversion, exchange, liquidation, or similar
transaction. The Illinois Gaming Board, the Mississippi Gaming Commission and
the Ontario Gaming Control Commission also have jurisdiction over the beneficial
holders of Debt Securities issued by the Company and may require their
investigation and approval.
In certain jurisdictions, the Company may not make a public offering of its
securities without the prior approval of the applicable Gaming Authorities if
the securities or proceeds therefrom are intended to be used to construct,
acquire or finance gaming facilities in such jurisdictions, or to retire or
extend obligations incurred for such purposes or for similar transactions. On
August 24, 1995 the Nevada Gaming Commission granted the Company prior approval
to make public offerings for a period of one year, subject to certain conditions
("Shelf Approval"). The Shelf Approval also applies to any affiliated company
wholly owned by the Company (a "Gaming Affiliate") which is a publicly traded
corporation or would thereby become a publicly traded corporation pursuant to a
public offering. The Shelf Approval also includes approval for the Company's
licensed Nevada subsidiaries to guarantee any security issued by, or to
hypothecate their assets to secure the payment or performance of any obligations
issued by, the Company or a Gaming Affiliate in a public offering under the
Shelf Registration. However, the Shelf Approval may be rescinded for good cause
without prior notice upon the issuance of an interlocutory stop order by the
Chairman of the Nevada State Gaming Control Board and must be renewed annually.
The Shelf Approval does not constitute a finding, recommendation or approval by
the Nevada Gaming Commission or the Nevada State Gaming Control Board as to the
accuracy or adequacy of the prospectus or the investment merits of the
securities offered. Any representation to the contrary is unlawful. The public
offering of the Debt Securities will be made pursuant to the Shelf Approval.
The foregoing is only a summary of the regulatory requirements applicable to
the Company. For a more detailed description of the regulatory requirements
applicable to the Company, see "Regulation and Licensing" in the Company's
Annual Report on Form 10-K for the fiscal year ended January 31, 1995,
incorporated by reference herein.
MANDATORY DISPOSITION PURSUANT TO GAMING LAWS
The Indentures will provide that each Holder, by accepting any of the Debt
Securities, 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 must be
licensed, qualified or found suitable under applicable Gaming Laws, such Holder
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, the Company shall have the right, at its
option, (i) to require such person to dispose of its Securities or beneficial
interest therein within 30 days of receipt of notice of the Company's election
or such earlier date as may be requested or prescribed by such Gaming Authority
or (ii) to redeem such Securities at a redemption price equal to the lesser of
(A) such person's cost and (B) 100% of the principal amount thereof, plus
accrued and unpaid interest to the earlier of the redemption date and the date
of the finding of unsuitability, which may be less than 30 days following the
notice of redemption if so requested or prescribed by the Gaming Authority. The
Company shall notify the Trustee in writing of any such redemption as soon as
practicable. The Company shall not be responsible for any costs or expenses any
such Holder may incur in connection with its application for a license,
qualification or a finding of suitability.
SUBORDINATION OF SECURITIES
The indebtedness evidenced by the Senior Subordinated Debt Securities and
Subordinated Debt Securities (collectively, the "Subordinated Securities") will
be subordinated to the prior payment when due of the principal of, premium, if
any, and interest on all current and future Senior Indebtedness (as defined
below). Upon maturity of any Senior Indebtedness by lapse of time, acceleration
or otherwise, payment in full must be made on such Senior Indebtedness before
any payment is made on or in respect of the Subordinated Securities. During the
continuance of any event of default with respect to Senior Indebtedness
entitling the holders thereof to accelerate the maturity thereof, or if
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such event of default would be caused by any payment upon or in respect of the
Subordinated Securities, no payment may be made by the Company upon or in
respect of the Subordinated Securities; PROVIDED, HOWEVER, that if such event of
default is other than a default in payment of any amount due in connection with
such Senior Indebtedness, the Company shall be permitted to continue to make
payments of interest on the Subordinated Securities. Upon any distribution of
assets of the Company pursuant to any dissolution, winding up, liquidation or
reorganization of the Company, payment of the principal of and interest on the
Subordinated Securities will be subordinated, to the extent and in the manner
set forth in the applicable Indentures, to the prior payment in full of all
Senior Indebtedness. Such subordination will not prevent the occurrence of any
Event of Default.
"Senior Indebtedness" is defined in the Senior Subordinated Debt Indenture
as the principal of and interest on and other amounts due on or in connection
with (a) Indebtedness of the Company (other than the Subordinated Securities),
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed in any manner by the Company or in effect
guaranteed by the Company through an agreement to purchase or otherwise, and (b)
renewals, extensions, refunding or refinancing of Indebtedness of the kind
described in the preceding clause (a), unless, in the case of any particular
Indebtedness, renewal, extension, refunding, or refinancing, the instrument
creating or evidencing the same or the assumption or guarantee thereof expressly
provides that such Indebtedness, renewal, extension, refunding, or refinancing
does not constitute Senior Indebtedness. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness shall include (i) all
Indebtedness, liabilities and obligations of the Company owed to banks and other
financial institutions and (ii) the Senior Secured Debt Securities and the
Senior Unsecured Debt Securities, but shall not include (w) any Indebtedness
hereafter incurred that is subordinate or junior in right of payment to any
Senior Indebtedness, (x) Indebtedness of the Company to a subsidiary or
affiliate of the Company for money borrowed or advances from such subsidiary or
affiliate, (y) the 10 5/8% Senior Subordinated Notes of the Company Due 1997,
the 6 3/4% Senior Subordinated Notes of the Company Due 2003, and the 7 5/8%
Senior Subordinated Debentures of the Company Due 2013, with respect to which
the Senior Subordinated Debt Securities will rank PARI PASSU in right of
payment, or (z) any Indebtedness specified in an indenture supplemental to the
Senior Subordinated Debt Indenture or an Officers' Certificate as being excepted
from the definition of Senior Indebtedness; PROVIDED, that any guaranty by the
Company of Indebtedness of a subsidiary of the Company to third parties shall
constitute Senior Indebtedness unless, in the case of any particular guaranty,
the instrument creating or evidencing the same provides that such guaranty does
not constitute Senior Indebtedness; PROVIDED FURTHER, that in the event a
subsidiary of the Company advances to the Company the proceeds attributable to
Indebtedness incurred by such subsidiary to a third party which Indebtedness has
been guaranteed by the Company, then such obligation of the Company to repay
such advance to the subsidiary shall constitute Senior Indebtedness, unless the
Company provides in writing that such advance does not constitute Senior
Indebtedness.
"Senior Indebtedness" is defined in the Subordinated Debt Indenture as the
principal of and interest on and other amounts due on or in connection with (a)
Indebtedness of the Company (other than the Subordinated Debt Securities),
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed in any manner by the Company or in effect
guaranteed by the Company through an agreement to purchase or otherwise, and (b)
renewals, extensions, refunding or refinancing of Indebtedness of the kind
described in the preceding clause (a), unless, in the case of any particular
Indebtedness, renewal, extension, refunding, or refinancing, the instrument
creating or evidencing the same or the assumption or guarantee thereof expressly
provides that such Indebtedness, renewal, extension, refunding, or refinancing
does not constitute Senior Indebtedness. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness shall include (i) all
Indebtedness, liabilities and obligations of the Company owed to banks and other
financial institutions and (ii) the Senior Secured Debt Securities, the Senior
Unsecured Debt Securities, the Senior Subordinated Debt Securities, the 10 5/8%
Senior Subordinated Notes of the Company Due 1997, the 6 3/4% Senior
Subordinated Notes of the Company Due 2003, and the 7 5/8% Senior Subordinated
Debentures of the Company Due 2013, but shall not include (x) any Indebtedness
hereafter incurred
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that is subordinate or junior in right of payment to any Senior Indebtedness
(other than Senior Subordinated Debt and any other Indebtedness ranking PARI
PASSU with such Indebtedness), (y) Indebtedness of the Company to a subsidiary
or affiliate of the Company for money borrowed or advances from such subsidiary
or affiliate or (z) any Indebtedness specified in an indenture supplemental to
the Subordinated Debt Indenture or an Officers' Certificate as being excepted
from the definition of Senior Indebtedness; PROVIDED, that any guaranty by the
Company of Indebtedness of a subsidiary of the Company to third parties shall
constitute Senior Indebtedness unless, in the case of any particular guaranty,
the instrument creating or evidencing the same provides that such guaranty does
not constitute Senior Indebtedness; PROVIDED FURTHER, that in the event a
subsidiary of the Company advances to the Company the proceeds attributable to
Indebtedness incurred by such subsidiary to a third party which Indebtedness has
been guaranteed by the Company, then such obligation of the Company to repay
such advance to the subsidiary shall constitute Senior Indebtedness, unless the
Company provides in writing that such advance does not constitute Senior
Indebtedness.
The claims of third parties to the assets of the Company's subsidiaries
incurring such obligations will be superior to those of the Company as a
stockholder and, therefore, the Debt Securities may be deemed to be effectively
subordinated to the claims of such third parties. Substantially all of the
Company's business operations are conducted through such subsidiaries, and the
Debt Securities are effectively subordinated to the repayment of the liabilities
arising from those operations. The Indentures will not limit the amount of
additional Indebtedness, including Senior Indebtedness, which the Company or any
subsidiary may create, incur, assume or guarantee. As a result of the
subordination provisions contained in the Indentures, in the event of
insolvency, holders of the Subordinated Securities may recover less, ratably,
than other creditors of the Company or its subsidiaries.
REGISTERED GLOBAL SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more Registered Global Securities that will be deposited with and registered
in the name of a depositary (a "Depositary") or its nominee identified in the
applicable Prospectus Supplement. In such case, one or more Registered Global
Securities will be issued in a denomination or aggregate denominations equal to
the portion of the aggregate principal amount of outstanding registered Debt
Securities of the series to be represented by such Registered Global Security or
Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in definitive registered form, a Registered Global Security may not
be transferred except as a whole by the Depositary for such Registered Global
Security to a nominee of such Depositary, or by such a nominee to such
Depositary or to another nominee of such Depositary, or by such Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Registered Global Security
will be described in the applicable Prospectus Supplement. The Company
anticipates that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons holding interests through
participants. Upon the issuance of a Registered Global Security, the Depositary
for such Registered Global Security will credit, on its book-entry registration
and transfer system, the participants' accounts with the respective principal
amounts of the Debt Securities represented by such Registered Global Security
beneficially owned by such participants. The accounts to be credited shall be
designated by any dealers, underwriters or agents participating in the
distribution of such Debt Securities. Ownership of beneficial interests in such
Registered Global Security will be shown on, and the transfer of such ownership
interests will be effected only through, records maintained by the Depositary
for such Registered Global Security (with respect to interests of participants)
and on the records of participants (with respect to interests of persons holding
through
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participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to own, transfer or pledge
beneficial interests in Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global Security for all
purposes under the Indentures. Except as set forth below, owners of beneficial
interests in a Registered Global Security will not be entitled to have the Debt
Securities represented by such Registered Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the Indentures. Accordingly, each person owning a beneficial
interest in a Registered Global Security must rely on the procedures of the
Depositary for such Registered Global Security and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interests, to exercise any rights of a holder under the Indentures. The
Company understands that under existing industry practices, if the Company
requests any action of holders or if an owner of a beneficial interest in a
Registered Global Security desires to give or take any action which a holder is
entitled to give or take under the applicable Indenture, the Depositary for such
Registered Global Security would authorize the participants holding the relevant
beneficial interests to give or take such action, and such participants would
authorize beneficial owners owning through such participants to give or take
such action or would otherwise act upon the instructions of beneficial owners
holding through them.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Registered Global Security registered in the name of a
Depositary or its nominee will be made to such Depositary or its nominee, as the
case may be, as the registered owner of such Registered Global Security. None of
the Company, the Trustee or any other agent of the Company or agent of the
Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in
such Registered Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium or interest in respect of such Registered Global Security, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in such Registered Global Security as
shown on the records of such Depositary. The Company also expects that payments
by participants to owners of beneficial interests in such Registered Global
Security held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a Registered Global
Security is at any time unwilling or unable to continue as Depositary or ceases
to be a clearing agency registered under the Exchange Act, and a successor
Depositary registered as a clearing agency under the Exchange Act is not
appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive form in exchange for such Registered Global Security.
In addition, the Company may at any time and in its sole discretion determine
not to have any of the Debt Securities of a series represented by one or more
Registered Global Securities and, in such event, will issue Debt Securities of
such series in definitive form in exchange for all of the Registered Global
Security or Securities representing such Debt Securities. Any Debt Securities
issued in definitive form in exchange for a Registered Global Security will be
registered in such name or names as the Depositary shall instruct the Trustee.
It is expected that such instructions will be based upon directions received by
the Depositary from participants with respect to ownership of beneficial
interests in such Registered Global Security.
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CERTAIN COVENANTS
LIMITATION ON LIENS. Unless otherwise indicated in the applicable
Prospectus Supplement, the Senior Unsecured Debt Indenture and the Senior
Subordinated Debt Indenture will provide that neither the Company nor any of its
subsidiaries may issue, assume or guarantee any Indebtedness secured by a Lien
upon any Consolidated Property without effectively providing that the Debt
Securities shall be secured equally and ratably with (or prior to) such
Indebtedness so long as such Indebtedness shall be so secured, except that this
restriction will not apply to: (a) Liens existing on the date of original
issuance of the Debt Securities; (b) Liens affecting property of a corporation
or other entity existing at the time it becomes a subsidiary of the Company or
at the time it is merged into or consolidated with the Company or a subsidiary
of the Company; (c) Liens on property existing at the time of acquisition
thereof or incurred to secure payment of all or a part of the purchase price
thereof or to secure Indebtedness incurred prior to, at the time of, or within
24 months after the acquisition for the purpose of financing all or part of the
purchase price thereof; (d) Liens on any property to secure all or part of the
cost of improvements or construction thereon or Indebtedness incurred to provide
funds for such purpose in a principal amount not exceeding the cost of such
improvements or construction; (e) Liens which secure Indebtedness owing by a
subsidiary of the Company to the Company or to a subsidiary of the Company; (f)
Liens securing Indebtedness of the Company the proceeds of which are used
substantially simultaneously with the incurrence of such Indebtedness to retire
Funded Debt; (g) purchase money security Liens on personal property; (h) Liens
securing Indebtedness of the Company the proceeds of which are used within 24
months of the incurrence of such Indebtedness for the cost of the construction
and development or improvement of a Resort Property; (i) Liens on the stock,
partnership or other equity interest of the Company or any subsidiary in any
Joint Venture (as hereinafter defined) or any subsidiary which owns an equity
interest in such Joint Venture to secure Indebtedness, PROVIDED the amount of
such Indebtedness is contributed and/ or advanced solely to such Joint Venture;
(j) Liens securing any Senior Indebtedness (as defined in the Senior
Subordinated Debt Indenture), including without limitation, the Senior Secured
Debt Securities; (k) certain Liens to government entities, including pollution
control or industrial revenue bond financing; (l) Liens required by any contract
or statute in order to permit the Company or a subsidiary of the Company to
perform any contract or subcontract made by it with or at the request of a
governmental entity; (m) mechanic's, materialman's, carrier's or other like
Liens, arising in the ordinary course of business; (n) certain Liens for taxes
or assessments and similar charges; (o) zoning restrictions, easements,
licenses, covenants, reservations, restrictions on the use of real property and
certain other minor irregularities of title; and (p) any extension, renewal,
replacement or refinancing of any Lien referred to in the foregoing, clauses (a)
through (j). Notwithstanding the foregoing, the Company and any one or more of
its subsidiaries may, without securing the Debt Securities, issue, assume or
guarantee Indebtedness which would otherwise be subject to the foregoing
restrictions in an aggregate principal amount which, together with all other
such Indebtedness of the Company and its subsidiaries which would otherwise be
subject to the foregoing restrictions (not including Indebtedness permitted to
be secured under clauses (a) through (j) inclusive above) and the aggregate
Value of Sale and Lease-Back Transactions (other than those in connection with
which the Company has voluntarily retired Funded Debt) does not at any one time
exceed 15% of Consolidated Net Tangible Assets of the Company and its
consolidated subsidiaries.
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. Unless otherwise indicated
in the applicable Prospectus Supplement, the Senior Unsecured Debt Indenture and
the Senior Subordinated Debt Indenture will provide that neither the Company nor
any of its subsidiaries will enter into any Sale and Lease-Back Transaction
unless either (a) the Company or such subsidiary would be entitled, pursuant to
the above provisions, to incur Indebtedness in a principal amount equal to or
exceeding the Value of such Sale and Lease-Back Transaction, secured by a Lien
on the property to be leased, without equally and ratably securing the
Securities or (b) the Company within 120 days after the effective date of such
Sale and Lease-Back Transaction applies to the voluntary retirement of its
Funded Debt an amount equal to the Value of the Sale and Lease-Back Transaction
(subject to credits for certain voluntary retirements of Funded Debt).
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ADDITIONAL COVENANTS. Any additional covenants of the Company with respect
to any series of Debt Securities will be set forth in the Prospectus Supplement
relating thereto.
CERTAIN DEFINITIONS
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed) and (ii) all goodwill, trade names, trademarks, patents, purchased
technology, unamortized debt discount and other like intangible assets, all as
set forth on the most recent quarterly balance sheet of the Company and its
consolidated subsidiaries and computed in accordance with generally accepted
accounting principles.
"CONSOLIDATED PROPERTY" means any property of the Company or any subsidiary
of the Company.
"EXISTING COMPLETION GUARANTEES AND MAKE-WELL AGREEMENTS" means (i) that
certain Make-Well Agreement by the Company in favor of First Interstate Bank of
Nevada, N.A. dated as of May 30, 1995 relating to the Circus and Eldorado Joint
Venture, a Nevada general partnership, (ii) that certain Circus Completion
Guaranty by the Company in favor of First Interstate Bank of Nevada, N.A. dated
as of May 30, 1995 relating to the Circus and Eldorado Joint Venture, a Nevada
general partnership, and (iii) that certain Guaranty by the Company in favor of
Bank of America National Trust and Savings Association dated as of July 12, 1995
relating to Victoria Partners, a Nevada general partnership.
"FUNDED DEBT" means all Indebtedness of the Company which (i) matures by its
terms, or is renewable at the option of any obligor thereon to a date, more than
one year after the date of original issuance of such Indebtedness and (ii) ranks
at least PARI PASSU with the Securities.
"INDEBTEDNESS" of any person means (a) any indebtedness of such person,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such indebtedness
incurred in connection with the acquisition by such person or any of its
subsidiaries of any other business or entity, if and to the extent such
indebtedness would appear as a liability upon a balance sheet of such person
prepared in accordance with generally accepted accounting principles, including
for such purpose obligations under capitalized leases, and (b) any guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), discount with recourse, agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire or to supply or advance funds with
respect to, or to become liable with respect to (directly or indirectly) any
indebtedness, obligation, liability or dividend of any person, but shall not
include indebtedness or amounts owed (except to banks or other financial
institutions) for compensation to employees, or for goods or materials
purchased, or services utilized, in the ordinary course of business of such
person. Notwithstanding anything to the contrary in the foregoing,
"Indebtedness" shall not include (i) any contracts providing for the completion
of construction or other payment or performance with respect to the
construction, maintenance or improvement of property or equipment of the Company
or its Affiliates or (ii) any contracts providing for the obligation to advance
funds, property or services on behalf of an Affiliate of the Company in order to
maintain the financial condition of such Affiliate, in each case, including
Existing Completion Guarantees and Make-Well Agreements. For purposes hereof, a
"capitalized lease" shall be deemed to mean a lease of real or personal property
which, in accordance with generally accepted accounting principles, is required
be capitalized.
"JOINT VENTURE" means (i) with respect to properties located in the United
States, 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, and (ii) with respect to properties located outside the
United States,
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any partnership, corporation or other entity, in which up to and including 60%
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.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, security interest, lien (statutory or other), or
preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"RESORT PROPERTY" means any property owned or to be owned by the Company or
any of its subsidiaries that is, or will be upon completion, a casino (including
a riverboat casino), casino-hotel, destination resort or a theme park.
"SALE AND LEASE-BACK TRANSACTION" means any arrangement with any person
(other than the Company or a subsidiary of the Company), or to which any such
person is a party, providing for the leasing to the Company or a subsidiary of
the Company for a period of more than three years of any Consolidated Property
which has been or is to be sold or transferred by the Company or such subsidiary
to such person or to any other person (other than the Company or a subsidiary of
the Company), to which funds have been or are to be advanced by such person on
the security of the leased property.
"subsidiary" of any person means (i) any corporation of which at least a
majority in interest of the outstanding stock having by the terms thereof voting
power under ordinary circumstances to elect a majority of the directors of such
corporation, irrespective of whether or not at the time stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency, is at the time, directly or indirectly,
owned or controlled by such person, or by one or more other corporations a
majority in interest of such stock of which is similarly owned or controlled, or
by such person and one or more other corporations a majority in interest of such
stock of which is similarly owned or controlled and (ii) any other person (other
than a corporation, or a partnership, corporation or other entity described in
clause (ii) of the definition of Joint Venture) in which such person or any
subsidiary, directly or indirectly, has greater than a 50% ownership interest.
"VALUE" means, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (i) the net proceeds of the
sale or transfer of property leased pursuant to such Sale and Lease-Back
Transaction or (ii) the fair value, in the opinion of the Company's Board of
Directors as evidenced by a board resolution, of such property at the time of
entering into such Sale and Lease-Back Transaction.
SUCCESSOR CORPORATION AND ASSIGNMENT
The Indentures provide that the Company may not consolidate with, merge into
or transfer all or substantially all of its assets to, another person unless (i)
the successor, if other than the Company, is a corporation organized under the
laws of the United States or any state thereof or the District of Columbia, (ii)
it assumes all obligations of the Company under the Debt Securities and the
Indentures, and (iii) immediately after such transaction no Default or Event of
Default exists. Thereafter, all such obligations of the Company will terminate.
EVENTS OF DEFAULT AND NOTICE THEREOF
Unless otherwise indicated in the applicable Prospectus Supplement, the term
"Event of Default," when used in an Indenture with respect to any series of Debt
Securities, will mean any one of the following: (i) failure of the Company to
pay (whether or not prohibited by the subordination provisions (if any))
interest for 30 days on, or the principal when due of, such series of Debt
Securities; (ii) failure to perform any other covenant contained in such
Indenture for 30 days after notice; (iii) the occurrence of an event of default
under any instrument evidencing Indebtedness of the Company or its subsidiaries
entitling the holder or holders thereof to accelerate the payment of an
aggregate principal amount of $10,000,000 or more of such Indebtedness, which
event of default is not cured or
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waived in accordance with the provisions of such instrument, or such
Indebtedness is not discharged within 30 days after the receipt by the Company
of notice from the Trustee or the holders of 25% in principal amount of such
series of Debt Securities then outstanding of such event of default; and (iv)
certain events of bankruptcy, insolvency or reorganization.
The Indentures will provide that the Trustee will, within 90 days after the
occurrence of a default with respect to any series of Debt Securities, give the
holders of such series of Debt Securities, notice of all uncured defaults known
to it (the term "default" to include the events specified above without grace or
notice), PROVIDED, that, except in the case of default in the payment of
principal of or interest on such series of Debt Securities, the Trustee shall be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interest of the holders of such series of
Debt Securities.
In case an Event of Default occurs and is continuing with respect to any
series of Debt Securities, the Trustee or the holders of not less than 25% in
principal amount of such series of Debt Securities, by notice in writing to the
Company (and to the Trustee if given by the holders of such series of Debt
Securities), may declare the principal of and all accrued interest on all such
series of Debt Securities (but in no event more than the maximum amount of
principal and interest thereon allowed by law) to be due and payable
immediately. Such declaration may be rescinded by holders of a majority in
principal amount of such series of Debt Securities then outstanding if, among
other conditions, all existing Events of Default relating to such series of Debt
Securities have been cured or waived and if the rescission would not conflict
with any judgment or decree.
Defaults with respect to any series of Debt Securities (except, unless
theretofore cured, a default in payment of principal of or interest on such
series of Debt Securities or default with respect to a provision which cannot be
modified under the terms of the applicable Indenture without the consent of each
holder of the Debt Securities affected) may be waived by the holders of a
majority in principal amount of such series of Debt Securities then outstanding
upon the conditions provided in such Indenture.
The Indentures will include a covenant that the Company will file annually
with the Trustee a statement regarding compliance by the Company with the terms
thereof and specifying any defaults of which the signers may have knowledge.
MODIFICATION OF THE INDENTURES
Under the Indentures, the rights and obligations of the Company and the
rights of the holders of the Debt Securities may be modified by the Company and
the Trustee only with the consent of the holders of not less than a majority in
principal amount of the class of Debt Securities then outstanding affected by
such modification; but no reduction in the principal, or extension of the
maturity, of any Debt Securities in a manner adverse to the holders of the Debt
Securities, or reduction of the interest rate or extension of the time of
payment of interest on the Debt Securities in a manner adverse to the holders of
the Debt Securities, or any modification of the subordination provisions (if
any) in a manner adverse to the holders of the Debt Securities, or reduction of
the percentage required for modification, will be effective against any holder
of the Debt Securities without such holder's consent. Under certain
circumstances, however, the Company may amend or supplement the Indentures
without notice to or the consent of any holders of the Debt Securities.
SATISFACTION AND DISCHARGE OF INDENTURES
Unless otherwise indicated in the applicable Prospectus Supplement, each
Indenture with respect to any series of Debt Securities will be discharged upon
payment in full of such series of Debt Securities outstanding thereunder, or
upon the deposit with the Trustee, in trust, of money and/or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will, without consideration of any
reinvestment of such interest, provide money in an amount sufficient to pay and
discharge the principal of and each installment of interest on such series of
Debt Securities on the maturity or redemption date, as the case may be, of
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such payments in accordance with the terms of the applicable Indenture and such
series of Debt Securities issued thereunder. The Company will be entitled to
make such a deposit if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the
effect that (i) the holders of such series of Debt Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance of the applicable Indenture and will be subject to federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred and (ii) the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
COVENANT DEFEASANCE
Unless otherwise indicated in the applicable Prospectus Supplement, each
Indenture will provide that the Company may be released from its obligations
with respect to any series of Debt Securities relating to the Company's
obligations with respect to the payment of taxes and other claims, maintenance
of properties, limitations on liens, limitations on sale and lease-back
transactions, and limitations on when the Company may merge, and that such
release will not be deemed to be an Event of Default under such Indenture with
respect to any series of Debt Securities ("covenant defeasance"), upon the
deposit with the Trustee (or other qualifying trustee), in trust, of money
and/or U.S. Government Obligations which through the payment of interest and
principal in accordance with their terms will provide money in an amount
sufficient to pay and discharge the principal of and each installment of
interest on such series of Debt Securities on the maturity of such payments in
accordance with the terms of the applicable Indenture and such series of Debt
Securities issued thereunder. The Company will be entitled to make such a
deposit if, among other things, the Company has delivered to the Trustee an
Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that
(i) the holders of such series of Debt Securities will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance of certain obligations and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred and (ii) the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
CONCERNING THE TRUSTEE
First Interstate Bank of Nevada, N.A. will be the Trustee under each of the
Indentures. All payments of principal of, and interest on, and all registration,
transfer, exchange, authentication, and delivery (including authentication and
delivery on original issuance of the Debt Securities) of, the Debt Securities
will be effected by the Trustee in Las Vegas, Nevada, or at an office designated
by the Trustee in New York, New York.
Each Indenture will contain certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases or to realize on certain property received in respect of any such
claim as security or otherwise. The Trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest it must eliminate
such conflict or resign.
The Trustee also serves as a trustee with respect to the 10 5/8% Senior
Subordinated Notes of the Company Due 1997, the 6 3/4% Senior Subordinated Notes
of the Company Due 2003, and the 7 5/8% Senior Subordinated Debentures of the
Company Due 2013. In case of any conflicting interest relating to the Trustee's
duties with respect to the foregoing securities or the Debt Securities, the
Trustee shall either eliminate such conflicting interest or, except as otherwise
provided in the Trust Indenture Act, resign.
The holders of a majority in principal amount of any series of Debt
Securities then outstanding will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee with respect to such series of Debt Securities, PROVIDED that such
direction would not conflict with any rule of law or with the applicable
Indenture, would not be unduly
15
<PAGE>
prejudicial to the rights of another holder of the Debt Securities, and would
not involve the Trustee in personal liability. The Indentures will provide that
in case an Event of Default shall occur and be known to the Trustee (and not be
cured), the Trustee will be required to use the degree of care of a prudent man
in the conduct of his own affairs in the exercise of its power. Subject to such
provisions, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indentures at the request of any of the holders of
the Debt Securities, unless they shall have offered to the Trustee security and
indemnity satisfactory to it.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, STOCKHOLDERS OR INCORPORATORS
The Indentures will provide that no past, present or future director,
officer, employee, stockholder or incorporator of the Company or any successor
corporation shall have any liability for any obligations of the Company under
the Debt Securities or the Indentures or for any claim based on, in respect of,
or by reason of such obligations or their creation, by reason of such person's
or entities status as such director, officer, stockholder or incorporator.
PLAN OF DISTRIBUTION
The Company may offer the Debt Securities directly to purchasers or to or
through underwriters, dealers or agents. Any such underwriter(s), dealer(s) or
agent(s) involved in the offer and sale of the Debt Securities in respect of
which this Prospectus is delivered will be named in the applicable Prospectus
Supplement. The applicable Prospectus Supplement with respect to such Debt
Securities will also set forth the terms of the offering of such Debt
Securities, including the purchase price of such Debt Securities and the
proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such Debt Securities may be listed.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The applicable Prospectus
Supplement will describe the method of distribution of the Debt Securities.
If underwriters are used in an offering of Debt Securities, the name of each
managing underwriter, if any, and any other underwriters and terms of the
transaction, including any underwriting discounts and other items constituting
compensation of the underwriters and dealers, if any, will be set forth in the
applicable Prospectus Supplement relating to such offering and the Debt
Securities will be acquired by the underwriters for their own accounts and may
be resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time. It is anticipated that any underwriting agreement pertaining to any Debt
Securities will (1) entitle the underwriters to indemnification by the Company
against certain civil liabilities under the Securities Act, or to contribution
with respect to payments which the underwriters may be required to make in
respect thereof, (2) provide that the obligations of the underwriters will be
subject to certain conditions precedent and (3) provide that the underwriters
will be obligated to purchase all Debt Securities offered in a particular
offering if any such Debt Securities are purchased.
If a dealer is used in an offering of Debt Securities, the Company will sell
such Debt Securities to the dealer, as principal. The dealer may then resell
such Debt Securities to the public at varying prices to be determined by such
dealer at the time of resale. The name of the dealer and the terms of the
transaction will be set forth in the applicable Prospectus Supplement relating
thereto.
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If an agent is used in an offering of Debt Securities, the agent will be
named, and the terms of the agency will be set forth, in the applicable
Prospectus Supplement relating thereto. Unless otherwise indicated in such
applicable Prospectus Supplement, an agent will act on a best efforts basis for
the period of its appointment.
Dealers and agents named in an applicable Prospectus Supplement may be
deemed to be underwriters (within the meaning of the Securities Act) of the Debt
Securities described therein and, under agreements which may be entered into
with the Company, may be entitled to indemnification by the Company against
certain civil liabilities under the Securities Act. Underwriters, dealers and
agents may be customers of, engage in transactions with, or perform services
for, the Company in the ordinary course of business.
Offers to purchase Debt Securities may be solicited, and sales thereof may
be made, by the Company directly to institutional investors or others, who may
be deemed to be underwriters within the meaning of the Securities Act with
respect to any resales thereof. The terms of any such offer will be set forth in
the applicable Prospectus Supplement relating thereto.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other agents of the Company to solicit offers by
certain institutional investors to purchase Debt Securities from the Company
pursuant to contracts providing for payment and delivery at a future date.
Institutional investors with which such contracts may be made include commercial
and savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
purchasers must be approved by the Company. The obligations of any purchaser
under any such contract will not be subject to any conditions except that (1)
the purchase of the Debt Securities shall not at the time of delivery be
prohibited under the laws of any jurisdiction to which such purchaser is subject
and (2) if the Debt Securities are also being sold to underwriters, the Company
shall have sold to such underwriters the Debt Securities not subject to delayed
delivery. Underwriters and other agents will not have any responsibility in
respect of the validity or performance of such contracts.
The anticipated date of delivery of Debt Securities will be set forth in the
applicable Prospectus Supplement relating to each offering.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Latham &
Watkins, and, as to matters of Nevada law, by Schreck, Jones, Bernhard, Woloson
& Godfrey Chartered.
EXPERTS
The consolidated financial statements incorporated by reference in the
Company's Annual Report on Form 10-K for the fiscal year ended January 31, 1995,
and the combined financial statements of Gold Strike Resorts for the years ended
December 31, 1994 and 1993 incorporated by reference in Amendment No. 1 on Form
8-K/A to the Company's Current Report on Form 8-K dated June 1, 1995
incorporated by reference in this Prospectus and elsewhere in the Registration
Statement to the extent and for the periods indicated in their reports have been
audited by Arthur Andersen, LLP, independent public accountants and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said reports.
The financial statements of Elgin Riverboat Resort-Riverboat Casino for the
years ended December 31, 1994 and 1993 incorporated by reference in Amendment
No. 1 on Form 8-K/A to the Company's Current Report on Form 8-K dated June 1,
1995 incorporated by reference in this Prospectus and elsewhere in the
Registration Statement to the extent and for the periods indicated in their
reports, have been audited by Coopers & Lybrand LLP, independent public
accountants, and are incorporated herein by reference in reliance upon the
authority of that firm as experts in giving said report.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
All expenses other than the Securities and Exchange Commission filing fees
are estimated.
<TABLE>
<S> <C>
SEC registration fee..................................................... $ 137,923
Accountants' fees and expenses........................................... 3,000
Legal fees and expenses.................................................. 60,000
Printing and engraving expenses.......................................... 15,000
Trustee's and registrar's fees and expenses.............................. 4,000
Miscellaneous............................................................ 7,500
---------
Total.................................................................... $ 227,423
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 78.751 of the general corporation law of Nevada (the "Nevada Law")
permits a corporation to indemnify any of its directors, officers, employees and
agents against costs and expenses arising from claims, suits and proceedings if
such person acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation. No indemnification may be
made in respect of claims as to which such person is found liable for negligence
or misconduct in the performance of his duty to the corporation unless the court
determines that, notwithstanding the determination of liability, indemnification
would be appropriate. The indemnification provisions of the Nevada Law expressly
do not exclude any other rights a person may have to indemnification under any
bylaw, among other things.
Article X, Section 10.2 of the Company's Restated Bylaws provides for
mandatory indemnification of directors and officers to the fullest extent now or
hereafter permitted by law.
The Company maintains a liability insurance policy under which officers and
directors are generally indemnified against losses and liability (including
costs, expenses, settlements and judgments) incurred by them in such capacities,
individually or otherwise, other than specified excluded losses. The insurance
policy will pay on behalf of the Company all covered losses for which the
Company grants indemnification of each officer or director as permitted by law
which the officer or director becomes legally obligated to pay on account of an
indemnifiable claim. The policy would generally cover, in addition to other
liabilities, liabilities arising under the federal securities laws; however, the
subject of loss may not include any claim or claims arising out of or as a
result of the filing of a registration statement under the Securities Act of
1933 or any liability under Section 16(b) of the Securities Exchange Act of
1934.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
3(i)(a) Restated Articles of Incorporation of the Company as of July 15, 1988 and
Certificate of Amendment thereto, dated June 29, 1989 (Incorporated by
reference to Exhibit 3(a) to the Company's Annual Report on Form 10-K for the
fiscal year ended January 31, 1991).
3(i)(b) Certificate of Division of Shares into Smaller Denominations, dated June 20,
1991 (Incorporated by reference to Exhibit 3(b) to the Company's Annual Report
on Form 10-K for the fiscal year ended January 31, 1992).
3(i)(c) Certificate of Division of Shares into Smaller Denominations, dated June 22,
1993 (Incorporated by reference to Exhibit 3(i) to the Company's Current
Report on Form 8-K dated July 21, 1993).
3(ii) Restated Bylaws of the Company dated March 19, 1995 (Incorporated by reference
to Exhibit 3(ii) to the Company's Annual Report on Form 10-K dated January 31,
1995).
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
4(a) $250 Million Revolving Loan Agreement, dated as of September 30, 1993, by and
among the Company, the Banks named therein and Bank of America National Trust
and Savings Association, as managing agent for the Banks, and related forms of
unsecured Promissory Notes (Incorporated by reference to Exhibit 4(a) to the
Company's Current Report on Form 8-K dated September 30, 1993).
4(b) First and Second Amendments to the $250 Million Revolving Loan Agreement, by
and among the Company, the Banks named therein and Bank of America National
Trust and Savings Association, as managing agent for the Banks. (Incorporated
by reference to Exhibit 4(a) to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended October 31, 1994).
4(c) Third Amendment to the Registrant's $250 Million Revolving Loan Agreement, by
and among the Registrant, the Banks named therein and Bank of America National
Trust and Savings Association, as managing agent for the Banks (Incorporated
by reference to Exhibit 4(b) to the Company's Current Report on Form 8-K/A
dated June 1, 1995).
4(d) Subsidiary Guaranty, dated as of September 30, 1993, by Circus Circus Casinos,
Inc., New Castle Corp., Ramparts, Inc., Edgewater Hotel Corporation, Colorado
Belle Corp., and Slots-A-Fun, Inc., with respect to the $250 Million Revolving
Loan Agreement, in favor of Bank of America National Trust and Savings
Association, as managing agent for the Banks (Incorporated by reference to
Exhibit 4(b) to the Company's Current Report on Form 8-K dated September 30,
1993).
4(e) Instrument of Joinder, dated April 20, 1995, by Circus Circus Mississippi,
Inc., pursuant to the Subsidiary Guaranty dated as of September 30, 1993 by
Circus Circus Casinos, Inc., New Castle Corp., Ramparts, Inc. Edgewater Hotel
Corporation, Colorado Belle Corp., and Slots-A-Fun, Inc., with respect to the
$250 Million Revolving Loan Agreement, in favor of Bank of America National
Trust and Savings Association, as managing agent for the Banks (Incorporated
by reference to Exhibit 4(d) to the Company's Annual Report on Form 10-K dated
January 31, 1995).
4(f) Instrument of Joinder, dated April 20, 1995, by Galleon, Inc., pursuant to the
Subsidiary Guaranty dated as of September 30, 1993 by Circus Circus Casinos,
Inc., New Castle Corp., Ramparts, Inc. Edgewater Hotel Corporation, Colorado
Belle Corp., and Slot-A-Fun, Inc., with respect to the $250 Million Revolving
Loan Agreement, in favor of Bank of America National Trust and Savings
Association, as managing agent for the Banks (Incorporated by reference to
Exhibit 4(e) to the Company's Annual Report on Form 10-K dated January 31,
1995).
4(g) Instrument of Joinder, dated April 20, 1995, by Circus Circus Louisiana, Inc.,
pursuant to the Subsidiary Guaranty dated as of September 30, 1993 by Circus
Circus Casinos, Inc., New Castle Corp., Ramparts, Inc., Edgewater Hotel
Corporation, Colorado Belle Corp., and Slots-A-Fun, Inc., with respect to the
$250 Million Revolving Loan Agreement, in favor of Bank of America National
Trust and Savings Association, as managing agent for the Banks (Incorporated
by reference to Exhibit 4(f) to the Company's Annual Report on Form 10-K dated
January 31, 1995).
4(h) $500 Million Reducing Revolving Loan Agreement, dated as of September 30,
1993, by and among the Company, the Banks named therein and Bank of America
National Trust and Savings Association, as managing agent for the Banks, and
related forms of unsecured Promissory Notes (Incorporated by reference to
Exhibit 4(c) to the Company's Current Report on Form 8-K dated September 30,
1993).
</TABLE>
II-2
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<TABLE>
<S> <C>
4(i) First and Second Amendments to the $500 million Revolving Loan Agreement, by
and among the Company, the Banks named therein and Bank of America National
Trust and Savings Association, as managing agent for the Banks. (Incorporated
by reference to Exhibit 4(b) to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended October 31, 1994).
4(j) Third Amendment to the Registrant's $500 Million Reducing Revolving Loan
Agreement, by and among the Registrant, the Banks named therein and Bank of
America National Trust and Savings Association, as managing agent for the
Banks (Incorporated by reference to Exhibit 4(c) to the Company's Current
Report on Form 8-K/A dated June 1, 1995).
4(k) Subsidiary Guaranty, dated as of September 30, 1993, by Circus Circus Casinos,
Inc., New Castle Corp., Ramparts, Inc., Edgewater Hotel Corporation, Colorado
Belle Corp., and Slot-A-Fun, Inc., with respect to the $500 Million Reducing
Revolving Loan Agreement, in favor of Bank of America National trust and
Savings Association, as managing agent for the Banks (Incorporated by
reference to Exhibit 4(d) to the Company's Current Report on Form 8-K dated
September 30, 1993).
4(l) Instrument of Joinder, dated March 28, 1995, by Circus Circus Mississippi,
Inc., pursuant to the Subsidiary Guaranty dated as of September 30, 1993 by
Circus Circus Casinos Inc., New Castle Corp., Ramparts, Inc., Edgewater Hotel
Corporation, Colorado Belle Corp., and Slots-A-Fun, Inc. with respect to the
$500 Million Reducing Revolving Loan Agreement, in favor of Bank of America
National Trust and Savings Association, as managing agent for the Banks
(Incorporated by reference to Exhibit 4(j) to the Company's Annual Report on
Form 10-K dated January 31, 1995).
4(m) Instrument of Joinder, dated April 14, 1995, by Galleon, Inc., pursuant to the
Subsidiary Guaranty dated as of September 30, 1993 by Circus Circus Casinos
Inc., New Castle Corp., Ramparts, Inc., Edgewater Hotel Corporation, Colorado
Belle Corp., and Slots-A-Fun, Inc. with respect to the $500 Million Reducing
Revolving Loan Agreement, in favor of Bank of America National Trust and
Savings Association, as managing agent for the Banks (Incorporated by
reference to Exhibit 4(k) to the Company's Annual Report on Form 10-K dated
January 31, 1995).
4(n) Instrument of Joinder, dated April 20, 1995, by Circus Circus Louisiana, Inc.
pursuant to the Subsidiary Guaranty dated as of September 30, 1993 by Circus
Circus Casinos Inc., New Castle Corp., Ramparts, Inc., Edgewater Hotel
Corporation, Colorado Belle Corp., and Slots-A-Fun, Inc. with respect to the
$500 Million Reducing Revolving Loan Agreement, in favor of Bank of America
National Trust and Savings Association, as managing agent for the Banks
(Incorporated by reference to Exhibit 4(l) to the Company's Annual Report on
Form 10-K dated January 31, 1995).
4(o) $160 million Amended and Restated Reducing Revolving Credit Agreement, dated
as of June 1, 1995, by and among Goldstrike Finance Company, Inc., (a
subsidiary of the Registrant), the Banks named therein and First Interstate
Bank of Nevada, N.A., as Agent Bank (Incorporated by reference to Exhibit 4(a)
to the Company's Current Report on Form 8-K dated June 1, 1995).
4(p) $230 million Credit Agreement, dated May 30, 1995, by and among Circus and
Eldorado Joint Venture, the Banks named therein and First Interstate Bank of
Nevada, N.A., as Arranger and Administrative Agent (Incorporated by reference
to Exhibit 4(a) to the Company's Quarterly Report on Form 10-Q dated April 30,
1995).
4(q) Rate Swap Master Agreement, dated as of October 24, 1986, and Rate Swap
Supplements One through Four (Incorporated by reference to Exhibit 4(j) to the
Company's Current Report on Form 8-K dated December 29, 1986).
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C>
4(r) Interest Rate Swap Agreement, dated as of October 20, 1989, by and between the
Company and Salomon Brothers Holding Company Inc. (Incorporated by reference
to Exhibit 4(q) to the Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1990).
4(s) Interest Rate Swap Agreement, dated as of June 20, 1989, by and between the
Company and First Interstate Bank of California (Incorporated by reference to
Exhibit 4(r) to the Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1990).
4(t) Interest Rate Swap Agreement, dated as of April 6, 1992, by and between the
Company and Canadian Imperial Bank of Commerce (Incorporated by reference to
Exhibit 4(y) to the Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1992).
4(u) Indenture by and between the Company and First Interstate Bank of Nevada,
N.A., as Trustee with respect to the Company's 10 5/8% Senior Subordinated
Notes due 1997 (Incorporated by reference to Exhibit 4(a) to the Company's
Registration Statement (No. 33-34439) on Form S-3).
4(v) Indenture by and between the Company and First Interstate Bank of Nevada,
N.A., as Trustee with respect to the Company's 6 3/4% Senior Subordinated
Notes due 2003 and its 7 5/8% Senior Subordinated Debentures due 2013
(Incorporated by reference to Exhibit 4(a) to the Company's Current Report on
Form 8-K dated July 21, 1993).
4(w)* Form of Indenture between the Company and First Interstate Bank of Nevada,
N.A., as Trustee with respect to the Senior Secured Debt Securities that are
the subject of this Registration Statement.
4(x)* Form of Indenture between the Company and First Interstate Bank of Nevada,
N.A., as Trustee with respect to the Senior Unsecured Debt Securities that are
the subject of this Registration Statement.
4(y)* Form of Indenture between the Company and First Interstate Bank of Nevada,
N.A., as Trustee with respect to the Senior Subordinated Debt Securities that
are the subject of this Registration Statement.
4(z)* Form of Indenture between the Company and First Interstate Bank of Nevada,
N.A., as Trustee with respect to the Subordinated Debt Securities that are the
subject of this Registration Statement.
5* Opinion and Consent of Schreck, Jones, Bernhard, Woloson & Godfrey Chartered.
12* Computation of Ratio of Earnings to Fixed Charges.
23(a)* Consent of Schreck, Jones, Bernhard, Woloson & Godfrey Chartered. Reference is
hereby made to Exhibit 5 hereto.
23(b)* Consent of Arthur Andersen LLP.
23(c)* Consent of Coopers & Lybrand LLP.
23(d)* Consent of Latham & Watkins.
24* Powers of Attorney (included on page II-5).
25(a)* Statement of Eligibility and Qualification on Form T-1 relating to Senior
Secured Debt Securities with First Interstate Bank of Nevada, N.A., as
Trustee.
25(b)* Statement of Eligibility and Qualification on Form T-1 relating to Senior
Unsecured Debt Securities with First Interstate Bank of Nevada, N.A., as
Trustee.
</TABLE>
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<TABLE>
<S> <C>
25(c)* Statement of Eligibility and Qualification on Form T-1 relating to Senior
Subordinated Debt Securities with First Interstate Bank of Nevada, N.A., as
Trustee.
25(d)* Statement of Eligibility and Qualification on Form T-1 relating to
Subordinated Debt Securities with First Interstate Bank of Nevada, N.A., as
Trustee.
</TABLE>
- ------------------------
* Filed herewith.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other
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than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Las Vegas, State of Nevada, on the 22th day of
December, 1995.
CIRCUS CIRCUS ENTERPRISES, INC.
BY: /s/ CLYDE T. TURNER
-----------------------------------
Name: Clyde T. Turner
Title: Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears below appoints Clyde T. Turner and
Michael S. Ensign, and both or either of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the foregoing, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------- ------------------------------ -------------------
<C> <S> <C>
/s/ CLYDE T. TURNER Chairman of the Board and
- ------------------------- Chief Executive Officer December 22, 1995
Clyde T. Turner (Principal Executive Officer)
/s/ MICHAEL S. ENSIGN
- ------------------------- Vice Chairman of the Board and December 22, 1995
Michael S. Ensign Chief Operating Officer
/s/ GLENN W. SCHAEFFER President and Chief Financial
- ------------------------- Officer (Principal Financial December 22, 1995
Glenn W. Schaeffer Officer)
/s/ LES MARTIN
- ------------------------- Controller (Principal December 22, 1995
Les Martin Accounting Officer)
- ------------------------- Director
Tony Coelho
- ------------------------- Director
Carl F. Dodge
/s/ ARTHUR M. SMITH, JR.
- ------------------------- Director December 22, 1995
Arthur M. Smith, Jr.
/s/ FRED W. SMITH
- ------------------------- Director December 22, 1995
Fred W. Smith
- ------------------------- Director
William M. Pennington
/s/ WILLIAM A. RICHARDSON
- ------------------------- Director and Executive Vice December 22, 1995
William A. Richardson President
- ------------------------- Director and Senior Vice
Kurt D. Sullivan President
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGES
- ---------- ----------------------------------------------------------------------------------------- -------------
<S> <C> <C>
3(i)(a) Restated Articles of Incorporation of the Company as of July 15, 1988 and Certificate of
Amendment thereto, dated June 29, 1989 (Incorporated by reference to Exhibit 3(a) to the
Company's Annual Report on Form 10-K for the fiscal year ended January 31, 1991).
3(i)(b) Certificate of Division of Shares into Smaller Denominations, dated June 20, 1991
(Incorporated by reference to Exhibit 3(b) to the Company's Annual Report on Form 10-K
for the fiscal year ended January 31, 1992).
3(i)(c) Certificate of Division of Shares into Smaller Denominations, dated June 22, 1993
(Incorporated by reference to Exhibit 3(i) to the Company's Current Report on Form 8-K
dated July 21, 1993).
3(ii) Restated Bylaws of the Company dated March 19, 1995 (Incorporated by reference to Exhibit
3(ii) to the Company's Annual Report on Form 10-K dated January 31, 1995).
4(a) $250 Million Revolving Loan Agreement, dated as of September 30, 1993, by and among the
Company, the Banks named therein and Bank of America National Trust and Savings
Association, as managing agent for the Banks, and related forms of unsecured Promissory
Notes (Incorporated by reference to Exhibit 4(a) to the Company's Current Report on Form
8-K dated September 30, 1993).
4(b) First and Second Amendments to the $250 Million Revolving Loan Agreement, by and among
the Company, the Banks named therein and Bank of America National Trust and Savings
Association, as managing agent for the Banks. (Incorporated by reference to Exhibit 4(a)
to the Company's Quarterly Report on Form 10-Q for the quarterly period ended October 31,
1994).
4(c) Third Amendment to the Registrant's $250 Million Revolving Loan Agreement, by and among
the Registrant, the Banks named therein and Bank of America National Trust and Savings
Association, as managing agent for the Banks (Incorporated by reference to Exhibit 4(b)
to the Company's Current Report on Form 8-K/A dated June 1, 1995).
4(d) Subsidiary Guaranty, dated as of September 30, 1993, by Circus Circus Casinos, Inc., New
Castle Corp., Ramparts, Inc., Edgewater Hotel Corporation, Colorado Belle Corp., and
Slots-A-Fun, Inc., with respect to the $250 Million Revolving Loan Agreement, in favor of
Bank of America National Trust and Savings Association, as managing agent for the Banks
(Incorporated by reference to Exhibit 4(b) to the Company's Current Report on Form 8-K
dated September 30, 1993).
4(e) Instrument of Joinder, dated April 20, 1995, by Circus Circus Mississippi, Inc., pursuant
to the Subsidiary Guaranty dated as of September 30, 1993 by Circus Circus Casinos, Inc.,
New Castle Corp., Ramparts, Inc. Edgewater Hotel Corporation, Colorado Belle Corp., and
Slots-A-Fun, Inc., with respect to the $250 Million Revolving Loan Agreement, in favor of
Bank of America National Trust and Savings Association, as managing agent for the Banks
(Incorporated by reference to Exhibit 4(d) to the Company's Annual Report on Form 10-K
dated January 31, 1995).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGES
- ---------- ----------------------------------------------------------------------------------------- -------------
<S> <C> <C>
4(f) Instrument of Joinder, dated April 20, 1995, by Galleon, Inc., pursuant to the Subsidiary
Guaranty dated as of September 30, 1993 by Circus Circus Casinos, Inc., New Castle Corp.,
Ramparts, Inc. Edgewater Hotel Corporation, Colorado Belle Corp., and Slot-A-Fun, Inc.,
with respect to the $250 Million Revolving Loan Agreement, in favor of Bank of America
National Trust and Savings Association, as managing agent for the Banks (Incorporated by
reference to Exhibit 4(e) to the Company's Annual Report on Form 10-K dated January 31,
1995).
4(g) Instrument of Joinder, dated April 20, 1995, by Circus Circus Louisiana, Inc., pursuant
to the Subsidiary Guaranty dated as of September 30, 1993 by Circus Circus Casinos, Inc.,
New Castle Corp., Ramparts, Inc., Edgewater Hotel Corporation, Colorado Belle Corp., and
Slots-A-Fun, Inc., with respect to the $250 Million Revolving Loan Agreement, in favor of
Bank of America National Trust and Savings Association, as managing agent for the Banks
(Incorporated by reference to Exhibit 4(f) to the Company's Annual Report on Form 10-K
dated January 31, 1995).
4(h) $500 Million Reducing Revolving Loan Agreement, dated as of September 30, 1993, by and
among the Company, the Banks named therein and Bank of America National Trust and Savings
Association, as managing agent for the Banks, and related forms of unsecured Promissory
Notes (Incorporated by reference to Exhibit 4(c) to the Company's Current Report on Form
8-K dated September 30, 1993).
4(i) First and Second Amendments to the $500 million Revolving Loan Agreement, by and among
the Company, the Banks named therein and Bank of America National Trust and Savings
Association, as managing agent for the Banks. (Incorporated by reference to Exhibit 4(b)
to the Company's Quarterly Report on Form 10-Q for the quarterly period ended October 31,
1994).
4(j) Third Amendment to the Registrant's $500 Million Reducing Revolving Loan Agreement, by
and among the Registrant, the Banks named therein and Bank of America National Trust and
Savings Association, as managing agent for the Banks (Incorporated by reference to
Exhibit 4(c) to the Company's Current Report on Form 8-K/A dated June 1, 1995).
4(k) Subsidiary Guaranty, dated as of September 30, 1993, by Circus Circus Casinos, Inc., New
Castle Corp., Ramparts, Inc., Edgewater Hotel Corporation, Colorado Belle Corp., and
Slot-A-Fun, Inc., with respect to the $500 Million Reducing Revolving Loan Agreement, in
favor of Bank of America National trust and Savings Association, as managing agent for
the Banks (Incorporated by reference to Exhibit 4(d) to the Company's Current Report on
Form 8-K dated September 30, 1993).
4(l) Instrument of Joinder, dated March 28, 1995, by Circus Circus Mississippi, Inc., pursuant
to the Subsidiary Guaranty dated as of September 30, 1993 by Circus Circus Casinos Inc.,
New Castle Corp., Ramparts, Inc., Edgewater Hotel Corporation, Colorado Belle Corp., and
Slots-A-Fun, Inc. with respect to the $500 Million Reducing Revolving Loan Agreement, in
favor of Bank of America National Trust and Savings Association, as managing agent for
the Banks (Incorporated by reference to Exhibit 4(j) to the Company's Annual Report on
Form 10-K dated January 31, 1995).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGES
- ---------- ----------------------------------------------------------------------------------------- -------------
<S> <C> <C>
4(m) Instrument of Joinder, dated April 14, 1995, by Galleon, Inc., pursuant to the Subsidiary
Guaranty dated as of September 30, 1993 by Circus Circus Casinos Inc., New Castle Corp.,
Ramparts, Inc., Edgewater Hotel Corporation, Colorado Belle Corp., and Slots-A-Fun, Inc.
with respect to the $500 Million Reducing Revolving Loan Agreement, in favor of Bank of
America National Trust and Savings Association, as managing agent for the Banks
(Incorporated by reference to Exhibit 4(k) to the Company's Annual Report on Form 10-K
dated January 31, 1995).
4(n) Instrument of Joinder, dated April 20, 1995, by Circus Circus Louisiana, Inc. pursuant to
the Subsidiary Guaranty dated as of September 30, 1993 by Circus Circus Casinos Inc., New
Castle Corp., Ramparts, Inc., Edgewater Hotel Corporation, Colorado Belle Corp., and
Slots-A-Fun, Inc. with respect to the $500 Million Reducing Revolving Loan Agreement, in
favor of Bank of America National Trust and Savings Association, as managing agent for
the Banks (Incorporated by reference to Exhibit 4(l) to the Company's Annual Report on
Form 10-K dated January 31, 1995).
4(o) $160 million Amended and Restated Reducing Revolving Credit Agreement, dated as of June
1, 1995, by and among Goldstrike Finance Company, Inc., (a subsidiary of the Registrant),
the Banks named therein and First Interstate Bank of Nevada, N.A., as Agent Bank
(Incorporated by reference to Exhibit 4(a) to the Company's Current Report on Form 8-K
dated June 1, 1995).
4(p) $230 million Credit Agreement, dated May 30, 1995, by and among Circus and Eldorado Joint
Venture, the Banks named therein and First Interstate Bank of Nevada, N.A., as Arranger
and Administrative Agent (Incorporated by reference to Exhibit 4(a) to the Company's
Quarterly Report on Form 10-Q dated April 30, 1995).
4(q) Rate Swap Master Agreement, dated as of October 24, 1986, and Rate Swap Supplements One
through Four (Incorporated by reference to Exhibit 4(j) to the Company's Current Report
on Form 8-K dated December 29, 1986).
4(r) Interest Rate Swap Agreement, dated as of October 20, 1989, by and between the Company
and Salomon Brothers Holding Company Inc. (Incorporated by reference to Exhibit 4(q) to
the Company's Annual Report on Form 10-K for the fiscal year ended January 31, 1990).
4(s) Interest Rate Swap Agreement, dated as of June 20, 1989, by and between the Company and
First Interstate Bank of California (Incorporated by reference to Exhibit 4(r) to the
Company's Annual Report on Form 10-K for the fiscal year ended January 31, 1990).
4(t) Interest Rate Swap Agreement, dated as of April 6, 1992, by and between the Company and
Canadian Imperial Bank of Commerce (Incorporated by reference to Exhibit 4(y) to the
Company's Annual Report on Form 10-K for the fiscal year ended January 31, 1992).
4(u) Indenture by and between the Company and First Interstate Bank of Nevada, N.A., as
Trustee with respect to the Company's 10 5/8% Senior Subordinated Notes due 1997
(Incorporated by reference to Exhibit 4(a) to the Company's Registration Statement (No.
33-34439) on Form S-3).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGES
- ---------- ----------------------------------------------------------------------------------------- -------------
<S> <C> <C>
4(v) Indenture by and between the Company and First Interstate Bank of Nevada, N.A., as
Trustee with respect to the Company's 6 3/4% Senior Subordinated Notes due 2003 and its
7 5/8% Senior Subordinated Debentures due 2013 (Incorporated by reference to Exhibit 4(a)
to the Company's Current Report on Form 8-K dated July 21, 1993).
4(w)* Form of Indenture between the Company and First Interstate Bank of Nevada, N.A., as
Trustee with respect to the Senior Secured Debt Securities that are the subject of this
Registration Statement.
4(x)* Form of Indenture between the Company and First Interstate Bank of Nevada, N.A., as
Trustee with respect to the Senior Unsecured Debt Securities that are the subject of this
Registration Statement.
4(y)* Form of Indenture between the Company and First Interstate Bank of Nevada, N.A., as
Trustee with respect to the Senior Subordinated Debt Securities that are the subject of
this Registration Statement.
4(z)* Form of Indenture between the Company and First Interstate Bank of Nevada, N.A., as
Trustee with respect to the Subordinated Debt Securities that are the subject of this
Registration Statement.
5* Opinion and Consent of Schreck, Jones, Bernhard, Woloson & Godfrey Chartered.
12* Computation of Ratio of Earnings to Fixed Charges.
23(a)* Consent of Schreck, Jones, Bernhard, Woloson & Godfrey Chartered. Reference is hereby
made to Exhibit 5 hereto.
23(b)* Consent of Arthur Andersen LLP.
23(c)* Consent of Coopers & Lybrand LLP.
23(d)* Consent of Latham & Watkins.
24* Powers of Attorney (included on page II-5).
25(a)* Statement of Eligibility and Qualification on Form T-1 relating to Senior Secured Debt
Securities with First Interstate Bank of Nevada, N.A., as Trustee.
25(b)* Statement of Eligibility and Qualification on Form T-1 relating to Senior Unsecured Debt
Securities with First Interstate Bank of Nevada, N.A., as Trustee.
25(c)* Statement of Eligibility and Qualification on Form T-1 relating to Senior Subordinated
Debt Securities with First Interstate Bank of Nevada, N.A., as Trustee.
25(d)* Statement of Eligibility and Qualification on Form T-1 relating to Subordinated Debt
Securities with First Interstate Bank of Nevada, N.A., as Trustee
</TABLE>
- ------------------------
* Filed herewith.
<PAGE>
EXHIBIT 4(w)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
And
FIRST INTERSTATE BANK OF NEVADA, N.A.,
Trustee
----------
Indenture
[Dated as of_________ __, ____]
[$______________]
[___% Senior Secured Notes Due ____]
----------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE*
TIA
SECTION INDENTURE SECTION
- ------- -----------------
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.07
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 12.02
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07; 12.02
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.05
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . . . . 12.06
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.05
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.07
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.09
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.06
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.01
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
N.A. means Not Applicable.
*This Cross-Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.. . . . . 7
SECTION 1.03. RULES OF CONSTRUCTION.. . . . . . . . . . . . . . . . . . . 7
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORMS GENERALLY.. . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.. . . . . . 7
SECTION 2.03. AMOUNT UNLIMITED, ISSUABLE IN SERIES. . . . . . . . . . . . 8
SECTION 2.04. EXECUTION AND AUTHENTICATION; DENOMINATIONS; DELIVERY AND
DATING. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.05. REGISTRAR AND PAYING AGENT. . . . . . . . . . . . . . . . . 12
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST.. . . . . . . . . . . . 12
SECTION 2.07. SECURITYHOLDER LISTS. . . . . . . . . . . . . . . . . . . . 12
SECTION 2.08. TRANSFER AND EXCHANGE.. . . . . . . . . . . . . . . . . . . 13
SECTION 2.09. REPLACEMENT SECURITIES. . . . . . . . . . . . . . . . . . . 13
SECTION 2.10. OUTSTANDING SECURITIES. . . . . . . . . . . . . . . . . . . 13
SECTION 2.11. TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . . . 14
SECTION 2.12. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.13. DEFAULTED INTEREST. . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.14. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO GAMING LAWS 14
ARTICLE THREE
SECURITY
Section 3.01. SECURITY INTERESTS. . . . . . . . . . . . . . . . . . . . . 15
Section 3.02. RECORDING, ETC. . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.03. LIEN SUBORDINATION. . . . . . . . . . . . . . . . . . . . . 16
Section 3.04. ENFORCEMENT OF SECURITY.. . . . . . . . . . . . . . . . . . 17
Section 3.05. INTERCREDITOR ARRANGEMENTS AMONGST THE BANKS. . . . . . . . 17
Section 3.06. PURCHASER MAY RELY. . . . . . . . . . . . . . . . . . . . . 18
Section 3.07. PAYMENT OF EXPENSES.. . . . . . . . . . . . . . . . . . . . 18
i
<PAGE>
PAGE
Section 3.08. SUITS TO PROTECT THE COLLATERAL.. . . . . . . . . . . . . . 18
Section 3.09. TRUSTEE'S DUTIES. . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES . . . . . . . . . . . . . . . . . . . 19
SECTION 4.02. CORPORATE EXISTENCE.. . . . . . . . . . . . . . . . . . . . 19
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS.. . . . . . . . . . . . . 19
SECTION 4.04. MAINTENANCE OF PROPERTIES.. . . . . . . . . . . . . . . . . 20
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY.. . . . . . . . . . . . . . 20
SECTION 4.06. COMPLIANCE CERTIFICATE. . . . . . . . . . . . . . . . . . . 20
SECTION 4.07. REPORTS.. . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY LAWS.. . . . . . . . . . 21
SECTION 4.09. LIMITATION ON LIENS.. . . . . . . . . . . . . . . . . . . . 21
SECTION 4.10. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. . . . . . . 23
SECTION 4.11. DEFEASANCE OF CERTAIN OBLIGATIONS.. . . . . . . . . . . . . 23
ARTICLE FIVE
SUCCESSOR CORPORATION
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.. . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.02. ACCELERATION. . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.03. OTHER REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.04. WAIVER OF PAST DEFAULTS.. . . . . . . . . . . . . . . . . . . 28
SECTION 6.05. CONTROL BY MAJORITY.. . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.06. LIMITATION ON SUITS.. . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. . . . . . . . . . . . . 29
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. . . . . . . . . . . . . . . . . . 30
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . . . . 30
SECTION 6.10. PRIORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.11. UNDERTAKING FOR COSTS.. . . . . . . . . . . . . . . . . . . . 30
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.02. RIGHTS OF TRUSTEE.. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . 32
SECTION 7.04. TRUSTEE'S DISCLAIMER. . . . . . . . . . . . . . . . . . . . . 32
ii
<PAGE>
PAGE
SECTION 7.05. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.06. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.07. COMPENSATION AND INDEMNITY. . . . . . . . . . . . . . . . . . 33
SECTION 7.08. REPLACEMENT OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 33
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. . . . . . . . . . . . . . . 35
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.. . . . . . . . . . . . . . . . 35
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.. . . . . . 35
SECTION 7.12. AUTHENTICATING AGENT. . . . . . . . . . . . . . . . . . . . . 35
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS. . . . . . . . . . . . . 37
SECTION 8.02. APPLICATION OF TRUST MONEY. . . . . . . . . . . . . . . . . . 39
SECTION 8.03. REPAYMENT TO THE COMPANY. . . . . . . . . . . . . . . . . . . 39
SECTION 8.04. REINSTATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . . 40
SECTION 9.02. WITH CONSENT OF HOLDERS . . . . . . . . . . . . . . . . . . . 40
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.. . . . . . . . . . . . . 41
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.. . . . . . . . . . . . . . 41
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.. . . . . . . . . . . . 42
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.. . . . . . . . . . . . . . . 42
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED . . . . . . . . . 43
SECTION 10.02. MANNER OF CALLING MEETINGS. . . . . . . . . . . . . . . . . 43
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS. . . . . . . . . . . 44
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS.. . . . . . . . . . . . . . 44
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE MEETING;
VOTING RIGHTS; ADJOURNMENT. . . . . . . . . . . . . . . . . 44
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT.. . . . . . . . 45
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY NOT BE
HINDERED OR DELAYED BY CALL OF MEETING. . . . . . . . . . . 46
iii
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PAGE
ARTICLE ELEVEN
SECTION 11.01. NOTICES TO TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED. . . . . . . . . . . . 46
SECTION 11.03. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . . . . 47
SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . 48
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . . . . . 48
SECTION 11.06. SECURITIES REDEEMED IN PART . . . . . . . . . . . . . . . . . 48
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. . . . . . . . . . . . . . . . 48
SECTION 12.02. NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS . . . . . . . . 49
SECTION 12.04. CERTIFICATES AND OPINION AS TO CONDITIONS PRECEDENT.. . . . 49
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.. . . . . . . 49
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED. . . . . . . . . . . . 50
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR. . . . . . . . . . . . . . 50
SECTION 12.08. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 12.09. GOVERNING LAW.. . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.. . . . . . . 50
SECTION 12.11. NO RECOURSE AGAINST OTHERS. . . . . . . . . . . . . . . . . 51
SECTION 12.12. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 12.13. DUPLICATE ORIGINALS.. . . . . . . . . . . . . . . . . . . . 51
SECTION 12.14. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 12.15. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC. . . . . . . . . 51
iv
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INDENTURE, dated as of [________ __, ____,] between Circus Circus
Enterprises, Inc., a Nevada corporation ("Company"), and First Interstate Bank
of Nevada, N.A., a corporation organized and existing as a national banking
association under the laws of the United States, as Trustee ("Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its Senior Secured
Notes to be issued in one or more series (the "Securities"), as herein provided,
up to such principal amount as may from time to time be authorized in or
pursuant to one or more resolutions of the Board of Directors or by supplemental
indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as hereinafter defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of the Holders of each series of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" means a person "affiliated" with the Company, as that term is
defined in Rule 405 promulgated under the Securities Act of 1933, as amended.
"Authenticating Agent" shall have the meaning provided in Section 7.12.
"Bankruptcy Law" shall have the meaning provided in Section 6.01.
"Banks" means [insert names of the relevant banks.]
"Bank Obligations" means all obligations of the Company under [name
relevant credit agreements] and the Bank Security Documents.
"Bank Security Interests" means the Liens on the Other Collateral created
by the Bank Security Documents for the benefit of the Banks.
"Bank Security Documents" means [insert titles of relevant bank documents.]
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"Board of Directors" means the Board of Directors of the Company or any
committee of such Board.
"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.
"Collateral" means the Specified Collateral and the Other Collateral.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to the applicable provisions of this Indenture and
thereafter means the successor.
"Consolidated Net Tangible Assets" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed) and (ii) all goodwill, trade names, trademarks, patents, purchased
technology, unamortized debt discount and other like intangible assets, all as
set forth on the most recent quarterly balance sheet of the Company and its
consolidated subsidiaries and computed in accordance with generally accepted
accounting principles.
"Consolidated Property" means any property of the Company or any subsidiary
of the Company.
"Custodian" shall have the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Event of Default" shall have the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Completion Guarantees and Make-Well Agreements" means (i) that
certain Make-Well Agreement by the Company in favor of the Trustee dated as of
May 30, 1995 relating to the Circus and Eldorado Joint Venture, a Nevada general
partnership, (ii) that certain Circus Completion Guaranty by the Company in
favor of the Trustee dated as of May 30, 1995 relating to the Circus and
Eldorado Joint Venture, a Nevada general partnership and (iii) that certain
Guaranty by the Company in favor of Bank of America National Trust and Savings
Association dated as of July 12, 1995 relating to Victoria Partners, a Nevada
general partnership.
"Funded Debt" means all Indebtedness of the Company which (i) matures by
its terms, or is renewable at the option of any obligor thereon to a date, more
than one year after the date of original issuance of such Indebtedness and
(ii) ranks at least PARI PASSU with the Securities.
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"Gaming Authority" means the Nevada Gaming Commission, the Nevada Gaming
Control Board, the Ontario Gaming Control Commission, the Mississippi Gaming
Commission, the Illinois Gaming Board 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 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.
"Global Security" shall mean a Security issued to evidence all or a part of
any series of Securities that is executed by the Company and authenticated and
delivered by the Trustee to a depositary or pursuant to such depositary's
instructions, all in accordance with this Indenture and pursuant to an Officer's
Certificate, which shall be registered as to principal and interest in the name
of such depositary or its nominee.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" of any person means (a) any indebtedness of such person,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such indebtedness
incurred in connection with the acquisition by such person or any of its
subsidiaries of any other business or entity, if and to the extent such
indebtedness would appear as a Liability upon a balance sheet of such person
prepared in accordance with generally accepted accounting principles, including
for such purpose obligations under capitalized leases, and (b) any guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), discount with recourse, agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire or to supply or advance funds with
respect to, or to become liable with respect to (directly or indirectly) any
indebtedness, obligation, liability or dividend of any person, but shall not
include indebtedness or amounts owed (except to banks or other financial
institutions) for compensation to employees, or for goods or materials
purchased, or services utilized, in the ordinary course of business of such
person. Notwithstanding anything to the contrary in the foregoing,
"Indebtedness" shall not include (i) any contracts providing for the
completion of construction or other payment or performance with respect to
the construction, maintenance or improvement of property or equipment of the
Company or its Affiliates or (ii) any contracts providing for the obligation
to advance funds, property or services on behalf of an Affiliate of the
Company in order to maintain the financial condition of such Affiliate, in
each case, including Existing Completion Guarantees and Make-Well Agreements.
For purposes hereof, a "capitalized lease" shall be deemed to mean a lease
of real or personal property which, in accordance with generally accepted
accounting principles, is required to be capitalized.
3
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"Indenture" means this Indenture as amended or supplemented from time to
time.
"Indenture Obligations" means all obligations of the Company under this
Indenture and the Security Documents.
"Joint Venture" means (i) with respect to properties located in the United
States, 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, and (ii) with respect to properties located outside the
United States, any partnership, corporation or other entity, in which up to and
including 60% 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.
"Legal Holiday" shall have the meaning provided in Section 12.08.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, security interest, lien (statutory or other), or
preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Officer" means the Chairman of the Board, the President, any Executive
Vice President, any Vice President, the Chief Financial Officer, the Treasurer,
the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer, Assistant Secretary or Assistant Controller
of the Company. See Sections 12.04 and 12.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company or the Trustee. See Sections 12.04 and 12.05.
"Original Issue Discount Security" means any Security which provides that
an amount less than its principal amount is due and payable upon acceleration
after an Event of Default.
"Other Collateral" means all of the assets of the Company and its
subsidiaries other than Specified Collateral.
"Paying Agent" shall have the meaning provided in Section 2.05.
"person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
4
<PAGE>
"Predecessor Securities" of any Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.09 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"principal" of a debt security, including the Securities, means the
principal of the security plus, when appropriate, the premium, if any, on the
security.
"Project Cost" means, with respect to any Resort Property, the aggregate
costs required to complete such construction project in accordance with
the plans therefor and applicable legal requirements, as set forth in an
Officers' Certificate submitted to the Trustee, setting forth in reasonable
detail all amounts theretofore expended and any anticipated costs and expenses
estimated to be incurred and reserves to be established in connection with the
construction and development of such future addition or improvement, including
direct costs related thereto such as construction management, architectural
engineering and interior design fees, site work, utility installations and
hook-up fees, construction permits, certificates and bonds, land acquisition
costs and the cost of furniture, fixtures, furnishings, machinery and equipment,
but excluding the following: principal or interest payments on any Indebtedness
(other than interest which is required to be capitalized in accordance with
generally accepted accounting principal, which shall be included in determining
Project Cost), or costs related to the operation of the Resort Property
including, but not limited to, non-construction supplies and pre-operating
payroll.
"Registrar" shall have the meaning provided in Section 2.05.
"Resort Property" means any property owned or to be owned by the Company or
any of its subsidiaries that is, or will be upon completion, a casino (including
a riverboat casino), casino-hotel, destination resort or a theme park.
"Sale and Lease-Back Transaction" means any arrangement with any person
(other than the Company or a subsidiary of the Company), or to which any such
person is a party, providing for the leasing to the Company or a subsidiary of
the Company for a period of more than three years of any Consolidated Property
which has been or is to be sold or transferred by the Company or such subsidiary
to such person or to any other person (other than the Company or a subsidiary of
the Company), to which funds have been or are to be advanced by such person on
the security of the leased property.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning specified in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Documents" means [list all documents creating Security Interests
in favor of the Holders] and all other documents entered into or executed from
time to time which create or
5
<PAGE>
perfect a Lien on Collateral of the Company in favor of the Trustee for the
benefit of Holders.
"Security Interests" means the Liens on the Collateral created by the
Security Documents in favor of the Trustee for the benefit of the Holders.
"Specified Collateral" means the assets of the Company and its subsidiaries
securing the Indenture Obligations in which the Company has granted or purported
to grant to the Trustee, on behalf of the Holders, a first priority security
interest in accordance with the terms of the Security Documents.
"subsidiary" of any person means (i) any corporation of which at least a
majority in interest of the outstanding stock having by the terms thereof
voting power under ordinary circumstances to elect a majority of the
directors of such corporation, irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency, is at the
time, directly or indirectly, owned or controlled by such person, or by one
or more other corporations a majority in interest of such stock of which is
similarly owned or controlled, or by such person and one or more other
corporations a majority in interest of such stock of which is similarly owned
or controlled and (ii) any other person (other than a corporation, or a
partnership, corporation or other entity described in clause (ii) of the
definition of Joint Venture) in which such person or any subsidiary, directly
or indirectly, has greater than a 50% ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-
77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a successor
replaces it pursuant to the applicable provisions of this Indenture and
thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President or any other
officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct non-cancelable obligations of
the United States of America for the payment of which the full faith and credit
of the United States is pledged.
"Value" means, with respect to a Sale and Lease-Back Transaction, as of any
time, the amount equal to the greater of (i) the net proceeds of the sale or
transfer of property leased pursuant to such Sale and Lease-Back Transaction or
(ii) the fair value, in the opinion of the Board of Directors as evidenced by a
board resolution, of such property at the time of entering into such Sale and
Lease Back Transaction.
6
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SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder or Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor"' on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning as
signed to it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORMS GENERALLY.
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The Securities of each series shall be in such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate provisions as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required by any Gaming Authority or as may be required to comply with the rules
of any securities exchange or depositary therefor or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution thereof. If the form of any series of Securities is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of a written order signed by two Officers or by an Officer and an
Assistant Treasurer of the Company for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
The terms and provisions in the Securities shall constitute, and are hereby
expressly made, a part of this Indenture.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
_______________________________________
As Trustee
By_____________________________________
Authorized Signatory
SECTION 2.03. AMOUNT UNLIMITED, ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 2.04,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of any series of Securities:
8
<PAGE>
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.08, 2.09, 2.11 or 9.05 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder);
(3) the person to whom any interest on a Security of the series shall
be payable, if other than the person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
record date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, the dates on which any such interest shall be payable and the
record date for any such interest payable on any such payment date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denomination of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
9
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(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount thereof the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02;
(14) if the principal amount payable at the maturity of any Securities
of the series will not be determinable as of any one or more dates prior to
maturity, the amount which shall be deemed to be the principal amount of
such Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be due and
payable upon any maturity date other than the stated maturity or which
shall be deemed to be outstanding as of any date prior to the stated
maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 4.11, and, if
other than by a Board Resolution, the manner in which any election by the
Company to defease such Securities shall be evidenced;
(16) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.02;
(17) provisions for securing all or any portion of the Indebtedness
evidenced by the Securities of a particular series, which provisions may be
in addition to, in substitution for, in subtraction from, or in
modification of (or any combination of the foregoing) the provisions of
Article Three;
(18) any addition to or change in the covenants set forth in Article
Four which applies to Securities of the series;
10
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(19) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities, and the
depositary for such Global Security and Securities; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may modify or
delete any provision of this Indenture with respect to such series,
provided that no such term may modify or delete any provision hereof if
imposed by the Trust Indenture Act, and provided, further that any
modification or deletion of the rights, duties or immunities of the Trustee
hereunder shall have been consented to in writing by the Trustee).
If any of the foregoing terms are not available at the time such Board
Resolution is adopted, or such officers' Certificate or any supplemental
indenture is executed, such resolutions, Officers' Certificate or supplemental
indenture may reference the document or documents to be created in which such
terms will be set forth prior to the issuance of such Securities.
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 the
Board Resolution referred to above and (subject to Section 2.04) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.04. EXECUTION AND AUTHENTICATION; DENOMINATIONS; DELIVERY AND DATING.
Two Officers shall sign the Securities for the Company by facsimile
signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Upon a written order of the Company signed by two Officers or by an Officer
and an Assistant Treasurer of the Company, the Trustee shall authenticate the
Securities.
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The Securities shall be issuable only in registered form without coupons
and only in minimum denominations of $100,000 and in integral multiples of
$1,000 in denominations above $100,000.
The Company and the Trustee, by their execution and authentication,
respectively, of the Securities, expressly agree to the terms and conditions
stated therein and to be bound thereby.
SECTION 2.05. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities of a series
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Securities of that series may be presented for payment
("Paying Agent"). At all times the Registrar and the Paying Agent shall each
maintain an office or agency in the State of New York where Securities of a
series may be presented for the above purposes. The Registrar shall keep a
register of the Securities of that series and of their registration of transfer
and exchange. The Company may have one or more co-registrars and one or more
additional paying agents for each series of Securities. The term "Paying Agent"
includes any additional paying agent. The term "Registrar" includes any
co-registrar.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST.
Subject to the provisions of Section 8.03 hereof, each Paying Agent shall
hold in trust for the benefit of Securityholders or the Trustee all money held
by the Paying Agent for the payment of principal of or interest on any series of
Securities, and shall notify the Trustee of any default by the Company in making
any such payment. If the Company or a subsidiary of the Company acts as Paying
Agent, it shall, on or before each due date of principal of or interest on that
series of Securities, segregate the money and hold it as a separate trust fund.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon doing so the Paying Agent shall have no further liability
for the money.
SECTION 2.07. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each interest payment date and at such other times
as the
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Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders,
separately by series, relating to such interest payment date or request, as the
case may be.
SECTION 2.08. TRANSFER AND EXCHANGE.
Where a Security is presented to the Registrar or a co-registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the Nevada Uniform
Commercial Code are met. Where Securities are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit registration of transfers
and exchanges, the Trustee shall authenticate Securities at the Registrar's
request. The Company may charge a reasonable fee for any transfer or exchange
but not for any exchange pursuant to Section 2.11 or 9.05.
The Company need not issue, and the Registrar or co-Registrar need not
register the transfer or exchange of, (i) any Security of a series during a
period beginning at the opening of business 15 days before the day of any
selection of Securities of that series for redemption under Section 11.02 and
ending at the close of business on the day of selection, or (ii) any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security of that series being redeemed in part.
SECTION 2.09. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate and make available for delivery a replacement Security of like
series if the requirements of Section 8-405 of the Nevada Uniform Commercial
Code are met. Before any Security is replaced, an indemnity bond must be
provided sufficient in the judgment of the Company and the Trustee to protect
the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
from any loss which any of them may suffer if a Security is replaced. The
Company may charge for its expenses in replacing a Security. Every replacement
Security shall constitute a contractual obligation of the Company and shall be
entitled to all the benefits of this Indenture equally with all other Securities
of the same series issued hereunder.
SECTION 2.10. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the Securities
of that series authenticated by the Trustee except for those canceled by it and
those described in this Section. Subject to the provisions of Section 12.06
hereof, a Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
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If the Paying Agent holds on the maturity date money sufficient to pay
Securities payable on that date, then on and after that date such Securities
shall cease to be outstanding and interest on them shall cease to accrue.
For each series of Original Issue Discount Securities, the principal amount
of such Securities that shall be deemed to be outstanding and used to determine
whether the necessary Holders have given any request, demand, authorization,
direction, notice, consent or waiver shall be the principal amount of such
Securities that could be declared to be due and payable upon acceleration upon
an Event of Default as of the date of such determination. When requested by the
Trustee, the Company will advise the Trustee of such amount, showing its
computations in reasonable detail.
SECTION 2.11. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities upon a written order of
the Company signed by two officers of the Company. Temporary Securities shall
be substantially in the form of definitive Securities, but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Securities in exchange for temporary Securities.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall cancel and destroy any
Securities surrendered to them for registration of transfer, exchange, payment
or cancellation. Certification of the destruction of all cancelled securities
shall be delivered to the Company. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on any series of
Securities, it shall pay the defaulted interest to the persons who are
Securityholders of that series on a subsequent special record date. After the
deposit by the Company with the Trustee of money sufficient to pay such
defaulted interest, the Trustee shall fix the record date and payment date. At
least 15 days before the record date, the Company shall mail to each
Securityholder of that series a notice that states the record date, the payment
date, and the amount of defaulted interest to be paid. The Company may pay
defaulted interest in any other lawful manner.
SECTION 2.14. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO GAMING LAWS
Each Holder, by accepting the Securities, 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 must be licensed, qualified
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or found suitable under the applicable Gaming Laws, such Holder 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, the Company shall have the right, at its option, (i)
to require such person to dispose of its Securities or beneficial interest
therein within 30 days of receipt of notice of the Company's election or such
earlier date as may be requested or prescribed by such Gaming Authority or
(ii) to redeem such Securities at a redemption price equal to the lesser of
(A) such person's cost and (B) 100% of the principal amount thereof, plus
accrued and unpaid interest to the earlier of the redemption date and the
date of the finding of unsuitability, which may be less than 30 days
following the notice of redemption if so requested or prescribed by the
Gaming Authority. The Company shall notify the Trustee in writing of any
such redemption as soon as practicable. The Company shall not be responsible
for any costs or expenses any such Holder may incur in connection with its
application for a license, qualification or a finding of suitability.
ARTICLE THREE
SECURITY
SECTION 3.01. SECURITY INTERESTS.
(a) In order to secure the Indenture Obligations, the Company has,
pursuant to the Security Documents, granted the Security Interests to the
Trustee, for the benefit of the Holders. The Trustee, by its execution hereof,
and each Holder, by accepting a Security, agree to all of the terms and
provisions of the Security Documents, as the same may be amended from time to
time pursuant to the provisions of this Indenture. The Trustee and each Holder
acknowledge that, as more fully set forth in the Security Documents, the rights
of the Holders (or the Trustee on their behalf) to receive proceeds from the
disposition of the Other Collateral is subordinated to the Bank Security
Interests, as set forth in Section 3.03.
(b) The Security Interests as now or hereafter in effect shall be for
the equal and ratable benefit and security of the Holders without preference,
priority or distinction of any thereof over any other by reason of difference in
time of issuance, sale or otherwise, and for the enforcement of the Indenture
Obligations.
(c) The Company has executed and delivered, filed and recorded or
will execute and deliver, file and record, all instruments and documents, and
has done or will do all such acts and other things as are reasonably necessary
to subject the Collateral to the Security Interests. The Company will execute
and 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
Security Interests.
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SECTION 3.02. RECORDING, ETC.
The Company will cause, at its own expense, the Security Documents
and all amendments and supplements thereto, to be registered, recorded and
filed and/or re-registered, recorded, re-filed and renewed in such manner and
in such place or places, if any, as may be required by law in order fully to
preserve and protect the Lien of the Security Documents on all parts of the
Collateral and to effectuate and preserve the security of the Holders and all
rights of the Trustee.
The Company shall furnish to the Trustee:
(i) promptly after the execution and delivery of the Indenture an
Opinion of Counsel either (a) stating that, in the opinion of such counsel,
this Indenture and the assignment of the Collateral intended to be made by
the Security Documents and all other instruments of further assurance or
amendment have been properly recorded, registered and filed to the extent
necessary to make effective the Lien intended to be created by the Security
Documents, and reciting the details of such action and stating that as to
the Security Documents such recording, registering and filing are the only
recordings, registerings and filings necessary to give notice thereof and
further stating that all financing statements and continuation statements
have been executed and filed that are necessary fully to preserve and
protect the rights of the Holders and the Trustee hereunder and under the
Security Documents, or (b) stating that, in the opinion of such counsel, no
such action is necessary to make such Lien and assignment effective; and
(ii) within 30 days after each anniversary date of the execution and
delivery of the Indenture, an Opinion of Counsel either (a) stating that,
in the opinion of such counsel, this Indenture and the assignment of the
Collateral intended to be made by the Security Documents and all other
instruments of further assurance or amendment have been properly
registered, recorded, filed, re-registered, re-recorded and re-filed to the
extent necessary to maintain the Lien intended to be created by the
Security Documents, and reciting the details of such action and stating
that all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
rights of the Holders and the Trustee hereunder and under the Security
Documents, or (b) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien.
The Company shall cause Section 314(d) of the TIA relating to the
release of property from the Lien of the Security Documents to be compiled with
to the extent applicable. Any certificate or opinion required by Section 314(d)
of the TIA may be made by an Officer of the Company to the extent permitted by
Section 314(d) of the TIA.
SECTION 3.03. LIEN SUBORDINATION.
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(a) Bank Security Interests in the Other Collateral shall be senior
and prior in right to the Security Interests. The Trustee and each Holder
acknowledge that the rights of the Banks to receive proceeds from the
disposition of the Other Collateral is senior to the rights of the Holders to
receive proceeds from the disposition of the Other Collateral.
(b) The priorities set forth in this Section 3.03 are applicable
irrespective of the order of creation, attachment or perfection of any Liens or
security interests or any priority that might otherwise be available to the
Holders, the Trustee, or any Bank under the applicable law.
(c) Nothing in this Indenture or in any Security Document shall
constitute a subordination of Indenture Obligations to Bank Obligations. The
Indenture Obligations are and shall be pari passu in right of payment with the
Bank Obligations; it being understood that the Banks will have a first
priority Lien on the Other Collateral and the Trustee, on behalf of the
Holders, will have a second priority Lien on the Other Collateral, and the
Trustee, on behalf of the Holders, will have a first priority Lien on the
Specified Collateral.
SECTION 3.04. ENFORCEMENT OF SECURITY.
The Trustee on behalf of the Holders may from time to time in its sole
discretion in accordance with the terms of the Security Documents take or
authorize the taking of such action with regard to the protection, exercise
and/or enforcement of its rights in and to the Collateral as the Trustee may
determine to be necessary or appropriate.
SECTION 3.05. INTERCREDITOR ARRANGEMENTS AMONGST THE BANKS.
Nothing in this Article Three shall be construed so as to limit the
Banks in setting forth their respective priorities in the Collateral in any
intercreditor agreements amongst any of them.
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SECTION 3.06. PURCHASER MAY RELY.
A purchaser in good faith of the Collateral or any part thereof or
interest therein which is purported to be transferred, granted or released by
the Trustee as provided in this Article Three, may rely on the authority of the
Trustee to execute the transfer, grant or release, or to inquire as to the
satisfaction of any conditions precedent to the exercise of such authority, or
to see the application of the purchase price thereof.
SECTION 3.07. PAYMENT OF EXPENSES.
On demand of the Trustee, the Company forthwith shall pay or
satisfactorily provide for all reasonable expenditures incurred by the Trustee
under this Article Three and all such sums shall be a Lien upon the Collateral
and shall be secured thereby.
SECTION 3.08. SUITS TO PROTECT THE COLLATERAL.
Subject to Sections 3.01, 3.02, 3.03 and 3.04 of this Indenture, the
Trustee shall have power to institute and to maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Collateral by any acts
which may be unlawful or in violation of the Security Documents or this
Indenture, including the 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 or, if the enforcement of, or compliance with, such enactment, rule or
order would impair the Security Interests in contravention of this Indenture or
be prejudicial to the interests of the Holders or of the Trustee.
SECTION 3.09. TRUSTEE'S DUTIES.
The powers conferred upon the Trustee by this Article Three are
solely to protect the Security Interests and shall not impose any duty upon
the Trustee to exercise any such powers except as expressly provided in this
Indenture or in the Security Documents. The Trustee shall be under no duty
to the Company whatsoever to make or give any presentment, demand for
performance, notice of nonperformance, protest, notice of protest, notice 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 or in the Security Documents. The
Trustee shall not be liable to the Company 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 to take any action whatsoever
with regard thereto. The Trustee shall have no duty to the Company to comply
with any recording, filing, or other legal requirements necessary to
establish or maintain the validity, priority or enforceability of, or the
Trustee's rights in or to, any Collateral. The Trustee shall comply with, and
release the Collateral in accordance with, the Security Documents.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities. An installment of
principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment.
The Company shall pay interest on overdue principal at the rate borne by
the Securities; it shall pay interest on overdue installments of interest at the
same rate to the extent lawful.
SECTION 4.02. CORPORATE EXISTENCE.
Subject to Article Five, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate, partnership or other existence of each subsidiary in
accordance with the respective organizational documents of each subsidiary and
the rights (charter and statutory), licenses and franchises of the Company and
its subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to
preserve, with respect to itself, any right, license or franchise, and with
respect to the subsidiaries, any such existence, right, license or franchise, if
the Board of Directors, or the board of directors or managing partners of the
subsidiary concerned, shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or any subsidiary and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any subsidiary or upon the income,
profits or property of the Company or any subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any subsidiary; PROVIDED, HOWEVER, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings; and
PROVIDED, FURTHER, that the Company shall not be required to cause to be paid or
discharged any such tax, assessment, charge or claim if the Board of Directors,
or the board of directors or managing partners of the subsidiary concerned,
shall determine that such payment is not advantageous to the conduct of the
business of the Company or any subsidiary and that the failure so to pay or
discharge is not disadvantageous in any material respect to the Holders.
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SECTION 4.04. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used in the conduct of its business
or the business of any subsidiary to be maintained and kept in such condition,
repair and working order as in the judgment of the Company may be necessary, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors or of
the board of directors or managing partners of the subsidiary concerned,
desirable in the conduct of the business of the Company or any subsidiary and
not disadvantageous in any material respect to the Holders; and PROVIDED
FURTHER, that property may be disposed of in the ordinary course of the business
of the Company or its subsidiaries at the discretion of the appropriate officers
of the Company and its subsidiaries.
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. Unless the Trustee serves as
Paying Agent or Registrar, 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
address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes.
SECTION 4.06. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate stating whether
or not the signers know of any default by the Company in performing its
covenants in Sections 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. If they do know
of such a default, the certificate shall describe the default in detail.
SECTION 4.07. REPORTS.
The Company shall file with the Trustee within 15 days after it files them
with the SEC copies of the quarterly and annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations
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prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the
other provisions of TIA Section 314(a).
So long as any of the Securities remain outstanding the Company shall cause
to be mailed to the Holders at their addresses appearing in the register of
Securities maintained by the Registrar all annual, quarterly or other reports
which the Company mails or causes to be mailed to its stockholders generally,
concurrently with such mailing to stockholders, and will cause to be disclosed
in such annual reports as of the date of the most recent financial statements in
each such report the amount available for dividends and other payments pursuant
to the most restrictive covenant therefor as of such date.
SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY 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 an manner whatsoever claim,
and will resist any and all efforts to be compelled to take the benefit or
advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the
interest on the Securities as contemplated herein, whenever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company 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 4.09. LIMITATION ON LIENS.
Nothing in this Indenture or in the Securities shall in any way restrict or
prevent the Company or any of its subsidiaries from incurring any Indebtedness;
PROVIDED, HOWEVER, that neither the Company nor any of its subsidiaries may
issue, assume or guarantee any Indebtedness secured by a Lien upon any
Consolidated Property without effectively providing that the Securities shall be
secured equally and ratably with (or prior to) such Indebtedness so long as such
Indebtedness shall be so secured, except that this restriction will not apply
to:
(a) Liens existing on the date of original issuance of the
Securities;
(b) Liens affecting property of a corporation or other entity
existing at the time it becomes a subsidiary of the Company or at the time
it is merged into or consolidated with the Company or a subsidiary of the
Company;
(c) Liens on property existing at the time of acquisition thereof or
incurred to secure payment of all or a part of the purchase price thereof
or to secure Indebtedness incurred prior to, at the time of, or within
24 months after the acquisition thereof for the purpose of financing all or
part of the purchase price thereof;
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(d) Liens on any property to secure all or part of the cost of
improvements or construction thereon or Indebtedness incurred to provide
funds for such purpose in a principal amount not exceeding the cost of such
improvements or construction;
(e) Liens which secure Indebtedness owing by a subsidiary of the
Company to the Company or to a subsidiary of the Company;
(f) Liens securing Indebtedness of the Company the proceeds of which
are used substantially simultaneously with the incurrence of such
Indebtedness to retire Funded Debt;
(g) purchase money security Liens on personal property;
(h) Liens securing Indebtedness of the Company the proceeds of which
are used within 24 months of the incurrence of such Indebtedness for the
Project Cost of the construction and development or improvement of a Resort
Property;
(i) Liens on the stock, partnership or other equity interest of the
Company or any subsidiary in any Joint Venture or any subsidiary which owns
an equity interest in such Joint Venture to secure Indebtedness, provided
the amount of such Indebtedness is contributed and/or advanced solely to
such Joint Venture;
(j) Liens securing any Indebtedness that ranks pari passu with the
Securities;
(k) Liens in favor of the United States or any state thereof, or any
department, agency, instrumentality, or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other payments
pursuant to any contract or statute or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase price or cost
of constructing or improving the property subject thereto, including,
without limitation, Liens to secure Indebtedness of the pollution control
or industrial revenue bond type;
(l) Liens required by any contract or statute in order to permit the
Company or a subsidiary of the Company to perform any contract or
subcontract made by it with or at the request of the United States of
America, any state or any department, agency or instrumentality or
political subdivision of either;
(m) mechanic's, materialman's, carrier's or other like Liens, arising
in the ordinary course of business;
(n) Liens for taxes or assessments and similar charges other (x) not
delinquent or (y) contested in good faith by appropriate proceedings and as
to which the Company or a subsidiary of the Company shall have set aside on
its books adequate reserves;
(o) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property and minor
irregularities of title incident thereto which do not
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in the aggregate materially detract from the value of the property or
assets of the Company and its subsidiaries taken as a whole or impair the
use of such property in the operation of the Company's or any of its
subsidiary's business; and
(p) any extension, renewal, replacement or refinancing of any Lien
referred to in the foregoing clauses (a) through (j) inclusive or of any
Indebtedness secured thereby, PROVIDED, that the principal amount of
Indebtedness secured thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such extension, renewal,
replacement or refinancing, and that such extension, renewal,
replacement or refinancing Lien shall be limited to all or part of
substantially the same property which secured the Lien extended, renewed,
replaced or refinanced (plus improvements on such property).
Notwithstanding the foregoing provisions of this Section 4.09, the Company
and any one or more of its subsidiaries may, without securing the Securities,
issue, assume or guarantee Indebtedness which would otherwise be subject to the
foregoing restrictions in an aggregate principal amount which, together with all
other such Indebtedness of the Company and its subsidiaries which would
otherwise be subject to the foregoing restrictions (not including Indebtedness
permitted to be secured under clauses (a) through (j) inclusive above) and the
aggregate Value of Sale and Lease-Back Transactions (other than those in
connection with which the Company has voluntarily retired Funded Debt) does not
at any one time exceed 15% of Consolidated Net Tangible Assets of the Company
and its consolidated subsidiaries.]
[SECTION 4.10. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
Neither the Company nor any of its subsidiaries shall enter into any Sale
and Lease-Back Transaction unless either (a) the Company or such subsidiary
would be entitled, pursuant to the provisions of Section 4.09, to incur
Indebtedness in a principal amount equal to or exceeding the Value of such Sale
and Lease-Back Transaction, secured by a Lien on the property to be leased,
without equally and ratably securing the Securities or (b) the Company (and in
any such case the Company covenants and agrees that it will do so) within
120 days after the effective date of such Sale and Lease-Back Transaction
(whether made by the Company or a subsidiary of the Company) applies to the
voluntary retirement of its Funded Debt an amount equal to the Value of the Sale
and Lease-Back Transaction less the principal amount of other Funded Debt
voluntarily retired by the Company within four months after the effective date
of such arrangement, excluding retirements of Funded Debt as a result of
conversions or pursuant to mandatory sinking fund or prepayment provisions or by
payment at maturity.]
SECTION 4.11. DEFEASANCE OF CERTAIN OBLIGATIONS.
The Company may omit to comply with any term, provision or condition set
forth in Sections 4.03, 4.04, 4.09 and 4.10 and Article Five and Section 6.01(3)
(with respect to Sections 4.03, 4.04, 4.09 and 4.10 and Article Five) and, in
each case with respect to any series of Securities, such omission shall be
deemed not to be an Event of Default, PROVIDED, that the following conditions
have been satisfied with respect to such series:
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(1) the Company has irrevocably deposited or caused to be deposited
with the Trustee, as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such series of
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will, without consideration of any reinvestment
of such interest, provide not later than the opening of business on the
relevant due date, money in an amount, or (C) a combination thereof, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, sufficient to pay and discharge the principal of, and each
installment of interest on, such series of Securities then outstanding on
the date of maturity of such principal or installment of interest or on the
redemption date, as the case may be;
(2) Such deposit shall not cause the Trustee with respect to such
series of Securities to have a conflicting interest for purposes of the TIA
with respect to such series of Securities;
(3) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture;
(4) No Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
such series of Securities shall have occurred and be continuing on the date
of such deposit and no Event of Default under Section 6.01(5) or
Section 6.01(6) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 6.01(5) or
Section 6.01(6) shall have occurred and be continuing at any time during
the period ending on the 91st day after such date or, if longer, ending on
the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period);
(5) the deposit shall not result in the Company, the Trustee or the
trust becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(6) the Company has delivered to the Trustee an Opinion of Counsel,
reasonably satisfactory to the Trustee, to the effect that (i) Holders of
such series of Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would have been the
case if such deposit and defeasance had not occurred and (ii) after the
passage of 90 days following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally,
PROVIDED, that if a court were to rule under any such law in any
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case or proceeding that the trust funds remained property of the Company,
no opinion need be given as to the effect of such laws on the trust funds
except the following: assuming such trust funds remained in the Trustee's
possession prior to such court ruling to the extent not paid to Holders of
such series of Securities, the Trustee will hold, for the benefit of the
Holders of such series of Securities, a valid and perfected security
interest in such trust funds that is not avoidable in bankruptcy or
otherwise; and
(7) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section
have been complied with.
ARTICLE FIVE
SUCCESSOR CORPORATION
The Company shall not consolidate with or merge into any other person or
transfer its properties and assets substantially as an entirety to any person
unless:
(1) either the Company shall be the continuing corporation, or the
person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the properties and assets of the
Company substantially as an entirety are transferred shall be a
corporation, partnership or trust organized and existing under the laws of
the United States of America or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under the Securities and this Indenture;
(2) immediately after giving effect to such transaction, no Default
or Event of Default exists; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
The successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer 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, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under the Indenture and the
Securities, and in the event of such transfer any such predecessor corporation
may be dissolved and liquidated.
ARTICLE SIX
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DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to any series of Securities occurs if:
(1) the Company defaults in the payment of interest on such series of
Securities when the same becomes due and payable and the default continues
for a period of 30 days; or
(2) the Company defaults in the payment of principal of such series
of Securities when the same becomes due and payable at maturity, upon
redemption or otherwise; or
(3) the Company fails to comply with any of its other agreements in
such series of Securities or this Indenture and, the default continues for
the period and after the notice specified below; or
(4) an event or events of default, as defined in any one or more
mortgages, indentures or instruments under which there may be issued, or by
which there may be secured or evidenced, any Indebtedness of the Company or
a subsidiary, whether such Indebtedness now exists or shall hereafter be
created, shall happen and shall entitle the holders of such Indebtedness to
declare an aggregate principal amount of at least $10,000,000 of such
Indebtedness due and payable and such event of default shall not have been
cured or waived in accordance with the provisions of such instrument, or
such Indebtedness shall not have been discharged, within a period of 30
days after there shall have 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 such series of Securities then
outstanding a written notice specifying such event or events of default and
requiring the Company to cause such event of default to be cured or such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder, PROVIDED, HOWEVER, that the Company is not in good
faith contesting in appropriate proceedings the occurrence of such an event
of default; or
(5) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any subsidiary in an
involuntary case or proceeding under any Bankruptcy Law which shall
(A) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any
subsidiary, (B) appoint a Custodian of the Company or any subsidiary or for
any substantial part of its property or (C) order the winding-up or
liquidation of its affairs; and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or any
bankruptcy or insolvency petition or application is filed, or any
bankruptcy or insolvency proceeding is commenced, against the Company or
any subsidiary and such petition, application or proceeding is not
dismissed within 60 days;
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or any warrant of attachment is issued against any substantial portion of
the property of the Company or any subsidiary which is not released within
60 days of service;
(6) the Company or any subsidiary shall (A) become insolvent,
(B) generally fail to pay its debts as they become due, (C) make any
general assignment for the benefit of creditors, (D) admit in writing its
inability to pay its debts generally as they become due, (E) commence a
voluntary case or proceeding under any Bankruptcy Law, (F) consent to the
entry of a judgment, decree or order for relief in an involuntary case or
proceeding under any Bankruptcy Law, (G) consent to the institution of
bankruptcy or insolvency against it, (H) apply for, consent to or acquiesce
in the appointment of or taking possession by a Custodian of the Company or
any subsidiary or for any substantial part of its property or (I) take any
corporate action in furtherance of any of the foregoing; or
(7) the Company breaches any material representation or warranty set
forth in the Security Documents, or materially defaults in the performance
of any material covenant set forth in the Security Documents, or the
Company repudiates its material obligations under the Security Documents,
or the Security Documents become unenforceable against the Company for any
reason.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A default under clause (3) (other than a Default under Section 4.02 or
Article Five which Default shall be an Event of Default without the notice or
passage of time specified in this paragraph) is not an Event of Default with
respect to a series of Securities until the Trustee or the Holders of at least
25% in principal amount of such series of Securities then outstanding notify the
Company of the default and the Company does not cure the default within 30 days
after receipt of the notice. The notice must specify the default, demand that
it be remedied and state that the notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
If an Event of Default relating to any series of Securities occurs and is
continuing, the Trustee by notice in writing to the Company, or the Holders of
not less than 25% in principal amount of such series of Securities then
outstanding by notice in writing to the Company and the Trustee, may declare the
unpaid principal (or, in the case of Original Issue Discount Securities, such
lesser amount as may be provided for in such Securities of and any accrued
interest on all such series of Securities, (but in no event more than the
maximum amount of principal and interest thereon allowed by law) to be due and
payable immediately. Upon any such declaration such principal and interest
shall be payable immediately.
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At any time after such a declaration of acceleration 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 a majority
in principal amount of such series of Securities then outstanding, by written
notice to the Company and the Trustee, may rescind and annul such declaration as
to such series of Securities, and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) the principal of such series of Securities that has become
due otherwise than by such declaration of acceleration (together with
interest, if any, payable thereon); and
(B) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee and its agents, attorneys and counsel; and
(2) all existing Events of Default relating to such series of
Securities have been cured or waived and the rescission would not conflict
with any judgment or decree.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default relating to any series of Securities occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on such series of
Securities or to enforce the performance of any provisions of such series of
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the subject series of Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, the Holders of a majority in principal amount of
any series of Securities then outstanding by notice to the Trustee may waive an
existing Default or Event of Default with respect to such series of Securities,
and its consequences. When a Default or Event of Default is waived, it is cured
and stops continuing.
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SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of any series of Securities
then outstanding may 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 it with respect to any default under such series of
Securities. However, subject to Section 7.01, the Trustee may refuse to follow
any direction that conflicts with any rule of law or this Indenture, that is
unduly prejudicial to the rights of another Holder of such series of Securities,
or that would involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of any series of Securities may not pursue any remedy with respect
to this Indenture or any series of Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of such series of
Securities then outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority of principal
amount of such series of Securities then outstanding do not give the
Trustee a direction inconsistent with the request.
A Holder of any series of Securities may not use this Indenture to
prejudice the rights of another Holder of such series of Securities or to obtain
a preference or priority over another Holder of such series of Securities.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of or interest on the
Security on or after the respective due dates expressed in the Security or to
bring suit for the enforcement of any such payment on or after such respective
dates shall not be impaired or affected without the consent of the Holder.
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SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing with respect to any series of
Securities, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal (or such
portion of the principal as may be specified as due upon acceleration at that
time in the terms of that series of Securities) and interest, if any, remaining
unpaid on such series of Securities then outstanding.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the Company, its
creditors or its property.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article with respect to
any series of Securities, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders for amounts due and unpaid on such series
of Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
series of Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders of any series of Securities pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of any such record date and
payment date.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07,
or a suit by Holders of more than 10% in principal amount of the Securities then
outstanding.
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ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is known to the Trustee
(and is not cured), the Trustee shall exercise its rights and powers 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.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture or in the TIA and no
covenants or obligations shall be implied in this Indenture which
bind the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions which by any provision of this Indenture are
specifically required to be furnished to the Trustee to determine
whether or not they conform in form to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives security and indemnity satisfactory to it
against any loss, liability or expense.
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(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys or agents (which shall
not include its employees) and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or power.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
subsidiaries or Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar or co-registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs with respect to any series of Securities and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder of such series of Securities, notice of the Default within 90 days after
it occurs. Except in the case of a default in the payment of principal of or
interest on such series of Securities, the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of the Holders of such series of
Securities.
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SECTION 7.06. REPORTS BY TRUSTEE.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such May 15 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which the Securities are
listed. The Company shall notify the Trustee when the Securities are listed on
any stock exchange.
To the extent requested by the Company, the Trustee shall cooperate with
the Gaming Authorities in order to provide such Gaming Authorities with any
information and documentation that they may request and as otherwise required by
law.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it. Such expense
may include the reasonable compensation and expenses of the Trustee's agents and
counsel. The Company shall indemnify the Trustee against any loss or liability
incurred by it, without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this trust. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of any series of Securities then
outstanding may remove the Trustee with respect to such series of Securities
by so notifying the removed Trustee and may appoint a successor Trustee with
the Company's consent. The Company may remove the Trustee with respect to one
or more or all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
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(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed or if
a vacancy exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee for that series.
A successor Trustee as to any series of Securities shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture as to such series. A successor Trustee shall mail notice of its
succession to the Holders of such series of Securities.
If a successor Trustee as to any series of Securities does not take office
within 60 days after the retiring Trustee resigns or is removed, then (i) the
retiring Trustee or the Company may petition any court of competent jurisdiction
for the appointment of a successor Trustee and (ii) the Holders of a majority in
principal amount of such series of Securities then outstanding may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 with respect to any series
of Securities, any Holder of such series of Securities who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for such series.
In case of appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) shall contain such
provisions as shall be necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary or desirable to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee; provided, however, that nothing herein or in such supplemental
Indenture shall constitute such Trustee co-trustees of the same trust and that
each such Trustee shall be a trustee of a trust hereunder separate and apart
from any trust hereunder and administered by any other such Trustee.
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Upon the execution and delivery of such supplemental Indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each 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 with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee as to any series of Securities consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
assets to, another corporation, the resulting, surviving or transferee
corporation shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, without any further act, be the successor Trustee
as to such series.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee as to any series of Securities
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), including the optional provision permitted by
the second sentence of TIA Section 310(b)(9).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 7.12. AUTHENTICATING AGENT.
If the Company so requests, there shall be an Authenticating Agent
appointed by the Trustee with power to act on its behalf and subject to its
direction in the authentication and delivery of any series of Securities in
connection with the exchange or registration of transfer thereof as fully to all
intents and purposes as though the Authenticating Agent had been expressly
authorized by the relevant Sections hereof to authenticate and deliver such
series of Securities, and such series of Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as though authenticated by the Trustee hereunder, and for all
purposes of this Indenture, the authentication and delivery of such series of
Securities by the Authenticating Agent pursuant to this Section shall be deemed
to be the authentication and delivery of such series of Securities "by the
Trustee." Notwithstanding anything to the contrary contained in Section 2.04,
or in any other Section hereof, all authentication in connection with exchange
or registration of transfer thereof shall be effected either by the Trustee or
an Authenticating Agent and such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State, with a combined capital and surplus of at least $5,000,000 and
authorized under such laws to exercise corporate trust
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powers and subject to supervision or examination by Federal or State authority.
If at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect herein specified in this Section. If such corporation
publishes reports of condition at least annually pursuant to law or the
requirements of such 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.
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, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent 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 under this Section, the
Trustee shall promptly appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all Holders of the Securities as the names and addresses of such
Holders appear on the register of Securities, and shall publish notices of such
appointment at least once in a newspaper of general circulation in the place
where such successor Authenticating Agent has its principal office.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth, including, without
limitation, the duties to authenticate and deliver the Securities when presented
to it in connection with exchanges or registrations of transfer thereof; it will
furnish from time to time, as requested by the Trustee, appropriate records of
all transactions carried out by it as Authenticating Agent and will furnish the
Trustee such other information and reports as the Trustee may reasonably
require; it is eligible for appointment as Authenticating Agent under this
Section and will notify the Trustee promptly if it shall cease to be so
qualified; and it will indemnify the Trustee against any loss, liability or
expense incurred by the Trustee and will defend any claim asserted against the
Trustee by reason of any act or failure to act of the Authenticating Agent but
it shall have no liability for any action taken by it at the specific written
direction of the Trustee.
The Company agrees that it will pay to the Authenticating Agent from time
to time reasonable compensation for its services.
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The provisions of Sections 7.02, 7.03 and 7.04 shall bind and inure to the
benefit of any Authenticating Agent to the same extent that they bind and inure
to the benefit of the Trustee.
If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities referred to in the within mentioned
Indenture.
as Trustee
By______________________________________
As Authenticating Agent
By______________________________________
Authorized Signatory
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under any series of Securities
and this Indenture with respect to such series, except those obligations
referred to in the immediately succeeding paragraph, if:
(a) all such series of Securities previously authenticated and
delivered (other than mutilated, destroyed, lost or stolen Securities which
have been replaced or such series of Securities which are paid for pursuant
to Section 4.01 or such series of Securities for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.03) have been delivered to the Trustee
for cancellation and the Company has paid all sums payable by it hereunder
with respect to such series; or
(b)(1) the series of Securities mature within one year or all of
them are to be called for redemption within one year after arrangements
satisfactory to the Trustee for giving the notice of redemption; and
(b)(2) the Company has irrevocably deposited or caused to be
deposited with the Trustee, during such one-year period, as trust funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such series of Securities,
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(A) money in an amount, or (B) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance with
their terms will, without consideration of any reinvestment of such
interest, provide not later than the opening of business on the relevant
due date, money in an amount, or (C) a combination thereof, in the opinion
of a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee,
sufficient to pay and discharge the principal of, and each installment of
interest on, such series of Securities then outstanding on the date of
maturity of such principal or installment of interest or the redemption
date, as the case may be; or
(c)(1) the Company has irrevocably deposited or caused to be
deposited with the Trustee, as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
such series of Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will, without consideration of any
reinvestment of such interest, provide not later than the opening of
business on the relevant due date, money in an amount, or (C) a combination
thereof, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, sufficient to pay and discharge the principal of
and each installment of interest on such series of Securities then
outstanding on the date of maturity of such principal or installment of
interest, or, on the redemption date, as the case may be; and
(c)(2) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent
provided for in clause (c) and in Section 4.11 relating to the
satisfaction and discharge of this Indenture with respect to such series
of Securities have been complied with.
Notwithstanding the foregoing clause (c), prior to the end of the 90-day
period referred to in clause (6)(ii) of Section 4.11, none of the Company's
obligations under this Indenture shall be discharged, and subsequent to the end
of the 90-day period only the Company's obligations in Sections 2.05, 2.06,
2.07, 2.08, 2.09, 4.01, 4.02, 7.07, 7.08, 8.03 and 8.04 shall survive until such
series of Securities are no longer outstanding. Thereafter, the Company's
obligations in Sections 7.07, 8.03 and 8.04 shall survive; PROVIDED, that the
Company shall pay any taxes or other costs and expenses incurred by any trust
created pursuant to this Article Eight.
After any such irrevocable deposit and after satisfaction of all the
conditions of this Section 8.01, the Trustee, upon the Company's request, shall
acknowledge in writing the discharge of the Company's obligations under the
subject Securities and this Indenture, except for those surviving obligations
specified above. The Trustee shall not be responsible for any calculations made
by
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the Company in connection with the deposit of funds pursuant to clauses (b)(2)
or (c)(1) of this Section 8.01.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall, with respect to any series of
Securities, hold in trust any money or U.S. Government Obligations deposited
with it pursuant to Section 8.01, and shall apply the deposited money and the
money from U.S. Government Obligations in accordance with this Indenture, to the
payment of principal of and interest on such series of Securities.
SECTION 8.03. REPAYMENT TO THE COMPANY.
Subject to Section 8.02, the Trustee and the Paying Agent shall promptly
pay to the Company upon request any excess money or U.S. Government Obligations
held by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal or
interest that remains unclaimed for two years; PROVIDED, HOWEVER, that the
Company shall, if requested by the Trustee or such Paying Agent, give the
Trustee or such Paying Agent satisfactory indemnification against any and all
liability which may be incurred by it by reason of such payment; and PROVIDED,
FURTHER, that the Trustee or such Paying Agent before being required to make any
payment shall at the expense of the Company cause to be published once in a
newspaper or newspapers printed in the English language, customarily published
at least five days a week and of general circulation in the City of Las Vegas,
Nevada and in the Borough of Manhattan, The City of New York and mail to each
Securityholder entitled to such money notice that such money remains unclaimed
and that, after a date specified therein which shall be at least 30 days from
the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to the Company,
Securityholders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another person.
SECTION 8.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 8.01; PROVIDED, HOWEVER,
that if the Company has made any payment of interest on or principal of any
series of Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such series of
Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee as to any series of Securities may amend or
supplement this Indenture or the Securities without notice to or consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide, to the extent permitted by law, that all or a portion
of the obligations of the Company hereunder shall be represented only by
appropriate records maintained by the Company or the Trustee in addition to
or in place of the issue of Securities;
(4) to comply with any requirements of the SEC in connection with the
qualification of this Indenture under the TIA;
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided, however,
that any such addition, change or elimination (A) shall neither (i) apply to any
series of Securities created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or (B)
shall become effective only when there is no outstanding Security of any series
created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision;
(6) to make any change that does not adversely affect the rights of
any Securityholder of any series; or
(7) to establish additional series of Securities as permitted by
Section 2.03.
SECTION 9.02. WITH CONSENT OF HOLDERS
The Company and the Trustee as to any series of Securities may amend or
supplement this Indenture or such series of Securities without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Securities of each series
affected by such amendment or supplement, with each such series voting as a
separate class. The Holders of a majority in principal amount of any series of
Securities then outstanding may also waive compliance in a particular instance
by the Company with any provision of this Indenture with respect to that series
of Securities; provided, however, that
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without the consent of each Securityholder affected, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate, or extend the time for payment of interest on,
any Security in a manner adverse to the Holders thereof;
(3) reduce the principal of, or extend the fixed maturity or fixed
redemption date of any Securities, in a manner adverse to the Holders thereof;
(4) waive a default in the payment of the principal of, or interest
on, any Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any changes in Section 6.04, 6.07 and 9.02 (second
sentence).
An amendment or waiver under this Section which waives, changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more series of Securities, or
which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to Holders of Securities of each series affected thereby a
notice briefly describing the amendment or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
such amendment, supplement or waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the
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consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of a Security if the Trustee receives notice of
revocation before the date the amendment, supplement or waiver becomes
effective.
The Company may, but shall not be obligated to, set a record date for the
purpose of determining the identity of Holders entitled to consent to any
amendment, supplement or waiver permitted by this Indenture. If a record date
is fixed, the Holders of Securities of that series outstanding on such record
date, and no other Holders, shall be entitled to consent to such amendment,
supplement or waiver or revoke any consent previously given, whether or not such
Holders remain Holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Securities of that series required hereunder
for such amendment, supplement or waiver to be effective shall have also been
given and not revoked within such 90 day period.
After an amendment, supplement or waiver becomes effective, it shall bind
the Holder of every Security unless it makes a change described in clause (1),
(2), (3), (4), (5) or (6) of Section 9.02. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver does not
adversely affect the rights of the Trustee. If it does, the Trustee may but
need not sign it. The Company may not sign an amendment or supplement until the
Board of Directors approves it. The Trustee, subject to Sections 7.01 and 7.02,
shall be entitled to receive, and shall be fully protected in relying upon an
Opinion of Counsel stating that any amendment, supplement or waiver is
authorized by this Indenture and complies with the provisions of this Article
Nine.
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ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of any series of Securities, either separately or
jointly, may be called at any time and from time to time pursuant to the
provisions of this Article Ten 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 waive or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to any
of the provisions of Article Six;
(b) to remove the Trustee or appoint a successor Trustee pursuant to
the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver pursuant to the
provisions of Section 9.02; or
(d) to take any action (i) authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of such series of
Securities under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate
in connection with the administration of this Indenture.
SECTION 10.02. MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Holders of any series of
Securities to take any action specified in Section 10.01, to be held at such
time and at such place in the City of Las Vegas, Nevada, as the Trustee shall
determine. Notice of every meeting of Holders of any series of Securities,
setting forth the time and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed by the Trustee,
first-class postage prepaid, to the Company, and to the Holders of such series
of Securities at their last addresses as they shall appear on the registration
books of the Registrar, not less than ten nor more than 60 days prior to the
date fixed for the meeting.
Any meeting of Holders of the Securities shall be valid without notice if
(i) with respect to a meeting of any series of Securities, all Holders of such
series of Securities then outstanding are present in person or by proxy, or if
notice is waived before or after the meeting by all Holders of such series of
Securities then outstanding and (ii) with respect to a meeting of all
Securityholders, all Holders of such Securities then outstanding are present in
person or by proxy, or if notice is waived before or after the meeting by all
Holders of such Securities then
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outstanding, and, in each case, if the Company and the Trustee are either
present by duly authorized representative or have, before or after the meeting
waived notice.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to resolution of its Board of
Directors, or the Holders of not less than 25% in aggregate principal amount of
any series of Securities then outstanding shall have requested the Trustee to
call a meeting of Securityholders, either separately or jointly, to take any
action specified in Section 10.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days for
receipt of such request, then the Company or the Holders of such series of
Securities in the amount above specified may determine the time and place in the
City of Las Vegas, Nevada, or in the Borough of Manhattan, The City of New York,
for such meeting and may call such meeting for the purpose of taking such
action, by mailing or causing to be mailed notice thereof as provided in Section
10.02, or by causing notice thereof to be published at least once in each of two
successive calendar weeks (on any day of the week) in a newspaper or newspapers
printed in the English language, customarily published at least five days a week
and of general circulation in the City of Las Vegas, Nevada and in the Borough
of Manhattan, The City of New York, the first such publication to be not less
than 10 nor more than 60 days prior to the date fixed for the meeting.
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Securityholders, a person shall
(a) be a registered Holder of one or more Securities, or (b) be a person
appointed by an instrument in writing as proxy for the registered Holder or
Holders of Securities. The only persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the persons entitled to vote
at such meeting and their counsel and any representative of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE MEETING;
VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and 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 think appropriate. Such regulations may fix
a record date and time for determining the Holders of record of Securities
entitled to vote at such meeting, in which case those and only those persons who
are Holders of Securities at the record date and time so fixed, or their
proxies, shall be entitled to vote at such meeting whether or not they shall be
such Holders at the time of the meeting.
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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 Securityholders as provided in Section 10.03, in which case the
Company or the Securityholders 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 vote of the Holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
At any meeting each Securityholder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Securities 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 Securities held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders. At any meeting of Securityholders, the
presence of persons holding or representing any number of Securities shall be
sufficient for a quorum. Any meeting of Securityholders duly called pursuant to
the provisions of Section 10.02 or Section 10.03 may be adjourned from time to
time by vote of the Holders of a majority in aggregate principal amount of the
Securities represented at the meeting and entitled to vote, and the meeting may
be held as so adjourned without further notice.
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amount of the Securities voted by the ballot. 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 Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to such 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 such notice was mailed as provided in Section 10.02 or
published as provided in Section 10.03. The record shall be signed and verified
by the affidavits of the permanent chairman and the 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, the latter to have attached thereto the
ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
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SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY NOT BE
HINDERED OR DELAYED BY CALL OF MEETING.
Nothing in this Article Ten contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Securityholders 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 the Securityholders under any of the provisions of
this Indenture or of the Securities.
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE.
If the Company elects to redeem any series of Securities pursuant to any
optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities of that series to be
redeemed.
The Company shall give each notice provided for in this Section in an
Officers' Certificate at least 45 days before the redemption date (unless a
shorter notice period shall be satisfactory to the Trustee), which notice shall
specify the provisions of such Security pursuant to which the Company elects to
redeem such Securities.
If the Company elects to reduce the principal amount of Securities of any
series to be redeemed pursuant to mandatory redemption provisions thereof, it
shall notify the Trustee of the amount of, and the basis for, any such
reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are not listed on
an exchange, on a PRO RATA basis or by lot. The Trustee shall make the
selection not more than 75 days and not less than 30 days before the redemption
date from Securities of that series outstanding and not previously called for
redemption. Except as otherwise provided as to any series of Securities,
Securities and portions thereof that the Trustee selects shall be in amounts
equal to the minimum authorized denomination for Securities of the series to be
redeemed or any integral multiple thereof. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption. The Trustee shall notify
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the Company promptly in writing of the Securities or portions of Securities to
be called for redemption.
SECTION 11.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any series of Securities, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if any, to
the date fixed for redemption (the "redemption price");
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption
price, interest on Securities called for redemption ceases to accrue on and
after the redemption date;
(7) The paragraph of the series of Securities and/or Section of any
supplemental indenture pursuant to which such Securities called for
redemption are being redeemed; and
(8) the CUSIP number, if any, of the Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; PROVIDED, HOWEVER, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice of the Holder of any Security shall not affect the validity of the
proceeding for the redemption of any other Security.
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SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 11.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the redemption price.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the Paying
Agent (or, if the Company or any subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the redemption price of all
Securities called for redemption on that date other than Securities which have
previously been delivered by the Company to the Trustee for cancellation. The
Paying Agent shall return to the Company any money not required for that
purpose.
SECTION 11.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security of like series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA
or the TIA as amended after the date hereof, the required provision shall
control.
SECTION 12.02. NOTICES.
Any notice or communication shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail postage prepaid, addressed as
follows:
if to the Company:
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
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if to the Trustee:
First Interstate Bank of Nevada, N.A.
3800 Howard Hughes Parkway, Suite 200
Las Vegas, Nevada 89114
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed by
first-class mail, postage prepaid, to such Holder at such Holder's address as it
appears on the register maintained by the Registrar and shall be sufficiently
given to such Holder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above, it shall be
deemed to have been duly given two days after the data of mailing, whether or
not the addressee receives it.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 12.04. CERTIFICATES AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
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(1) a statement that the person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate of Opinion of Counsel are based;
(3) a statement that, in the opinion of such person, such person has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not in the opinion of such person,
such condition or covenant has been complied with; PROVIDED, HOWEVER, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate.
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or by an Affiliate shall be disregarded, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR.
The Paying Agent or Registrar each may make reasonable rules for its
functions.
SECTION 12.08. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions are not required to be open. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
SECTION 12.09. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construct in
accordance with the laws of the State of Nevada.
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
50
<PAGE>
SECTION 12.11. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities. The waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
SECTION 12.12. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 12.13. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.14. SEVERABILITY.
In case any provision in this Indenture or in the Securities 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 12.15. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC.
The Article and Section headings herein and the table of contents are for
convenience only and shall not affect the construction thereof.
51
<PAGE>
This Indenture has been delivered and adopted by the parties hereto in
the State of Nevada.
IN WITNESS WHEREOF, the Company and the Trustee have caused their names to
be signed hereto by their respective officers thereunto duly authorized and
their respective corporate seals, duly attested, to be hereunto duly affixed,
all as of the day and year first above written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES,
INC.
(SEAL)
By:
--------------------------------
Name:
Title:
FIRST INTERSTATE BANK OF
NEVADA, N.A.,
as Trustee
(SEAL)
By:
--------------------------------
Name:
Title:
S-1
<PAGE>
EXHIBIT 4(X)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
And
FIRST INTERSTATE BANK OF NEVADA, N.A.,
Trustee
---------
Indenture
[Dated as of_________ __, ____]
[$______________]
[___% Senior Notes Due ____]
---------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE*
TIA
Section Indenture Section
- ------- -----------------
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . .7.10.
(b). . . . . . . . . . . . . . . . . . . . . .7.08; 7.10; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.05
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . .12.03
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . .12.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c). . . . . . . . . . . . . . . . . . . . . . . . .7.06; 12.02
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . .4.07; 12.02
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .12.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . .12.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . .12.05
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . .7.01(b)
(b). . . . . . . . . . . . . . . . . . . . . . . . .7.05; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . .7.01(a)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . .7.01(c)
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . .12.06
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .12.01
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . .10.01
N.A. means Not Applicable.
- ---------------
*This Cross-Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . 1
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.. . . . . . . . . . . . . . . 6
SECTION 1.03. RULES OF CONSTRUCTION. . . . . . . . . . . 6
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY. . . . . . . . . . . . . . 7
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. . . . . . . . . . . . . . . 7
ARTICLE THREE
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED, ISSUABLE IN SERIES.. . . 8
SECTION 3.02. EXECUTION AND AUTHENTICATION;
DENOMINATIONS; DELIVERY AND DATING. . . . .10
SECTION 3.03. REGISTRAR AND PAYING AGENT.. . . . . . . . 11
SECTION 3.04. PAYING AGENT TO HOLD MONEY IN TRUST. . . . 11
SECTION 3.05. SECURITYHOLDER LISTS.. . . . . . . . . . . 11
SECTION 3.06. TRANSFER AND EXCHANGE. . . . . . . . . . . 12
SECTION 3.07. REPLACEMENT SECURITIES.. . . . . . . . . . 12
SECTION 3.08. OUTSTANDING SECURITIES.. . . . . . . . . . 12
SECTION 3.09. TEMPORARY SECURITIES.. . . . . . . . . . . 13
SECTION 3.10. CANCELLATION.. . . . . . . . . . . . . . . 13
SECTION 3.11. DEFAULTED INTEREST.. . . . . . . . . . . . 13
SECTION 3.12. MANDATORY DISPOSITION OF SECURITIES
PURSUANT TO GAMING LAWS . . . . . . . . . .13
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. . . . . . . . . . . 14
SECTION 4.02. CORPORATE EXISTENCE. . . . . . . . . . . . 14
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . 14
SECTION 4.04. MAINTENANCE OF PROPERTIES. . . . . . . . . 15
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY. . . . . . 15
SECTION 4.06. COMPLIANCE CERTIFICATE.. . . . . . . . . . 15
i
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PAGE
SECTION 4.07. REPORTS. . . . . . . . . . . . . . . . . . 16
SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY
LAWS. . . . . . . . . . . . . . . . . . . 16
SECTION 4.09. LIMITATION ON LIENS. . . . . . . . . . . . 16
SECTION 4.10. LIMITATION ON SALE AND LEASE-BACK
TRANSACTIONS. . . . . . . . . . . . . . . 18
SECTION 4.11. DEFEASANCE OF CERTAIN OBLIGATIONS. . . . . 19
ARTICLE FIVE
SUCCESSOR CORPORATION
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. . . . . . . . . . . . . 21
SECTION 6.02. ACCELERATION.. . . . . . . . . . . . . . . 22
SECTION 6.03. OTHER REMEDIES.. . . . . . . . . . . . . . 23
SECTION 6.04. WAIVER OF PAST DEFAULTS. . . . . . . . . . 23
SECTION 6.05. CONTROL BY MAJORITY. . . . . . . . . . . . 23
SECTION 6.06. LIMITATION ON SUITS. . . . . . . . . . . . 24
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.. . . 24
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.. . . . . . . . 24
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.. . . . . 25
SECTION 6.10. PRIORITIES.. . . . . . . . . . . . . . . . 25
SECTION 6.11. UNDERTAKING FOR COSTS. . . . . . . . . . . 25
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. . . . . . . . . . . . . 26
SECTION 7.02. RIGHTS OF TRUSTEE. . . . . . . . . . . . . 27
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.. . . . . . . 27
SECTION 7.04. TRUSTEE'S DISCLAIMER.. . . . . . . . . . . 27
SECTION 7.05. NOTICE OF DEFAULTS.. . . . . . . . . . . . 27
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. . . . . . . 27
SECTION 7.07. COMPENSATION AND INDEMNITY.. . . . . . . . 28
SECTION 7.08. REPLACEMENT OF TRUSTEE.. . . . . . . . . . 28
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.. . . . . 29
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. . . . . . . 30
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY .. . . . . . . . . . . . . 30
SECTION 7.12. AUTHENTICATING AGENT.. . . . . . . . . . . 30
ii
<PAGE>
PAGE
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.. . . 32
SECTION 8.02. APPLICATION OF TRUST MONEY.. . . . . . . . 33
SECTION 8.03. REPAYMENT TO THE COMPANY.. . . . . . . . . 34
SECTION 8.04. REINSTATEMENT. . . . . . . . . . . . . . . 34
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.. . . . . . . . 34
SECTION 9.02. WITH CONSENT OF HOLDERS. . . . . . . . . . 35
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. . . . 36
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. . . . . 36
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. . . 37
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . 37
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE
CALLED. . . . . . . . . . . . . . . . . . .37
SECTION 10.02. MANNER OF CALLING MEETINGS. . . . . . . . .38
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR
HOLDERS.. . . . . . . . . . . . . . . . . .38
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS.. . . . . .38
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE;
CONDUCT OF THE MEETING; VOTING RIGHTS;
ADJOURNMENT.. . . . . . . . . . . . . . . .39
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE
KEPT. . . . . . . . . . . . . . . . . . . .39
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR
SECURITYHOLDERS MAY NOT BE HINDERED OR
DELAYED BY CALL OF MEETING. . . . . . . . .40
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE. . . . . . . . . . . . .40
SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED. . .40
SECTION 11.03. NOTICE OF REDEMPTION. . . . . . . . . . . .41
SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION. . . . . . .42
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE . . . . . . . .42
SECTION 11.06. SECURITIES REDEEMED IN PART . . . . . . . .42
iii
<PAGE>
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. . . . . . . 42
SECTION 12.02. NOTICES.. . . . . . . . . . . . . . . . . 43
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER
HOLDERS . . . . . . . . . . . . . . . . . 43
SECTION 12.04. CERTIFICATES AND OPINION AS TO
CONDITIONS PRECEDENT. . . . . . . . . . . 43
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION . . . . . . . . . . . . . . . . . 44
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED. . . 44
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR. . . . . 44
SECTION 12.08. LEGAL HOLIDAYS. . . . . . . . . . . . . . 44
SECTION 12.09. GOVERNING LAW . . . . . . . . . . . . . . 45
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS. . . . . . . . . . . . . . . . 45
SECTION 12.11. NO RECOURSE AGAINST OTHERS. . . . . . . . 45
SECTION 12.12. SUCCESSORS. . . . . . . . . . . . . . . . 45
SECTION 12.13. DUPLICATE ORIGINALS . . . . . . . . . . . 45
SECTION 12.14. SEVERABILITY. . . . . . . . . . . . . . . 46
SECTION 12.15. EFFECT OF HEADINGS, TABLE OF
CONTENTS, ETC. . . . . . . . . . . . . . 46
iv
<PAGE>
INDENTURE, dated as of [________ __, ____,] between Circus
Circus Enterprises, Inc., a Nevada corporation ("Company"), and
First Interstate Bank of Nevada, N.A., a corporation organized
and existing as a national banking association under the laws of
the United States, as Trustee ("Trustee").
RECITALS
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time
of its Senior Notes to be issued in one or more series (the
"Securities''), as herein provided, up to such principal amount as
may from time to time be authorized in or pursuant to one or more
resolutions of the Board of Directors or by supplemental
indenture.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders (as hereinafter defined) thereof,
it is mutually covenanted and agreed, for the equal and
proportionate benefit of the Holders of each series of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" means a person "affiliated" with the Company, as
that term is defined in Rule 405 promulgated under the Securities
Act of 1933, as amended.
"Authenticating Agent" shall have the meaning provided in
Section 7.12.
"Bankruptcy Law" shall have the meaning provided in
Section 6.01.
"Board of Directors" means the Board of Directors of the
Company or any committee of such Board.
"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.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to the applicable
provisions of this Indenture and thereafter means the successor.
1
<PAGE>
"Consolidated Net Tangible Assets" means the total amount of
assets (less applicable reserves and other properly deductible
items) after deducting therefrom (i) all current liabilities
(excluding any thereof which are by their terms extendible or
renewable at the option of the obligor thereon to a time more
than 12 months after the time as of which the amount thereof is
being computed) and (ii) all goodwill, trade names, trademarks,
patents, purchased technology, unamortized debt discount and
other like intangible assets, all as set forth on the most recent
quarterly balance sheet of the Company and its consolidated
subsidiaries and computed in accordance with generally accepted
accounting principles.
"Consolidated Property" means any property of the Company or
any subsidiary of the Company.
"Custodian" shall have the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or
passage of time would be, an Event of Default.
"Event of Default" shall have the meaning provided in
Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Completion Guarantees and Make-Well Agreements"
means (i) that certain Make-Well Agreement by the Company in
favor of the Trustee dated as of May 30, 1995 relating to the
Circus and Eldorado Joint Venture, a Nevada general partnership,
(ii) that certain Circus Completion Guaranty by the Company in
favor of the Trustee dated as of May 30, 1995 relating to the
Circus and Eldorado Joint Venture, a Nevada general partnership,
and (iii) that certain Guaranty by the Company in favor of Bank
of America National Trust and Savings Association dated as of
July 12, 1995 relating to Victoria Partners, a Nevada general
partnership.
"Funded Debt" means all Indebtedness of the Company which
(i) matures by its terms, or is renewable at the option of any
obligor thereon to a date, more than one year after the date of
original issuance of such Indebtedness and (ii) ranks at least
PARI PASSU with the Securities.
"Gaming Authority" means the Nevada Gaming Commission, the
Nevada Gaming Control Board, the Ontario Gaming Control
Commission, the Mississippi Gaming Commission, the Illinois
Gaming Board 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 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.
"Global Security" shall mean a Security issued to evidence
all or a part of any series of Securities that is executed by the
Company and authenticated and delivered by the Trustee to a
2
<PAGE>
depositary or pursuant to such depositary's instructions, all in
accordance with this Indenture and pursuant to an Officer's
Certificate, which shall be registered as to principal and
interest in the name of such depositary or its nominee.
"Holder" or "Securityholder" means the person in whose name
a Security is registered on the Registrar's books.
"Indebtedness" of any person means (a) any indebtedness of
such person, contingent or otherwise, in respect of borrowed
money (whether or not the recourse of the lender is to the whole
of the assets of such person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments or
letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such
indebtedness incurred in connection with the acquisition by such
person or any of its subsidiaries of any other business or
entity, if and to the extent such indebtedness would appear as a
Liability upon a balance sheet of such person prepared in
accordance with generally accepted accounting principles,
including for such purpose obligations under capitalized leases,
and (b) any guaranty, endorsement (other than for collection or
deposit in the ordinary course of business), discount with
recourse, agreement (contingent or otherwise) to purchase,
repurchase or otherwise acquire or to supply or advance funds
with respect to, or to become liable with respect to (directly or
indirectly) any indebtedness, obligation, liability or dividend
of any person, but shall not include indebtedness or amounts owed
(except to banks or other financial institutions) for
compensation to employees, or for goods or materials purchased,
or services utilized, in the ordinary course of business of such
person. Notwithstanding anything to the contrary in the
foregoing, "Indebtedness" shall not include (i) any contracts
providing for the completion of construction or other payment or
performance with respect to the construction, maintenance or
improvement of property or equipment of the Company or its
Affiliates or (ii) any contracts providing for the obligation to
advance funds, property or services on behalf of an Affiliate of
the Company in order to maintain the financial condition of such
Affiliate, in each case, including Existing Completion Guarantees
and Make-Well Agreements. For purposes hereof, a "capitalized
lease" shall be deemed to mean a lease of real or personal
property which, in accordance with generally accepted accounting
principles, is required to be capitalized.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Joint Venture" means (i) with respect to properties located
in the United States, 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, and (ii) with respect to properties located outside
the United States, any partnership, corporation or other entity,
in which up to and including 60% 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.
"Legal Holiday" shall have the meaning provided in
Section 12.08.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, security interest,
lien (statutory or other), or preference, priority or other
security or
3
<PAGE>
similar agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Officer" means the Chairman of the Board, the President,
any Executive Vice President, any Vice President, the Chief
Financial Officer, the Treasurer, the Secretary or the Controller
of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer, Assistant
Secretary or Assistant Controller of the Company. See
Sections 12.04 and 12.05.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee. See
Sections 12.04 and 12.05.
"Original Issue Discount Security" means any Security which
provides that an amount less than its principal amount is due and
payable upon acceleration after an Event of Default.
"Paying Agent" shall have the meaning provided in
Section 3.03.
"person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or other agency or
political subdivision thereof.
"Predecessor Securities" of any Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered
under Section 3.07 in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Security.
"principal" of a debt security, including the Securities,
means the principal of the security plus, when appropriate, the
premium, if any, on the security.
"Project Cost" means, with respect to any Resort Property,
the aggregate costs required to complete such construction
project in accordance with the plans therefor and applicable
legal requirements, as set forth in an Officers' Certificate
submitted to the Trustee, setting forth in reasonable detail all
amounts theretofore expended and any anticipated costs and
expenses estimated to be incurred and reserves to be established
in connection with the construction and development of such
future addition or improvement, including direct costs related
thereto such as construction management, architectural
engineering and interior design fees, site work, utility
installations and hook-up fees, construction permits,
certificates and bonds, land acquisition costs and the cost of
furniture, fixtures, furnishings, machinery and equipment, but
excluding the following: principal or interest payments on any
Indebtedness (other than interest which is required to be
capitalized in accordance with generally accepted accounting
principal, which shall be included in determining
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Project Cost), or costs related to the operation of the Resort Property
including, but not limited to, non-construction supplies and
pre-operating payroll.
"Registrar" shall have the meaning provided in Section 3.03.
"Resort Property" means any property owned or to be owned by
the Company or any of its subsidiaries that is, or will be upon
completion, a casino (including a riverboat casino),
casino-hotel, destination resort or a theme park.
"Sale and Lease-Back Transaction" means any arrangement with
any person (other than the Company or a subsidiary of the
Company), or to which any such person is a party, providing for
the leasing to the Company or a subsidiary of the Company for a
period of more than three years of any Consolidated Property
which has been or is to be sold or transferred by the Company or
such subsidiary to such person or to any other person (other than
the Company or a subsidiary of the Company), to which funds have
been or are to be advanced by such person on the security of the
leased property.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning specified in the first recital
of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"subsidiary" of any person means (i) any corporation of
which at least a majority in interest of the outstanding stock
having by the terms thereof voting power under ordinary
circumstances to elect a majority of the directors of such
corporation, irrespective of whether or not at the time stock of
any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any
contingency, is at the time, directly or indirectly, owned or
controlled by such person, or by one or more other corporations a
majority in interest of such stock of which is similarly owned or
controlled, or by such person and one or more other corporations
a majority in interest of such stock of which is similarly owned
or controlled and (ii) any other person (other than a corporation,
or a partnership, corporation or other entity described in
clause (ii) of the definition of Joint Venture) in which such
person or any subsidiary, directly or indirectly, has greater than
a 50% ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to the applicable
provisions of this Indenture and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the
President or any other officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust
matters.
"U.S. Government Obligations" means direct non-cancelable
obligations of the United States of America for the payment of
which the full faith and credit of the United States is pledged.
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"Value" means, with respect to a Sale and Lease-Back
Transaction, as of any time, the amount equal to the greater of
(i) the net proceeds of the sale or transfer of property leased
pursuant to such Sale and Lease-Back Transaction or (ii) the fair
value, in the opinion of the Board of Directors as evidenced by a
board resolution, of such property at the time of entering into
such Sale and Lease Back Transaction.
Section 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder or
Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or
defined by SEC rule have the meanings assigned to them.
Section 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning as signed to it in accordance with generally
accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular; and
(5) provisions apply to successive events and transactions.
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ARTICLE TWO
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in such form as shall
be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such
appropriate provisions as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required by any Gaming Authority or as may be required to
comply with the rules of any securities exchange or depositary
therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their
execution thereof. If the form of any series of Securities is
established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified
by the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of a written
order signed by two Officers or by and Officer and an Assistant
Treasurer of the Company for the authentication and delivery of
such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
The terms and provisions in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
---------------------------------
As Trustee
By
------------------------------
Authorized Signatory
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ARTICLE THREE
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED, ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and,
subject to Section 3.02, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of any
series of Securities:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from
Securities of any other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 3.06, 3.07, 3.09 or 9.05 and
except for any Securities which, pursuant to Section 3.02,
are deemed never to have been authenticated and delivered
hereunder);
(3) the person to whom any interest on a Security of
the series shall be payable, if other than the person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
record date for such interest;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the
series shall bear interest, if any, the date or dates from
which any such interest shall accrue, the dates on which any
such interest shall be payable and the record date for any
such interest payable on any such payment date;
(6) the place or places where the principal of and any
premium and interest on any Securities of the series shall
be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in
part, at the option of the Company and, if other than by a
Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
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(8) the obligation, if any, of the Company to redeem
or purchase any Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of the
Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon
which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denomination of $1,000 and any
integral multiple thereof, the denominations in which any
Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or
interest on any Securities of the series may be determined
with reference to an index or pursuant to a formula, the
manner in which such amounts shall be determined;
(11) if other than the currency of the United States of
America, the currency, currencies or currency units in which
the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the
United States of America for any purpose;
(12) if the principal of or any premium or interest on
any Securities of the series is to be payable, at the
election of the Company or the Holder thereof, in one or
more currencies or currency units other than that or those
in which such Securities are stated to be payable, the
currency, currencies or currency units in which the
principal of or any premium or interest on such Securities
as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or
the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof
the portion of the principal amount of any Securities of the
series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section
6.02;
(14) if the principal amount payable at the maturity of
any Securities of the series will not be determinable as of
any one or more dates prior to maturity, the amount which
shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which
shall be due and payable upon any maturity date other than
the stated maturity or which shall be deemed to be
outstanding as of any date prior to the stated maturity (or,
in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series,
in whole or any specified part, shall be defeasible pursuant
to Section 4.11, and, if other than by a Board Resolution,
the manner in which any election by the Company to defease
such Securities shall be evidenced;
(16) any addition to or change in the Events of Default
which applies to any Securities of the series and any change
in the right of the Trustee or the requisite Holders of
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such Securities to declare the principal amount thereof due and
payable pursuant to Section 6.02;
(17) any addition to or change in the covenants set
forth in Article Four which applies to Securities of the
series;
(18) whether the Securities of the series shall be
issued in whole or in part in the form of a Global Security
or Securities; the terms and conditions, if any, upon which
such Global Security or Securities may be exchanged in whole
or in part for other individual Securities, and the
depositary for such Global Security and Securities; and
(19) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture,
but which may modify or delete any provision of this
Indenture with respect to such series, provided that no such
term may modify or delete any provision hereof if imposed by
the Trust Indenture Act, and provided, further that any
modification or deletion of the rights, duties or immunities
of the Trustee hereunder shall have been consented to in
writing by the Trustee).
If any of the foregoing terms are not available at the time
such Board Resolution is adopted, or such officers' Certificate
or any supplemental indenture is executed, such resolutions,
Officers' Certificate or supplemental indenture may reference the
document or documents to be created in which such terms will be
set forth prior to the issuance of such Securities.
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 the Board Resolution referred to
above and (subject to Section 3.02) set forth, or determined in
the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 3.02. EXECUTION AND AUTHENTICATION; DENOMINATIONS;
DELIVERY AND DATING.
Two Officers shall sign the Securities for the Company by
facsimile signature. The Company's seal shall be reproduced on
the Securities.
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the
Security, the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee manually
signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
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Upon a written order of the Company signed by two Officers
or by an Officer and an Assistant Treasurer of the Company, the
Trustee shall authenticate the Securities.
The Securities shall be issuable only in registered form
without coupons and only in minimum denominations of $100,000 and
in integral multiples of $1,000 in denominations above $100,000.
The Company and the Trustee, by their execution and
authentication, respectively, of the Securities, expressly agree
to the terms and conditions stated therein and to be bound
thereby.
SECTION 3.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where
Securities of a series may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency
where Securities of that series may be presented for payment
("Paying Agent"). At all times the Registrar and the Paying
Agent shall each maintain an office or agency in the State of New
York where Securities of a series may be presented for the above
purposes. The Registrar shall keep a register of the Securities
of that series and of their registration of transfer and
exchange. The Company may have one or more co-registrars and one
or more additional paying agents for each series of Securities.
The term "Paying Agent" includes any additional paying agent.
The term "Registrar" includes any co-registrar.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to
this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If
the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 3.04. PAYING AGENT TO HOLD MONEY IN TRUST.
Subject to the provisions of Section 8.03 hereof, each
Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent
for the payment of principal of or interest on any series of
Securities, and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or a
subsidiary of the Company acts as Paying Agent, it shall, on or
before each due date of principal of or interest on that series
of Securities, segregate the money and hold it as a separate
trust fund. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon doing so the
Paying Agent shall have no further liability for the money.
SECTION 3.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Securityholders, separately by series,
and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee on or
before each interest payment date and at such other times as the
Trustee may
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request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of
Securityholders, separately by series, relating to such interest
payment date or request, as the case may be.
SECTION 3.06. TRANSFER AND EXCHANGE.
Where a Security is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of
Section 8-401(1) of the Nevada Uniform Commercial Code are met.
Where Securities are presented to the Registrar or a co-registrar
with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the
exchange as requested if the same requirements are met. To
permit registration of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar's request. The Company
may charge a reasonable fee for any transfer or exchange but not
for any exchange pursuant to Section 3.09 or 9.05.
The Company need not issue, and the Registrar or co-
Registrar need not register the transfer or exchange of, (i) any
Security of a series during a period beginning at the opening of
business 15 days before the day of any selection of Securities of
that series for redemption under Section 11.02 and ending at the
close of business on the day of selection, or (ii) any Security
so selected for redemption in whole or in part, except the
unredeemed portion of any Security of that series being redeemed
in part.
SECTION 3.07. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has
been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate and make available for
delivery a replacement Security of like series if the
requirements of Section 8-405 of the Nevada Uniform Commercial
Code are met. Before any Security is replaced, an indemnity bond
must be provided sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar from any loss which any
of them may suffer if a Security is replaced. The Company may
charge for its expenses in replacing a Security. Every
replacement Security shall constitute a contractual obligation of
the Company and shall be entitled to all the benefits of this
Indenture equally with all other Securities of the same series
issued hereunder.
SECTION 3.08. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all
the Securities of that series authenticated by the Trustee except
for those canceled by it and those described in this Section.
Subject to the provisions of Section 12.06 hereof, a Security
does not cease to be outstanding because the Company or an
Affiliate holds the Security.
If a Security is replaced pursuant to Section 3.07, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona
fide purchaser.
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If the Paying Agent holds on the maturity date money
sufficient to pay Securities payable on that date, then on and
after that date such Securities shall cease to be outstanding and
interest on them shall cease to accrue.
For each series of Original Issue Discount Securities, the
principal amount of such Securities that shall be deemed to be
outstanding and used to determine whether the necessary Holders
have given any request, demand, authorization, direction, notice,
consent or waiver shall be the principal amount of such
Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such
determination. When requested by the Trustee, the Company will
advise the Trustee of such amount, showing its computations in
reasonable detail.
SECTION 3.09. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary
Securities upon a written order of the Company signed by two
officers of the Company. Temporary Securities shall be
substantially in the form of definitive Securities, but may have
variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Securities
in exchange for temporary Securities.
SECTION 3.10. CANCELLATION.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent
shall cancel and destroy any Securities surrendered to them for
registration of transfer, exchange, payment or cancellation.
Certification of the destruction of all cancelled securities
shall be delivered to the Company. The Company may not issue new
Securities to replace Securities it has paid or delivered to the
Trustee for cancellation.
SECTION 3.11. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on any
series of Securities, it shall pay the defaulted interest to the
persons who are Securityholders of that series on a subsequent
special record date. After the deposit by the Company with the
Trustee of money sufficient to pay such defaulted interest, the
Trustee shall fix the record date and payment date. At least 15
days before the record date, the Company shall mail to each
Securityholder of that series a notice that states the record
date, the payment date, and the amount of defaulted interest to
be paid. The Company may pay defaulted interest in any other
lawful manner.
SECTION 3.12. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO
GAMING LAWS
Each Holder, by accepting the Securities, 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 must be licensed, qualified or found suitable under
the applicable Gaming Laws, such Holder 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, the Company shall have the right, at its option, (i) to require
such person to dispose of its Securities or beneficial interest therein
within 30 days of receipt of notice of the Company's election or such earlier
date as may be requested or prescribed by such Gaming Authority or (ii) to
redeem such Securities at a redemption price equal to the lesser of (A) such
person's cost and (B) 100% of the principal amount thereof, plus accrued and
unpaid interest to the earlier of the redemption date and the date of the
finding of unsuitability, which may be less than 30 days following the notice
of redemption if so requested or prescribed by the Gaming Authority. The
Company shall notify the Trustee in writing of any such redemption as soon as
practicable. The Company shall not be responsible for any costs or expenses
any such Holder may incur in connection with its application for a license,
qualification or a finding of suitability.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the
Securities. An installment of principal of or interest on the
Securities shall be considered paid on the date it is due if the
Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment.
The Company shall pay interest on overdue principal at the
rate borne by the Securities; it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. CORPORATE EXISTENCE.
Subject to Article Five, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or
other existence of each subsidiary in accordance with the
respective organizational documents of each subsidiary and the
rights (charter and statutory), licenses and franchises of the
Company and its subsidiaries; provided, however, that the Company
shall not be required to preserve, with respect to itself, any
right, license or franchise, and with respect to the
subsidiaries, any such existence, right, license or franchise, if
the Board of Directors, or the board of directors or managing
partners of the subsidiary concerned, shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company or any subsidiary and that the loss
thereof is not disadvantageous in any material respect to the
Holders.
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any subsidiary or upon the income, profits or
property of the Company or any subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any
subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings; and PROVIDED, FURTHER, that the Company
shall not be required to cause to be paid or
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discharged any such tax, assessment, charge or claim if the Board
of Directors, or the board of directors or managing partners of the
subsidiary concerned, shall determine that such payment is not
advantageous to the conduct of the business of the Company or any
subsidiary and that the failure so to pay or discharge is not
disadvantageous in any material respect to the Holders.
SECTION 4.04. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used in the conduct of
its business or the business of any subsidiary to be maintained
and kept in such condition, repair and working order as in the
judgment of the Company may be necessary, so that the business
carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance
or disposal is, in the judgment of the Board of Directors or of
the board of directors or managing partners of the subsidiary
concerned, desirable in the conduct of the business of the
Company or any subsidiary and not disadvantageous in any material
respect to the Holders; and PROVIDED FURTHER, that property may
be disposed of in the ordinary course of the business of the
Company or its subsidiaries at the discretion of the appropriate
officers of the Company and its subsidiaries.
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. Unless the Trustee
serves as Paying Agent or Registrar, 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 address of the Trustee set forth in
Section 12.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York for such purposes.
SECTION 4.06. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company an Officers'
Certificate stating whether or not the signers know of any
default by the Company in performing its covenants in
Sections 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. If they do know
of such a default, the certificate shall describe the default in
detail.
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SECTION 4.07. REPORTS.
The Company shall file with the Trustee within 15 days after
it files them with the SEC copies of the quarterly and annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. The Company also shall comply with the other provisions of
TIA Section 314(a).
So long as any of the Securities remain outstanding the
Company shall cause to be mailed to the Holders at their
addresses appearing in the register of Securities maintained by
the Registrar all annual, quarterly or other reports which the
Company mails or causes to be mailed to its stockholders
generally, concurrently with such mailing to stockholders, and
will cause to be disclosed in such annual reports as of the date
of the most recent financial statements in each such report the
amount available for dividends and other payments pursuant to the
most restrictive covenant therefor as of such date.
SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY 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 an
manner whatsoever claim, and will resist any and all efforts to
be compelled to take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit
or forgive the Company from paying all or any portion of the
interest on the Securities as contemplated herein, whenever
enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and
(to the extent that it may lawfully do so) the Company 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 4.09. LIMITATION ON LIENS.
Nothing in this Indenture or in the Securities shall in any
way restrict or prevent the Company or any of its subsidiaries
from incurring any Indebtedness; PROVIDED, HOWEVER, that neither
the Company nor any of its subsidiaries may issue, assume or
guarantee any Indebtedness secured by a Lien upon any
Consolidated Property without effectively providing that the
Securities shall be secured equally and ratably with (or prior
to) such Indebtedness so long as such Indebtedness shall be so
secured, except that this restriction will not apply to:
(a) Liens existing on the date of original issuance of
the Securities;
(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;
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(c) Liens on property existing at the time of
acquisition thereof or incurred to secure payment of all or
a part of the purchase price thereof or to secure
Indebtedness incurred prior to, at the time of, or within
24 months after the acquisition thereof for the purpose of
financing all or part of the purchase price thereof;
(d) Liens on any property to secure all or part of the
cost of improvements or construction thereon or Indebtedness
incurred to provide funds for such purpose in a principal
amount not exceeding the cost of such improvements or
construction;
(e) Liens which secure Indebtedness owing by a
subsidiary of the Company to the Company or to a subsidiary
of the Company;
(f) Liens securing Indebtedness of the Company the
proceeds of which are used substantially simultaneously with
the incurrence of such Indebtedness to retire Funded Debt;
(g) purchase money security Liens on personal
property;
(h) Liens securing Indebtedness of the Company the
proceeds of which are used within 24 months of the
incurrence of such Indebtedness for the Project Cost of the
construction and development or improvement of a Resort
Property;
(i) Liens on the stock, partnership or other equity
interest of the Company or any subsidiary in any Joint
Venture or any subsidiary which owns an equity interest in
such Joint Venture to secure Indebtedness, provided the
amount of such Indebtedness is contributed and/or advanced
solely to such Joint Venture;
(j) Liens securing any Indebtedness that ranks pari
passu with the Securities;
(k) Liens in favor of the United States or any state
thereof, or any department, agency, instrumentality, or
political subdivision of any such jurisdiction, to secure
partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase
price or cost of constructing or improving the property
subject thereto, including, without limitation, Liens to
secure Indebtedness of the pollution control or industrial
revenue bond type;
(l) Liens required by any contract or statute in order
to permit the Company or a subsidiary of the Company to
perform any contract or subcontract made by it with or at
the request of the United States of America, any state or
any department, agency or instrumentality or political
subdivision of either;
(m) mechanic's, materialman's, carrier's or other like
Liens, arising in the ordinary course of business;
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(n) Liens for taxes or assessments and similar charges
other (x) not delinquent or (y) contested in good faith by
appropriate proceedings and as to which the Company or a
subsidiary of the Company shall have set aside on its books
adequate reserves;
(o) zoning restrictions, easements, licenses,
covenants, reservations, restrictions on the use of real
property and minor irregularities of title incident thereto
which do not in the aggregate materially detract from the
value of the property or assets of the Company and its
subsidiaries taken as a whole or impair the use of such
property in the operation of the Company's or any of its
subsidiary's business; and
(p) any extension, renewal, replacement or refinancing
of any Lien referred to in the foregoing clauses (a) through (j)
inclusive or of any Indebtedness secured thereby, PROVIDED, that
the principal amount of Indebtedness secured thereby shall not
exceed the principal amount of Indebtedness so secured at the
time of such extension, renewal, replacement or refinancing, and
that such extension, renewal, replacement or refinancing Lien
shall be limited to all or part of substantially the same property
which secured the Lien extended, renewed, replaced or refinanced
(plus improvements on such property).
Notwithstanding the foregoing provisions of this Section
4.09, the Company and any one or more of its subsidiaries may,
without securing the Securities, issue, assume or guarantee
Indebtedness which would otherwise be subject to the foregoing
restrictions in an aggregate principal amount which, together
with all other such Indebtedness of the Company and its
subsidiaries which would otherwise be subject to the foregoing
restrictions (not including Indebtedness permitted to be secured
under clauses (a) through (j) inclusive above) and the aggregate
Value of Sale and Lease-Back Transactions (other than those in
connection with which the Company has voluntarily retired Funded
Debt) does not at any one time exceed 15% of Consolidated Net
Tangible Assets of the Company and its consolidated
subsidiaries.
SECTION 4.10. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
Neither the Company nor any of its subsidiaries shall enter
into any Sale and Lease-Back Transaction unless either (a) the
Company or such subsidiary would be entitled, pursuant to the
provisions of Section 4.09, to incur Indebtedness in a principal
amount equal to or exceeding the Value of such Sale and Lease-
Back Transaction, secured by a Lien on the property to be leased,
without equally and ratably securing the Securities or (b) the
Company (and in any such case the Company covenants and agrees
that it will do so) within 120 days after the effective date of
such Sale and Lease-Back Transaction (whether made by the Company
or a subsidiary of the Company) applies to the voluntary
retirement of its Funded Debt an amount equal to the Value of the
Sale and Lease-Back Transaction less the principal amount of
other Funded Debt voluntarily retired by the Company within four
months after the effective date of such arrangement, excluding
retirements of Funded Debt as a result of conversions or pursuant
to mandatory sinking fund or prepayment provisions or by payment
at maturity.
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SECTION 4.11. DEFEASANCE OF CERTAIN OBLIGATIONS.
The Company may omit to comply with any term, provision or
condition set forth in Sections 4.03, 4.04, 4.09 and 4.10 and
Article Five and Section 6.01(3) (with respect to Sections 4.03,
4.04, 4.09 and 4.10 and Article Five) and, in each case with
respect to any series of Securities, such omission shall be
deemed not to be an Event of Default, PROVIDED, that the
following conditions have been satisfied with respect to such
series:
(1) the Company has irrevocably deposited or caused to
be deposited with the Trustee, as trust funds in trust,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such series of Securities,
(A) money in an amount, or (B) U.S. Government Obligations
which through the payment of interest and principal in
respect thereof in accordance with their terms will, without
consideration of any reinvestment of such interest, provide
not later than the opening of business on the relevant due
date, money in an amount, or (C) a combination thereof, in
the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Trustee, sufficient
to pay and discharge the principal of, and each installment
of interest on, such series of Securities then outstanding
on the date of maturity of such principal or installment of
interest or on the redemption date, as the case may be;
(2) Such deposit shall not cause the Trustee with
respect to such series of Securities to have a conflicting
interest for purposes of the TIA with respect to such series
of Securities;
(3) Such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture;
(4) No Event of Default or event which with the giving
of notice or lapse of time, or both, would become an Event
of Default with respect to such series of Securities shall
have occurred and be continuing on the date of such deposit
and no Event of Default under Section 6.01(5) or
Section 6.01(6) or event which with the giving of notice or
lapse of time, or both, would become an Event of Default
under Section 6.01(5) or Section 6.01(6) shall have occurred
and be continuing at any time during the period ending on
the 91st day after such date or, if longer, ending on the
day following the expiration of the longest preference
period applicable to the Company in respect of such deposit
(it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(5) the deposit shall not result in the Company, the
Trustee or the trust becoming or being deemed to be an
"investment company" under the Investment Company Act of
1940;
(6) The Company has delivered to the Trustee an
Opinion of Counsel, reasonably satisfactory to the Trustee,
to the effect that (i) Holders of such series of Securities
will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to federal income
tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit
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and defeasance had not occurred and (ii) after the passage of 90
days following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting
creditors' rights generally, PROVIDED, that if a court were
to rule under any such law in any case or proceeding that
the trust funds remained property of the Company, no opinion
need be given as to the effect of such laws on the trust
funds except the following: assuming such trust funds
remained in the Trustee's possession prior to such court
ruling to the extent not paid to Holders of such series of
Securities, the Trustee will hold, for the benefit of the
Holders of such series of Securities, a valid and perfected
security interest in such trust funds that is not avoidable
in bankruptcy or otherwise; and
(7) The Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for herein
relating to the defeasance contemplated by this Section have
been complied with.
ARTICLE FIVE
SUCCESSOR CORPORATION
The Company shall not consolidate with or merge into any
other person or transfer its properties and assets substantially
as an entirety to any person unless:
(1) either the Company shall be the continuing
corporation, or the person (if other than the Company)
formed by such consolidation or into which the Company is
merged or to which the properties and assets of the Company
substantially as an entirety are transferred shall be a
corporation, partnership or trust organized and existing
under the laws of the United States of America or any State
thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the
Securities and this Indenture;
(2) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
The successor corporation formed by such consolidation or
into which the Company is merged or to which such transfer 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, and thereafter the predecessor corporation
shall be relieved of all obligations and covenants under the
Indenture and the Securities, and in the event of such transfer
any such predecessor corporation may be dissolved and liquidated.
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ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to any series of
Securities occurs if:
(1) the Company defaults in the payment of interest on
such series of Securities when the same becomes due and
payable and the default continues for a period of 30 days;
or
(2) the Company defaults in the payment of principal
of such series of Securities when the same becomes due and
payable at maturity, upon redemption or otherwise; or
(3) the Company fails to comply with any of its other
agreements in such series of Securities or this Indenture,
and the default continues for the period and after the
notice specified below; or
(4) an event or events of default, as defined in any
one or more mortgages, indentures or instruments under which
there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company or a subsidiary,
whether such Indebtedness now exists or shall hereafter be
created, shall happen and shall entitle the holders of such
Indebtedness to declare an aggregate principal amount of at
least $10,000,000 of such Indebtedness due and payable and
such event of default shall not have been cured or waived in
accordance with the provisions of such instrument, or such
Indebtedness shall not have been discharged, within a period
of 30 days after there shall have 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 such series of Securities then
outstanding a written notice specifying such event or events
of default and requiring the Company to cause such event of
default to be cured or such Indebtedness to be discharged
and stating that such notice is a "Notice of Default"
hereunder, PROVIDED, HOWEVER, that the Company is not in
good faith contesting in appropriate proceedings the
occurrence of such an event of default; or
(5) a court of competent jurisdiction enters a
judgment, decree or order for relief in respect of the
Company or any subsidiary in an involuntary case or
proceeding under any Bankruptcy Law which shall (A) approve
as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the
Company or any subsidiary, (B) appoint a Custodian of the
Company or any subsidiary or for any substantial part of its
property or (C) order the winding-up or liquidation of its
affairs; and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days;
or any bankruptcy or insolvency petition or application is
filed, or any bankruptcy or insolvency proceeding is
commenced, against the Company or any subsidiary and such
petition, application or proceeding is not dismissed within
60 days; or any warrant of attachment is
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issued against any substantial portion of the property of the Company or
any subsidiary which is not released within 60 days of service; or
(6) the Company or any subsidiary shall (A) become
insolvent, (B) generally fail to pay its debts as they
become due, (C) make any general assignment for the benefit
of creditors, (D) admit in writing its inability to pay its
debts generally as they become due, (E) commence a voluntary
case or proceeding under any Bankruptcy Law, (F) consent to
the entry of a judgment, decree or order for relief in an
involuntary case or proceeding under any Bankruptcy Law,
(G) consent to the institution of bankruptcy or insolvency
against it, (H) apply for, consent to or acquiesce in the
appointment of or taking possession by a Custodian of the
Company or any subsidiary or for any substantial part of its
property or (I) take any corporate action in furtherance of
any of the foregoing.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
A default under clause (3) (other than a Default under
Section 4.02 or Article Five which Default shall be an Event of
Default without the notice or passage of time specified in this
paragraph) is not an Event of Default with respect to a series of
Securities until the Trustee or the Holders of at least 25% in
principal amount of such series of Securities then outstanding
notify the Company of the default and the Company does not cure
the default within 30 days after receipt of the notice. The
notice must specify the default, demand that it be remedied and
state that the notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
If an Event of Default relating to any series of Securities
occurs and is continuing, the Trustee by notice in writing to the
Company, or the Holders of not less than 25% in principal amount
of such series of Securities then outstanding by notice in
writing to the Company and the Trustee, may declare the unpaid
principal (or, in the case of Original Issue Discount Securities,
such lesser amount as may be provided for in such Securities of
and any accrued interest on all such series of Securities, (but
in no event more than the maximum amount of principal and
interest thereon allowed by law) to be due and payable
immediately. Upon any such declaration such principal and
interest shall be payable immediately.
At any time after such a declaration of acceleration 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 a majority in principal amount
of such series of Securities then outstanding, by written notice
to the Company and the Trustee, may rescind and annul such
declaration as to such series of Securities, and its consequences
if:
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
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(A) the principal of such series of Securities
that has become due otherwise than by such declaration
of acceleration (together with interest, if any,
payable thereon); and
(B) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee and its
agents, attorneys and counsel; and
(2) all existing Events of Default relating to such
series of Securities have been cured or waived and the
rescission would not conflict with any judgment or decree.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default relating to any series of Securities
occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment
of principal of or interest on such series of Securities or to
enforce the performance of any provisions of such series of
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the subject series of Securities or does not
produce any of them in the proceeding. A delay or omission by
the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy.
All available remedies are cumulative to the extent permitted by
law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, the Holders of a majority in
principal amount of any series of Securities then outstanding by
notice to the Trustee may waive an existing Default or Event of
Default with respect to such series of Securities, and its
consequences. When a Default or Event of Default is waived, it
is cured and stops continuing.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of any series
of Securities then outstanding may 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 it with
respect to any default under such series of Securities. However,
subject to Section 7.01, the Trustee may refuse to follow any
direction that conflicts with any rule of law or this Indenture,
that is unduly prejudicial to the rights of another Holder of
such series of Securities, or that would involve the Trustee in
personal liability.
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SECTION 6.06. LIMITATION ON SUITS.
A Holder of any series of Securities may not pursue any
remedy with respect to this Indenture or any series of Securities
unless:
(1) the Holder gives to the Trustee written notice of
a continuing Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of
such series of Securities then outstanding make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
indemnity; and
(5) during such 60-day period the Holders of a
majority of principal amount of such series of Securities
then outstanding do not give the Trustee a direction
inconsistent with the request.
A Holder of any series of Securities may not use this
Indenture to prejudice the rights of another Holder of such
series of Securities or to obtain a preference or priority over
another Holder of such series of Securities.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal
of or interest on the Security on or after the respective due
dates expressed in the Security or to bring suit for the
enforcement of any such payment on or after such respective dates
shall not be impaired or affected without the consent of the
Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal
specified in Section 6.01(1) or (2) occurs and is continuing with
respect to any series of Securities, the Trustee may recover
judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal (or such
portion of the principal as may be specified as due upon
acceleration at that time in the terms of that series of
Securities) and interest, if any, remaining unpaid on such series
of Securities then outstanding.
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SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee and the Securityholders allowed in any
judicial proceedings relative to the Company, its creditors or
its property.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article
with respect to any series of Securities, it shall pay out the
money in the following order:
First: to the Trustee for amounts due under Section
7.07;
Second: to Securityholders for amounts due and unpaid
on such series of Securities for principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such series of
Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders of any series of Securities pursuant to this
Section. The Trustee shall notify the Company in writing
reasonably in advance of any such record date and payment date.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07,
or a suit by Holders of more than 10% in principal amount of the
Securities then outstanding.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein
expressed.
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SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is known
to the Trustee (and is not cured), the Trustee shall
exercise its rights and powers 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.
(b) Except during the continuance of an Event of
Default:
(1) The Trustee need perform only those duties
that are specifically set forth in this Indenture or in
the TIA and no covenants or obligations shall be
implied in this Indenture which bind the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions which by
any provision of this Indenture are specifically
required to be furnished to the Trustee to determine
whether or not they conform in form to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section;
(2) The Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect
to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant
to Section 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and
(c) of this Section.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives security and
indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree
with the Company.
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SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by
it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officer's Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys or
agents (which shall not include its employees) and shall not
be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or power.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal
with the Company or its subsidiaries or Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent,
Registrar or co-registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the
Securities, and it shall not be responsible for any statement in
the Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs with respect to any series of Securities
and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Holder of such series of Securities, notice of
the Default within 90 days after it occurs. Except in the case
of a default in the payment of principal of or interest on such
series of Securities, the Trustee may withhold the notice if and
so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of the
Holders of such series of Securities.
SECTION 7.06. REPORTS BY TRUSTEE.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail to
each Securityholder a brief report dated as of such May 15 that
complies with TIA SECTION 313(a). The Trustee also shall comply with
TIA SECTION 313(b).
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A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock
exchange on which the Securities are listed. The Company shall
notify the Trustee when the Securities are listed on any stock
exchange.
To the extent requested by the Company, the Trustee shall
cooperate with the Gaming Authorities in order to provide such
Gaming Authorities with any information and documentation that
they may request and as otherwise required by law.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Company shall
reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expense may include
the reasonable compensation and expenses of the Trustee's agents
and counsel. The Company shall indemnify the Trustee against any
loss or liability incurred by it, without negligence or bad faith
on its part, arising out of or in connection with the acceptance
or administration of this trust. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made
without its consent. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the
Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular
Securities.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of any series of
Securities then outstanding may remove the Trustee with respect
to such series of Securities by so notifying the removed Trustee
and may appoint a successor Trustee with the Company's consent.
The Company may remove the Trustee with respect to one or more or
all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
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If, as to any series of Securities, the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for
any reason, the Company shall promptly appoint a successor
Trustee for that series.
A successor Trustee as to any series of Securities shall
deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring
Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, the resignation or removal of
the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture as to such series. A successor
Trustee shall mail notice of its succession to the Holders of
such series of Securities.
If a successor Trustee as to any series of Securities does
not take office within 60 days after the retiring Trustee resigns
or is removed, then (i) the retiring Trustee or the Company may
petition any court of competent jurisdiction for the appointment
of a successor Trustee and (ii) the Holders of a majority in
principal amount of such series of Securities then outstanding
may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 with
respect to any series of Securities, any Holder of such series of
Securities who satisfies the requirements of TIA Section 310(b)
may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee for
such series.
In case of appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) shall contain
such provisions as shall be necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary or
desirable to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; provided, however,
that nothing herein or in such supplemental Indenture shall
constitute such Trustee co-trustees of the same trust and that
each such Trustee shall be a trustee of a trust hereunder
separate and apart from any trust hereunder and administered by
any other such Trustee.
Upon the execution and delivery of such supplemental
Indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
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 with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
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If the Trustee as to any series of Securities consolidates
with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another corporation, the
resulting, surviving or transferee corporation shall, if such
resulting, surviving or transferee corporation is otherwise
eligible hereunder, without any further act, be the successor
Trustee as to such series.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a Trustee who
satisfies the requirements of TIA SECTION 310(a). The Trustee as to
any series of Securities shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply
with TIA SECTION 310(b), including the optional provision permitted by
the second sentence of TIA SECTION 310(b)(9).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA SECTION 311(a), excluding any
creditor relationship listed in TIA SECTION 311(b). A Trustee who has
resigned or been removed shall be subject to TIA SECTION 311(a) to the
extent indicated.
SECTION 7.12. AUTHENTICATING AGENT.
If the Company so requests, there shall be an Authenticating
Agent appointed by the Trustee with power to act on its behalf
and subject to its direction in the authentication and delivery
of any series of Securities in connection with the exchange or
registration of transfer thereof as fully to all intents and
purposes as though the Authenticating Agent had been expressly
authorized by the relevant Sections hereof to authenticate and
deliver such series of Securities, and such series of Securities
so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
though authenticated by the Trustee hereunder, and for all
purposes of this Indenture, the authentication and delivery of
such series of Securities by the Authenticating Agent pursuant to
this Section shall be deemed to be the authentication and
delivery of such series of Securities "by the Trustee."
Notwithstanding anything to the contrary contained in Section
3.02, or in any other Section hereof, all authentication in
connection with exchange or registration of transfer thereof
shall be effected either by the Trustee or an Authenticating
Agent and such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the
United States or of any State, with a combined capital and
surplus of at least $5,000,000 and authorized under such laws to
exercise corporate trust powers and subject to supervision or
examination by Federal or State authority. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this
Section. If such corporation publishes reports of condition at
least annually pursuant to law or the requirements of such
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.
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, consolidation or
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conversion to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of the Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
parties hereto or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent 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 under this Section, the Trustee shall promptly appoint a
successor Authenticating Agent, shall give written notice of such
appointment to the Company and shall mail notice of such
appointment to all Holders of the Securities as the names and
addresses of such Holders appear on the register of Securities,
and shall publish notices of such appointment at least once in a
newspaper of general circulation in the place where such
successor Authenticating Agent has its principal office.
Any Authenticating Agent by the acceptance of its
appointment shall be deemed to have agreed with the Trustee that:
it will perform and carry out the duties of an Authenticating
Agent as herein set forth, including, without limitation, the
duties to authenticate and deliver the Securities when presented
to it in connection with exchanges or registrations of transfer
thereof; it will furnish from time to time, as requested by the
Trustee, appropriate records of all transactions carried out by
it as Authenticating Agent and will furnish the Trustee such
other information and reports as the Trustee may reasonably
require; it is eligible for appointment as Authenticating Agent
under this Section and will notify the Trustee promptly if it
shall cease to be so qualified; and it will indemnify the Trustee
against any loss, liability or expense incurred by the Trustee
and will defend any claim asserted against the Trustee by reason
of any act or failure to act of the Authenticating Agent but it
shall have no liability for any action taken by it at the
specific written direction of the Trustee.
The Company agrees that it will pay to the Authenticating
Agent from time to time reasonable compensation for its services.
The provisions of Sections 7.02, 7.03 and 7.04 shall bind
and inure to the benefit of any Authenticating Agent to the same
extent that they bind and inure to the benefit of the Trustee.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certificate
of authentication in the following form:
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This is one of the Securities referred to in the within
mentioned Indenture.
as Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
Authorized Signatory
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under any series
of Securities and this Indenture with respect to such series,
except those obligations referred to in the immediately
succeeding paragraph, if:
(a) all such series of Securities previously
authenticated and delivered (other than mutilated,
destroyed, lost or stolen Securities which have been
replaced or such series of Securities which are paid for
pursuant to Section 4.01 or such series of Securities for
whose payment money or securities have theretofore been held
in trust and thereafter repaid to the Company, as provided
in Section 8.03) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it
hereunder with respect to such series; or
(b)(1) the series of Securities mature within one
year or all of them are to be called for redemption within
one year after arrangements satisfactory to the Trustee for
giving the notice of redemption; and
(b)(2) the Company has irrevocably deposited or
caused to be deposited with the Trustee, during such one-
year period, as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of such series of Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in
accordance with their terms will, without consideration of
any reinvestment of such interest, provide not later than
the opening of business on the relevant due date, money in
an amount, or (C) a combination thereof, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, sufficient to pay and discharge
the principal of, and each installment of interest on, such
series of Securities then outstanding on the date of
maturity of such principal or installment of interest or the
redemption date, as the case may be; or
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(c)(1) the Company has irrevocably deposited or
caused to be deposited with the Trustee, as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such series of
Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms
will, without consideration of any reinvestment of such
interest, provide not later than the opening of business on
the relevant due date, money in an amount, or (C) a
combination thereof, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to
the Trustee, sufficient to pay and discharge the principal
of and each installment of interest on such series of
Securities then outstanding on the date of maturity of such
principal or installment of interest, or, on the redemption
date, as the case may be; and
(c)(2) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent provided for in clause (c) and in Section 4.11
relating to the satisfaction and discharge of this Indenture
with respect to such series of Securities have been complied
with.
Notwithstanding the foregoing clause (c), prior to the end
of the 90-day period referred to in clause (6)(ii) of Section
4.11, none of the Company's obligations under this Indenture
shall be discharged, and subsequent to the end of the 90-day
period only the Company's obligations in Sections 3.03, 3.04,
3.05, 3.06, 3.07, 4.01, 4.02, 7.07, 7.08, 8.03 and 8.04 shall
survive until such series of Securities are no longer
outstanding. Thereafter, the Company's obligations in Sections
7.07, 8.03 and 8.04 shall survive; PROVIDED, that the Company
shall pay any taxes or other costs and expenses incurred by any
trust created pursuant to this Article Eight.
After any such irrevocable deposit and after satisfaction of
all the conditions of this Section 8.01, the Trustee, upon the
Company's request, shall acknowledge in writing the discharge of
the Company's obligations under the subject Securities and this
Indenture, except for those surviving obligations specified
above. The Trustee shall not be responsible for any calculations
made by the Company in connection with the deposit of funds
pursuant to clauses (b)(2) or (c)(1) of this Section 8.01.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall, with respect to any
series of Securities, hold in trust any money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, and shall
apply the deposited money and the money from U.S. Government
Obligations in accordance with this Indenture, to the payment of
principal of and interest on such series of Securities.
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SECTION 8.03. REPAYMENT TO THE COMPANY.
Subject to Section 8.02, the Trustee and the Paying Agent
shall promptly pay to the Company upon request any excess money
or U.S. Government Obligations held by them at any time and
thereupon shall be relieved from all liability with respect to
such money. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years;
PROVIDED, HOWEVER, that the Company shall, if requested by the
Trustee or such Paying Agent, give the Trustee or such Paying
Agent satisfactory indemnification against any and all liability
which may be incurred by it by reason of such payment; and
PROVIDED, FURTHER, that the Trustee or such Paying Agent before
being required to make any payment shall at the expense of the
Company cause to be published once in a newspaper or newspapers
printed in the English language, customarily published at least
five days a week and of general circulation in the City of Las
Vegas, Nevada and in the Borough of Manhattan, The City of New
York and mail to each Securityholder entitled to such money
notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date
of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After
payment to the Company, Securityholders entitled to such money
must look to the Company for payment as general creditors unless
an applicable law designates another person.
SECTION 8.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with Section 8.01 by
reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 8.01; PROVIDED, HOWEVER,
that if the Company has made any payment of interest on or
principal of any series of Securities because of the
reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such series of Securities to
receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee as to any series of Securities
may amend or supplement this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
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(3) to provide, to the extent permitted by law, that
all or a portion of the obligations of the Company hereunder
shall be represented only by appropriate records maintained
by the Company or the Trustee in addition to or in place of
the issue of Securities;
(4) to comply with any requirements of the SEC in
connection with the qualification of this Indenture under the
TIA;
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities, provided, however, that any such addition, change or
elimination (A) shall neither (i) apply to any series of
Securities created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii)
modify the rights of the Holder of any such Security with respect
to such provision or (B) shall become effective only when there
is no outstanding Security of any series created prior to the
execution of such supplemental indenture and entitled to the
benefit of such provision;
(6) to make any change that does not adversely affect
the rights of any Securityholder of any series; or
(7) to establish additional series of Securities as
permitted by Section 3.01.
SECTION 9.02. WITH CONSENT OF HOLDERS
The Company and the Trustee as to any series of
Securities may amend or supplement this Indenture or such series
of Securities without notice to any Securityholder but with the
written consent of the Holders of at least a majority in
principal amount of the then outstanding Securities of each
series affected by such amendment or supplement, with each such
series voting as a separate class. The Holders of a majority in
principal amount of any series of Securities then outstanding may
also waive compliance in a particular instance by the Company
with any provision of this Indenture with respect to that series
of Securities; provided, however, that without the consent of
each Securityholder affected, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate, or extend the time for payment of
interest on, any Security in a manner adverse to the Holders
thereof;
(3) reduce the principal of, or extend the fixed
maturity or fixed redemption date of any Securities, in a manner
adverse to the Holders thereof;
(4) waive a default in the payment of the principal
of, or interest on, any Security;
(5) make any Security payable in money other than that
stated in the Security; or
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(6) make any changes in Section 6.04, 6.07 and 9.02
(second sentence).
An amendment or waiver under this Section which waives,
changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the
benefit of one or more series of Securities, or which modifies
the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment or waiver under this Section becomes
effective, the Company shall mail to Holders of Securities of
each series affected thereby a notice briefly describing the
amendment or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective,
a consent to such amendment, supplement or waiver by a Holder of
a Security shall bind the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives notice of
revocation before the date the amendment, supplement or waiver
becomes effective.
The Company may, but shall not be obligated to, set a record
date for the purpose of determining the identity of Holders
entitled to consent to any amendment, supplement or waiver
permitted by this Indenture. If a record date is fixed, the
Holders of Securities of that series outstanding on such record
date, and no other Holders, shall be entitled to consent to such
amendment, supplement or waiver or revoke any consent previously
given, whether or not such Holders remain Holders after such
record date. No consent shall be valid or effective for more
than 90 days after such record date unless consents from Holders
of the principal amount of Securities of that series required
hereunder for such amendment, supplement or waiver to be
effective shall have also been given and not revoked within such
90 day period.
After an amendment, supplement or waiver becomes effective,
it shall bind the Holder of every Security unless it makes a
change described in clause (1), (2), (3), (4), (5) or (6) of
Section 9.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who
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has consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects
the changed terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article if the amendment, supplement
or waiver does not adversely affect the rights of the Trustee.
If it does, the Trustee may but need not sign it. The Company
may not sign an amendment or supplement until the Board of
Directors approves it. The Trustee, subject to Sections 7.01 and
7.02, shall be entitled to receive, and shall be fully protected
in relying upon an Opinion of Counsel stating that any amendment,
supplement or waiver is authorized by this Indenture and complies
with the provisions of this Article Nine.
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of any series of Securities, either
separately or jointly, may be called at any time and from time to
time pursuant to the provisions of this Article Ten 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
waive or to consent to the waiving of any Default or Event
of Default hereunder and its consequences, or to take any
other action authorized to be taken by Securityholders
pursuant to any of the provisions of Article Six;
(b) to remove the Trustee or appoint a successor
Trustee pursuant to the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver
pursuant to the provisions of Section 9.02; or
(d) to take any action (i) authorized to be taken by
or on behalf of the Holders of any specified aggregate
principal amount of such series of Securities under any
other
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provision of this Indenture, or authorized or permitted by law or (ii)
which the Trustee deems necessary or appropriate in connection with the
administration of this Indenture.
SECTION 10.02. MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Holders of any
series of Securities to take any action specified in Section
10.01, to be held at such time and at such place in the City of
Las Vegas, Nevada, as the Trustee shall determine. Notice of
every meeting of Holders of any series of Securities, setting
forth the time and place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed by
the Trustee, first-class postage prepaid, to the Company, and to
the Holders of such series of Securities at their last addresses
as they shall appear on the registration books of the Registrar,
not less than ten nor more than 60 days prior to the date fixed
for the meeting.
Any meeting of Holders of the Securities shall be valid
without notice if (i) with respect to a meeting of any series of
Securities, all Holders of such series of Securities then
outstanding are present in person or by proxy, or if notice is
waived before or after the meeting by all Holders of such series
of Securities then outstanding and (ii) with respect to a meeting
of all Securityholders, all Holders of such Securities then
outstanding are present in person or by proxy, or if notice is
waived before or after the meeting by all Holders of such
Securities then outstanding, and, in each case, if the Company
and the Trustee are either present by duly authorized
representative or have, before or after the meeting waived
notice.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to resolution of
its Board of Directors, or the Holders of not less than 25% in
aggregate principal amount of any series of Securities then
outstanding shall have requested the Trustee to call a meeting of
Securityholders, either separately or jointly, to take any action
specified in Section 10.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting
within 20 days for receipt of such request, then the Company or
the Holders of such series of Securities in the amount above
specified may determine the time and place in the City of Las
Vegas, Nevada, or in the Borough of Manhattan, The City of New
York, for such meeting and may call such meeting for the purpose
of taking such action, by mailing or causing to be mailed notice
thereof as provided in Section 10.02, or by causing notice
thereof to be published at least once in each of two successive
calendar weeks (on any day of the week) in a newspaper or
newspapers printed in the English language, customarily published
at least five days a week and of general circulation in the City
of Las Vegas, Nevada and in the Borough of Manhattan, The City of
New York, the first such publication to be not less than 10 nor
more than 60 days prior to the date fixed for the meeting.
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Securityholders, a
person shall (a) be a registered Holder of one or more
Securities, or (b) be a person appointed by an instrument in
writing as proxy for the registered Holder or Holders of
Securities. The only persons who shall be entitled to be
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present or to speak at any meeting of Securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representative of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of
votes, and 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 think
appropriate. Such regulations may fix a record date and time for
determining the Holders of record of Securities entitled to vote
at such meeting, in which case those and only those persons who
are Holders of Securities at the record date and time so fixed,
or their proxies, shall be entitled to vote at such meeting
whether or not they shall be such Holders at the time of the
meeting.
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 Securityholders as provided in
Section 10.03, in which case the Company or the Securityholders
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 vote of
the Holders of a majority in principal amount of the Securities
represented at the meeting and entitled to vote.
At any meeting each Securityholder or proxy shall be
entitled to one vote for each $1,000 principal amount of
Securities held or represented by him; PROVIDED, HOWEVER, that no
vote shall be cast or counted at any meeting in respect of any
Securities 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
Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other
Securityholders. At any meeting of Securityholders, the presence
of persons holding or representing any number of Securities shall
be sufficient for a quorum. Any meeting of Securityholders duly
called pursuant to the provisions of Section 10.02 or Section
10.03 may be adjourned from time to time by vote of the Holders
of a majority in aggregate principal amount of the Securities
represented at the meeting and entitled to vote, and the meeting
may be held as so adjourned without further notice.
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities or of
their representatives by proxy and the principal amount of the
Securities voted by the ballot. 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 Securityholders shall be prepared by the secretary
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of the meeting and there shall be attached to such 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 such notice was
mailed as provided in Section 10.02 or published as provided in Section
10.03. The record shall be signed and verified by the affidavits of the
permanent chairman and the 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, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY
NOT BE HINDERED OR DELAYED BY CALL OF MEETING.
Nothing in this Article Ten contained shall be deemed or
construed to authorize or permit, by reason of any call of a
meeting of Securityholders 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 the Securityholders under any of the provisions
of this Indenture or of the Securities.
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE.
If the Company elects to redeem any series of Securities
pursuant to any optional redemption provisions thereof, it shall
notify the Trustee of the redemption date and the principal
amount of Securities of that series to be redeemed.
The Company shall give each notice provided for in this
Section in an Officers' Certificate at least 45 days before the
redemption date (unless a shorter notice period shall be
satisfactory to the Trustee), which notice shall specify the
provisions of such Security pursuant to which the Company elects
to redeem such Securities.
If the Company elects to reduce the principal amount of
Securities of any series to be redeemed pursuant to mandatory
redemption provisions thereof, it shall notify the Trustee of the
amount of, and the basis for, any such reduction. If the Company
elects to credit against any such mandatory redemption Securities
it has not previously delivered to the Trustee for cancellation,
it shall deliver such Securities with such notice.
SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of a series are to be
redeemed, the Trustee shall select the Securities of that series
to be redeemed by a method that complies with the requirements of
any exchange on which the Securities of that series are listed,
or, if the Securities of that series are not
40
<PAGE>
listed on an exchange, on a PRO RATA basis or by lot. The Trustee shall make
the selection not more than 75 days and not less than 30 days before the
redemption date from Securities of that series outstanding and not previously
called for redemption. Except as otherwise provided as to any series of
Securities, Securities and portions thereof that the Trustee selects shall be
in amounts equal to the minimum authorized denomination for Securities of the
series to be redeemed or any integral multiple thereof. Provisions of this
Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly in writing of the Securities or portions of Securities to be
called for redemption.
SECTION 11.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any series of Securities,
at least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption to each
Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the
terms of the Securities of the series to be redeemed, plus
accrued interest, if any, to the date fixed for redemption
(the "redemption price");
(3) if any Security is being redeemed in part, the
portion of the principal amount of such Security to be
redeemed and that, after the redemption date, upon surrender
of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(6) that, unless the Company defaults in payment of
the redemption price, interest on Securities called for
redemption ceases to accrue on and after the redemption
date;
(7) The paragraph of the series of Securities and/or
Section of any supplemental indenture pursuant to which such
Securities called for redemption are being redeemed; and
(8) the CUSIP number, if any, of the Securities to be
redeemed.
At the Company's request, the Trustee shall give the notice
of redemption in the Company's name and at its expense; PROVIDED,
HOWEVER, that the Company shall have delivered to the Trustee, at
least 45 days prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as
provided in the preceding
41
<PAGE>
paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice of the Holder of any Security shall not affect the
validity of the proceeding for the redemption of any other Security.
SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with
Section 11.03 hereof, Securities called for redemption become due
and payable on the redemption date for the redemption price.
Upon surrender to the Paying Agent, such Securities will be paid
at the redemption price.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit
with the Paying Agent (or, if the Company or any subsidiary is
the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of all Securities called
for redemption on that date other than Securities which have
previously been delivered by the Company to the Trustee for
cancellation. The Paying Agent shall return to the Company any
money not required for that purpose.
SECTION 11.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the
Holder at the expense of the Company a new Security of like
series equal in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included
in this Indenture by the TIA or the TIA as amended after the date
hereof, the required provision shall control.
42
<PAGE>
SECTION 12.02. NOTICES.
Any notice or communication shall be sufficiently given if
in writing and delivered in person or mailed by first-class mail
postage prepaid, addressed as follows:
if to the Company:
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
if to the Trustee:
First Interstate Bank of Nevada, N.A.
3800 Howard Hughes Parkway, Suite 200
Las Vegas, Nevada 89114
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed by first-class mail, postage prepaid, to such Holder at
such Holder's address as it appears on the register maintained by
the Registrar and shall be sufficiently given to such Holder if
so mailed within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a notice
or communication is mailed in the manner provided above, it shall
be deemed to have been duly given two days after the data of
mailing, whether or not the addressee receives it.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Securityholders may communicate pursuant to TIA SECTION 312(b)
with other Securityholders with respect to their rights under
this Indenture or the Securities. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA SECTION
312(c).
SECTION 12.04. CERTIFICATES AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
43
<PAGE>
(2) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have been
complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel with
respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(1) a statement that the person making such Officers'
Certificate or Opinion of Counsel has read such covenant or
condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such Officers' Certificate of
Opinion of Counsel are based;
(3) a statement that, in the opinion of such person,
such person has made such examination or investigation as is
necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not in the opinion of
such person, such condition or covenant has been complied
with; PROVIDED, HOWEVER, that with respect to matters of
fact an Opinion of Counsel may rely on an Officers'
Certificate.
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or by an Affiliate shall
be disregarded, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded.
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR.
The Paying Agent or Registrar each may make reasonable rules
for its functions.
SECTION 12.08. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday
or a day on which banking institutions are not required to be
open. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
44
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SECTION 12.09. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construct in accordance with the laws of the State of Nevada.
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any
subsidiary. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
SECTION 12.11. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or any
successor corporation shall not have any liability for any
obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver
and release are part of the consideration of issuance of the
Securities. The waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC
that such a waiver is against public policy.
SECTION 12.12. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 12.13. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together
represent the same agreement.
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SECTION 12.14. SEVERABILITY.
In case any provision in this Indenture or in the
Securities 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 12.15. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC.
The Article and Section headings herein and the table
of contents are for convenience only and shall not affect the
construction thereof.
46
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This Indenture has been delivered and adopted by the parties
hereto in the State of Nevada.
IN WITNESS WHEREOF, the Company and the Trustee have caused
their names to be signed hereto by their respective officers
thereunto duly authorized and their respective corporate seals,
duly attested, to be hereunto duly affixed, all as of the day and
year first above written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
(SEAL)
BY:
--------------------------
Name:
Title:
FIRST INTERSTATE BANK OF
NEVADA, N.A.,
As Trustee
(SEAL) BY:
--------------------------
Name:
Title:
S-1
<PAGE>
EXHIBIT 4(y)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
and
FIRST INTERSTATE BANK OF NEVADA, N.A.,
Trustee
----------
Indenture
[Dated as of_________ __, ____]
[$______________]
[___% Senior Subordinated Notes Due ____]
----------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
TIA
SECTION INDENTURE SECTION
- ------- -----------------
<S> <C>
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.07
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 12.02
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07; 12.02
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.05
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . . . . 12.06
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.05
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.07
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.09
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.06
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.01
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
N.A. means Not Applicable.
</TABLE>
- ----------
*This Cross-Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<C> <S> <C>
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . 6
SECTION 1.03. RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . 6
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. . . . . 7
SECTION 2.03. AMOUNT UNLIMITED, ISSUABLE IN SERIES.. . . . . . . . . . 8
SECTION 2.04. EXECUTION AND AUTHENTICATION; DENOMINATIONS; DELIVERY
AND DATING. . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.05. REGISTRAR AND PAYING AGENT.. . . . . . . . . . . . . . . 11
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST. . . . . . . . . . . 11
SECTION 2.07. SECURITYHOLDER LISTS.. . . . . . . . . . . . . . . . . . 11
SECTION 2.08. TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . 12
SECTION 2.09. REPLACEMENT SECURITIES.. . . . . . . . . . . . . . . . . 12
SECTION 2.10. OUTSTANDING SECURITIES.. . . . . . . . . . . . . . . . . 12
SECTION 2.11. TEMPORARY SECURITIES.. . . . . . . . . . . . . . . . . . 13
SECTION 2.12. CANCELLATION.. . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.13. DEFAULTED INTEREST.. . . . . . . . . . . . . . . . . . . 13
SECTION 2.14. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO GAMING
LAWS. . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE THREE
SUBORDINATION
SECTION 3.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.. . . . . 14
SECTION 3.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES. . . . 15
SECTION 3.03. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR
REORGANIZATION OF COMPANY . . . . . . . . . . . . . . . 16
SECTION 3.04. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS
OF SENIOR INDEBTEDNESS. . . . . . . . . . . . . . . . . 17
SECTION 3.05. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.. . . . . . . . 17
</TABLE>
i
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<TABLE>
<CAPTION>
PAGE
<C> <S> <C>
SECTION 3.06. TRUSTEES AND PAYING AGENT ENTITLED TO ASSUME PAYMENTS
NOT PROHIBITED IN ABSENCE OF NOTICE . . . . . . . . . . 18
SECTION 3.07. APPLICATION BY TRUSTEE OF MONIES DEPOSITED WITH IT.. . . 18
SECTION 3.08. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS. . . . . . 18
SECTION 3.09. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . 19
SECTION 3.10. RIGHT OF TRUSTEE AND PAYING AGENT TO HOLD SENIOR
INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.11. ARTICLE THREE NOT TO PREVENT EVENTS OF DEFAULT.. . . . . 19
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. . . . . . . . . . . . . . . . . . 19
SECTION 4.02. CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . 20
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . 20
SECTION 4.04. MAINTENANCE OF PROPERTIES. . . . . . . . . . . . . . . . 20
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . 21
SECTION 4.06. COMPLIANCE CERTIFICATE.. . . . . . . . . . . . . . . . . 21
SECTION 4.07. REPORTS. . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY LAWS. . . . . . . . . 22
SECTION 4.09. LIMITATION ON LIENS. . . . . . . . . . . . . . . . . . . 22
SECTION 4.10. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.. . . . . 24
SECTION 4.11. DEFEASANCE OF CERTAIN OBLIGATIONS. . . . . . . . . . . . 24
SECTION 4.12. LIMITATION ON LAYERING DEBT. . . . . . . . . . . . . . . 26
ARTICLE FIVE
SUCCESSOR CORPORATION
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 27
SECTION 6.02. ACCELERATION.. . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.03. OTHER REMEDIES.. . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.04. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . 29
SECTION 6.05. CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . 29
SECTION 6.06. LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . 30
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
PAGE
<C> <S> <C>
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.. . . . . . . . . . 30
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.. . . . . . . . . . . . . . . 30
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.. . . . . . . . . . . . 31
SECTION 6.10. PRIORITIES.. . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.11. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . 31
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 32
SECTION 7.02. RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 33
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.. . . . . . . . . . . . . . 33
SECTION 7.04. TRUSTEE'S DISCLAIMER.. . . . . . . . . . . . . . . . . . 33
SECTION 7.05. NOTICE OF DEFAULTS.. . . . . . . . . . . . . . . . . . . 33
SECTION 7.06. REPORTS BY TRUSTEE.. . . . . . . . . . . . . . . . . . . 34
SECTION 7.07. COMPENSATION AND INDEMNITY.. . . . . . . . . . . . . . . 34
SECTION 7.08. REPLACEMENT OF TRUSTEE.. . . . . . . . . . . . . . . . . 34
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.. . . . . . . . . . . . 36
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . 36
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . 36
SECTION 7.12. AUTHENTICATING AGENT.. . . . . . . . . . . . . . . . . . 36
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.. . . . . . . . . . 38
SECTION 8.02. APPLICATION OF TRUST MONEY.. . . . . . . . . . . . . . . 40
SECTION 8.03. REPAYMENT TO THE COMPANY.. . . . . . . . . . . . . . . . 40
SECTION 8.04. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.. . . . . . . . . . . . . . . 41
SECTION 9.02. WITH CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . 41
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . 43
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. . . . . . . . . . . . 43
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. . . . . . . . . . 43
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . . . . . . . . 43
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
PAGE
<C> <S> <C>
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.. . . . . . . 44
SECTION 10.02. MANNER OF CALLING MEETINGS. . . . . . . . . . . . . . . 44
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS. . . . . . . . . 45
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS.. . . . . . . . . . . . 45
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS; ADJOURNMENT. . . . . . . . . . 45
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT.. . . . . . 46
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY
NOT BE HINDERED OR DELAYED BY CALL OF MEETING. . . . . 47
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE. . . . . . . . . . . . . . . . . . . 47
SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED. . . . . . . . . 47
SECTION 11.03. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . 48
SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION. . . . . . . . . . . . . 49
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.. . . . . . . . . . . . . . 49
SECTION 11.06. SECURITIES REDEEMED IN PART.. . . . . . . . . . . . . . 49
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. . . . . . . . . . . . . . 49
SECTION 12.02. NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS . . . . . . 50
SECTION 12.04. CERTIFICATES AND OPINION AS TO CONDITIONS PRECEDENT.. . 50
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.. . . . . 50
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED. . . . . . . . . . 51
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR. . . . . . . . . . . . 51
SECTION 12.08. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . 51
SECTION 12.09. GOVERNING LAW.. . . . . . . . . . . . . . . . . . . . . 51
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.. . . . . 51
SECTION 12.11. NO RECOURSE AGAINST OTHERS. . . . . . . . . . . . . . . 52
SECTION 12.12. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 12.13. DUPLICATE ORIGINALS.. . . . . . . . . . . . . . . . . . 52
SECTION 12.14. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 52
SECTION 12.15. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC. . . . . . . 52
</TABLE>
iv
<PAGE>
INDENTURE, dated as of [________ __, ____,] between Circus Circus
Enterprises, Inc., a Nevada corporation ("Company"), and First Interstate Bank
of Nevada, N.A., a corporation organized and existing as a national banking
association under the laws of the United States, as Trustee ("Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its Senior
Subordinated Notes to be issued in one or more series (the "Securities"), as
herein provided, up to such principal amount as may from time to time be
authorized in or pursuant to one or more resolutions of the Board of Directors
or by supplemental indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as hereinafter defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of the Holders of each series of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" means a person "affiliated" with the Company, as that term is
defined in Rule 405 promulgated under the Securities Act of 1933, as amended.
"Authenticating Agent" shall have the meaning provided in Section 7.12.
"Bankruptcy Law" shall have the meaning provided in Section 6.01.
"Board of Directors" means the Board of Directors of the Company or any
committee of such Board.
"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.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to the applicable provisions of this Indenture and
thereafter means the successor.
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"Consolidated Net Tangible Assets" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed) and (ii) all goodwill, trade names, trademarks, patents, purchased
technology, unamortized debt discount and other like intangible assets, all as
set forth on the most recent quarterly balance sheet of the Company and its
consolidated subsidiaries and computed in accordance with generally accepted
accounting principles.
"Consolidated Property" means any property of the Company or any subsidiary
of the Company.
"Custodian" shall have the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Event of Default" shall have the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Completion Guarantees and Make-Well Agreements" means (i) that
certain Make-Well Agreement by the Company in favor of the Trustee dated as of
May 30, 1995 relating to the Circus and Eldorado Joint Venture, a Nevada general
partnership, (ii) that certain Circus Completion Guaranty by the Company in
favor of the Trustee dated as of May 30, 1995 relating to the Circus and
Eldorado Joint Venture, a Nevada general partnership and (iii) that certain
Guaranty by the Company in favor of Bank of America National Trust and Savings
Association dated as of July 12, 1995 relating to Victoria Partners, a Nevada
general partnership.
"Funded Debt" means all Indebtedness of the Company which (i) matures by
its terms, or is renewable at the option of any obligor thereon to a date, more
than one year after the date of original issuance of such Indebtedness and
(ii) ranks at least PARI PASSU with the Securities.
"Gaming Authority" means the Nevada Gaming Commission, the Nevada Gaming
Control Board, the Ontario Gaming Control Commission, the Mississippi Gaming
Commission, the Illinois Gaming Board 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 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.
"Global Security" shall mean a Security issued to evidence all or a part of
any series of Securities that is executed by the Company and authenticated and
delivered by the Trustee to a
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depositary or pursuant to such depositary's instructions, all in accordance
with this Indenture and pursuant to an Officer's Certificate, which shall be
registered as to principal and interest in the name of such depositary or its
nominee.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" of any person means (a) any indebtedness of such person,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such indebtedness
incurred in connection with the acquisition by such person or any of its
subsidiaries of any other business or entity, if and to the extent such
indebtedness would appear as a Liability upon a balance sheet of such person
prepared in accordance with generally accepted accounting principles, including
for such purpose obligations under capitalized leases, and (b) any guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), discount with recourse, agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire or to supply or advance funds with
respect to, or to become liable with respect to (directly or indirectly) any
indebtedness, obligation, liability or dividend of any person, but shall not
include indebtedness or amounts owed (except to banks or other financial
institutions) for compensation to employees, or for goods or materials
purchased, or services utilized, in the ordinary course of business of such
person. Notwithstanding anything to the contrary in the foregoing,
"Indebtedness" shall not include (i) any contracts providing for the completion
of construction or other payment or performance with respect to the
construction, maintenance or improvement of property or equipment of the Company
or its Affiliates or (ii) any contracts providing for the obligation to advance
funds, property or services on behalf of an Affiliate of the Company in order to
maintain the financial condition of such Affiliate, in each case, including
Existing Completion Guarantees and Make-Well Agreements. For purposes hereof, a
"capitalized lease" shall be deemed to mean a lease of real or personal property
which, in accordance with generally accepted accounting principles, is required
to be capitalized.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Joint Venture" means (i) with respect to properties located in the United
States, 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, and (ii) with respect to properties located outside the
United States, any partnership, corporation or other entity, in which up to and
including 60% 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.
"Legal Holiday" shall have the meaning provided in Section 12.08.
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<PAGE>
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, security interest, lien (statutory or other), or
preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Officer" means the Chairman of the Board, the President, any Executive
Vice President, any Vice President, the Chief Financial Officer, the Treasurer,
the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer, Assistant Secretary or Assistant Controller
of the Company. See Sections 12.04 and 12.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee. See Sections 12.04 and 12.05.
"Original Issue Discount Security" means any Security which provides that
an amount less than its principal amount is due and payable upon acceleration
after an Event of Default.
"Paying Agent" shall have the meaning provided in Section 2.05.
"person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Predecessor Securities" of any Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.09 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"principal" of a debt security, including the Securities, means the
principal of the security plus, when appropriate, the premium, if any, on the
security.
"Project Cost" means, with respect to any Resort Property, the aggregate
costs required to complete such construction project in accordance with
the plans therefor and applicable legal requirements, as set forth in an
Officers' Certificate submitted to the Trustee, setting forth in reasonable
detail all amounts theretofore expended and any anticipated costs and expenses
estimated to be incurred and reserves to be established in connection with the
construction and development of such future addition or improvement, including
direct costs related thereto such as construction management, architectural
engineering and interior design fees, site work, utility installations and
hook-up fees, construction permits, certificates and bonds, land acquisition
costs and the cost of furniture, fixtures, furnishings, machinery and equipment,
but excluding the
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following: principal or interest payments on any Indebtedness (other than
interest which is required to be capitalized in accordance with generally
accepted accounting principal, which shall be included in determining Project
Cost), or costs related to the operation of the Resort Property including,
but not limited to, non-construction supplies and pre-operating payroll.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Indebtedness.
"Registrar" shall have the meaning provided in Section 2.05.
"Resort Property" means any property owned or to be owned by the Company or
any of its subsidiaries that is, or will be upon completion, a casino (including
a riverboat casino), casino-hotel, destination resort or a theme park.
"Sale and Lease-Back Transaction" means any arrangement with any person
(other than the Company or a subsidiary of the Company), or to which any such
person is a party, providing for the leasing to the Company or a subsidiary of
the Company for a period of more than three years of any Consolidated Property
which has been or is to be sold or transferred by the Company or such subsidiary
to such person or to any other person (other than the Company or a subsidiary of
the Company), to which funds have been or are to be advanced by such person on
the security of the leased property.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning specified in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Senior Indebtedness" shall have the meaning provided in Section 3.01.
"Senior Secured Notes" shall have the meaning provided in Section 3.01.
"subsidiary" of any person means (i) any corporation of which at least a
majority in interest of the outstanding stock having by the terms thereof
voting power under ordinary circumstances to elect a majority of the
directors of such corporation, irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency, is at the
time, directly or indirectly, owned or controlled by such person, or by one
or more other corporations a majority in interest of such stock of which is
similarly owned or controlled, or by such person and one or more other
corporations a majority in interest of such stock of which is similarly owned
or controlled and (ii) any other person (other than a corporation, or a
partnership, corporation or other entity described in clause (ii) of the
definition of Joint Venture) in which such person or any subsidiary, directly
or indirectly, has greater than a 50% ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
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<PAGE>
"Trustee" means the party named as such in this Indenture until a successor
replaces it pursuant to the applicable provisions of this Indenture and
thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President or any other
officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct non-cancelable obligations of
the United States of America for the payment of which the full faith and credit
of the United States is pledged.
"Value" means, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (i) the net proceeds of the
sale or transfer of property leased pursuant to such Sale and Lease-Back
Transaction or (ii) the fair value, in the opinion of the Board of Directors as
evidenced by a board resolution, of such property at the time of entering into
such Sale and Lease Back Transaction.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder or Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning as
signed to it in accordance with generally accepted accounting principles;
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(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate provisions as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required by any Gaming Authority or as may be required to comply with the rules
of any securities exchange or depositary therefor or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution thereof. If the form of any series of Securities is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of a written order signed by two Officers or by and Officer and an
Assistant Treasurer of the Company for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
The terms and provisions in the Securities shall constitute, and are hereby
expressly made, a part of this Indenture.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
---------------------------------------
As Trustee
By -----------------------------------
Authorized Signatory
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SECTION 2.03. AMOUNT UNLIMITED, ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 2.04,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
any series of Securities:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.08, 2.09, 2.11 or 9.05 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder);
(3) the person to whom any interest on a Security of the series shall
be payable, if other than the person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
record date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, the dates on which any such interest shall be payable and the
record date for any such interest payable on any such payment date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and
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the terms and conditions upon which any Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denomination of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount thereof the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02;
(14) if the principal amount payable at the maturity of any Securities
of the series will not be determinable as of any one or more dates prior to
maturity, the amount which shall be deemed to be the principal amount of
such Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be due and
payable upon any maturity date other than the stated maturity or which
shall be deemed to be outstanding as of any date prior to the stated
maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 4.11, and, if
other than by a Board Resolution, the manner in which any election by the
Company to defease such Securities shall be evidenced;
(16) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.02;
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(17) any addition to or change in the covenants set forth in Article
Four which applies to Securities of the series;
(18) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities, and the
depositary for such Global Security and Securities; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may modify or
delete any provision of this Indenture with respect to such series,
provided that no such term may modify or delete any provision hereof if
imposed by the Trust Indenture Act, and provided, further that any
modification or deletion of the rights, duties or immunities of the Trustee
hereunder shall have been consented to in writing by the Trustee).
If any of the foregoing terms are not available at the time such Board
Resolution is adopted, or such officers' Certificate or any supplemental
indenture is executed, such resolutions, Officers' Certificate or supplemental
indenture may reference the document or documents to be created in which such
terms will be set forth prior to the issuance of such Securities.
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 the
Board Resolution referred to above and (subject to Section 2.04) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.04. EXECUTION AND AUTHENTICATION; DENOMINATIONS; DELIVERY AND DATING.
Two Officers shall sign the Securities for the Company by facsimile
signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Upon a written order of the Company signed by two Officers or by an Officer
and an Assistant Treasurer of the Company, the Trustee shall authenticate the
Securities.
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The Securities shall be issuable only in registered form without coupons
and only in minimum denominations of $100,000 and in integral multiples of
$1,000 in denominations above $100,000.
The Company and the Trustee, by their execution and authentication,
respectively, of the Securities, expressly agree to the terms and conditions
stated therein and to be bound thereby.
SECTION 2.05. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities of a series
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Securities of that series may be presented for payment
("Paying Agent"). At all times the Registrar and the Paying Agent shall each
maintain an office or agency in the State of New York where Securities of a
series may be presented for the above purposes. The Registrar shall keep a
register of the Securities of that series and of their registration of transfer
and exchange. The Company may have one or more co-registrars and one or more
additional paying agents for each series of Securities. The term "Paying Agent"
includes any additional paying agent. The term "Registrar" includes any
co-registrar.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST.
Subject to the provisions of Article Three and Section 8.03 hereof, each
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money held by the Paying Agent for the payment of principal of or
interest on any series of Securities, and shall notify the Trustee of any
default by the Company in making any such payment. If the Company or a
subsidiary of the Company acts as Paying Agent, it shall, on or before each due
date of principal of or interest on that series of Securities, segregate the
money and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee. Upon doing so the
Paying Agent shall have no further liability for the money.
SECTION 2.07. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each interest payment date and at such other times
as the Trustee may request in writing a list in such form and as of such date as
the Trustee may
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reasonably require of the names and addresses of Securityholders, separately
by series, relating to such interest payment date or request, as the case may
be.
SECTION 2.08. TRANSFER AND EXCHANGE.
Where a Security is presented to the Registrar or a co-registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the Nevada Uniform
Commercial Code are met. Where Securities are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit registration of transfers
and exchanges, the Trustee shall authenticate Securities at the Registrar's
request. The Company may charge a reasonable fee for any transfer or exchange
but not for any exchange pursuant to Section 2.11 or 9.05.
The Company need not issue, and the Registrar or co-Registrar need not
register the transfer or exchange of, (i) any Security of a series during a
period beginning at the opening of business 15 days before the day of any
selection of Securities of that series for redemption under Section 11.02 and
ending at the close of business on the day of selection, or (ii) any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security of that series being redeemed in part.
SECTION 2.09. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate and make available for delivery a replacement Security of like
series if the requirements of Section 8-405 of the Nevada Uniform Commercial
Code are met. Before any Security is replaced, an indemnity bond must be
provided sufficient in the judgment of the Company and the Trustee to protect
the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
from any loss which any of them may suffer if a Security is replaced. The
Company may charge for its expenses in replacing a Security. Every replacement
Security shall constitute a contractual obligation of the Company and shall be
entitled to all the benefits of this Indenture equally with all other Securities
of the same series issued hereunder.
SECTION 2.10. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the Securities
of that series authenticated by the Trustee except for those canceled by it and
those described in this Section. Subject to the provisions of Section 12.06
hereof, a Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
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If the Paying Agent holds on the maturity date money sufficient to pay
Securities payable on that date, then on and after that date such Securities
shall cease to be outstanding and interest on them shall cease to accrue.
For each series of Original Issue Discount Securities, the principal amount
of such Securities that shall be deemed to be outstanding and used to determine
whether the necessary Holders have given any request, demand, authorization,
direction, notice, consent or waiver shall be the principal amount of such
Securities that could be declared to be due and payable upon acceleration upon
an Event of Default as of the date of such determination. When requested by the
Trustee, the Company will advise the Trustee of such amount, showing its
computations in reasonable detail.
SECTION 2.11. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities upon a written order of
the Company signed by two officers of the Company. Temporary Securities shall
be substantially in the form of definitive Securities, but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Securities in exchange for temporary Securities.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall cancel and destroy any
Securities surrendered to them for registration of transfer, exchange, payment
or cancellation. Certification of the destruction of all cancelled securities
shall be delivered to the Company. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on any series of
Securities, it shall pay the defaulted interest to the persons who are
Securityholders of that series on a subsequent special record date. After the
deposit by the Company with the Trustee of money sufficient to pay such
defaulted interest, the Trustee shall fix the record date and payment date. At
least 15 days before the record date, the Company shall mail to each
Securityholder of that series a notice that states the record date, the payment
date, and the amount of defaulted interest to be paid. The Company may pay
defaulted interest in any other lawful manner.
SECTION 2.14. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO GAMING LAWS.
Each Holder, by accepting the Securities, 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 must be licensed, qualified or found suitable under the
applicable Gaming Laws, such Holder shall apply for a license,
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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, the Company shall have the right, at its option, (i) to require
such person to dispose of its Securities or beneficial interest therein
within 30 days of receipt of notice of the Company's election or such earlier
date as may be requested or prescribed by such Gaming Authority or (ii) to
redeem such Securities at a redemption price equal to the lesser of (A) such
person's cost and (B) 100% of the principal amount thereof, plus accrued and
unpaid interest to the earlier of the redemption date and the date of the
finding of unsuitability, which may be less than 30 days following the notice
of redemption if so requested or prescribed by the Gaming Authority. The
Company shall notify the Trustee in writing of any such redemption as soon as
practicable. The Company shall not be responsible for any costs or expenses
any such Holder may incur in connection with its application for a license,
qualification or a finding of suitability.
ARTICLE THREE
SUBORDINATION
SECTION 3.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company, for itself and its successors, and each Holder, by his
acceptance of Securities, agrees that the payment of the principal of and
interest on the Securities is subordinated, to the extent and in the manner
provided in this Article Three, to the prior payment in full of all Senior
Indebtedness.
For purposes of this Article Three, "Senior Indebtedness" means the
principal of and interest on and other amounts due on or in connection with
(a) Indebtedness of the Company (other than the Securities and the
Subordinated Notes issued by the Company pursuant to the Indenture by and
between the Company and the Trustee dated _______ __, ____), whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed in any manner by the Company or in effect guaranteed by the
Company through an agreement to purchase or otherwise, and (b) renewals,
extensions, refunding or refinancing of Indebtedness of the kind described in
the preceding clause (a), unless, in the case of any particular Indebtedness,
renewal, extension, refunding or refinancing, the instrument creating or
evidencing the same or the assumption or guarantee thereof expressly provides
that such Indebtedness, renewal, extension, refunding or refinancing does not
constitute Senior Indebtedness. Notwithstanding anything to the contrary in
the foregoing, Senior Indebtedness shall include (i) all Indebtedness,
liabilities and obligations of the Company owed to banks and other financial
institutions and (ii) the Senior Secured Notes issued by the Company pursuant
to the Indenture by and between the Company and the Trustee dated _______ __,
_____ (the "Senior Secured Notes") and the Senior Unsecured Notes issued by
the Company pursuant to the Indenture by and between the Company and the
Trustee dated _______ __, ____, but shall not include (w) any Indebtedness
hereafter incurred that is subordinate or junior in right of payment to any
Senior Indebtedness, (x) Indebtedness of the Company to a subsidiary or
affiliate of the Company for money borrowed or advances from such subsidiary
or affiliate, (y) the 10 5/8% Senior Subordinated Notes of the Company Due
1997, the 6 3/4% Senior Subordinated Notes of the Company Due 2003, and the 7
5/8% Senior Subordinated Debentures of the Company
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Due 2013, with respect to which the Securities will rank PARI PASSU in right
of payment, or (z) any Indebtedness specified in an indenture supplemental
hereto or an Officers' Certificate as being excepted from the definition of
Senior Indebtedness; PROVIDED, that any guaranty by the Company of
Indebtedness of a subsidiary of the Company to third parties shall constitute
Senior Indebtedness unless, in the case of any particular guaranty, the
instrument creating or evidencing the same provides that such guaranty does
not constitute Senior Indebtedness; PROVIDED FURTHER, that in the event a
subsidiary of the Company advances to the Company the proceeds attributable
to Indebtedness incurred by such subsidiary to a third party which
Indebtedness has been guaranteed by the Company, then such obligation of the
Company to repay such advance to the subsidiary shall constitute Senior
Indebtedness, unless the Company provides in writing that such advance does
not constitute Senior Indebtedness.
This Article Three shall constitute a continuing offer to all persons who,
in reliance upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness, and such holders are made obligees hereunder and they
and/or each of them may enforce such provisions.
SECTION 3.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all principal thereof and interest thereon and
other amounts due in connection therewith shall first be paid in full, or
such payment duly provided for or other provision made therefor in a manner
satisfactory to the holders of such Senior Indebtedness, before any payment
is made (i) on account of principal of or interest on any of the Securities
or (ii) to acquire any of the Securities for cash or property other than
capital stock of the Company.
(b) Upon the happening of an event of default (or if an event of
default would result upon any payment with respect to any of the
Securities) with respect to any Senior Indebtedness, as such event of
default is defined therein or in the instrument under which it is
outstanding, permitting the holders to accelerate the maturity thereof and
(if the default is other than (i) default in payment of the principal of or
interest on or other amount due in connection with such Senior Indebtedness
or (ii) a default for which notice is required to be sent under the terms
of such Senior Indebtedness by the holders thereof or their Representative)
upon written notice thereof given to the Company and the Trustee by the
holders of such Senior Indebtedness or their Representative, then, unless
and until such event of default shall have been cured or waived or shall
have ceased to exist, no payment shall be made by the Company with respect
to the principal of or interest on any of the Securities or to acquire any
of the Securities for cash or property other than capital stock of the
Company; PROVIDED, HOWEVER, that if such default is a default other than a
default referred to in clause (i) of this Section 3.02(b), nothing
contained in this Section 3.02(b) shall prevent the Company from making
payments of interest, when due, on any of the Securities.
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(c) In the event that notwithstanding the provisions of this
Section 3.02 the Company shall make any payment to the Trustee on account
of the principal of or interest on any of the Securities (other than as
permitted by Section 3.02(b)) after the happening of an event of default of
the type specified in clauses (i) or (ii) of Section 3.02(b) above or after
receipt by the Company and the Trustee of written notice as provided in
Section 3.02(b) above of any other event of default with respect to any
Senior Indebtedness, then, unless and until such event of default shall
have been cured or waived or shall have ceased to exist, such payment
(subject to the provisions of Sections 3.06 and 3.07) shall be held by the
Trustee in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of Senior Indebtedness (pro rata as to each of
such holders on the basis of the respective amounts of Senior Indebtedness
held by them) or their Representative or the trustee under the indenture or
other agreement (if any) pursuant to which Senior Indebtedness may have
been issued, as their respective interests may appear, for application to
the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in accordance with its
terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness. The Company shall give prompt
written notice to the Trustee of any default under any Senior Indebtedness
or under any agreement pursuant to which Senior Indebtedness may have been
issued.
SECTION 3.03. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION OF COMPANY.
Upon any distribution of assets of the Company pursuant to any dissolution,
winding up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership or similar proceedings relating to the Company or its
property or upon an assignment for the benefit of creditors or otherwise):
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full of the principal and interest due thereon and other
amounts due in connection therewith before the Holders are entitled to
receive any payment on account of the principal of or interest on any of
the Securities;
(b) any payment or distributions of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders
or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article Three shall be paid by the liquidating trustee
or agent or other person making such a payment or distribution directly to
the holders of Senior Indebtedness or their Representative to the extent
necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the
Holders or any Paying Agent (or, if the Company
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is acting as its own Paying Agent, money for any such payment or
distribution shall be segregated or held in trust) on account of
principal of or interest on any of the Securities before all Senior
Indebtedness is paid in full, or effective provision made for its
payment, such payment or distribution (subject to the provisions of
Sections 3.06 and 3.07) shall be received and held in trust for and
shall be paid over to the holders of the Senior Indebtedness remaining
unpaid or unprovided for or to their Representative for application to
the payment of such Senior Indebtedness until all such Senior
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution or provision therefor to the holders
of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or any
assignment for the benefit of the Company's creditors.
SECTION 3.04. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the payment in full in cash of all Senior Indebtedness, the
Holders of any series of Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of assets of
the Company applicable to the Senior Indebtedness until all amounts owing on
such series of Securities shall be paid in full, and for the purpose of such
subrogation no such payments or distributions to the holders of Senior
Indebtedness by or on behalf of the Company or by or on behalf of the Holders of
such series by virtue of this Article Three which otherwise would have been made
to the Holders of such series shall, as between the Company and the Holders of
such series, be deemed to be payment by the Company to or on account of the
Senior Indebtedness, it being understood that the provisions of this
Article Three are and are intended solely for the purpose of defining the
relative rights of the Holders of such series, on the one hand, and the holders
of Senior Indebtedness, on the other hand.
SECTION 3.05. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article Three or elsewhere in this Indenture or
in any Security is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Three of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any distribution of
assets of the Company referred to in this Article Three, the Trustee, subject to
the provisions of Sections 7.01 and 7.02, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation, reorganization or similar
proceedings are pending, or a certificate of the liquidating trustee or agent or
other person making
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any distribution to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Three.
SECTION 3.06. TRUSTEES AND PAYING AGENT ENTITLED TO ASSUME PAYMENTS NOT
PROHIBITED IN ABSENCE OF NOTICE.
The Trustee and Paying Agent shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee or the Paying Agent unless and until the Trustee or
the Paying Agent shall have received written notice thereof from the Company or
from one or more holders of Senior Indebtedness or from any Representative
therefor and, prior to the receipt of any such written notice, the Trustee and
Paying Agent, subject to the provisions of Sections 7.01 and 7.02, shall be
entitled in all respects conclusively to assume that no such fact exists.
SECTION 3.07. APPLICATION BY TRUSTEE OF MONIES DEPOSITED WITH IT.
Any deposit of monies by the Company with the Trustee or any Paying Agent
(whether or not in trust) for the payment of principal of or interest on any of
the Securities shall be subject to the provisions of Sections 3.01, 3.02, 3.03
and 3.04 except that, if prior to the date on which by the terms of this
Indenture any such monies may become payable for any purpose (including, without
limitation, the payment of either principal of or interest on any Security) the
Trustee or such Paying Agent shall not have received with respect to such monies
the notice provided for in Section 3.06, then the Trustee or such Paying Agent
shall have full power and authority to receive such monies and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date.
Nothing herein shall be construed to relieve any Holders from duties imposed
upon them under Section 3.03(c) with respect to monies received in violation of
the provisions of this Article Three.
SECTION 3.08. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF COMPANY
OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The holders of Senior Indebtedness may extend, renew, modify or amend the terms
of the Senior Indebtedness or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Company, all without
affecting the liabilities and obligations of the parties to the Indenture or the
Holders of the Securities. No provision in any supplemental indenture which
affects the superior position of the holders of the Senior Indebtedness shall be
effective against the holders of the Senior Indebtedness who have not consented
thereto.
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SECTION 3.09. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF
SECURITIES.
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Three and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the immediate filing of a claim for the unpaid balance of its or
his Securities in the form required in said proceedings and cause said claim to
be approved. If the Trustee does not file a proper claim or proof of debt in
the form required in such proceeding prior to 30 days before the expiration of
the time to file such claim or claims, then the holders of Senior Indebtedness
are hereby authorized to have the right to file and are hereby authorized to
file an appropriate claim for and on behalf of the Holders of said Securities.
SECTION 3.10. RIGHT OF TRUSTEE AND PAYING AGENT TO HOLD SENIOR INDEBTEDNESS.
The Trustee and the Paying Agent shall be entitled to all of the rights set
forth in this Article Three in respect of any Senior Indebtedness at any time
held by either of them to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee or the Paying Agent of any of its rights as such holder.
SECTION 3.11. ARTICLE THREE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest on the
Securities by reason of any provision of this Article Three shall not be
construed as preventing the occurrence of an Event of Default under
Section 6.01.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities. An installment of
principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment; PROVIDED, HOWEVER, that money held by the
Trustee for the benefit of holders of Senior Indebtedness pursuant to the
provisions of Article Three hereof shall not be considered paid within the
meaning of this Section 4.01.
The Company shall pay interest on overdue principal at the rate borne by
the Securities; it shall pay interest on overdue installments of interest at the
same rate to the extent lawful.
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SECTION 4.02. CORPORATE EXISTENCE.
Subject to Article Five, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate, partnership or other existence of each subsidiary in
accordance with the respective organizational documents of each subsidiary and
the rights (charter and statutory), licenses and franchises of the Company and
its subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to
preserve, with respect to itself, any right, license or franchise, and with
respect to the subsidiaries, any such existence, right, license or franchise, if
the Board of Directors, or the board of directors or managing partners of the
subsidiary concerned, shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or any subsidiary and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any subsidiary or upon the income,
profits or property of the Company or any subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any subsidiary; PROVIDED, HOWEVER, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings; and
PROVIDED, FURTHER, that the Company shall not be required to cause to be paid or
discharged any such tax, assessment, charge or claim if the Board of Directors,
or the board of directors or managing partners of the subsidiary concerned,
shall determine that such payment is not advantageous to the conduct of the
business of the Company or any subsidiary and that the failure so to pay or
discharge is not disadvantageous in any material respect to the Holders.
SECTION 4.04. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used in the conduct of its business
or the business of any subsidiary to be maintained and kept in such condition,
repair and working order as in the judgment of the Company may be necessary, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors or of
the board of directors or managing partners of the subsidiary concerned,
desirable in the conduct of the business of the Company or any subsidiary and
not disadvantageous in any material respect to the Holders; and PROVIDED
FURTHER, that property may be disposed of in the ordinary course of the business
of the Company or its subsidiaries at the discretion of the appropriate officers
of the Company and its subsidiaries.
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SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. Unless the Trustee serves as
Paying Agent or Registrar, 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
address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes.
SECTION 4.06. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate stating whether or not
the signers know of any default by the Company in performing its covenants in
Sections 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. If they do know of such a
default, the certificate shall describe the default in detail.
SECTION 4.07. REPORTS.
The Company shall file with the Trustee within 15 days after it files them
with the SEC copies of the quarterly and annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA Section 314(a).
So long as any of the Securities remain outstanding the Company shall cause
to be mailed to the Holders at their addresses appearing in the register of
Securities maintained by the Registrar all annual, quarterly or other reports
which the Company mails or causes to be mailed to its stockholders generally,
concurrently with such mailing to stockholders, and will cause to be disclosed
in such annual reports as of the date of the most recent financial statements in
each such report the amount available for dividends and other payments pursuant
to the most restrictive covenant therefor as of such date.
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SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY 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 an manner whatsoever claim,
and will resist any and all efforts to be compelled to take the benefit or
advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the
interest on the Securities as contemplated herein, whenever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company 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 4.09. LIMITATION ON LIENS.
Nothing in this Indenture or in the Securities shall in any way restrict or
prevent the Company or any of its subsidiaries from incurring any Indebtedness;
PROVIDED, HOWEVER, that neither the Company nor any of its subsidiaries may
issue, assume or guarantee any Indebtedness secured by a Lien upon any
Consolidated Property without effectively providing that the Securities shall be
secured equally and ratably with (or prior to) such Indebtedness so long as such
Indebtedness shall be so secured, except that this restriction will not apply
to:
(a) Liens existing on the date of original issuance of the
Securities;
(b) Liens affecting property of a corporation or other entity
existing at the time it becomes a subsidiary of the Company or at the time
it is merged into or consolidated with the Company or a subsidiary of the
Company;
(c) Liens on property existing at the time of acquisition thereof or
incurred to secure payment of all or a part of the purchase price thereof
or to secure Indebtedness incurred prior to, at the time of, or within
24 months after the acquisition thereof for the purpose of financing all or
part of the purchase price thereof;
(d) Liens on any property to secure all or part of the cost of
improvements or construction thereon or Indebtedness incurred to provide
funds for such purpose in a principal amount not exceeding the cost of such
improvements or construction;
(e) Liens which secure Indebtedness owing by a subsidiary of the
Company to the Company or to a subsidiary of the Company;
(f) Liens securing Indebtedness of the Company the proceeds of which
are used substantially simultaneously with the incurrence of such
Indebtedness to retire Funded Debt;
(g) purchase money security Liens on personal property;
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(h) Liens securing Indebtedness of the Company the proceeds of which
are used within 24 months of the incurrence of such Indebtedness for the
Project Cost of the construction and development or improvement of a Resort
Property;
(i) Liens on the stock, partnership or other equity interest of the
Company or any subsidiary in any Joint Venture or any subsidiary which owns
an equity interest in such Joint Venture to secure Indebtedness, provided
the amount of such Indebtedness is contributed and/or advanced solely to
such Joint Venture;
(j) Liens securing any Senior Indebtedness, including without
limitation, the Senior Secured Notes;
(k) Liens in favor of the United States or any state thereof, or any
department, agency, instrumentality, or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other payments
pursuant to any contract or statute or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase price or cost
of constructing or improving the property subject thereto, including,
without limitation, Liens to secure Indebtedness of the pollution control
or industrial revenue bond type;
(l) Liens required by any contract or statute in order to permit the
Company or a subsidiary of the Company to perform any contract or
subcontract made by it with or at the request of the United States of
America, any state or any department, agency or instrumentality or
political subdivision of either;
(m) mechanic's, materialman's, carrier's or other like Liens, arising
in the ordinary course of business;
(n) Liens for taxes or assessments and similar charges other (x) not
delinquent or (y) contested in good faith by appropriate proceedings and as
to which the Company or a subsidiary of the Company shall have set aside on
its books adequate reserves;
(o) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property and minor
irregularities of title incident thereto which do not in the aggregate
materially detract from the value of the property or assets of the Company
and its subsidiaries taken as a whole or impair the use of such property in
the operation of the Company's or any of its subsidiary's business; and
(p) any extension, renewal, replacement or refinancing of any Lien
referred to in the foregoing clauses (a) through (j) inclusive or of any
Indebtedness secured thereby, PROVIDED, that the principal amount of
Indebtedness secured thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such extension, renewal, replacement
or refinancing, and that such extension, renewal, replacement or
refinancing Lien shall be limited to all or part, of substantially the same
property which secured the Lien extended, renewed, replaced or refinanced
(plus improvements on such property).
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Notwithstanding the foregoing provisions of this Section 4.09, the Company
and any one or more of its subsidiaries may, without securing the Securities,
issue, assume or guarantee Indebtedness which would otherwise be subject to the
foregoing restrictions in an aggregate principal amount which, together with all
other such Indebtedness of the Company and its subsidiaries which would
otherwise be subject to the foregoing restrictions (not including Indebtedness
permitted to be secured under clauses (a) through (j) inclusive above) and the
aggregate Value of Sale and Lease-Back Transactions (other than those in
connection with which the Company has voluntarily retired Funded Debt) does not
at any one time exceed 15% of Consolidated Net Tangible Assets of the Company
and its consolidated subsidiaries.
SECTION 4.10. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
Neither the Company nor any of its subsidiaries shall enter into any Sale
and Lease-Back Transaction unless either (a) the Company or such subsidiary
would be entitled, pursuant to the provisions of Section 4.09, to incur
Indebtedness in a principal amount equal to or exceeding the Value of such Sale
and Lease-Back Transaction, secured by a Lien on the property to be leased,
without equally and ratably securing the Securities or (b) the Company (and in
any such case the Company covenants and agrees that it will do so) within
120 days after the effective date of such Sale and Lease-Back Transaction
(whether made by the Company or a subsidiary of the Company) applies to the
voluntary retirement of its Funded Debt an amount equal to the Value of the Sale
and Lease-Back Transaction less the principal amount of other Funded Debt
voluntarily retired by the Company within four months after the effective date
of such arrangement, excluding retirements of Funded Debt as a result of
conversions or pursuant to mandatory sinking fund or prepayment provisions or by
payment at maturity.
SECTION 4.11. DEFEASANCE OF CERTAIN OBLIGATIONS.
The Company may omit to comply with any term, provision or condition set
forth in Sections 4.03, 4.04, 4.09 and 4.10 and Article Five and Section 6.01(3)
(with respect to Sections 4.03, 4.04, 4.09 and 4.10 and Article Five) and, in
each case with respect to any series of Securities, such omission shall be
deemed not to be an Event of Default, PROVIDED, that the following conditions
have been satisfied with respect to such series:
(1) the Company has irrevocably deposited or caused to be deposited
with the Trustee, as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such series of
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will, without consideration of any reinvestment
of such interest, provide not later than the opening of business on the
relevant due date, money in an amount, or (C) a combination thereof, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, sufficient to pay and discharge the principal of, and each
installment of interest on, such series of Securities then outstanding on
the date of maturity of such principal or installment of interest or on the
redemption date, as the case may be;
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(2) Such deposit shall not cause the Trustee with respect to such
series of Securities to have a conflicting interest for purposes of the TIA
with respect to such series of Securities;
(3) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture;
(4) No Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
such series of Securities shall have occurred and be continuing on the date
of such deposit and no Event of Default under Section 6.01(5) or
Section 6.01(6) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 6.01(5) or
Section 6.01(6) shall have occurred and be continuing at any time during
the period ending on the 91st day after such date or, if longer, ending on
the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period);
(5) the deposit shall not result in the Company, the Trustee or the
trust becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(6) The Company has delivered to the Trustee an Opinion of Counsel,
reasonably satisfactory to the Trustee, to the effect that (i) Holders of
such series of Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would have been the
case if such deposit and defeasance had not occurred and (ii) (A) the trust
funds will not be subject to any rights of holders of Senior Indebtedness,
including, without limitation, those arising under Article Three of this
Indenture and (B) after the passage of 90 days following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally, PROVIDED, that if a court were to rule under any such law in any
case or proceeding that the trust funds remained property of the Company,
no opinion need be given as to the effect of such laws on the trust funds
except the following: (x) assuming such trust funds remained in the
Trustee's possession prior to such court ruling to the extent not paid to
Holders of such series of Securities, the Trustee will hold, for the
benefit of the Holders of such series of Securities, a valid and perfected
security interest in such trust funds that is not avoidable in bankruptcy
or otherwise and (y) no property, rights in property or other interests
granted to the Trustee for the benefit of the Holders of Securities or to
the Holders of Securities in exchange for or with respect to any of such
trust funds will be subject to any prior rights of holders of Senior
Indebtedness, including without limitation those arising under Article
Three of this Indenture; and
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(7) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section
have been complied with.
SECTION 4.12. LIMITATION ON LAYERING DEBT.
The Company may not create, incur, assume or suffer to exist any
Indebtedness that is subordinate in right of payment to any other debt of the
Company, unless, by its terms or the terms of the instrument creating or
evidencing it, such Indebtedness is subordinate in right of payment to, or ranks
pari pasu with, the Securities.
ARTICLE FIVE
SUCCESSOR CORPORATION
The Company shall not consolidate with or merge into any other person or
transfer its properties and assets substantially as an entirety to any person
unless:
(1) either the Company shall be the continuing corporation, or the
person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the properties and assets of the
Company substantially as an entirety are transferred shall be a
corporation, partnership or trust organized and existing under the laws of
the United States of America or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under the Securities and this Indenture;
(2) immediately after giving effect to such transaction, no Default
or Event of Default exists; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
The successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer 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, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under the Indenture and the
Securities, and in the event of such transfer any such predecessor corporation
may be dissolved and liquidated.
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ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to any series of Securities occurs if:
(1) the Company defaults in the payment of interest on such series of
Securities when the same becomes due and payable and the default continues
for a period of 30 days; or
(2) the Company defaults in the payment of principal of such series
of Securities when the same becomes due and payable at maturity, upon
redemption or otherwise; or
(3) the Company fails to comply with any of its other agreements in
such series of Securities or this Indenture, and the default continues for
the period and after the notice specified below; or
(4) an event or events of default, as defined in any one or more
mortgages, indentures or instruments under which there may be issued, or by
which there may be secured or evidenced, any Indebtedness of the Company or
a subsidiary, whether such Indebtedness now exists or shall hereafter be
created, shall happen and shall entitle the holders of such Indebtedness to
declare an aggregate principal amount of at least $10,000,000 of such
Indebtedness due and payable and such event of default shall not have been
cured or waived in accordance with the provisions of such instrument, or
such Indebtedness shall not have been discharged, within a period of 30
days after there shall have 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 such series of Securities then
outstanding a written notice specifying such event or events of default and
requiring the Company to cause such event of default to be cured or such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder, PROVIDED, HOWEVER, that the Company is not in good
faith contesting in appropriate proceedings the occurrence of such an event
of default; or
(5) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any subsidiary in an
involuntary case or proceeding under any Bankruptcy Law which shall
(A) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any
subsidiary, (B) appoint a Custodian of the Company or any subsidiary or for
any substantial part of its property or (C) order the winding-up or
liquidation of its affairs; and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or any
bankruptcy or insolvency petition or application is filed, or any
bankruptcy or insolvency proceeding is commenced, against the Company or
any subsidiary and such petition, application or proceeding is not
dismissed within 60 days;
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or any warrant of attachment is issued against any substantial portion
of the property of the Company or any subsidiary which is not released
within 60 days of service; or
(6) the Company or any subsidiary shall (A) become insolvent,
(B) generally fail to pay its debts as they become due, (C) make any
general assignment for the benefit of creditors, (D) admit in writing its
inability to pay its debts generally as they become due, (E) commence a
voluntary case or proceeding under any Bankruptcy Law, (F) consent to the
entry of a judgment, decree or order for relief in an involuntary case or
proceeding under any Bankruptcy Law, (G) consent to the institution of
bankruptcy or insolvency against it, (H) apply for, consent to or acquiesce
in the appointment of or taking possession by a Custodian of the Company or
any subsidiary or for any substantial part of its property or (I) take any
corporate action in furtherance of any of the foregoing.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A default under clause (3) (other than a Default under Section 4.02 or
Article Five which Default shall be an Event of Default without the notice or
passage of time specified in this paragraph) is not an Event of Default with
respect to a series of Securities until the Trustee or the Holders of at least
25% in principal amount of such series of Securities then outstanding notify the
Company of the default and the Company does not cure the default within 30 days
after receipt of the notice. The notice must specify the default, demand that
it be remedied and state that the notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
If an Event of Default relating to any series of Securities occurs and is
continuing, the Trustee by notice in writing to the Company, or the Holders of
not less than 25% in principal amount of such series of Securities then
outstanding by notice in writing to the Company and the Trustee, may declare the
unpaid principal (or, in the case of Original Issue Discount Securities, such
lesser amount as may be provided for in such Securities of and any accrued
interest on all such series of Securities, (but in no event more than the
maximum amount of principal and interest thereon allowed by law) to be due and
payable immediately. Upon any such declaration such principal and interest
shall be payable immediately.
At any time after such a declaration of acceleration 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 a majority
in principal amount of such series of Securities then outstanding, by written
notice to the Company and the Trustee, may rescind and annul such declaration as
to such series of Securities, and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
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(A) the principal of such series of Securities that has become
due otherwise than by such declaration of acceleration (together with
interest, if any, payable thereon); and
(B) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee and its agents, attorneys and counsel; and
(2) all existing Events of Default relating to such series of
Securities have been cured or waived and the rescission would not conflict
with any judgment or decree.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default relating to any series of Securities occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on such series of
Securities or to enforce the performance of any provisions of such series of
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the subject series of Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, the Holders of a majority in principal amount of
any series of Securities then outstanding by notice to the Trustee may waive an
existing Default or Event of Default with respect to such series of Securities,
and its consequences. When a Default or Event of Default is waived, it is cured
and stops continuing.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of any series of Securities
then outstanding may 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 it with respect to any default under such series of
Securities. However, subject to Section 7.01, the Trustee may refuse to follow
any direction that conflicts with any rule of law or this Indenture, that is
unduly prejudicial to the rights of another Holder of such series of Securities,
or that would involve the Trustee in personal liability.
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SECTION 6.06. LIMITATION ON SUITS.
A Holder of any series of Securities may not pursue any remedy with respect
to this Indenture or any series of Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of such series of
Securities then outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority of principal
amount of such series of Securities then outstanding do not give the
Trustee a direction inconsistent with the request.
A Holder of any series of Securities may not use this Indenture to
prejudice the rights of another Holder of such series of Securities or to obtain
a preference or priority over another Holder of such series of Securities.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, but subject to the
provisions of Article Three, the right of any Holder of a Security to receive
payment of principal of or interest on the Security on or after the respective
due dates expressed in the Security or to bring suit for the enforcement of any
such payment on or after such respective dates shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing with respect to any series of
Securities, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal (or such
portion of the principal as may be specified as due upon acceleration at that
time in the terms of that series of Securities) and interest, if any, remaining
unpaid on such series of Securities then outstanding.
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SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the Company, its
creditors or its property.
SECTION 6.10. PRIORITIES.
Subject to the provisions of Article Three, if the Trustee collects any
money pursuant to this Article with respect to any series of Securities, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders for amounts due and unpaid on such series
of Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
series of Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders of any series of Securities pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of any such record date and
payment date.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07,
or a suit by Holders of more than 10% in principal amount of the Securities then
outstanding.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
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SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is known to the Trustee
(and is not cured), the Trustee shall exercise its rights and powers 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.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture or in the TIA and no
covenants or obligations shall be implied in this Indenture which
bind the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions which by any provision of this Indenture are
specifically required to be furnished to the Trustee to determine
whether or not they conform in form to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives security and indemnity satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company.
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SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys or agents (which shall
not include its employees) and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or power.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
subsidiaries or Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar or co-registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs with respect to any series of Securities and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder of such series of Securities, notice of the Default within 90 days after
it occurs. Except in the case of a default in the payment of principal of or
interest on such series of Securities, the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of the Holders of such series of
Securities.
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SECTION 7.06. REPORTS BY TRUSTEE.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such May 15 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which the Securities are
listed. The Company shall notify the Trustee when the Securities are listed on
any stock exchange.
To the extent requested by the Company, the Trustee shall cooperate with
the Gaming Authorities in order to provide such Gaming Authorities with any
information and documentation that they may request and as otherwise required by
law.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it. Such expense
may include the reasonable compensation and expenses of the Trustee's agents and
counsel. The Company shall indemnify the Trustee against any loss or liability
incurred by it, without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this trust. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of any series of Securities then
outstanding may remove the Trustee with respect to such series of Securities
by so notifying the removed Trustee and may appoint a successor Trustee with
the Company's consent. The Company may remove the Trustee with respect to one
or more or all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
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(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed or if
a vacancy exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee for that series.
A successor Trustee as to any series of Securities shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture as to such series. A successor Trustee shall mail notice of its
succession to the Holders of such series of Securities.
If a successor Trustee as to any series of Securities does not take office
within 60 days after the retiring Trustee resigns or is removed, then (i) the
retiring Trustee or the Company may petition any court of competent jurisdiction
for the appointment of a successor Trustee and (ii) the Holders of a majority in
principal amount of such series of Securities then outstanding may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 with respect to any series
of Securities, any Holder of such series of Securities who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for such series.
In case of appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) shall contain such
provisions as shall be necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary or desirable to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee; provided, however, that nothing herein or in such supplemental
Indenture shall constitute such Trustee co-trustees of the same trust and that
each such Trustee shall be a trustee of a trust hereunder separate and apart
from any trust hereunder and administered by any other such Trustee.
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Upon the execution and delivery of such supplemental Indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each 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 with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee as to any series of Securities consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
assets to, another corporation, the resulting, surviving or transferee
corporation shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, without any further act, be the successor Trustee
as to such series.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee as to any series of Securities
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), including the optional provision permitted by
the second sentence of TIA Section 310(b)(9).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 7.12. AUTHENTICATING AGENT.
If the Company so requests, there shall be an Authenticating Agent
appointed by the Trustee with power to act on its behalf and subject to its
direction in the authentication and delivery of any series of Securities in
connection with the exchange or registration of transfer thereof as fully to all
intents and purposes as though the Authenticating Agent had been expressly
authorized by the relevant Sections hereof to authenticate and deliver such
series of Securities, and such series of Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as though authenticated by the Trustee hereunder, and for all
purposes of this Indenture, the authentication and delivery of such series of
Securities by the Authenticating Agent pursuant to this Section shall be deemed
to be the authentication and delivery of such series of Securities "by the
Trustee." Notwithstanding anything to the contrary contained in Section 2.04,
or in any other Section hereof, all authentication in connection with exchange
or registration of transfer thereof shall be effected either by the Trustee or
an Authenticating Agent and such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State, with a combined capital and surplus of at least $5,000,000 and
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal or State authority. If at any time an
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Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such 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.
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, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent 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 under this Section, the
Trustee shall promptly appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all Holders of the Securities as the names and addresses of such
Holders appear on the register of Securities, and shall publish notices of such
appointment at least once in a newspaper of general circulation in the place
where such successor Authenticating Agent has its principal office.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth, including, without
limitation, the duties to authenticate and deliver the Securities when presented
to it in connection with exchanges or registrations of transfer thereof; it will
furnish from time to time, as requested by the Trustee, appropriate records of
all transactions carried out by it as Authenticating Agent and will furnish the
Trustee such other information and reports as the Trustee may reasonably
require; it is eligible for appointment as Authenticating Agent under this
Section and will notify the Trustee promptly if it shall cease to be so
qualified; and it will indemnify the Trustee against any loss, liability or
expense incurred by the Trustee and will defend any claim asserted against the
Trustee by reason of any act or failure to act of the Authenticating Agent but
it shall have no liability for any action taken by it at the specific written
direction of the Trustee.
The Company agrees that it will pay to the Authenticating Agent from time
to time reasonable compensation for its services.
The provisions of Sections 7.02, 7.03 and 7.04 shall bind and inure to the
benefit of any Authenticating Agent to the same extent that they bind and inure
to the benefit of the Trustee.
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If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities referred to in the within mentioned
Indenture.
as Trustee
By ____________________________________
As Authenticating Agent
By ____________________________________
Authorized Signatory
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under any series of Securities
and this Indenture with respect to such series, except those obligations
referred to in the immediately succeeding paragraph, if:
(a) all such series of Securities previously authenticated and
delivered (other than mutilated, destroyed, lost or stolen Securities which
have been replaced or such series of Securities which are paid for pursuant
to Section 4.01 or such series of Securities for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.03) have been delivered to the Trustee
for cancellation and the Company has paid all sums payable by it hereunder
with respect to such series; or
(b)(1) the series of Securities mature within one year or all of
them are to be called for redemption within one year after arrangements
satisfactory to the Trustee for giving the notice of redemption; and
(b)(2) the Company has irrevocably deposited or caused to be
deposited with the Trustee, during such one-year period, as trust funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such series of Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms
will, without consideration of any reinvestment of such interest, provide
not later than the opening of
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business on the relevant due date, money in an amount, or (C) a
combination thereof, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, sufficient to pay and
discharge the principal of, and each installment of interest on, such
series of Securities then outstanding on the date of maturity of such
principal or installment of interest or the redemption date, as the case
may be; or
(c)(1) the Company has irrevocably deposited or caused to be
deposited with the Trustee, as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
such series of Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will, without consideration of any
reinvestment of such interest, provide not later than the opening of
business on the relevant due date, money in an amount, or (C) a combination
thereof, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, sufficient to pay and discharge the principal of
and each installment of interest on such series of Securities then
outstanding on the date of maturity of such principal or installment of
interest, or, on the redemption date, as the case may be; and
(c)(2) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent
provided for in clause (c) and in Section 4.11 relating to the
satisfaction and discharge of this Indenture with respect to such series
of Securities have been complied with.
Notwithstanding the foregoing clause (c), prior to the end of the 90-day
period referred to in clause (6)(ii) of Section 4.11, none of the Company's
obligations under this Indenture shall be discharged, and subsequent to the end
of the 90-day period only the Company's obligations in Sections 2.05, 2.06,
2.07, 2.08, 2.09, 4.01, 4.02, 7.07, 7.08, 8.03 and 8.04 shall survive until such
series of Securities are no longer outstanding. Thereafter, the Company's
obligations in Sections 7.07, 8.03 and 8.04 shall survive; PROVIDED, that the
Company shall pay any taxes or other costs and expenses incurred by any trust
created pursuant to this Article Eight.
After any such irrevocable deposit and after satisfaction of all the
conditions of this Section 8.01, the Trustee, upon the Company's request, shall
acknowledge in writing the discharge of the Company's obligations under the
subject Securities and this Indenture, except for those surviving obligations
specified above. The Trustee shall not be responsible for any calculations made
by the Company in connection with the deposit of funds pursuant to clauses
(b)(2) or (c)(1) of this Section 8.01.
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The Company may make an irrevocable deposit pursuant to this Section 8.01
only if at such time it is not prohibited from doing so under the provisions of
Article Three and the Company shall have delivered to the Trustee and any such
Paying Agent an Officers' Certificate to that effect.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall, with respect to any series of
Securities, hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 8.01, and shall apply the deposited money and the money from
U.S. Government Obligations in accordance with this Indenture, to the payment of
principal of and interest on such series of Securities. Money so held in trust,
to the extent allocated for the payment of such series of Securities, shall not
be subject to the provisions of Article Three.
SECTION 8.03. REPAYMENT TO THE COMPANY.
Subject to Section 8.02, the Trustee and the Paying Agent shall promptly
pay to the Company upon request any excess money or U.S. Government Obligations
held by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal or
interest that remains unclaimed for two years; PROVIDED, HOWEVER, that the
Company shall, if requested by the Trustee or such Paying Agent, give the
Trustee or such Paying Agent satisfactory indemnification against any and all
liability which may be incurred by it by reason of such payment; and PROVIDED,
FURTHER, that the Trustee or such Paying Agent before being required to make any
payment shall at the expense of the Company cause to be published once in a
newspaper or newspapers printed in the English language, customarily published
at least five days a week and of general circulation in the City of Las Vegas,
Nevada and in the Borough of Manhattan, The City of New York and mail to each
Securityholder entitled to such money notice that such money remains unclaimed
and that, after a date specified therein which shall be at least 30 days from
the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to the Company,
Securityholders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another person.
SECTION 8.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 8.01; PROVIDED, HOWEVER,
that if the Company has made any payment of interest on or principal of any
series of Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of
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such series of Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee as to any series of Securities may amend or
supplement this Indenture or the Securities without notice to or consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide, to the extent permitted by law, that all or a portion
of the obligations of the Company hereunder shall be represented only by
appropriate records maintained by the Company or the Trustee in addition to
or in place of the issue of Securities;
(4) to comply with any requirements of the SEC in connection with the
qualification of this Indenture under the TIA;
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided,
however, that any such addition, change or elimination (A) shall neither
(i) apply to any series of Securities created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with respect
to such provision or (B) shall become effective only when there is no
outstanding Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision;
(6) to make any change that does not adversely affect the rights of
any Securityholder of any series; or
(7) to establish additional series of Securities as permitted by
Section 2.03.
SECTION 9.02. WITH CONSENT OF HOLDERS
The Company and the Trustee as to any series of Securities may amend or
supplement this Indenture or such series of Securities without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Securities of each series
affected by such amendment or supplement, with each such series voting as a
separate class. The Holders of a majority in principal amount of any series of
Securities then
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outstanding may also waive compliance in a particular instance by the Company
with any provision of this Indenture with respect to that series of
Securities; provided, however, that without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a
waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the rate, or extend the time for payment of interest
on, any Security in a manner adverse to the Holders thereof;
(3) reduce the principal of, or extend the fixed maturity or
fixed redemption date of any Securities, in a manner adverse to the Holders
thereof;
(4) waive a default in the payment of the principal of, or
interest on, any Security;
(5) modify the provisions of Article Three (Subordination) in a
manner adverse to the Holders of Securities or in a manner which will cause
any Security to be senior to any other Security in right of payment;
(6) make any Security payable in money other than that stated in
the Security; or
(7) make any changes in Section 6.04, 6.07 and 9.02 (second
sentence).
An amendment or waiver under this Section may not make any change that
adversely affects the rights under Article Three of any holder of an issue of
Senior Indebtedness unless such holder consents to such amendment or waiver.
An amendment or waiver under this Section which waives, changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more series of Securities, or
which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to Holders of Securities of each series affected thereby a
notice briefly describing the amendment or waiver.
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SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
such amendment, supplement or waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of a Security if the
Trustee receives notice of revocation before the date the amendment, supplement
or waiver becomes effective.
The Company may, but shall not be obligated to, set a record date for the
purpose of determining the identity of Holders entitled to consent to any
amendment, supplement or waiver permitted by this Indenture. If a record date
is fixed, the Holders of Securities of that series outstanding on such record
date, and no other Holders, shall be entitled to consent to such amendment,
supplement or waiver or revoke any consent previously given, whether or not such
Holders remain Holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Securities of that series required hereunder
for such amendment, supplement or waiver to be effective shall have also been
given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall bind
the Holder of every Security unless it makes a change described in clause (1),
(2), (3), (4), (5), (6) or (7) of Section 9.02. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver does not
adversely affect the rights of the Trustee. If it does, the Trustee may but
need not sign it. The Company may not sign an
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amendment or supplement until the Board of Directors approves it. The
Trustee, subject to Sections 7.01 and 7.02, shall be entitled to receive, and
shall be fully protected in relying upon an Opinion of Counsel stating that
any amendment, supplement or waiver is authorized by this Indenture and
complies with the provisions of this Article Nine.
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of any series of Securities, either separately or
jointly, may be called at any time and from time to time pursuant to the
provisions of this Article Ten 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 waive or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to any
of the provisions of Article Six;
(b) to remove the Trustee or appoint a successor Trustee pursuant to
the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver pursuant to the
provisions of Section 9.02; or
(d) to take any action (i) authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of such series of
Securities under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate
in connection with the administration of this Indenture.
SECTION 10.02. MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Holders of any series of
Securities to take any action specified in Section 10.01, to be held at such
time and at such place in the City of Las Vegas, Nevada, as the Trustee shall
determine. Notice of every meeting of Holders of any series of Securities,
setting forth the time and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed by the Trustee,
first-class postage prepaid, to the Company, and to the Holders of such series
of Securities at their last addresses as they shall appear on the registration
books of the Registrar, not less than ten nor more than 60 days prior to the
date fixed for the meeting.
Any meeting of Holders of the Securities shall be valid without notice if
(i) with respect to a meeting of any series of Securities, all Holders of such
series of Securities then outstanding
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are present in person or by proxy, or if notice is waived before or after the
meeting by all Holders of such series of Securities then outstanding and (ii)
with respect to a meeting of all Securityholders, all Holders of such
Securities then outstanding are present in person or by proxy, or if notice
is waived before or after the meeting by all Holders of such Securities then
outstanding, and, in each case, if the Company and the Trustee are either
present by duly authorized representative or have, before or after the
meeting waived notice.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to resolution of its Board of
Directors, or the Holders of not less than 25% in aggregate principal amount of
any series of Securities then outstanding shall have requested the Trustee to
call a meeting of Securityholders, either separately or jointly, to take any
action specified in Section 10.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days for
receipt of such request, then the Company or the Holders of such series of
Securities in the amount above specified may determine the time and place in the
City of Las Vegas, Nevada, or in the Borough of Manhattan, The City of New York,
for such meeting and may call such meeting for the purpose of taking such
action, by mailing or causing to be mailed notice thereof as provided in Section
10.02, or by causing notice thereof to be published at least once in each of two
successive calendar weeks (on any day of the week) in a newspaper or newspapers
printed in the English language, customarily published at least five days a week
and of general circulation in the City of Las Vegas, Nevada and in the Borough
of Manhattan, The City of New York, the first such publication to be not less
than 10 nor more than 60 days prior to the date fixed for the meeting.
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Securityholders, a person shall
(a) be a registered Holder of one or more Securities, or (b) be a person
appointed by an instrument in writing as proxy for the registered Holder or
Holders of Securities. The only persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the persons entitled to vote
at such meeting and their counsel and any representative of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE MEETING;
VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and 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 think appropriate. Such regulations may fix
a record date and time for determining the Holders of record of Securities
entitled to vote at such meeting, in which case those and only those persons who
are Holders of Securities at the record date and time so fixed,
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or their proxies, shall be entitled to vote at such meeting whether or not
they shall be such Holders at the time of the meeting.
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 Securityholders as provided in Section 10.03, in which case the
Company or the Securityholders 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 vote of the Holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
At any meeting each Securityholder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Securities 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 Securities held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders. At any meeting of Securityholders, the
presence of persons holding or representing any number of Securities shall be
sufficient for a quorum. Any meeting of Securityholders duly called pursuant to
the provisions of Section 10.02 or Section 10.03 may be adjourned from time to
time by vote of the Holders of a majority in aggregate principal amount of the
Securities represented at the meeting and entitled to vote, and the meeting may
be held as so adjourned without further notice.
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amount of the Securities voted by the ballot. 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 Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to such 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 such notice was mailed as provided in Section 10.02 or
published as provided in Section 10.03. The record shall be signed and verified
by the affidavits of the permanent chairman and the 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, the latter to have attached thereto the
ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
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SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY NOT BE
HINDERED OR DELAYED BY CALL OF MEETING.
Nothing in this Article Ten contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Securityholders 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 the Securityholders under any of the provisions of
this Indenture or of the Securities.
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE.
If the Company elects to redeem any series of Securities pursuant to any
optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities of that series to be
redeemed.
The Company shall give each notice provided for in this Section in an
Officers' Certificate at least 45 days before the redemption date (unless a
shorter notice period shall be satisfactory to the Trustee), which notice shall
specify the provisions of such Security pursuant to which the Company elects to
redeem such Securities.
If the Company elects to reduce the principal amount of Securities of any
series to be redeemed pursuant to mandatory redemption provisions thereof, it
shall notify the Trustee of the amount of, and the basis for, any such
reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are not listed on
an exchange, on a PRO RATA basis or by lot. The Trustee shall make the
selection not more than 75 days and not less than 30 days before the redemption
date from Securities of that series outstanding and not previously called for
redemption. Except as otherwise provided as to any series of Securities,
Securities and portions thereof that the Trustee selects shall be in amounts
equal to the minimum authorized denomination for Securities of the series to be
redeemed or any integral multiple thereof. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption. The Trustee shall notify the Company promptly in writing
of the Securities or portions of Securities to be called for redemption.
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SECTION 11.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any series of Securities, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if any, to
the date fixed for redemption (the "redemption price");
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption
price, interest on Securities called for redemption ceases to accrue on and
after the redemption date;
(7) The paragraph of the series of Securities and/or Section of any
supplemental indenture pursuant to which such Securities called for
redemption are being redeemed; and
(8) the CUSIP number, if any, of the Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; PROVIDED, HOWEVER, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice of the Holder of any Security shall not affect the validity of the
proceeding for the redemption of any other Security.
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<PAGE>
SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 11.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the redemption price.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the Paying
Agent (or, if the Company or any subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the redemption price of all
Securities called for redemption on that date other than Securities which have
previously been delivered by the Company to the Trustee for cancellation. The
Paying Agent shall return to the Company any money not required for that
purpose.
SECTION 11.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security of like series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA
or the TIA as amended after the date hereof, the required provision shall
control.
SECTION 12.02. NOTICES.
Any notice or communication shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail postage prepaid, addressed as
follows:
if to the Company:
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
49
<PAGE>
if to the Trustee:
First Interstate Bank of Nevada, N.A.
3800 Howard Hughes Parkway, Suite 200
Las Vegas, Nevada 89114
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed by
first-class mail, postage prepaid, to such Holder at such Holder's address as it
appears on the register maintained by the Registrar and shall be sufficiently
given to such Holder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above, it shall be
deemed to have been duly given two days after the data of mailing, whether or
not the addressee receives it.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 12.04. CERTIFICATES AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
50
<PAGE>
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate of Opinion of Counsel are based;
(3) a statement that, in the opinion of such person, such person has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not in the opinion of such person,
such condition or covenant has been complied with; PROVIDED, HOWEVER, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate.
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or by an Affiliate shall be disregarded, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR.
The Paying Agent or Registrar each may make reasonable rules for its
functions.
SECTION 12.08. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions are not required to be open. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
SECTION 12.09. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construct in
accordance with the laws of the State of Nevada.
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
51
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SECTION 12.11. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities. The waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
SECTION 12.12. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 12.13. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.14. SEVERABILITY.
In case any provision in this Indenture or in the Securities 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 12.15. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC.
The Article and Section headings herein and the table of contents are for
convenience only and shall not affect the construction thereof.
52
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This Indenture has been delivered and adopted by the parties hereto in the
State of Nevada.
IN WITNESS WHEREOF, the Company and the Trustee have caused their names to
be signed hereto by their respective officers thereunto duly authorized and
their respective corporate seals, duly attested, to be hereunto duly affixed,
all as of the day and year first above written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
(SEAL)
By: _________________________
Name:
Title:
FIRST INTERSTATE BANK OF
NEVADA, N.A.,
as Trustee
(SEAL) By: _________________________
Name:
Title:
53
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EXHIBIT 4(z)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
AND
FIRST INTERSTATE BANK OF NEVADA, N.A.,
Trustee
----------------
Indenture
[Dated as of_________ __, ____]
[$______________]
[___% Subordinated Notes Due ____]
-----------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE*
TIA
SECTION INDENTURE SECTION
- ------- -----------------
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.07
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 12.02
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07; 12.02
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.05
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . . . . 12.06
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.05
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.07
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.09
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.06
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.01
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
N.A. means Not Applicable.
- ---------------------
*This Cross-Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . 6
SECTION 1.03. RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . 6
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. . . . . 8
SECTION 2.03. AMOUNT UNLIMITED, ISSUABLE IN SERIES.. . . . . . . . . . 9
SECTION 2.04. EXECUTION AND AUTHENTICATION; DENOMINATIONS; DELIVERY AND
DATING.. . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.05. REGISTRAR AND PAYING AGENT.. . . . . . . . . . . . . . . 12
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST. . . . . . . . . . . 12
SECTION 2.07. SECURITYHOLDER LISTS.. . . . . . . . . . . . . . . . . . 12
SECTION 2.08. TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . 13
SECTION 2.09. REPLACEMENT SECURITIES.. . . . . . . . . . . . . . . . . 13
SECTION 2.10. OUTSTANDING SECURITIES.. . . . . . . . . . . . . . . . . 13
SECTION 2.11. TEMPORARY SECURITIES.. . . . . . . . . . . . . . . . . . 14
SECTION 2.12. CANCELLATION.. . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.13. DEFAULTED INTEREST.. . . . . . . . . . . . . . . . . . . 14
SECTION 2.14. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO GAMING
LAWS.. . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE THREE
SUBORDINATION
SECTION 3.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.. . . . . 15
SECTION 3.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES. . . . 16
SECTION 3.03. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION
OF COMPANY.. . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.04. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF
SENIOR INDEBTEDNESS. . . . . . . . . . . . . . . . . . . 18
SECTION 3.05. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.. . . . . . . . 18
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PAGE
SECTION 3.06. TRUSTEES AND PAYING AGENT ENTITLED TO ASSUME PAYMENTS NOT
PROHIBITED IN ABSENCE OF NOTICE. . . . . . . . . . . . . 19
SECTION 3.07. APPLICATION BY TRUSTEE OF MONIES DEPOSITED WITH IT.. . . 19
SECTION 3.08. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF
COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS. . . . . . . . 19
SECTION 3.09. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES. . . . . . . . . . . . . . . 20
SECTION 3.10. RIGHT OF TRUSTEE AND PAYING AGENT TO HOLD SENIOR
INDEBTEDNESS.. . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.11. ARTICLE THREE NOT TO PREVENT EVENTS OF DEFAULT.. . . . . 20
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. . . . . . . . . . . . . . . . . . 20
SECTION 4.02. CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . 21
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . 21
SECTION 4.04. MAINTENANCE OF PROPERTIES. . . . . . . . . . . . . . . . 21
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . 22
SECTION 4.06. COMPLIANCE CERTIFICATE.. . . . . . . . . . . . . . . . . 22
SECTION 4.07. REPORTS. . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY LAWS. . . . . . . . . 23
SECTION 4.09. DEFEASANCE OF CERTAIN OBLIGATIONS. . . . . . . . . . . . 23
ARTICLE FIVE
SUCCESSOR CORPORATION
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 25
SECTION 6.02. ACCELERATION.. . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.03. OTHER REMEDIES.. . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.04. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . 28
SECTION 6.05. CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . 28
SECTION 6.06. LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . 28
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.. . . . . . . . . . 29
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.. . . . . . . . . . . . . . . 29
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PAGE
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.. . . . . . . . . . . . 29
SECTION 6.10. PRIORITIES.. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.11. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . 30
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 30
SECTION 7.02. RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 31
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.. . . . . . . . . . . . . . 31
SECTION 7.04. TRUSTEE'S DISCLAIMER.. . . . . . . . . . . . . . . . . . 32
SECTION 7.05. NOTICE OF DEFAULTS.. . . . . . . . . . . . . . . . . . . 32
SECTION 7.06. REPORTS BY TRUSTEE.. . . . . . . . . . . . . . . . . . . 32
SECTION 7.07. COMPENSATION AND INDEMNITY.. . . . . . . . . . . . . . . 32
SECTION 7.08. REPLACEMENT OF TRUSTEE.. . . . . . . . . . . . . . . . . 33
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.. . . . . . . . . . . . 34
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . 34
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . 34
SECTION 7.12. AUTHENTICATING AGENT.. . . . . . . . . . . . . . . . . . 35
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.. . . . . . . . . . 36
SECTION 8.02. APPLICATION OF TRUST MONEY.. . . . . . . . . . . . . . . 38
SECTION 8.03. REPAYMENT TO THE COMPANY.. . . . . . . . . . . . . . . . 38
SECTION 8.04. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.. . . . . . . . . . . . . . . 39
SECTION 9.02. WITH CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . 40
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . 41
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. . . . . . . . . . . . 41
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. . . . . . . . . . 42
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . . . . . . . . 42
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PAGE
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED . . . . . . . 42
SECTION 10.02. MANNER OF CALLING MEETINGS. . . . . . . . . . . . . . . 43
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS. . . . . . . . . 43
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS . . . . . . . . . . . . 43
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS; ADJOURNMENT . . . . . . . . . . 44
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT . . . . . . 44
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY NOT
BE HINDERED OR DELAYED BY CALL OF MEETING . . . . . . . 45
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE. . . . . . . . . . . . . . . . . . . 45
SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED. . . . . . . . . 46
SECTION 11.03. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . 46
SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION. . . . . . . . . . . . . 47
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.. . . . . . . . . . . . . . 47
SECTION 11.06. SECURITIES REDEEMED IN PART.. . . . . . . . . . . . . . 47
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. . . . . . . . . . . . . . 47
SECTION 12.02. NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS . . . . . . 48
SECTION 12.04. CERTIFICATES AND OPINION AS TO CONDITIONS PRECEDENT.. . 48
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.. . . . . 49
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED. . . . . . . . . . 49
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR. . . . . . . . . . . . 49
SECTION 12.08. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . 49
SECTION 12.09. GOVERNING LAW.. . . . . . . . . . . . . . . . . . . . . 50
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.. . . . . 50
SECTION 12.11. NO RECOURSE AGAINST OTHERS. . . . . . . . . . . . . . . 50
SECTION 12.12. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 12.13. DUPLICATE ORIGINALS.. . . . . . . . . . . . . . . . . . 50
SECTION 12.14. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 50
SECTION 12.15. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC. . . . . . . 50
iv
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INDENTURE, dated as of [________ __, ____,] between Circus Circus
Enterprises, Inc., a Nevada corporation ("Company"), and First Interstate Bank
of Nevada, N.A., a corporation organized and existing as a national banking
association under the laws of the United States, as Trustee ("Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its Subordinated
Notes to be issued in one or more series (the "Securities"), as herein provided,
up to such principal amount as may from time to time be authorized in or
pursuant to one or more resolutions of the Board of Directors or by supplemental
indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as hereinafter defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of the Holders of each series of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" means a person "affiliated" with the Company, as that term is
defined in Rule 405 promulgated under the Securities Act of 1933, as amended.
"Authenticating Agent" shall have the meaning provided in Section 7.12.
"Bankruptcy Law" shall have the meaning provided in Section 6.01.
"Board of Directors" means the Board of Directors of the Company or any
committee of such Board.
"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.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to the applicable provisions of this Indenture and
thereafter means the successor.
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"Consolidated Net Tangible Assets" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed) and (ii) all goodwill, trade names, trademarks, patents, purchased
technology, unamortized debt discount and other like intangible assets, all as
set forth on the most recent quarterly balance sheet of the Company and its
consolidated subsidiaries and computed in accordance with generally accepted
accounting principles.
"Consolidated Property" means any property of the Company or any subsidiary
of the Company.
"Custodian" shall have the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Event of Default" shall have the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Completion Guarantees and Make-Well Agreements" means (i) that
certain Make-Well Agreement by the Company in favor of the Trustee dated as of
May 30, 1995 relating to the Circus and Eldorado Joint Venture, a Nevada general
partnership, (ii) that certain Circus Completion Guaranty by the Company in
favor of the Trustee dated as of May 30, 1995 relating to the Circus and
Eldorado Joint Venture, a Nevada general partnership and (iii) that certain
Guaranty by the Company in favor of Bank of America National Trust and Savings
Association dated as of July 12, 1995 relating to Victoria Partners, a Nevada
general partnership.
"Funded Debt" means all Indebtedness of the Company which (i) matures by
its terms, or is renewable at the option of any obligor thereon to a date, more
than one year after the date of original issuance of such Indebtedness and
(ii) ranks at least PARI PASSU with the Securities.
"Gaming Authority" means the Nevada Gaming Commission, the Nevada Gaming
Control Board, the Ontario Gaming Control Commission, the Mississippi Gaming
Commission, the Illinois Gaming Board 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 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.
"Global Security" shall mean a Security issued to evidence all or a part of
any series of Securities that is executed by the Company and authenticated and
delivered by the Trustee to a
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depositary or pursuant to such depositary's instructions, all in accordance with
this Indenture and pursuant to an Officer's Certificate, which shall be
registered as to principal and interest in the name of such depositary or its
nominee.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" of any person means (a) any indebtedness of such person,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such indebtedness
incurred in connection with the acquisition by such person or any of its
subsidiaries of any other business or entity, if and to the extent such
indebtedness would appear as a Liability upon a balance sheet of such person
prepared in accordance with generally accepted accounting principles, including
for such purpose obligations under capitalized leases, and (b) any guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), discount with recourse, agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire or to supply or advance funds with
respect to, or to become liable with respect to (directly or indirectly) any
indebtedness, obligation, liability or dividend of any person, but shall not
include indebtedness or amounts owed (except to banks or other financial
institutions) for compensation to employees, or for goods or materials
purchased, or services utilized, in the ordinary course of business of such
person. Notwithstanding anything to the contrary in the foregoing,
"Indebtedness" shall not include (i) any contracts providing for the completion
of construction or other payment or performance with respect to the
construction, maintenance or improvement of property or equipment of the Company
or its Affiliates or (ii) any contracts providing for the obligation to advance
funds, property or services on behalf of an Affiliate of the Company in order to
maintain the financial condition of such Affiliate, in each case, including
Existing Completion Guarantees and Make-Well Agreements. For purposes hereof, a
"capitalized lease" shall be deemed to mean a lease of real or personal property
which, in accordance with generally accepted accounting principles, is required
to be capitalized.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Joint Venture" means (i) with respect to properties located in the United
States, 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, and (ii) with respect to properties located outside the
United States, any partnership, corporation or other entity, in which up to and
including 60% 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.
"Legal Holiday" shall have the meaning provided in Section 12.08.
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"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, security interest, lien (statutory or other), or
preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Officer" means the Chairman of the Board, the President, any Executive
Vice President, any Vice President, the Chief Financial Officer, the Treasurer,
the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer, Assistant Secretary or Assistant Controller
of the Company. See Sections 12.04 and 12.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company or the Trustee. See Sections 12.04 and 12.05.
"Original Issue Discount Security" means any Security which provides that
an amount less than its principal amount is due and payable upon acceleration
after an Event of Default.
"Paying Agent" shall have the meaning provided in Section 2.05.
"person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Predecessor Securities" of any Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.09 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"principal" of a debt security, including the Securities, means the
principal of the security plus, when appropriate, the premium, if any, on the
security.
"Project Cost" means, with respect to any Resort Property, the aggregate
costs required to complete such construction project in accordance with
the plans therefor and applicable legal requirements, as set forth in an
Officers' Certificate submitted to the Trustee, setting forth in reasonable
detail all amounts theretofore expended and any anticipated costs and expenses
estimated to be incurred and reserves to be established in connection with the
construction and development of such future addition or improvement, including
direct costs related thereto such as construction management, architectural
engineering and interior design fees, site work, utility installations and
hook-up fees, construction permits, certificates and bonds, land acquisition
costs and the cost of furniture, fixtures, furnishings, machinery and equipment,
but excluding the
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following: principal or interest payments on any Indebtedness (other than
interest which is required to be capitalized in accordance with generally
accepted accounting principal, which shall be included in determining Project
Cost), or costs related to the operation of the Resort Property including, but
not limited to, non-construction supplies and pre-operating payroll.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Indebtedness.
"Registrar" shall have the meaning provided in Section 2.05.
"Resort Property" means any property owned or to be owned by the Company or
any of its subsidiaries that is, or will be upon completion, a casino (including
a riverboat casino), casino-hotel, destination resort or a theme park.
"Sale and Lease-Back Transaction" means any arrangement with any person
(other than the Company or a subsidiary of the Company), or to which any such
person is a party, providing for the leasing to the Company or a subsidiary of
the Company for a period of more than three years of any Consolidated Property
which has been or is to be sold or transferred by the Company or such subsidiary
to such person or to any other person (other than the Company or a subsidiary of
the Company), to which funds have been or are to be advanced by such person on
the security of the leased property.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning specified in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Senior Indebtedness" shall have the meaning provided in Section 3.01.
"Senior Subordinated Notes" shall have the meaning provided in Section
3.01.
"subsidiary" of any person means (i) any corporation of which at least a
majority in interest of the outstanding stock having by the terms thereof
voting power under ordinary circumstances to elect a majority of the
directors of such corporation, irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency, is at the
time, directly or indirectly, owned or controlled by such person, or by one
or more other corporations a majority in interest of such stock of which is
similarly owned or controlled, or by such person and one or more other
corporations a majority in interest of such stock of which is similarly owned
or controlled and (ii) any other person (other than a corporation, or a
partnership, corporation or other entity described in clause (ii) of the
definition of Joint Venture) in which such person or any subsidiary, directly
or indirectly, has greater than a 50% ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-
77bbbb) as in effect on the date of this Indenture.
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"Trustee" means the party named as such in this Indenture until a successor
replaces it pursuant to the applicable provisions of this Indenture and
thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President or any other
officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct non-cancelable obligations of
the United States of America for the payment of which the full faith and credit
of the United States is pledged.
"Value" means, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (i) the net proceeds of the
sale or transfer of property leased pursuant to such Sale and Lease-Back
Transaction or (ii) the fair value, in the opinion of the Board of Directors as
evidenced by a board resolution, of such property at the time of entering into
such Sale and Lease Back Transaction.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder or Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor"' on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning as
signed to it in accordance with generally accepted accounting principles;
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(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
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ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate provisions as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required by any Gaming Authority or as may be required to comply with the rules
of any securities exchange or depositary therefor or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution thereof. If the form of any series of Securities is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of a written order signed by two Officers or by and Officer and an
Assistant Treasurer of the Company for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
The terms and provisions in the Securities shall constitute, and are hereby
expressly made, a part of this Indenture.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
------------------------------------------------
As Trustee
By
---------------------------------------------
Authorized Signatory
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SECTION 2.03. AMOUNT UNLIMITED, ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 2.04,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
any series of Securities:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.08, 2.09, 2.11 or 9.05 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder);
(3) the person to whom any interest on a Security of the series shall
be payable, if other than the person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
record date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, the dates on which any such interest shall be payable and the
record date for any such interest payable on any such payment date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and
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the terms and conditions upon which any Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denomination of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount thereof the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02;
(14) if the principal amount payable at the maturity of any Securities
of the series will not be determinable as of any one or more dates prior to
maturity, the amount which shall be deemed to be the principal amount of
such Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be due and
payable upon any maturity date other than the stated maturity or which
shall be deemed to be outstanding as of any date prior to the stated
maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 4.09, and, if
other than by a Board Resolution, the manner in which any election by the
Company to defease such Securities shall be evidenced;
(16) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.02;
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(17) any addition to or change in the covenants set forth in Article
Four which applies to Securities of the series;
(18) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities, and the
depositary for such Global Security and Securities; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may modify or
delete any provision of this Indenture with respect to such series,
provided that no such term may modify or delete any provision hereof if
imposed by the Trust Indenture Act, and provided, further that any
modification or deletion of the rights, duties or immunities of the Trustee
hereunder shall have been consented to in writing by the Trustee).
If any of the foregoing terms are not available at the time such Board
Resolution is adopted, or such officers' Certificate or any supplemental
indenture is executed, such resolutions, Officers' Certificate or supplemental
indenture may reference the document or documents to be created in which such
terms will be set forth prior to the issuance of such Securities.
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 the
Board Resolution referred to above and (subject to Section 2.04) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.04. EXECUTION AND AUTHENTICATION; DENOMINATIONS; DELIVERY AND DATING.
Two Officers shall sign the Securities for the Company by facsimile
signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Upon a written order of the Company signed by two Officers or by an Officer
and an Assistant Treasurer of the Company, the Trustee shall authenticate the
Securities.
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The Securities shall be issuable only in registered form without coupons
and only in minimum denominations of $100,000 and in integral multiples of
$1,000 in denominations above $100,000.
The Company and the Trustee, by their execution and authentication,
respectively, of the Securities, expressly agree to the terms and conditions
stated therein and to be bound thereby.
SECTION 2.05. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities of a series
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Securities of that series may be presented for payment
("Paying Agent"). At all times the Registrar and the Paying Agent shall each
maintain an office or agency in the State of New York where Securities of a
series may be presented for the above purposes. The Registrar shall keep a
register of the Securities of that series and of their registration of transfer
and exchange. The Company may have one or more co-registrars and one or more
additional paying agents for each series of Securities. The term "Paying Agent"
includes any additional paying agent. The term "Registrar" includes any
co-registrar.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST.
Subject to the provisions of Article Three and Section 8.03 hereof, each
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money held by the Paying Agent for the payment of principal of or
interest on any series of Securities, and shall notify the Trustee of any
default by the Company in making any such payment. If the Company or a
subsidiary of the Company acts as Paying Agent, it shall, on or before each due
date of principal of or interest on that series of Securities, segregate the
money and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee. Upon doing so the
Paying Agent shall have no further liability for the money.
SECTION 2.07. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each interest payment date and at such other times
as the Trustee may request in writing a list in such form and as of such date as
the Trustee may
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reasonably require of the names and addresses of Securityholders, separately by
series, relating to such interest payment date or request, as the case may be.
SECTION 2.08. TRANSFER AND EXCHANGE.
Where a Security is presented to the Registrar or a co-registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the Nevada Uniform
Commercial Code are met. Where Securities are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit registration of transfers
and exchanges, the Trustee shall authenticate Securities at the Registrar's
request. The Company may charge a reasonable fee for any transfer or exchange
but not for any exchange pursuant to Section 2.11 or 9.05.
The Company need not issue, and the Registrar or co-Registrar need not
register the transfer or exchange of, (i) any Security of a series during a
period beginning at the opening of business 15 days before the day of any
selection of Securities of that series for redemption under Section 11.02 and
ending at the close of business on the day of selection, or (ii) any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security of that series being redeemed in part.
SECTION 2.09. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate and make available for delivery a replacement Security of like
series if the requirements of Section 8-405 of the Nevada Uniform Commercial
Code are met. Before any Security is replaced, an indemnity bond must be
provided sufficient in the judgment of the Company and the Trustee to protect
the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
from any loss which any of them may suffer if a Security is replaced. The
Company may charge for its expenses in replacing a Security. Every replacement
Security shall constitute a contractual obligation of the Company and shall be
entitled to all the benefits of this Indenture equally with all other Securities
of the same series issued hereunder.
SECTION 2.10. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the Securities
of that series authenticated by the Trustee except for those canceled by it and
those described in this Section. Subject to the provisions of Section 12.06
hereof, a Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
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If the Paying Agent holds on the maturity date money sufficient to pay
Securities payable on that date, then on and after that date such Securities
shall cease to be outstanding and interest on them shall cease to accrue.
For each series of Original Issue Discount Securities, the principal amount
of such Securities that shall be deemed to be outstanding and used to determine
whether the necessary Holders have given any request, demand, authorization,
direction, notice, consent or waiver shall be the principal amount of such
Securities that could be declared to be due and payable upon acceleration upon
an Event of Default as of the date of such determination. When requested by the
Trustee, the Company will advise the Trustee of such amount, showing its
computations in reasonable detail.
SECTION 2.11. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities upon a written order of
the Company signed by two officers of the Company. Temporary Securities shall
be substantially in the form of definitive Securities, but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Securities in exchange for temporary Securities.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall cancel and destroy any
Securities surrendered to them for registration of transfer, exchange, payment
or cancellation. Certification of the destruction of all cancelled securities
shall be delivered to the Company. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on any series of
Securities, it shall pay the defaulted interest to the persons who are
Securityholders of that series on a subsequent special record date. After the
deposit by the Company with the Trustee of money sufficient to pay such
defaulted interest, the Trustee shall fix the record date and payment date. At
least 15 days before the record date, the Company shall mail to each
Securityholder of that series a notice that states the record date, the payment
date, and the amount of defaulted interest to be paid. The Company may pay
defaulted interest in any other lawful manner.
SECTION 2.14. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO GAMING LAWS.
Each Holder, by accepting the Securities, 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 must be licensed, qualified or found suitable under the
applicable Gaming Laws, such Holder shall apply for a license,
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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, the Company shall have the right, at its option, (i) to require
such person to dispose of its Securities or beneficial interest therein
within 30 days of receipt of notice of the Company's election or such earlier
date as may be requested or prescribed by such Gaming Authority or (ii) to
redeem such Securities at a redemption price equal to the lesser of (A) such
person's cost and (B) 100% of the principal amount thereof, plus accrued and
unpaid interest to the earlier of the redemption date and the date of the
finding of unsuitability, which may be less than 30 days following the notice
of redemption if so requested or prescribed by the Gaming Authority. The
Company shall notify the Trustee in writing of any such redemption as soon as
practicable. The Company shall not be responsible for any costs or expenses
any such Holder may incur in connection with its application for a license,
qualification or a finding of suitability.
ARTICLE THREE
SUBORDINATION
SECTION 3.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company, for itself and its successors, and each Holder, by his
acceptance of Securities, agrees that the payment of the principal of and
interest on the Securities is subordinated, to the extent and in the manner
provided in this Article Three, to the prior payment in full of all Senior
Indebtedness.
For purposes of this Article Three, "Senior Indebtedness" means the
principal of and interest on and other amounts due on or in connection with
(a) Indebtedness of the Company (other than the Securities), whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed in any manner by the Company or in effect guaranteed by the
Company through an agreement to purchase or otherwise, and (b) renewals,
extensions, refunding or refinancing of Indebtedness of the kind described in
the preceding clause (a), unless, in the case of any particular Indebtedness,
renewal, extension, refunding or refinancing, the instrument creating or
evidencing the same or the assumption or guarantee thereof expressly provides
that such Indebtedness, renewal, extension, refunding or refinancing does not
constitute Senior Indebtedness. Notwithstanding anything to the contrary in
the foregoing, Senior Indebtedness shall include (i) all Indebtedness,
liabilities and obligations of the Company owed to banks and other financial
institutions and (ii) the Senior Secured Notes issued by the Company pursuant
to the Indenture by and between the Company and the Trustee dated _______ __,
____, the Senior Unsecured Notes issued by the Company pursuant to the
Indenture by and between the Company and the Trustee dated _______ __, ____,
the Senior Subordinated Notes issued by the Company pursuant to the Indenture
by and between the Company and the Trustee dated _______ __, ____ (the "New
Notes"), the 10 5/8% Senior Subordinated Notes of the Company Due 1997 (the
"10 5/8% Notes"), the 6 3/4% Senior Subordinated Notes of the Company Due
2003 (the "6 3/4% Notes"), and the 7 5/8% Senior Subordinated Debentures of
the Company Due 2013 (the "7 5/8% Notes" and together with the New Notes, the
10 5/8% Notes and the 6 3/4% Notes, the "Senior Subordinated Notes"), but
shall not include (x) any Indebtedness hereafter incurred that is subordinate
or junior in right of payment to any Senior Indebtedness (other than the
Senior Subordinated Notes and any other Indebtedness ranking pari passu with
such Indebtedness), (y) Indebtedness of the Company
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to a subsidiary or affiliate of the Company for money borrowed or advances from
such subsidiary or affiliate or (z) any Indebtedness specified in an indenture
supplemental hereto or an Officers' Certificate as being excepted from the
definition of Senior Indebtedness; PROVIDED, that any guaranty by the Company of
Indebtedness of a subsidiary of the Company to third parties shall constitute
Senior Indebtedness unless, in the case of any particular guaranty, the
instrument creating or evidencing the same provides that such guaranty does not
constitute Senior Indebtedness; PROVIDED FURTHER, that in the event a subsidiary
of the Company advances to the Company the proceeds attributable to Indebtedness
incurred by such subsidiary to a third party which Indebtedness has been
guaranteed by the Company, then such obligation of the Company to repay such
advance to the subsidiary shall constitute Senior Indebtedness, unless the
Company provides in writing that such advance does not constitute Senior
Indebtedness.
This Article Three shall constitute a continuing offer to all persons who,
in reliance upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness, and such holders are made obligees hereunder and they
and/or each of them may enforce such provisions.
SECTION 3.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all principal thereof and interest thereon and
other amounts due in connection therewith shall first be paid in full, or
such payment duly provided for or other provision made therefor in a manner
satisfactory to the holders of such Senior Indebtedness, before any payment
is made (i) on account of principal of or interest on any of the Securities
or (ii) to acquire any of the Securities for cash or property other than
capital stock of the Company.
(b) Upon the happening of an event of default (or if an event of
default would result upon any payment with respect to any of the
Securities) with respect to any Senior Indebtedness, as such event of
default is defined therein or in the instrument under which it is
outstanding, permitting the holders to accelerate the maturity thereof and
(if the default is other than (i) default in payment of the principal of or
interest on or other amount due in connection with such Senior Indebtedness
or (ii) a default for which notice is required to be sent under the terms
of such Senior Indebtedness by the holders thereof or their Representative)
upon written notice thereof given to the Company and the Trustee by the
holders of such Senior Indebtedness or their Representative, then, unless
and until such event of default shall have been cured or waived or shall
have ceased to exist, no payment shall be made by the Company with respect
to the principal of or interest on any of the Securities or to acquire any
of the Securities for cash or property other than capital stock of the
Company; PROVIDED, HOWEVER, that if such default is a default other than a
default referred to in clause (i) of this Section 3.02(b), nothing
contained in this Section 3.02(b) shall prevent the Company from making
payments of interest, when due, on any of the Securities.
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(c) In the event that notwithstanding the provisions of this
Section 3.02 the Company shall make any payment to the Trustee on account
of the principal of or interest on any of the Securities (other than as
permitted by Section 3.02(b)) after the happening of an event of default of
the type specified in clauses (i) or (ii) of Section 3.02(b) above or after
receipt by the Company and the Trustee of written notice as provided in
Section 3.02(b) above of any other event of default with respect to any
Senior Indebtedness, then, unless and until such event of default shall
have been cured or waived or shall have ceased to exist, such payment
(subject to the provisions of Sections 3.06 and 3.07) shall be held by the
Trustee in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of Senior Indebtedness (pro rata as to each of
such holders on the basis of the respective amounts of Senior Indebtedness
held by them) or their Representative or the trustee under the indenture or
other agreement (if any) pursuant to which Senior Indebtedness may have
been issued, as their respective interests may appear, for application to
the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in accordance with its
terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness. The Company shall give prompt
written notice to the Trustee of any default under any Senior Indebtedness
or under any agreement pursuant to which Senior Indebtedness may have been
issued.
SECTION 3.03. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION OF COMPANY.
Upon any distribution of assets of the Company pursuant to any dissolution,
winding up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership or similar proceedings relating to the Company or its
property or upon an assignment for the benefit of creditors or otherwise):
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full of the principal and interest due thereon and other
amounts due in connection therewith before the Holders are entitled to
receive any payment on account of the principal of or interest on any of
the Securities;
(b) any payment or distributions of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders
or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article Three shall be paid by the liquidating trustee
or agent or other person making such a payment or distribution directly to
the holders of Senior Indebtedness or their Representative to the extent
necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the
Holders or any Paying Agent (or, if the Company
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is acting as its own Paying Agent, money for any such payment or
distribution shall be segregated or held in trust) on account of principal
of or interest on any of the Securities before all Senior Indebtedness is
paid in full, or effective provision made for its payment, such payment or
distribution (subject to the provisions of Sections 3.06 and 3.07) shall be
received and held in trust for and shall be paid over to the holders of the
Senior Indebtedness remaining unpaid or unprovided for or to their
Representative for application to the payment of such Senior Indebtedness
until all such Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or any
assignment for the benefit of the Company's creditors.
SECTION 3.04. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the payment in full in cash of all Senior Indebtedness, the
Holders of any series of Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of assets of
the Company applicable to the Senior Indebtedness until all amounts owing on
such series of Securities shall be paid in full, and for the purpose of such
subrogation no such payments or distributions to the holders of Senior
Indebtedness by or on behalf of the Company or by or on behalf of the Holders of
such series by virtue of this Article Three which otherwise would have been made
to the Holders of such series shall, as between the Company and the Holders of
such series, be deemed to be payment by the Company to or on account of the
Senior Indebtedness, it being understood that the provisions of this
Article Three are and are intended solely for the purpose of defining the
relative rights of the Holders of such series, on the one hand, and the holders
of Senior Indebtedness, on the other hand.
SECTION 3.05. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article Three or elsewhere in this Indenture or
in any Security is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Three of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any distribution of
assets of the Company referred to in this Article Three, the Trustee, subject to
the provisions of Sections 7.01 and 7.02, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation, reorganization or similar
proceedings are pending, or a certificate of the liquidating trustee or agent or
other person making
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any distribution to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Three.
SECTION 3.06. TRUSTEES AND PAYING AGENT ENTITLED TO ASSUME PAYMENTS NOT
PROHIBITED IN ABSENCE OF NOTICE.
The Trustee and Paying Agent shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee or the Paying Agent unless and until the Trustee or
the Paying Agent shall have received written notice thereof from the Company or
from one or more holders of Senior Indebtedness or from any Representative
therefor and, prior to the receipt of any such written notice, the Trustee and
Paying Agent, subject to the provisions of Sections 7.01 and 7.02, shall be
entitled in all respects conclusively to assume that no such fact exists.
SECTION 3.07. APPLICATION BY TRUSTEE OF MONIES DEPOSITED WITH IT.
Any deposit of monies by the Company with the Trustee or any Paying Agent
(whether or not in trust) for the payment of principal of or interest on any of
the Securities shall be subject to the provisions of Sections 3.01, 3.02, 3.03
and 3.04 except that, if prior to the date on which by the terms of this
Indenture any such monies may become payable for any purpose (including, without
limitation, the payment of either principal of or interest on any Security) the
Trustee or such Paying Agent shall not have received with respect to such monies
the notice provided for in Section 3.06, then the Trustee or such Paying Agent
shall have full power and authority to receive such monies and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date.
Nothing herein shall be construed to relieve any Holders from duties imposed
upon them under Section 3.03(c) with respect to monies received in violation of
the provisions of this Article Three.
SECTION 3.08. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF COMPANY
OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The holders of Senior Indebtedness may extend, renew, modify or amend the terms
of the Senior Indebtedness or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Company, all without
affecting the liabilities and obligations of the parties to the Indenture or the
Holders of the Securities. No provision in any supplemental indenture which
affects the superior position of the holders of the Senior Indebtedness shall be
effective against the holders of the Senior Indebtedness who have not consented
thereto.
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SECTION 3.09. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF
SECURITIES.
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Three and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the immediate filing of a claim for the unpaid balance of its or
his Securities in the form required in said proceedings and cause said claim to
be approved. If the Trustee does not file a proper claim or proof of debt in
the form required in such proceeding prior to 30 days before the expiration of
the time to file such claim or claims, then the holders of Senior Indebtedness
are hereby authorized to have the right to file and are hereby authorized to
file an appropriate claim for and on behalf of the Holders of said Securities.
SECTION 3.10. RIGHT OF TRUSTEE AND PAYING AGENT TO HOLD SENIOR INDEBTEDNESS.
The Trustee and the Paying Agent shall be entitled to all of the rights set
forth in this Article Three in respect of any Senior Indebtedness at any time
held by either of them to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee or the Paying Agent of any of its rights as such holder.
SECTION 3.11. ARTICLE THREE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest on the
Securities by reason of any provision of this Article Three shall not be
construed as preventing the occurrence of an Event of Default under
Section 6.01.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities. An installment of
principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment; PROVIDED, HOWEVER, that money held by the
Trustee for the benefit of holders of Senior Indebtedness pursuant to the
provisions of Article Three hereof shall not be considered paid within the
meaning of this Section 4.01.
The Company shall pay interest on overdue principal at the rate borne by
the Securities; it shall pay interest on overdue installments of interest at the
same rate to the extent lawful.
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SECTION 4.02. CORPORATE EXISTENCE.
Subject to Article Five, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate, partnership or other existence of each subsidiary in
accordance with the respective organizational documents of each subsidiary and
the rights (charter and statutory), licenses and franchises of the Company and
its subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to
preserve, with respect to itself, any right, license or franchise, and with
respect to the subsidiaries, any such existence, right, license or franchise, if
the Board of Directors, or the board of directors or managing partners of the
subsidiary concerned, shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or any subsidiary and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any subsidiary or upon the income,
profits or property of the Company or any subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any subsidiary; PROVIDED, HOWEVER, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings; and
PROVIDED, FURTHER, that the Company shall not be required to cause to be paid or
discharged any such tax, assessment, charge or claim if the Board of Directors,
or the board of directors or managing partners of the subsidiary concerned,
shall determine that such payment is not advantageous to the conduct of the
business of the Company or any subsidiary and that the failure so to pay or
discharge is not disadvantageous in any material respect to the Holders.
SECTION 4.04. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used in the conduct of its business
or the business of any subsidiary to be maintained and kept in such condition,
repair and working order as in the judgment of the Company may be necessary, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors or of
the board of directors or managing partners of the subsidiary concerned,
desirable in the conduct of the business of the Company or any subsidiary and
not disadvantageous in any material respect to the Holders; and PROVIDED
FURTHER, that property may be disposed of in the ordinary course of the business
of the Company or its subsidiaries at the discretion of the appropriate officers
of the Company and its subsidiaries.
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SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. Unless the Trustee serves as
Paying Agent or Registrar, 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
address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes.
SECTION 4.06. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate stating whether or not
the signers know of any default by the Company in performing its covenants in
Sections 4.02, 4.03, 4.04 and 4.05. If they do know of such a default, the
certificate shall describe the default in detail.
SECTION 4.07. REPORTS.
The Company shall file with the Trustee within 15 days after it files them
with the SEC copies of the quarterly and annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA Section 314(a).
So long as any of the Securities remain outstanding the Company shall cause
to be mailed to the Holders at their addresses appearing in the register of
Securities maintained by the Registrar all annual, quarterly or other reports
which the Company mails or causes to be mailed to its stockholders generally,
concurrently with such mailing to stockholders, and will cause to be disclosed
in such annual reports as of the date of the most recent financial statements in
each such report the amount available for dividends and other payments pursuant
to the most restrictive covenant therefor as of such date.
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SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY 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 an manner whatsoever claim,
and will resist any and all efforts to be compelled to take the benefit or
advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the
interest on the Securities as contemplated herein, whenever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company 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 4.09. DEFEASANCE OF CERTAIN OBLIGATIONS.
The Company may omit to comply with any term, provision or condition set
forth in Sections 4.03 and 4.04 and Article Five and Section 6.01(3) (with
respect to Sections 4.03 and 4.04 and Article Five) and, in each case with
respect to any series of Securities, such omission shall be deemed not to be an
Event of Default, PROVIDED, that the following conditions have been satisfied
with respect to such series:
(1) the Company has irrevocably deposited or caused to be deposited
with the Trustee, as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such series of
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will, without consideration of any reinvestment
of such interest, provide not later than the opening of business on the
relevant due date, money in an amount, or (C) a combination thereof, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, sufficient to pay and discharge the principal of, and each
installment of interest on, such series of Securities then outstanding on
the date of maturity of such principal or installment of interest or on the
redemption date, as the case may be;
(2) Such deposit shall not cause the Trustee with respect to such
series of Securities to have a conflicting interest for purposes of the TIA
with respect to such series of Securities;
(3) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture;
(4) No Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
such series of Securities shall have occurred and be continuing on the date
of such deposit and no Event of Default under Section 6.01(5) or
Section 6.01(6) or event which with the giving of notice or lapse
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of time, or both, would become an Event of Default under Section 6.01(5) or
Section 6.01(6) shall have occurred and be continuing at any time during
the period ending on the 91st day after such date or, if longer, ending on
the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period);
(5) the deposit shall not result in the Company, the Trustee or the
trust becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(6) The Company has delivered to the Trustee an Opinion of Counsel,
reasonably satisfactory to the Trustee, to the effect that (i) Holders of
such series of Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would have been the
case if such deposit and defeasance had not occurred and (ii) (A) the trust
funds will not be subject to any rights of holders of Senior Indebtedness,
including, without limitation, those arising under Article Three of this
Indenture and (B) after the passage of 90 days following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally, PROVIDED, that if a court were to rule under any such law in any
case or proceeding that the trust funds remained property of the Company,
no opinion need be given as to the effect of such laws on the trust funds
except the following: (x) assuming such trust funds remained in the
Trustee's possession prior to such court ruling to the extent not paid to
Holders of such series of Securities, the Trustee will hold, for the
benefit of the Holders of such series of Securities, a valid and perfected
security interest in such trust funds that is not avoidable in bankruptcy
or otherwise and (y) no property, rights in property or other interests
granted to the Trustee for the benefit of the Holders of Securities or to
the Holders of Securities in exchange for or with respect to any of such
trust funds will be subject to any prior rights of holders of Senior
Indebtedness, including without limitation those arising under Article
Three of this Indenture; and
(7) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section
have been complied with.
ARTICLE FIVE
SUCCESSOR CORPORATION
The Company shall not consolidate with or merge into any other person or
transfer its properties and assets substantially as an entirety to any person
unless:
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(1) either the Company shall be the continuing corporation, or the
person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the properties and assets of the
Company substantially as an entirety are transferred shall be a
corporation, partnership or trust organized and existing under the laws of
the United States of America or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under the Securities and this Indenture;
(2) immediately after giving effect to such transaction, no Default
or Event of Default exists; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
The successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer 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, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under the Indenture and the
Securities, and in the event of such transfer any such predecessor corporation
may be dissolved and liquidated.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to any series of Securities occurs if:
(1) the Company defaults in the payment of interest on such series of
Securities when the same becomes due and payable and the default continues
for a period of 30 days; or
(2) the Company defaults in the payment of principal of such series
of Securities when the same becomes due and payable at maturity, upon
redemption or otherwise; or
(3) the Company fails to comply with any of its other agreements in
such series of Securities or this Indenture, and the default continues for
the period and after the notice specified below; or
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(4) an event or events of default, as defined in any one or more
mortgages, indentures or instruments under which there may be issued, or by
which there may be secured or evidenced, any Indebtedness of the Company or
a subsidiary, whether such Indebtedness now exists or shall hereafter be
created, shall happen and shall entitle the holders of such Indebtedness to
declare an aggregate principal amount of at least $10,000,000 of such
Indebtedness due and payable and such event of default shall not have been
cured or waived in accordance with the provisions of such instrument, or
such Indebtedness shall not have been discharged, within a period of 30
days after there shall have 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 such series of Securities then
outstanding a written notice specifying such event or events of default and
requiring the Company to cause such event of default to be cured or such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder, PROVIDED, HOWEVER, that the Company is not in good
faith contesting in appropriate proceedings the occurrence of such an event
of default; or
(5) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any subsidiary in an
involuntary case or proceeding under any Bankruptcy Law which shall
(A) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any
subsidiary, (B) appoint a Custodian of the Company or any subsidiary or for
any substantial part of its property or (C) order the winding-up or
liquidation of its affairs; and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or any
bankruptcy or insolvency petition or application is filed, or any
bankruptcy or insolvency proceeding is commenced, against the Company or
any subsidiary and such petition, application or proceeding is not
dismissed within 60 days; or any warrant of attachment is issued against
any substantial portion of the property of the Company or any subsidiary
which is not released within 60 days of service; or
(6) the Company or any subsidiary shall (A) become insolvent,
(B) generally fail to pay its debts as they become due, (C) make any
general assignment for the benefit of creditors, (D) admit in writing its
inability to pay its debts generally as they become due, (E) commence a
voluntary case or proceeding under any Bankruptcy Law, (F) consent to the
entry of a judgment, decree or order for relief in an involuntary case or
proceeding under any Bankruptcy Law, (G) consent to the institution of
bankruptcy or insolvency against it, (H) apply for, consent to or acquiesce
in the appointment of or taking possession by a Custodian of the Company or
any subsidiary or for any substantial part of its property or (I) take any
corporate action in furtherance of any of the foregoing.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A default under clause (3) (other than a Default under Section 4.02 or
Article Five which Default shall be an Event of Default without the notice or
passage of time specified in this
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paragraph) is not an Event of Default with respect to a series of Securities
until the Trustee or the Holders of at least 25% in principal amount of such
series of Securities then outstanding notify the Company of the default and the
Company does not cure the default within 30 days after receipt of the notice.
The notice must specify the default, demand that it be remedied and state that
the notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
If an Event of Default relating to any series of Securities occurs and is
continuing, the Trustee by notice in writing to the Company, or the Holders of
not less than 25% in principal amount of such series of Securities then
outstanding by notice in writing to the Company and the Trustee, may declare the
unpaid principal (or, in the case of Original Issue Discount Securities, such
lesser amount as may be provided for in such Securities of and any accrued
interest on all such series of Securities, (but in no event more than the
maximum amount of principal and interest thereon allowed by law) to be due and
payable immediately. Upon any such declaration such principal and interest
shall be payable immediately.
At any time after such a declaration of acceleration 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 a majority
in principal amount of such series of Securities then outstanding, by written
notice to the Company and the Trustee, may rescind and annul such declaration as
to such series of Securities, and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) the principal of such series of Securities that has become
due otherwise than by such declaration of acceleration (together with
interest, if any, payable thereon); and
(B) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee and its agents, attorneys and counsel; and
(2) all existing Events of Default relating to such series of
Securities have been cured or waived and the rescission would not conflict
with any judgment or decree.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default relating to any series of Securities occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on such series of
Securities or to enforce the performance of any provisions of such series of
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the subject series of Securities or does not produce any of them in the
proceeding. A delay or omission by the
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Trustee or any Securityholder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, the Holders of a majority in principal amount of
any series of Securities then outstanding by notice to the Trustee may waive an
existing Default or Event of Default with respect to such series of Securities,
and its consequences. When a Default or Event of Default is waived, it is cured
and stops continuing.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of any series of Securities
then outstanding may 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 it with respect to any default under such series of
Securities. However, subject to Section 7.01, the Trustee may refuse to follow
any direction that conflicts with any rule of law or this Indenture, that is
unduly prejudicial to the rights of another Holder of such series of Securities,
or that would involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of any series of Securities may not pursue any remedy with respect
to this Indenture or any series of Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of such series of
Securities then outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority of principal
amount of such series of Securities then outstanding do not give the
Trustee a direction inconsistent with the request.
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A Holder of any series of Securities may not use this Indenture to
prejudice the rights of another Holder of such series of Securities or to obtain
a preference or priority over another Holder of such series of Securities.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, but subject to the
provisions of Article Three, the right of any Holder of a Security to receive
payment of principal of or interest on the Security on or after the respective
due dates expressed in the Security or to bring suit for the enforcement of any
such payment on or after such respective dates shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing with respect to any series of
Securities, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal (or such
portion of the principal as may be specified as due upon acceleration at that
time in the terms of that series of Securities) and interest, if any, remaining
unpaid on such series of Securities then outstanding.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the Company, its
creditors or its property.
SECTION 6.10. PRIORITIES.
Subject to the provisions of Article Three, if the Trustee collects any
money pursuant to this Article with respect to any series of Securities, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders for amounts due and unpaid on such series
of Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
series of Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders of any series of Securities pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of any such record date and
payment date.
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SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07,
or a suit by Holders of more than 10% in principal amount of the Securities then
outstanding.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is known to the Trustee
(and is not cured), the Trustee shall exercise its rights and powers 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.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture or in the TIA and no
covenants or obligations shall be implied in this Indenture which
bind the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions which by any provision of this Indenture are
specifically required to be furnished to the Trustee to determine
whether or not they conform in form to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section;
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(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives security and indemnity satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys or agents (which shall
not include its employees) and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or power.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
subsidiaries or Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar or co-registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
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SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs with respect to any series of Securities and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder of such series of Securities, notice of the Default within 90 days after
it occurs. Except in the case of a default in the payment of principal of or
interest on such series of Securities, the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of the Holders of such series of
Securities.
SECTION 7.06. REPORTS BY TRUSTEE.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such May 15 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which the Securities are
listed. The Company shall notify the Trustee when the Securities are listed on
any stock exchange.
To the extent requested by the Company, the Trustee shall cooperate with
the Gaming Authorities in order to provide such Gaming Authorities with any
information and documentation that they may request and as otherwise required by
law.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it. Such expense
may include the reasonable compensation and expenses of the Trustee's agents and
counsel. The Company shall indemnify the Trustee against any loss or liability
incurred by it, without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this trust. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
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To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of any series of Securities then
outstanding may remove the Trustee with respect to such series of Securities
by so notifying the removed Trustee and may appoint a successor Trustee with
the Company's consent. The Company may remove the Trustee with respect to one
or more or all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed or if
a vacancy exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee for that series.
A successor Trustee as to any series of Securities shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture as to such series. A successor Trustee shall mail notice of its
succession to the Holders of such series of Securities.
If a successor Trustee as to any series of Securities does not take office
within 60 days after the retiring Trustee resigns or is removed, then (i) the
retiring Trustee or the Company may petition any court of competent jurisdiction
for the appointment of a successor Trustee and (ii) the Holders of a majority in
principal amount of such series of Securities then outstanding may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 with respect to any series
of Securities, any Holder of such series of Securities who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for such series.
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In case of appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) shall contain such
provisions as shall be necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary or desirable to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee; provided, however, that nothing herein or in such supplemental
Indenture shall constitute such Trustee co-trustees of the same trust and that
each such Trustee shall be a trustee of a trust hereunder separate and apart
from any trust hereunder and administered by any other such Trustee.
Upon the execution and delivery of such supplemental Indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each 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 with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee as to any series of Securities consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
assets to, another corporation, the resulting, surviving or transferee
corporation shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, without any further act, be the successor Trustee
as to such series.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee as to any series of Securities
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), including the optional provision permitted by
the second sentence of TIA Section 310(b)(9).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
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SECTION 7.12. AUTHENTICATING AGENT.
If the Company so requests, there shall be an Authenticating Agent
appointed by the Trustee with power to act on its behalf and subject to its
direction in the authentication and delivery of any series of Securities in
connection with the exchange or registration of transfer thereof as fully to all
intents and purposes as though the Authenticating Agent had been expressly
authorized by the relevant Sections hereof to authenticate and deliver such
series of Securities, and such series of Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as though authenticated by the Trustee hereunder, and for all
purposes of this Indenture, the authentication and delivery of such series of
Securities by the Authenticating Agent pursuant to this Section shall be deemed
to be the authentication and delivery of such series of Securities "by the
Trustee." Notwithstanding anything to the contrary contained in Section 2.04,
or in any other Section hereof, all authentication in connection with exchange
or registration of transfer thereof shall be effected either by the Trustee or
an Authenticating Agent and such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State, with a combined capital and surplus of at least $5,000,000 and
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal or State authority. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such 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.
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, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent 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 under this Section, the
Trustee shall promptly appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all Holders of the Securities as the names and addresses of such
Holders appear on the register of Securities, and shall publish notices of such
appointment at least once in a newspaper of general circulation in the place
where such successor Authenticating Agent has its principal office.
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Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth, including, without
limitation, the duties to authenticate and deliver the Securities when presented
to it in connection with exchanges or registrations of transfer thereof; it will
furnish from time to time, as requested by the Trustee, appropriate records of
all transactions carried out by it as Authenticating Agent and will furnish the
Trustee such other information and reports as the Trustee may reasonably
require; it is eligible for appointment as Authenticating Agent under this
Section and will notify the Trustee promptly if it shall cease to be so
qualified; and it will indemnify the Trustee against any loss, liability or
expense incurred by the Trustee and will defend any claim asserted against the
Trustee by reason of any act or failure to act of the Authenticating Agent but
it shall have no liability for any action taken by it at the specific written
direction of the Trustee.
The Company agrees that it will pay to the Authenticating Agent from time
to time reasonable compensation for its services.
The provisions of Sections 7.02, 7.03 and 7.04 shall bind and inure to the
benefit of any Authenticating Agent to the same extent that they bind and inure
to the benefit of the Trustee.
If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities referred to in the within mentioned
Indenture.
as Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
Authorized Signatory
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under any series of Securities
and this Indenture with respect to such series, except those obligations
referred to in the immediately succeeding paragraph, if:
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(a) all such series of Securities previously authenticated and
delivered (other than mutilated, destroyed, lost or stolen Securities which
have been replaced or such series of Securities which are paid for pursuant
to Section 4.01 or such series of Securities for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.03) have been delivered to the Trustee
for cancellation and the Company has paid all sums payable by it hereunder
with respect to such series; or
(b)(1) the series of Securities mature within one year or all of
them are to be called for redemption within one year after arrangements
satisfactory to the Trustee for giving the notice of redemption; and
(b)(2) the Company has irrevocably deposited or caused to be
deposited with the Trustee, during such one-year period, as trust funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such series of Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms
will, without consideration of any reinvestment of such interest, provide
not later than the opening of business on the relevant due date, money in
an amount, or (C) a combination thereof, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, sufficient to pay
and discharge the principal of, and each installment of interest on, such
series of Securities then outstanding on the date of maturity of such
principal or installment of interest or the redemption date, as the case
may be; or
(c)(1) the Company has irrevocably deposited or caused to be
deposited with the Trustee, as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
such series of Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will, without consideration of any
reinvestment of such interest, provide not later than the opening of
business on the relevant due date, money in an amount, or (C) a combination
thereof, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, sufficient to pay and discharge the principal of
and each installment of interest on such series of Securities then
outstanding on the date of maturity of such principal or installment of
interest, or, on the redemption date, as the case may be;
(2) the Company pays or causes to be paid all sums then payable by
the Company hereunder and under such series of Securities; and
(3) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent provided
for herein and in Section 4.09 relating to the satisfaction and discharge
of this Indenture with respect to such series of Securities have been
complied with.
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Notwithstanding the foregoing clause (c), prior to the end of the 90-day
period referred to in clause (6)(ii) of Section 4.09, none of the Company's
obligations under this Indenture shall be discharged, and subsequent to the end
of the 90-day period only the Company's obligations in Sections 2.05, 2.06,
2.07, 2.08, 2.09, 4.01, 4.02, 7.07, 7.08, 8.03 and 8.04 shall survive until such
series of Securities are no longer outstanding. Thereafter, the Company's
obligations in Sections 7.07, 8.03 and 8.04 shall survive; PROVIDED, that the
Company shall pay any taxes or other costs and expenses incurred by any trust
created pursuant to this Article Eight.
After any such irrevocable deposit and after satisfaction of all the
conditions of this Section 8.01, the Trustee, upon the Company's request, shall
acknowledge in writing the discharge of the Company's obligations under the
subject Securities and this Indenture, except for those surviving obligations
specified above. The Trustee shall not be responsible for any calculations made
by the Company in connection with the deposit of funds pursuant to clauses
(b)(2) or (c)(1) of this Section 8.01.
The Company may make an irrevocable deposit pursuant to this Section 8.01
only if at such time it is not prohibited from doing so under the provisions of
Article Three and the Company shall have delivered to the Trustee and any such
Paying Agent an Officers' Certificate to that effect.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall, with respect to any series of
Securities, hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 8.01, and shall apply the deposited money and the money from
U.S. Government Obligations in accordance with this Indenture, to the payment of
principal of and interest on such series of Securities. Money so held in trust,
to the extent allocated for the payment of such series of Securities, shall not
be subject to the provisions of Article Three.
SECTION 8.03. REPAYMENT TO THE COMPANY.
Subject to Section 8.02, the Trustee and the Paying Agent shall promptly
pay to the Company upon request any excess money or U.S. Government Obligations
held by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal or
interest that remains unclaimed for two years; PROVIDED, HOWEVER, that the
Company shall, if requested by the Trustee or such Paying Agent, give the
Trustee or such Paying Agent satisfactory indemnification against any and all
liability which may be incurred by it by reason of such payment; and PROVIDED,
FURTHER, that the Trustee or such Paying Agent before being required to make any
payment shall at the expense of the Company cause to be published once in a
newspaper or newspapers printed in the English language, customarily published
at least five days a week and of general circulation in the City of Las Vegas,
Nevada and in the Borough of Manhattan, The City of New York and mail to each
Securityholder entitled to such money notice that such money remains unclaimed
and that, after a date specified therein which shall be at least 30 days from
the date of such publication or mailing, any unclaimed balance of such money
then
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remaining will be repaid to the Company. After payment to the Company,
Securityholders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another person.
SECTION 8.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 8.01; PROVIDED, HOWEVER,
that if the Company has made any payment of interest on or principal of any
series of Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such series of
Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee as to any series of Securities may amend or
supplement this Indenture or the Securities without notice to or consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide, to the extent permitted by law, that all or a portion
of the obligations of the Company hereunder shall be represented only by
appropriate records maintained by the Company or the Trustee in addition to
or in place of the issue of Securities;
(4) to comply with any requirements of the SEC in connection with the
qualification of this Indenture under the TIA;
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided,
however, that any such addition, change or elimination (A) shall neither
(i) apply to any series of Securities created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with respect
to such provision or (B) shall become effective only when there is no
outstanding Security of any
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series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision;
(6) to make any change that does not adversely affect the rights of
any Securityholder of any series; or
(7) to establish additional series of Securities as permitted by
Section 2.03.
SECTION 9.02. WITH CONSENT OF HOLDERS
The Company and the Trustee as to any series of Securities may amend or
supplement this Indenture or such series of Securities without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Securities of each series
affected by such amendment or supplement, with each such series voting as a
separate class. The Holders of a majority in principal amount of any series of
Securities then outstanding may also waive compliance in a particular instance
by the Company with any provision of this Indenture with respect to that series
of Securities; provided, however, that without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the rate, or extend the time for payment of interest
on, any Security in a manner adverse to the Holders thereof;
(3) reduce the principal of, or extend the fixed maturity or
fixed redemption date of any Securities, in a manner adverse to the Holders
thereof;
(4) waive a default in the payment of the principal of, or
interest on, any Security;
(5) modify the provisions of Article Three (Subordination) in a
manner adverse to the Holders of Securities or in a manner which will cause
any Security to be senior to any other Security in right of payment;
(6) make any Security payable in money other than that stated in
the Security; or
(7) make any changes in Section 6.04, 6.07 and 9.02 (second
sentence).
An amendment or waiver under this Section may not make any change that
adversely affects the rights under Article Three of any holder of an issue of
Senior Indebtedness unless such holder consents to such amendment or waiver.
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An amendment or waiver under this Section which waives, changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more series of Securities, or
which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to Holders of Securities of each series affected thereby a
notice briefly describing the amendment or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
such amendment, supplement or waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of a Security if the
Trustee receives notice of revocation before the date the amendment, supplement
or waiver becomes effective.
The Company may, but shall not be obligated to, set a record date for the
purpose of determining the identity of Holders entitled to consent to any
amendment, supplement or waiver permitted by this Indenture. If a record date
is fixed, the Holders of Securities of that series outstanding on such record
date, and no other Holders, shall be entitled to consent to such amendment,
supplement or waiver or revoke any consent previously given, whether or not such
Holders remain Holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Securities of that series required hereunder
for such amendment, supplement or waiver to be effective shall have also been
given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall bind
the Holder of every Security unless it makes a change described in clause (1),
(2), (3), (4), (5), (6) or (7) of Section 9.02. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
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SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver does not
adversely affect the rights of the Trustee. If it does, the Trustee may but
need not sign it. The Company may not sign an amendment or supplement until the
Board of Directors approves it. The Trustee, subject to Sections 7.01 and 7.02,
shall be entitled to receive, and shall be fully protected in relying upon an
Opinion of Counsel stating that any amendment, supplement or waiver is
authorized by this Indenture and complies with the provisions of this Article
Nine.
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of any series of Securities, either separately or
jointly, may be called at any time and from time to time pursuant to the
provisions of this Article Ten 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 waive or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to any
of the provisions of Article Six;
(b) to remove the Trustee or appoint a successor Trustee pursuant to
the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver pursuant to the
provisions of Section 9.02; or
(d) to take any action (i) authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of such series of
Securities under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate
in connection with the administration of this Indenture.
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SECTION 10.02. MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Holders of any series of
Securities to take any action specified in Section 10.01, to be held at such
time and at such place in the City of Las Vegas, Nevada, as the Trustee shall
determine. Notice of every meeting of Holders of any series of Securities,
setting forth the time and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed by the Trustee,
first-class postage prepaid, to the Company, and to the Holders of such series
of Securities at their last addresses as they shall appear on the registration
books of the Registrar, not less than ten nor more than 60 days prior to the
date fixed for the meeting.
Any meeting of Holders of the Securities shall be valid without notice if
(i) with respect to a meeting of any series of Securities, all Holders of such
series of Securities then outstanding are present in person or by proxy, or if
notice is waived before or after the meeting by all Holders of such series of
Securities then outstanding and (ii) with respect to a meeting of all
Securityholders, all Holders of such Securities then outstanding are present in
person or by proxy, or if notice is waived before or after the meeting by all
Holders of such Securities then outstanding, and, in each case, if the Company
and the Trustee are either present by duly authorized representative or have,
before or after the meeting waived notice.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to resolution of its Board of
Directors, or the Holders of not less than 25% in aggregate principal amount of
any series of Securities then outstanding shall have requested the Trustee to
call a meeting of Securityholders, either separately or jointly, to take any
action specified in Section 10.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days for
receipt of such request, then the Company or the Holders of such series of
Securities in the amount above specified may determine the time and place in the
City of Las Vegas, Nevada, or in the Borough of Manhattan, The City of New York,
for such meeting and may call such meeting for the purpose of taking such
action, by mailing or causing to be mailed notice thereof as provided in Section
10.02, or by causing notice thereof to be published at least once in each of two
successive calendar weeks (on any day of the week) in a newspaper or newspapers
printed in the English language, customarily published at least five days a week
and of general circulation in the City of Las Vegas, Nevada and in the Borough
of Manhattan, The City of New York, the first such publication to be not less
than 10 nor more than 60 days prior to the date fixed for the meeting.
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Securityholders, a person shall
(a) be a registered Holder of one or more Securities, or (b) be a person
appointed by an instrument in writing as proxy for the registered Holder or
Holders of Securities. The only persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the persons entitled to vote
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at such meeting and their counsel and any representative of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE MEETING;
VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and 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 think appropriate. Such regulations may fix
a record date and time for determining the Holders of record of Securities
entitled to vote at such meeting, in which case those and only those persons who
are Holders of Securities at the record date and time so fixed, or their
proxies, shall be entitled to vote at such meeting whether or not they shall be
such Holders at the time of the meeting.
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 Securityholders as provided in Section 10.03, in which case the
Company or the Securityholders 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 vote of the Holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
At any meeting each Securityholder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Securities 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 Securities held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders. At any meeting of Securityholders, the
presence of persons holding or representing any number of Securities shall be
sufficient for a quorum. Any meeting of Securityholders duly called pursuant to
the provisions of Section 10.02 or Section 10.03 may be adjourned from time to
time by vote of the Holders of a majority in aggregate principal amount of the
Securities represented at the meeting and entitled to vote, and the meeting may
be held as so adjourned without further notice.
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amount of the Securities voted by the ballot. 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 Securityholders shall be prepared by the
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secretary of the meeting and there shall be attached to such 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 such notice was mailed as
provided in Section 10.02 or published as provided in Section 10.03. The record
shall be signed and verified by the affidavits of the permanent chairman and the
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, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY NOT BE
HINDERED OR DELAYED BY CALL OF MEETING.
Nothing in this Article Ten contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Securityholders 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 the Securityholders under any of the provisions of
this Indenture or of the Securities.
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE.
If the Company elects to redeem any series of Securities pursuant to any
optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities of that series to be
redeemed.
The Company shall give each notice provided for in this Section in an
Officers' Certificate at least 45 days before the redemption date (unless a
shorter notice period shall be satisfactory to the Trustee), which notice shall
specify the provisions of such Security pursuant to which the Company elects to
redeem such Securities.
If the Company elects to reduce the principal amount of Securities of any
series to be redeemed pursuant to mandatory redemption provisions thereof, it
shall notify the Trustee of the amount of, and the basis for, any such
reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
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SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are not listed on
an exchange, on a PRO RATA basis or by lot. The Trustee shall make the
selection not more than 75 days and not less than 30 days before the redemption
date from Securities of that series outstanding and not previously called for
redemption. Except as otherwise provided as to any series of Securities,
Securities and portions thereof that the Trustee selects shall be in amounts
equal to the minimum authorized denomination for Securities of the series to be
redeemed or any integral multiple thereof. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption. The Trustee shall notify the Company promptly in writing
of the Securities or portions of Securities to be called for redemption.
SECTION 11.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any series of Securities, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if any, to
the date fixed for redemption (the "redemption price");
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption
price, interest on Securities called for redemption ceases to accrue on and
after the redemption date;
(7) The paragraph of the series of Securities and/or Section of any
supplemental indenture pursuant to which such Securities called for
redemption are being redeemed; and
(8) the CUSIP number, if any, of the Securities to be redeemed.
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At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; PROVIDED, HOWEVER, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice of the Holder of any Security shall not affect the validity of the
proceeding for the redemption of any other Security.
SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 11.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the redemption price.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the Paying
Agent (or, if the Company or any subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the redemption price of all
Securities called for redemption on that date other than Securities which have
previously been delivered by the Company to the Trustee for cancellation. The
Paying Agent shall return to the Company any money not required for that
purpose.
SECTION 11.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security of like series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA
or the TIA as amended after the date hereof, the required provision shall
control.
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SECTION 12.02. NOTICES.
Any notice or communication shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail postage prepaid, addressed as
follows:
if to the Company:
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
if to the Trustee:
First Interstate Bank of Nevada, N.A.
3800 Howard Hughes Parkway, Suite 200
Las Vegas, Nevada 89114
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed by
first-class mail, postage prepaid, to such Holder at such Holder's address as it
appears on the register maintained by the Registrar and shall be sufficiently
given to such Holder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above, it shall be
deemed to have been duly given two days after the data of mailing, whether or
not the addressee receives it.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 12.04. CERTIFICATES AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
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(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate of Opinion of Counsel are based;
(3) a statement that, in the opinion of such person, such person has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not in the opinion of such person,
such condition or covenant has been complied with; PROVIDED, HOWEVER, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate.
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or by an Affiliate shall be disregarded, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR.
The Paying Agent or Registrar each may make reasonable rules for its
functions.
SECTION 12.08. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions are not required to be open. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
49
<PAGE>
SECTION 12.09. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construct in
accordance with the laws of the State of Nevada.
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 12.11. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities. The waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
SECTION 12.12. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 12.13. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.14. SEVERABILITY.
In case any provision in this Indenture or in the Securities 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 12.15. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC.
The Article and Section headings herein and the table of contents are for
convenience only and shall not affect the construction thereof.
50
<PAGE>
This Indenture has been delivered and adopted by the parties hereto in the
State of Nevada.
IN WITNESS WHEREOF, the Company and the Trustee have caused their names to
be signed hereto by their respective officers thereunto duly authorized and
their respective corporate seals, duly attested, to be hereunto duly affixed,
all as of the day and year first above written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
(SEAL)
By:
---------------------------
Name:
Title:
FIRST INTERSTATE BANK OF
NEVADA, N.A.,
as Trustee
(SEAL)
By:
---------------------------
Name:
Title:
51
<PAGE>
EXHIBIT 5
OPINION AND CONSENT OF SCHRECK, JONES, BERNHARD,
WOLOSON & GODFREY CHARTERED
Schreck, Jones, Bernhard, Woloson & Godfrey Chartered
600 East Charleston Boulevard
Las Vegas, Nevada 89104
December 22, 1995
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Re: Registration Statement No. 33-[ ];
$400,000,000 Aggregate Principal
Amount of Debt Securities
------------------------------------------------
Ladies and Gentlemen:
In connection with the registration of $400,000,000 aggregate principal
amount of debt securities (the "Debt Securities"), of Circus Circus Enterprises,
Inc., a Nevada corporation ("Circus Circus"), under the Securities Act of 1933,
as amended (the "Act"), on Form S-3 filed with the Securities and Exchange
Commission (the "Commission") on December 22, 1995 (File No. 33- ) (the
"Registration Statement"), and the offering of such Securities from time to
time, as set forth in the prospectus contained in the Registration Statement
(the "Prospectus") and as to be set forth in one or more supplements to the
Prospectus (each a "Prospectus Supplement"), you have requested our opinion with
respect to the matters set forth below.
In our capacity as your counsel in connection with such registration, we are
familiar with the proceedings taken and proposed to be taken by Circus Circus in
connection with the authorization and issuance of the Debt Securities, and for
the purposes of this opinion, have assumed such proceedings will be timely
completed in the manner presently proposed. In addition, we have made such legal
and factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to our satisfaction of such documents,
corporate records and instruments, as we have deemed necessary or appropriate
for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to authentic original documents of all documents submitted to us as copies.
We are qualified to practice law in the State of Nevada. The opinion set
forth herein is expressly limited to the laws of the State of Nevada and we do
not purport to be experts on, nor do we express any opinion herein concerning,
any law other than the law of the State of Nevada, or as to any matters of
municipal law or the laws of any local agencies within any state. We express no
opinion herein concerning any federal law, including any federal securities law,
or any state securities law.
Capitalized terms used herein without definition have the meanings ascribed
to them in the Registration Statement.
Subject to the foregoing and the other matters set forth herein, it is our
opinion that as of the date hereof: The Debt Securities have been duly
authorized by all necessary corporate action of Circus Circus, and when the Debt
Securities have been duly established by an Indenture, and duly executed,
authenticated and delivered by or on behalf of Circus Circus against payment
therefor in accordance
<PAGE>
with the terms of an Indenture and as contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, the Debt Securities will constitute
legally valid and binding obligations of Circus Circus, enforceable against
Circus Circus in accordance with their terms.
The opinions set forth above are subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or at law, and the discretion of the
court before which any proceeding therefor may be brought; (iii) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy; (iv) we express no opinion concerning the enforceability of the
waiver of rights contained in Section 4.08 of each of the Indentures; (v) we
express no opinion with respect to whether acceleration of the Debt Securities
may affect the collectibility of that portion of the stated principal amount
thereof which might be determined to constitute unearned interest thereon; (vi)
we express no opinion with respect to Article III of the Senior Secured Debt
Indenture or any other provision of the Senior Secured Debt Indenture or the
Senior Secured Debt Securities insofar as they pertain to the Security
Documents, the Bank Security Documents (each as defined in the Senior Secured
Debt Indenture), the security interests contemplated thereby and the collateral
subject thereto.
To the extent that the obligations of Circus Circus under the Indentures may
be dependent upon such matters, we assume for purposes of this opinion that the
Trustee is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indentures; that the Indentures
have been duly authorized, executed and delivered by the Trustee and constitutes
the legally valid, binding and enforceable obligation of the Trustee enforceable
against the Trustee in accordance with its terms; that the Trustee is in
compliance, generally and with respect to acting as a trustee under the
Indentures, with all applicable laws and regulations; and that the Trustee has
the requisite organizational and legal power and authority to perform its
obligations under the Indentures.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to, or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent.
We consent to your filing this opinion as an exhibit to the Registration
Statement and to the reference to our firm contained under the heading "Legal
Matters."
Very truly yours,
/s/ SCHRECK, JONES, BERNHARD,
WOLOSON & GODFREY
<PAGE>
EXHIBIT 12
CIRCUS CIRCUS ENTERPRISES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS YEARS ENDED JANUARY 31,
ENDED OCTOBER -----------------------------------------------------
31, 1995 1995 1994 1993 1992 1991
------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Income before income tax and
extraordinary loss..................... 150,439 214,490 182,608 183,313 157,004 115,858
Equity earnings of less-than-fifty-
percent-owned venture not
distributed............................ (4,526) 0 0 0 0 0
Fixed charges:
Interest expense...................... 41,782 42,734 17,770 22,989 43,632 42,048
Rentals representing an interest
factor............................... 863 1,151 1,087 1,036 1,060 1,021
------------- --------- --------- --------- --------- ---------
Earnings as defined..................... 188,558 258,375 201,465 207,338 201,696 158,927
------------- --------- --------- --------- --------- ---------
------------- --------- --------- --------- --------- ---------
Fixed charges (including capitalized
items):
Interest expense...................... 41,782 42,734 17,770 22,989 43,632 42,048
Capitalized interest.................. 6,125 4,153 18,456 7,994 1,171 9,356
Rentals representing an interest
factor............................... 863 1,151 1,087 1,036 1,060 1,021
------------- --------- --------- --------- --------- ---------
Fixed charges as defined................ 48,770 48,038 37,313 32,019 45,863 52,425
------------- --------- --------- --------- --------- ---------
------------- --------- --------- --------- --------- ---------
Ratio of Earnings to Fixed
Charges................................ 3.87(1) 5.38 5.40 6.48 4.40 3.03
------------- --------- --------- --------- --------- ---------
------------- --------- --------- --------- --------- ---------
</TABLE>
- ------------------------
(1) During the second quarter of fiscal 1996, the Company wrote-off $45.1
million of costs associated with various assets which were disposed of or
whose values had otherwise become impaired. The ratio of earnings to fixed
charges for the nine months ended October 31, 1995, excluding this
write-off, would be 4.79.
<PAGE>
EXHIBIT 23(B)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 Registration Statement of our report dated February
22, 1995 (except with respect to the matters discussed in Note 13, as to which
the date is March 19, 1995), relating to our audit of the consolidated financial
statements of Circus Circus Enterprises, Inc. and subsidiaries as of January 31,
1995 and 1994 and for each of the three years ended January 31, 1995,
incorporated by reference in Circus Circus Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended January 31, 1995 and our report dated January 27,
1995 (except with respect to matters discussed in Note 10, as to which the date
is March 19, 1995) relating to the combined financial statements of Gold Strike
Resorts for the years ended December 31, 1994 and 1993 incorporated by reference
in Circus Circus Enterprises, Inc.'s Amendment No. 1 on Form 8-K/A to its
Current Report on Form 8-K dated June 1, 1995, and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Las Vegas, Nevada
December 20, 1995
<PAGE>
EXHIBIT 23(C)
CONSENT OF PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Form S-3 Registration
Statement of our report dated January 20, 1995, relating to the financial
statements of Elgin Riverboat-Riverboat Casino for the years ended December 31,
1994 and 1993 incorporated by reference in Circus Circus Enterprises, Inc.'s
Amendment No. 1 on Form 8-K/A to its Current Report on Form 8-K dated June 1,
1995. We also consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
December 20, 1995
<PAGE>
EXHIBIT 23(D)
CONSENT OF LATHAM & WATKINS
LATHAM & WATKINS
633 West Fifth Street, Suite 4000
Los Angeles, CA 90071
December 22, 1995
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Re: Registration of $400,000,000 Aggregate Principal Amount of Debt
Securities of Circus Circus Enterprises, Inc., a Nevada Corporation,
under the Securities Act of 1933, as amended, on Form S-3 filed with
the Securities and Exchange Commission on December 22, 1995 (File No.
33- ) (the "Registration Statement").
------------------------------------------------------------------------------
Ladies and Gentlemen:
We consent to the reference to our firm contained in the Registration
Statement under the heading "Legal Matters."
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
EXHIBIT 25(a)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Statement of Eligibility Under the Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2)
FIRST INTERSTATE BANK OF NEVADA, NATIONAL ASSOCIATION
- ------------------------------------------------------------------------------
(Exact name of trustee as specified in its charter)
U.S. NATIONAL BANK
- ------------------------------------------------------------------------------
(Jurisdiction of incorporation or organization if not a U.S. national bank)
88-0041996
- ------------------------------------------------------------------------------
(I.R.S. Employer Identification Number)
3800 Howard Hughes Parkway, Suite 200, Las Vegas, Nevada
- ------------------------------------------------------------------------------
(Address of principal executive offices)
89109
- ------------------------------------------------------------------------------
(Zip Code)
First Interstate Bank of Nevada, N.A., 3800 Howard Hughes Parkway Suite 200,
Las Vegas, Nevada 89109, Attn: Legal Department (702) 791-6147
- ------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
Circus Circus Enterprises, Inc.
- ------------------------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Nevada
- ------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
88-0121916
- ------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
2800 Las Vegas Boulevard South, Las Vegas, Nevada
- ------------------------------------------------------------------------------
(Address of principal executive offices)
89109
- ------------------------------------------------------------------------------
(Zip Code)
Senior Secured Debt Securities with First Interstate Bank of
Nevada, N.A., as Trustee
- ------------------------------------------------------------------------------
(Title of the indenture securities)
<PAGE>
Item 1. (a) Office of the Comptroller of the Currency
50 Fremont Street, Suite 3900
San Francisco, CA 91405
Federal Deposit Insurance Corporation
25 Ecker Street, Suite 2300
San Francisco, CA 94150
(b) Yes
Item 2. The obligor is not an affiliate of the Trustee.
Item 3. As of December 31, 1994 First Interstate Bancorp, the parent
corporation of First Interstate Bank of Nevada, N.A., had the following
shares of voting securities outstanding:
Column A. Column B.
Common Stock 74,203,480
First Interstate Bancorp owns all of the voting securities of First Interstate
Bank of Nevada, N.A. of which 5,000,000 shares of common stock is authorized.
Item 4. (a) First Interstate Bank of Nevada, N.A., Trustee for
$100,000,000 10 5/8 Senior Subordinated Notes
Dated 6-18-90 Due 6-15-97
$150,000,000 6 3/4 Senior Subordinated Notes
Dated 7-21-93 Due 7-15-03
$150,000,000 7 5/8 Senior Subordinated Debentures
Dated 7-21-93 Due 7-15-13
(b) The securities subject to this T-1 will rank senior to the
current issues. However, no conflict will exist until any
of the securities is in default at which time the trustee
will eliminate such conflict or, unless otherwise provided
for under the Trust Indenture Act of 1939, as amended,
resign with respect to the securities that are the subject
of this T-1.
Item 5. Not applicable.
Item 6. Not applicable.
Item 7. Not applicable.
Item 8. Not applicable.
Item 9. Not applicable.
Item 10. Not applicable.
Item 11. Not applicable.
<PAGE>
Item 12. As of July 5, 1995
Column A Column B Column C
-------- -------- --------
Nature of indebtedness: Amount outstanding Date due
$230,000,000 Revolving $31,769,000 September 30, 2000
Line of Credit to Circus (First Interstate
and Eldorado Joint Venture, Bank of Nevada,
a Nevada general partnership N.A. share)
of which Circus Circus
Enterprises, Inc., is a
general partner (First
Interstate Bank of Nevada,
N.A. is a participant in
that loan up to the amount
of $34,200,000)
$250,000,000 Revolving $0 (First September 30,
Line of Credit and Interstate Bank 1996, and
$500,000,000 Revolving of Nevada, N.A. September 30,
Line of Credit to Circus has participated 1998,
Circus Enterprises, Inc. out its share) respectively
(First Interstate Bank of
Nevada, N.A. is a pro rata
participant up to the amount
of $25,000,000 for both of
these loans)
Item 13. (a) None.
(b) None.
Item 14. Not applicable.
Item 15. Not applicable.
Item 16. List of Exhibits:
1. Articles of Association of First Interstate Bank of
Nevada, N.A.
2. Certificate of Authority to Commence Business by First
Interstate Bank of Nevada, N.A.
3. Authorization of First Interstate Bank of Nevada, N.A.
to exercise corporate trust powers.
4. Bylaws of First Interstate Bank of Nevada, N.A.
5. Not applicable.
6. Consent of First Interstate Bank of Nevada, N.A.
required by Section 321(b) of the Act.
<PAGE>
7. 1994 Annual Report of First Interstate Bancorp.
8. Not applicable.
9. Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, First Interstate Bank of Nevada, National Association, a U.S.
National Bank organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Las Vegas, and State of Nevada, on the 22nd day of December, 1995.
FIRST INTERSTATE BANK OF NEVADA, N.A.
/s/ ROSE ROBB
-------------------------------------
By: Rose Robb
Its: Vice President
<PAGE>
EXHIBIT 25(b)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Statement of Eligibility Under the Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2)
FIRST INTERSTATE BANK OF NEVADA, NATIONAL ASSOCIATION
- -------------------------------------------------------------------------------
(Exact name of trustee as specified in its charter)
U.S. NATIONAL BANK
- -------------------------------------------------------------------------------
(Jurisdiction of incorporation or organization if not a U.S. national bank)
88-0041996
- -------------------------------------------------------------------------------
(I.R.S. Employer Identification Number)
3800 Howard Hughes Parkway, Suite 200, Las Vegas, Nevada
- -------------------------------------------------------------------------------
(Address of principal executive offices)
89109
- -------------------------------------------------------------------------------
(Zip Code)
First Interstate Bank of Nevada, N.A., 3800 Howard Hughes Parkway Suite
200, Las Vegas, Nevada 89109, Attn: Legal Department (702) 791-6147
- -------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
Circus Circus Enterprises, Inc.
- -------------------------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Nevada
- -------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
88-0121916
- -------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
2800 Las Vegas Boulevard South, Las Vegas, Nevada
- -------------------------------------------------------------------------------
(Address of principal executive offices)
89109
- -------------------------------------------------------------------------------
(Zip Code)
Senior Unsecured Debt Securities with First Interstate Bank of
Nevada, N.A. as Trustee
- -------------------------------------------------------------------------------
(Title of the indenture securities)
<PAGE>
Item 1. (a) Office of the Comptroller of the Currency
50 Fremont Street, Suite 3900
San Francisco, CA 94105
Federal Deposit Insurance Corporation
25 Ecker Street, Suite 2300
San Francisco, CA 94150
(b) Yes
Item 2. The obligor is not an affiliate of the Trustee.
Item 3. As of December 31, 1994 First Interstate Bancorp, the parent
corporation of First Interstate Bank of Nevada, N.A., had the following
shares of the voting securities outstanding:
Column A. Column B.
Common Stock 74,203,480
First Interstate Bancorp owns all of voting securities of First Interstate
Bank of Nevada, N.A. of which 5,000,000 shares of common stock is authorized.
Item 4. (a) First Interstate Bank of Nevada, N.A., Trustee for
$100,000,000 10 5/8 Senior Subordinated Notes
Dated 6-18-90 Due 6-15-97
$150,000,000 6 3/4 Senior Subordinated Notes
Dated 7-21-93 Due 7-15-03
$150,000,000 7 5/8 Senior Subordinated Debentures
Dated 7-21-93 Due 7-15-13
(b) The securities subject to this T-1 will rank senior to the
current issues. However, no conflict will exist until any
of the securities is in default at which time the trustee
will eliminate such conflict or, unless otherwise provided
for under the Trust Indenture Act of 1939, as amended,
resign with respect to the securities that are the subject
of this T-1.
Item 5. Not applicable.
Item 6. Not applicable.
Item 7. Not applicable.
Item 8. Not applicable.
Item 9. Not applicable.
Item 10. Not applicable.
Item 11. Not applicable.
<PAGE>
Item 12. As of July 5, 1995:
Column A Column B Column C
-------- -------- --------
Nature of indebtedness Amount outstanding Date due
$230,000,000 Revolving $31,769,000 September 30, 2000
Line of Credit to Circus (First Interstate
and Eldorado Joint Venture, Bank of Nevada,
a Nevada general partnership N.A. shares)
of which Circus Circus
Enterprises, Inc., is a
general partner (First
Interstate Bank of Nevada,
N.A. is a participant in
that loan up to the amount
of $34,200,000)
$250,000,000 Revolving $0 (First September 30,
Line of Credit and Interstate Bank 1996, and
$500,000,000 Revolving of Nevada, N.A. September 30,
Line of Credit to Circus has participated 1998,
Circus Enterprises, Inc. out its share) respectively
(First Interstate Bank of
Nevada, N.A. is a pro rata
participant up to the amount
of $25,000,000 for both of
these loans)
Item 13. (a) None.
(b) None.
Item 14. Not applicable.
Item 15. Not applicable.
Item 16. List of Exhibits:
1. Articles of Association of First Interstate Bank of
Nevada, N.A.
2. Certificate of Authority to Commence Business by First
Interstate Bank of Nevada, N.A.
3. Authorization of First Interstate Bank of Nevada, N.A.
to exercise corporate trust powers.
4. Bylaws of First Interstate Bank of Nevada, N.A.
5. Not applicable.
6. Consent of First Interstate Bank of Nevada, N.A.
required by Section 321(b) of the Act.
<PAGE>
7. 1994 Annual Report of First Interstate Bancorp.
8. Not applicable.
9. Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, First Interstate Bank of Nevada, National Association, a U.S.
National Bank organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Las Vegas, and State of Nevada, on the 22nd day of December, 1995.
FIRST INTERSTATE BANK OF NEVADA, N.A.
/s/ ROSE ROBB
-------------------------------------
By: Rose Robb
Its: Vice President
<PAGE>
EXHIBIT 25(c)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Statement of Eligibility Under the Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2)
FIRST INTERSTATE BANK OF NEVADA, NATIONAL ASSOCIATION
- -------------------------------------------------------------------------------
(Exact name of trustee as specified in its charter)
U.S. NATIONAL BANK
- -------------------------------------------------------------------------------
(Jurisdiction of incorporation or organization if not a U.S. national bank)
88-0041996
- -------------------------------------------------------------------------------
(I.R.S. Employer Identification Number)
3800 Howard Hughes Parkway, Suite 200, Las Vegas, Nevada
- -------------------------------------------------------------------------------
(Address of principal executive offices)
89109
- -------------------------------------------------------------------------------
(Zip Code)
First Interstate Bank of Nevada, N.A., 3800 Howard Hughes Parkway Suite 200,
Las Vegas, Nevada 89109, Attn: Legal Department (702) 791-6147
- -------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
Circus Circus Enterprises, Inc.
- -------------------------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Nevada
- -------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
88-0121916
- -------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
2800 Las Vegas Boulevard South, Las Vegas, Nevada
- -------------------------------------------------------------------------------
(Address of principal executive offices)
89109
- -------------------------------------------------------------------------------
(Zip Code)
Senior Subordinated Debt Securities with First Interstate Bank of
Nevada, N.A. as Trustee
- -------------------------------------------------------------------------------
(Title of the indenture securities)
<PAGE>
Item 1. (a) Office of the Comptroller of the Currency
50 Fremont Street, Suite 3900
San Francisco, CA 94105
Federal Deposit Insurance Corporation
25 Ecker Street, Suite 2300
San Francisco, CA 94150
(b) Yes
Item 2. The obligor is not an affiliate of the Trustee.
Item 3. As of December 31, 1994 First Interstate Bancorp, the parent
corporation of First Interstate Bank of Nevada, N.A., had the following
shares of voting securities outstanding:
Column A. Column B.
Common Stock 74,203,480
First Interstate Bancorp owns all of the voting securities of First Interstate
Bank of Nevada, N.A. of which 5,000,000 shares of common stock is authorized.
Item 4. (a) First Interstate Bank of Nevada, N.A., Trustee for
$100,000,000 10 5/8 Senior Subordinated Notes
Dated 6-18-90 Due 6-15-97
$150,000,000 6 3/4 Senior Subordinated Notes
Dated 7-21-93 Due 7-15-03
$150,000,000 7 5/8 Senior Subordinated Debentures
Dated 7-21-93 Due 7-15-13
(b) No conflict exists because the issues are pari passu.
Item 5. Not applicable.
Item 6. Not applicable.
Item 7. Not applicable.
Item 8. Not applicable.
Item 9. Not applicable.
Item 10. Not applicable.
Item 11. Not applicable.
<PAGE>
Item 12. As of July 5, 1995:
Column A Column B Column C
-------- -------- --------
Nature of indebtedness Amount outstanding Date due
$230,000,000 Revolving $31,769,000 September 30, 2000
Line of Credit to Circus (First Interstate
and Eldorado Joint Venture, Bank of Nevada,
a Nevada general partnership N.A. share)
of which Circus Circus
Enterprises, Inc., is a
general partner (First
Interstate Bank of Nevada,
N.A. is a participant in
that loan up to the amount
of $34,200,000)
$250,000,000 Revolving $0 (First September 30,
Line of Credit and Interstate Bank 1996, and
$500,000,000 Revolving of Nevada, N.A. September 30,
Line of Credit to Circus has participated 1998,
Circus Enterprises, Inc. out its share) respectively
(First Interstate Bank of
Nevada, N.A. is a pro rata
participant up to the amount
of $25,000,000 for both of
these loans)
Item 13. (a) None.
(b) None.
Item 14. Not applicable.
Item 15. Not applicable.
Item 16. List of Exhibits:
1. Articles of Association of First Interstate Bank of
Nevada, N.A.
2. Certificate of Authority to Commence Business by First
Interstate Bank of Nevada, N.A.
3. Authorization of First Interstate Bank of Nevada, N.A.
to exercise corporate trust powers.
4. Bylaws of First Interstate Bank of Nevada, N.A.
5. Not applicable.
6. Consent of First Interstate Bank of Nevada, N.A.
required by Section 321(b) of the Act.
<PAGE>
7. 1994 Annual Report of First Interstate Bancorp.
8. Not applicable.
9. Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, First Interstate Bank of Nevada, National Association, a U.S.
National Bank organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Las Vegas, and State of Nevada, on the 22nd day of December, 1995.
FIRST INTERSTATE BANK OF NEVADA, N.A.
/s/ ROSE ROBB
-------------------------------------
By: Rose Robb
Its: Vice President
<PAGE>
EXHIBIT 25(d)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Statement of Eligibility Under the Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2)
FIRST INTERSTATE BANK OF NEVADA, NATIONAL ASSOCIATION
- ------------------------------------------------------------------------------
(Exact name of trustee as specified in its charter)
U.S. NATIONAL BANK
- ------------------------------------------------------------------------------
(Jurisdiction of incorporation or organization if not a U.S. national bank)
88-0041996
- ------------------------------------------------------------------------------
(I.R.S. Employer Identification Number)
3800 Howard Hughes Parkway, Suite 200, Las Vegas, Nevada
- ------------------------------------------------------------------------------
(Address of principal executive offices)
89109
- ------------------------------------------------------------------------------
(Zip Code)
First Interstate Bank of Nevada, N.A., 3800 Howard Hughes Parkway Suite 200,
Las Vegas, Nevada 89109, Attn: Legal Department (702) 791-6147
- ------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
Circus Circus Enterprises, Inc.
- ------------------------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Nevada
- ------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
88-0121916
- ------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
2800 Las Vegas Boulevard South, Las Vegas, Nevada
- ------------------------------------------------------------------------------
(Address of principal executive offices)
89109
- ------------------------------------------------------------------------------
(Zip Code)
Subordinated Debt Securities with First Interstate Bank of Nevada, N.A.
as Trustee
- ------------------------------------------------------------------------------
(Title of the indenture securities)
<PAGE>
Item 1. (a) Office of the Comptroller of the Currency
50 Fremont Street, Suite 3900
San Francisco, CA 91405
Federal Deposit Insurance Corporation
25 Ecker Street, Suite 2300
San Francisco, CA 94150
(b) Yes
Item 2. The obligor is not an affiliate of the Trustee.
Item 3. As of December 31, 1994 First Interstate Bancorp, the parent
corporation of First Interstate Bank of Nevada, N.A., had the following
shares of voting securities outstanding:
Column A. Column B.
Common Stock 74,203,480
First Interstate Bancorp owns all of the voting securities of First
Interstate Bank of Nevada, N.A. of which 5,000,000 shares of common stock is
authorized.
Item 4. (a) First Interstate Bank of Nevada, N.A., Trustee for
$100,000,000 10 5/8 Senior Subordinated Notes
Dated 6-18-90 Due 6-15-97
$150,000,000 6 3/4 Senior Subordinated Notes
Dated 7-21-93 Due 7-15-03
$150,000,000 7 5/8 Senior Subordinated Debentures
Dated 7-21-93 Due 7-15-13
(b) The securities subject to this T-1 will rank junior to the
current issues. However, no conflict will exist until any of
the securities is in default at which time the trustee will
eliminate such conflict or, unless otherwise provided for
under the Trust Indenture Act of 1939, as amended, resign
with respect to the securities that are the subject of this
T-1.
Item 5. Not applicable.
Item 6. Not applicable.
Item 7. Not applicable.
Item 8. Not applicable.
Item 9. Not applicable.
Item 10. Not applicable.
Item 11. Not applicable.
<PAGE>
Item 12. As of July 5, 1995:
Column A Column B Column C
-------- -------- --------
Nature of indebtedness Amount outstanding Date due
$230,000,000 Revolving $31,769,000 September 30, 2000
Line of Credit to Circus (First Interstate
and Eldorado Joint Venture, Bank of Nevada,
a Nevada general partnership N.A. share)
of which Circus Circus
Enterprises, Inc., is a
general partner (First
Interstate Bank of Nevada,
N.A. is a participant in
that loan up to the amount
of $34,200,000)
$250,000,000 Revolving $0 (First September 30,
Line of Credit and Interstate Bank 1996, and
$500,000,000 Revolving of Nevada, N.A. September 30,
Line of Credit to Circus has participated 1998,
Circus Enterprises, Inc. out its share) respectively
(First Interstate Bank of
Nevada, N.A. is a pro rata
participant up to the amount
of $25,000,000 for both of
these loans)
Item 13. (a) None.
(b) None.
Item 14. Not applicable.
Item 15. Not applicable.
Item 16. List of Exhibits:
1. Articles of Association of First Interstate Bank of
Nevada, N.A.
2. Certificate of Authority to Commence Business by First
Interstate Bank of Nevada, N.A.
3. Authorization of First Interstate Bank of Nevada, N.A.
to exercise corporate trust powers.
4. Bylaws of First Interstate Bank of Nevada, N.A.
5. Not applicable.
6. Consent of First Interstate Bank of Nevada, N.A.
required by Section 321(b) of the Act.
<PAGE>
7. 1994 Annual Report of First Interstate Bancorp.
8. Not applicable.
9. Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, First Interstate Bank of Nevada, National Association, a U.S.
National Bank organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Las Vegas, and State of Nevada, on the 22nd day of December, 1995.
FIRST INTERSTATE BANK OF NEVADA, N.A.
/s/ ROSE ROBB
-------------------------------------
By: Rose Robb
Its: Vice President
