<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1996
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
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 Identification No.)
incorporation or 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)
YVETTE E. LANDAU, GENERAL COUNSEL
CIRCUS CIRCUS ENTERPRISES, INC.
2880 LAS VEGAS BOULEVARD SOUTH
LAS VEGAS, NEVADA 89109
(702) 734-0410
(Name, address, including zip code, and telehone 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, as amended (the "Securities Act"), 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 AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED(1) PER SECURITY(1)(2) PRICE(1)(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities............................. $300,000,000 100% $300,000,000 $90,910
</TABLE>
(1) Pursuant to Rule 457 under 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.
--------------------------
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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 18, 1996
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>
PROSPECTUS
$300,000,000
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
$300,000,000, or, if Debt Securities are issued at an original issue discount,
such greater amount as shall result in aggregate proceeds of $300,000,000 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,
THE MISSISSIPPI GAMING COMMISSION
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
<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. Electronic
filings made through the Electronic Data Gathering, Analysis and Retrieval
System are publicly available through the Commission's Website
(http://www.sec.gov).
------------------------
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, 1996, (ii) Amendment No. 1 to Annual Report on
Form 10-K for the fiscal year ended January 31, 1996, (iii) Quarterly Report on
Form 10-Q for the fiscal quarter ended April 30, 1996 and (iv) Quarterly Report
on Form 10-Q for the fiscal quarter ended July 31, 1996, 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 Yvette E. Landau, 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") is one of the largest and
most diversified gaming entertainment companies in the world, with interests in
17 gaming properties located primarily in Nevada, and also in Mississippi,
Illinois and Canada. The Company's marketing and operating strategies emphasize
high volume business by providing reasonably priced hotel rooms, restaurants and
entertainment in conjunction with the Company's gaming activities.
The Company 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 which will close December 1, 1996 to
make way for the construction of a new hotel-casino complex with approximately
4,000 rooms), two properties in Jean (Gold Strike Hotel and Gambling Hall and
Nevada Landing Hotel and Casino), the Circus Circus Hotel and Casino in Reno,
the Railroad Pass Hotel and Casino 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 also holds interests in joint ventures which own and operate
hotel and casino properties, including 50% interests in joint venture entities
that own and operate a recently opened 3,000-room hotel-casino on the Las Vegas
Strip, a 1,711-room hotel-casino in Reno, Nevada and a riverboat casino in
Elgin, Illinois. The Company also holds a one-third interest in a company which
is operating an interim casino in Windsor, Ontario, Canada.
As part of its growth strategy, the Company is in the process of expanding
and renovating its current properties. The Company is simultaneously moving
forward with several new developments, including a new hotel-casino in Las Vegas
and a new hotel-casino development on the Mississippi Gulf Coast. While the
Company has attempted to conduct the expansions and renovations at its current
properties in a manner intended to minimize the impact upon operations and
earnings, the Company has experienced substantial decreases in operating results
in the fiscal second and third quarters at those properties undergoing major
expansions and renovations, primarily Luxor and Circus Circus-Las Vegas. Some
level of disruption is expected to continue through the completion of these
projects.
The Company is nearing completion of a casino renovation and room expansion
at Luxor that will add approximately 2,000 rooms (bringing the total number of
rooms at that property to approximately 4,500). The rooms are situated in two
identical 22-story towers located between Luxor and Excalibur. The expansion
will continue in 1997 and is planned to include additional casino space, retail
area, restaurants, a multipurpose showroom, and a reworking of the attractions
floor. A majority of the rooms are currently scheduled to open by the end of
1996. The estimated cost of this expansion is $280 million.
The Company is also nearing completion of a 1,000 room tower at Circus
Circus-Las Vegas. This addition will bring the total number of rooms at that
property to approximately 3,800. These rooms are also currently scheduled to
open by the end of 1996. Concurrent with the opening of the new rooms, the
Company plans on having completed the refurbishment of approximately 1,200 rooms
in the existing Skyrise Tower, as well as the improvements in the casino and
midway. The remainder of the older rooms at this property are planned to be
refurbished in the coming year. The total cost of the new rooms and other
improvements of this property is estimated to be $95 million.
The Company has announced that it expects to commence construction before
fiscal year-end on an entertainment megastore of approximately 4,000 rooms on
the site of the current Hacienda Hotel and Casino, which will close on December
1, 1996. The theme, cost and other elements of this complex
3
<PAGE>
will be announced later this year. This new resort is currently expected to open
in the second half of 1998.
In Tunica County, Mississippi, the Company has announced that it plans to
add a 1,200-room tower to its property. The Company intends to remodel and
retheme the property into a more elegant resort under the name Gold Strike. This
project is slated for completion in late 1997 at an estimated cost of $125
million.
Also in Mississippi, the Company has announced that it plans to develop a
hotel-casino on the Mississippi Gulf Coast at the north end of the Bay of St.
Louis. As currently planned, the resort will feature 1,500 rooms and, assuming
receipt of all required approvals, would open in late 1998 or early 1999. As
presently structured, the Company will own 90% of this project, with a partner
contributing land in exchange for the remaining 10%. The estimated cost of this
project is currently $225 million.
At Circus Circus-Reno, the Company recently completed refurbishing all of
the rooms and is nearing completion on a new parking garage which is expected to
open by the end of November. Additionally, the Company is planning to remodel
the casino and other public areas, as well as add a new restaurant. The total
cost for this project is estimated at $35 million.
At Excalibur, the Company is undertaking the refurbishment of all 4,000
rooms commencing in 1997, as well as the addition of retail space and the
relocation of certain restaurants. The Company has already completed the
re-engineering of the pedestrian overpasses over Las Vegas Boulevard and
Tropicana Avenue to provide more direct pedestrian access to Excalibur. The cost
of the Excalibur renovations is anticipated to be approximately $50 million.
The Company has entered into an agreement with Mirage Resorts, Incorporated
to participate in the development of a 150-acre site located in the Marina
District of Atlantic City. The agreement provides for the Company to obtain
sufficient land for the development of a destination resort and casino of at
least 2,000 rooms, including dramatic public spaces, in an architectural format
that conforms to a "masterplan". As currently contemplated, Mirage will act as
master-developer for the new Marina District and Circus will own its land and
its resort project, which will connect to Mirage's resort as well as to a
joint-venture resort to be developed by Boyd Gaming Corporation and Mirage.
Mirage's development of the site is subject to the satisfaction of a number of
conditions. Accordingly, there can be no assurances as to whether or when Mirage
will proceed with its development of the site. The Company's participation,
among other conditions, is subject to Mirage's determination to proceed with
development of the site. The Company's ability to proceed is also subject to its
obtaining the requisite gaming and other approvals and licenses in New Jersey,
as well as the approval of the gaming authorities of various other
jurisdictions. While neither the exact extent of a potential development nor a
starting date for construction can be determined at this time, the Company is
currently contemplating an investment of approximately $600 million to construct
this hotel/casino megaresort.
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.
4
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to fixed charges for
the Company for the six months ended July 31, 1996 and each of the fiscal years
1996, 1995, 1994, 1993 and 1992.
<TABLE>
<CAPTION>
YEAR ENDED JANUARY 31,
SIX MONTHS ENDED -----------------------------------------------------
JULY 31, 1996 1996 1995 1994 1993 1992
- ----------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
3.33(1) 4.12(2) 5.38 5.40 6.48 4.40
</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 first and second quarters of fiscal 1997, the Company wrote-off
$48.3 million of assets which were demolished or replaced in the course of
upgrading and expanding several of its properties. The ratio of earnings to
fixed charges for six months ended July 31, 1996, excluding these
write-offs, would have been 4.91.
(2) 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 year ended January 31, 1996, excluding this write-off, would
have been 4.85.
5
<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, repurchases of shares of the Company's Common Stock, 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 Wells Fargo Bank (Colorado), N.A. ("Wells Fargo"), 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 $300 million aggregate
principal amount of the Debt Securities.
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: (i) 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
6
<PAGE>
will be issued; (iv) the date or dates on which the principal of the Debt
Securities is payable or the method of 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
7
<PAGE>
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 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
June 19, 1996, the Nevada Gaming Commission granted the Company prior approval
to make public offerings for a period of one year, subject to certain conditions
(the "Nevada Shelf Approval"). The Nevada 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 Nevada 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 Nevada 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 Nevada 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 Nevada Shelf Approval.
On January 31, 1996, the Mississippi Gaming Commission granted the Company
prior approval to make public offerings for a period of one year, subject to
certain conditions (the "Mississippi Shelf Approval"). The Mississippi Shelf
Approval also applies to any Gaming Affiliate which is a publicly traded
corporation or would thereby become a publicly traded corporation pursuant to a
public offering. The Mississippi Shelf Approval also includes approval for the
Company's licensed Mississippi 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 Mississippi Shelf Approval may be
rescinded for good cause without prior notice upon the issuance of an
interlocutory stop order by the Chairman or the Executive Director of the
Mississippi Gaming Commission and must be renewed annually. The Mississippi
Shelf Approval does not constitute a finding, recommendation or approval by the
Mississippi Gaming Commission 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 Mississippi 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, 1996,
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
8
<PAGE>
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 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, the Senior
Unsecured Debt Securities and the 6.45% Senior Notes of the Company Due 2006,
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
9
<PAGE>
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 6.45% Senior Notes of the Company Due 2006, 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 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.
10
<PAGE>
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 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.
11
<PAGE>
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.
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
12
<PAGE>
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).
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 Amended and Restated Make-Well Agreement by the Company in favor of
Wells Fargo Bank, N.A., dated as of September 9, 1996 relating to the Circus and
Eldorado Joint Venture, a Nevada general partnership
13
<PAGE>
and (ii) 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 Debt 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, 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
14
<PAGE>
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 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 that is known to the Trustee with respect to any series
of Debt Securities, give the holders of such series of Debt Securities, notice
of such default (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,
15
<PAGE>
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 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.
16
<PAGE>
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
Wells Fargo 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 Denver, Colorado, 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, as successor in interest to First Interstate Bank of Nevada,
N.A., also serves as a trustee with respect to the 6.45% Senior Notes of the
Company Due 2006, 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 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
17
<PAGE>
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 entity's status as such director, officer, stockholder or incorporator.
OTHER AUTHORIZED BUT UNISSUED DEBT SECURITIES
The Company has also authorized the issuance under indentures having
covenants and conditions substantially the same as the Indentures (the "Existing
Shelf Indentures") of additional debt securities (the "Existing Shelf Debt
Securities"). On February 5, 1996, the Company issued $200 million of 6.45%
Senior Notes Due February 1, 2006 under an indenture having covenants and
conditions substantially the same as the Senior Unsecured Debt Indenture,
thereby leaving authorized but unissued up to an additional $200 million in
aggregate principal amount of the Existing Shelf Debt Securities.
$1.5 BILLION LOAN AGREEMENT
As of the date of this Prospectus, the Company's $1.5 Billion Loan Agreement
permits the Company to incur up to $500 million in pari passu senior
indebtedness, of which $200 million has been incurred through the issuance of
the 6.45% Senior Notes Due February 1, 2006. The Company may also be obligated
to fund up to a maximum of $30 million Canadian (approximately $22 million U.S.
as of the date of this Prospectus) pursuant to the Company's guarantee of a
revolving credit facility relating to the Company's joint venture in Windsor,
Ontario, Canada. Accordingly, the Company's ability to issue senior indebtedness
under the Existing Shelf Indentures and the Indentures may be limited by the
Loan Agreement.
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
18
<PAGE>
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.
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.
19
<PAGE>
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, 1996,
incorporated by reference in this Prospectus and elsewhere in the Registration
Statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said report.
20
<PAGE>
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........................................................... $ 90,910
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.......................................................................... $ 180,410
---------
---------
</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 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).
</TABLE>
II-1
<PAGE>
<TABLE>
<S> <C>
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 February 29, 1996 (Incorporated by reference
to Exhibit 3(ii) to the Company's Annual Report on Form 10-K/A for the fiscal year
ended January 31, 1996).
4(a) Rights Agreement dated as of July 14, 1994, between the Company and First Chicago
Trust Company of New York. (Incorporated by reference to Exhibit 4 to the Company's
Current Report on Form 8-K dated August 15, 1994.)
4(b) Amendment to Rights Agreement, effective as of April 16, 1996, between the Company
and First Chicago Trust Company of New York. (Incorporated by reference to Exhibit
4(a) to the Company's Quarterly Report on Form 10-Q for the period ended July 31,
1996).
4(c) 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(d) 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(e) Indenture by and between the Company and Wells Fargo Bank (Colorado), N.A.
(successor to 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(f) Indenture by and between the Company and Wells Fargo Bank (Colorado), N.A.
(successor to 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(g) Indenture, dated as of February 1, 1996, by and between the Company and Wells Fargo
Bank (Colorado), N.A. (successor to First Interstate Bank of Nevada, N.A.), as
Trustee. (Incorporated by reference to Exhibit 4(b) to the Company's Current Report
on Form 8-K dated January 29, 1996.)
4(h) Supplemental Indenture, dated February 1, 1996, by and between the Company and
Wells Fargo Bank (Colorado), N.A. (successor to First Interstate Bank of Nevada,
N.A.), as Trustee, with respect to the Company's 6.45% Senior Notes due February 1,
2006. (Incorporated by reference to Exhibit 4(c) to the Company's Current Report on
Form 8-K dated January 29, 1996.)
4(i) 6.45% Senior Notes due February 1, 2006 in the principal amount of $200,000,000.
(Incorporated by reference to Exhibit 4(d) to the Company's Current Report on Form
8-K dated January 29, 1996.)
4(j) $1.5 Billion Loan Agreement, dated as of January 29, 1996, by and among the
Company, the Banks named therein and Bank of America National Trust and Savings
Association, as administrative agent for the Banks, and related Subsidiary Guaranty
dated as of January 29, 1996, of the Company's subsidiaries named therein.
(Incorporated by reference to Exhibit 4(a) to the Company's Current Report on Form
8-K dated January 29, 1996.)
4(k) Amendment No. 1 to the $1.5 Billion Loan Agreement, by and among the Company, the
Banks named therein and Bank of America National Trust and Savings Association, as
administrative agent for the Banks. (Incorporated by reference to Exhibit 4(c) to
the Company's Annual Report on Form 10-K for the fiscal year ended January 31,
1996).
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
4(l) Amended and Restated Credit Agreement, dated as of September 9, 1996, by an among
the Company and Eldorado Joint Venture, the Lendors named therein and Wells Fargo
Bank, N.A. as Arranger and Administrative Agent and the related Note, the Amended
and Restated Make-Well Agreement, the Amended and Restated Deed of Trust and the
Subordination and Debt Put Agreement. (Incorporated by reference to Exhibit 10(b)
to the Company's Quarterly Report on Form 10-Q for the period ended July 31, 1996.)
4(m) Guarantee of Circus Circus Enterprises, Inc. dated as of July 10, 1996 pursuant to
a revolving credit facility of the same date between Windsor Casino Financial
Limited and Canadian Imperial Bank of Commerce. (Incorporated by reference to
Exhibit 10(d) to the Company's Quarterly Report on Form 10-Q for the period ended
July 31, 1996.)
4(n)* Form of Indenture between the Company and Wells Fargo Bank (Colorado), N.A., as
Trustee with respect to the Senior Secured Debt Securities that are the subject of
this Registration Statement.
4(o)* Form of Indenture between the Company and Wells Fargo Bank (Colorado), N.A., as
Trustee with respect to the Senior Unsecured Debt Securities that are the subject
of this Registration Statement.
4(p)* Form of Indenture between the Company and Wells Fargo Bank (Colorado), N.A., as
Trustee with respect to the Senior Subordinated Debt Securities that are the
subject of this Registration Statement.
4(q)* Form of Indenture between the Company and Wells Fargo Bank (Colorado), 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.
24* Powers of Attorney (included on page II-5).
25(a)* Statement of Eligibility and Qualification of Form T-1 relating to Senior Secured
Debt Securities with Wells Fargo Bank (Colorado), N.A., as Trustee.
25(b)* Statement of Eligibility and Qualification of Form T-1 relating to Senior Unsecured
Debt Securities with Wells Fargo Bank (Colorado), N.A., as Trustee. (Reference is
hereby made to Exhibit 25(a) hereto with respect to Exhibits 1-7 of this Exhibit
25(b)).
25(c)* Statement of Eligibility and Qualification of Form T-1 relating to Senior
Subordinated Debt Securities with Wells Fargo Bank (Colorado), N.A., as Trustee.
(Reference is hereby made to Exhibit 25(a) hereto with respect to Exhibits 1-7 of
this Exhibit 25(c)).
25(d)* Statement of Eligibility and Qualification of Form T-1 relating to Subordinated
Debt Securities with Wells Fargo Bank (Colorado), N.A., as Trustee. (Reference is
hereby made to Exhibit 25(a) hereto with respect to Exhibits 1-7 of this Exhibit
25(d)).
</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-3
<PAGE>
(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 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.
II-4
<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 18th day of
November, 1996.
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.
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 November 18, 1996
Clyde T. Turner (Principal Executive Officer)
/s/ MICHAEL S. ENSIGN
-------------------------------------- Vice Chairman of the Board and Chief Operating November 18, 1996
Michael S. Ensign Officer
/s/ GLENN W. SCHAEFFER
-------------------------------------- Director, President, Chief Financial Officer and November 18, 1996
Glenn W. Schaeffer Treasurer (Principal Financial Officer)
/s/ LES MARTIN
-------------------------------------- Controller (Principal Accounting Officer) November 18, 1996
Les Martin
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------------------------------------------------------------------- -----------------
<C> <S> <C>
/s/ TONY COELHO
-------------------------------------- Director November 18, 1996
Tony Coelho
/s/ RICHARD A. ETTER
-------------------------------------- Director November 17, 1996
Richard A. Etter
/s/ ARTHUR M. SMITH, JR.
-------------------------------------- Director November 18, 1996
Arthur M. Smith, Jr.
/s/ FRED W. SMITH
-------------------------------------- Director November 18, 1996
Fred W. Smith
/s/ WILLIAM A. RICHARDSON
-------------------------------------- Director and Executive Vice President November 18, 1996
William A. Richardson
-------------------------------------- Director
Richard P. Banis
/s/ KURT D. SULLIVAN
-------------------------------------- Director and Senior Vice President November 18, 1996
Kurt D. Sullivan
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NO. DESCRIPTION NUMBERED 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 February 29, 1996 (Incorporated by reference to
Exhibit 3(ii) to the Company's Annual Report on Form 10-K/A for the fiscal year ended
January 31, 1996).
4(a) Rights Agreement dated as of July 14, 1994, between the Company and First Chicago
Trust Company of New York. (Incorporated by reference to Exhibit 4 to the Company's
Current Report on Form 8-K dated August 15, 1994.)
4(b) Amendment to Rights Agreement, effective as of April 16, 1996, between the Company
and First Chicago Trust Company of New York. (Incorporated by reference to Exhibit
4(a) to the Company's Quarterly Report on Form 10-Q for the period ended July 31,
1996).
4(c) 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(d) 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(e) Indenture by and between the Company and Wells Fargo Bank (Colorado), N.A. (successor
to 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(f) Indenture by and between the Company and Wells Fargo Bank (Colorado), N.A. (successor
to 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(g) Indenture, dated as of February 1, 1996, by and between the Company and Wells Fargo
Bank (Colorado), N.A. (successor to First Interstate Bank of Nevada, N.A.), as
Trustee. (Incorporated by reference to Exhibit 4(b) to the Company's Current Report
on Form 8-K dated January 29, 1996.)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NO. DESCRIPTION NUMBERED PAGES
- --------- ------------------------------------------------------------------------------------- -----------------
<S> <C> <C>
4(h) Supplemental Indenture, dated February 1, 1996, by and between the Company and Wells
Fargo Bank (Colorado), N.A., as Trustee, with respect to the Company's 6.45% Senior
Notes due February 1, 2006. (Incorporated by reference to Exhibit 4(c) to the
Company's Current Report on Form 8-K dated January 29, 1996.)
4(i) 6.45% Senior Notes due February 1, 2006 in the principal amount of $200,000,000.
(Incorporated by reference to Exhibit 4(d) to the Company's Current Report on Form
8-K dated January 29, 1996.)
4(j) $1.5 Billion Loan Agreement, dated as of January 29, 1996, by and among the Company,
the Banks named therein and Bank of America National Trust and Savings Association,
as administrative agent for the Banks, and related Subsidiary Guaranty dated as of
January 29, 1996, of the Company's subsidiaries named therein. (Incorporated by
reference to Exhibit 4(a) to the Company's Current Report on Form 8-K dated January
29, 1996.)
4(k) Amendment No. 1 to the $1.5 Billion Loan Agreement, by and among the Company, the
Banks named therein and Bank of America National Trust and Savings Association, as
administrative agent for the Banks. (Incorporated by reference to Exhibit 4(c) to the
Company's Annual Report on Form 10-K for the fiscal year ended January 31, 1996).
4(l) Amended and Restated Credit Agreement, dated as of September 9, 1996, by an among the
Company and Eldorado Joint Venture, the Lendors named therein and Wells Fargo Bank,
N.A. as Arranger and Administrative Agent and the related Note, the Amended and
Restated Make-Well Agreement, the Amended and Restated Deed of Trust and the
Subordination and Debt Put Agreement. (Incorporated by reference to Exhibit 10(b) to
the Company's Quarterly Report on Form 10-Q for the period ended July 31, 1996.)
4(m) Guarantee of Circus Circus Enterprises, Inc. dated as of July 10, 1996 pursuant to a
revolving credit facility of the same date between Windsor Casino Financial Limited
and Canadian Imperial Bank of Commerce. (Incorporated by reference to Exhibit 10(d)
to the Company's Quarterly Report on Form 10-Q for the period ended July 31, 1996.)
4(n)* Form of Indenture between the Company and Wells Fargo Bank (Colorado), N.A., as
Trustee with respect to the Senior Secured Debt Securities that are the subject of
this Registration Statement.
4(o)* Form of Indenture between the Company and Wells Fargo Bank (Colorado), N.A., as
Trustee with respect to the Senior Unsecured Debt Securities that are the subject of
this Registration Statement.
4(p)* Form of Indenture between the Company and Wells Fargo Bank (Colorado), N.A., as
Trustee with respect to the Senior Subordinated Debt Securities that are the subject
of this Registration Statement.
4(q)* Form of Indenture between the Company and Wells Fargo Bank (Colorado), 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.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NO. DESCRIPTION NUMBERED PAGES
- --------- ------------------------------------------------------------------------------------- -----------------
<S> <C> <C>
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.
24* Powers of Attorney (included on page II-5).
25(a)* Statement of Eligibility and Qualification of Form T-1 relating to Senior Secured
Debt Securities with Wells Fargo Bank (Colorado), N.A., as Trustee.
25(b)* Statement of Eligibility and Qualification of Form T-1 relating to Senior Unsecured
Debt Securities with Wells Fargo Bank (Colorado), N.A., as Trustee. (Reference is
hereby made to Exhibit 25(a) hereto with respect to Exhibits 1-7 of this Exhibit
25(b)).
25(c)* Statement of Eligibility and Qualification of Form T-1 relating to Senior
Subordinated Debt Securities with Wells Fargo Bank (Colorado), N.A., as Trustee.
(Reference is hereby made to Exhibit 25(a) hereto with respect to Exhibits 1-7 of
this Exhibit 25(c)).
25(d)* Statement of Eligibility and Qualification of Form T-1 relating to Subordinated Debt
Securities with Wells Fargo Bank (Colorado), N.A., as Trustee. (Reference is hereby
made to Exhibit 25(a) hereto with respect to Exhibits 1-7 of this Exhibit 25(d)).
</TABLE>
- ------------------------
* Filed herewith.
<PAGE>
EXHIBIT 4(n)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
And
WELLS FARGO BANK (COLORADO), 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
<PAGE>
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
<PAGE>
INDENTURE, dated as of [________ __, ____,] between Circus Circus
Enterprises, Inc., a Nevada corporation ("Company"), and Wells Fargo Bank
(Colorado), 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.]
1
<PAGE>
"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.
2
<PAGE>
"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
<PAGE>
"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
<PAGE>
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.
7
<PAGE>
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
<PAGE>
(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
<PAGE>
(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.
11
<PAGE>
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
12
<PAGE>
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.
13
<PAGE>
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
14
<PAGE>
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.
15
<PAGE>
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.
16
<PAGE>
(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.
17
<PAGE>
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.
18
<PAGE>
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.
19
<PAGE>
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
20
<PAGE>
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;
21
<PAGE>
(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
22
<PAGE>
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:
23
<PAGE>
(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
24
<PAGE>
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
25
<PAGE>
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;
26
<PAGE>
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.
27
<PAGE>
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.
28
<PAGE>
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.
29
<PAGE>
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.
30
<PAGE>
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.
31
<PAGE>
(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.
32
<PAGE>
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;
33
<PAGE>
(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.
34
<PAGE>
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
35
<PAGE>
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.
36
<PAGE>
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,
37
<PAGE>
(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
38
<PAGE>
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.
39
<PAGE>
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
40
<PAGE>
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
41
<PAGE>
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.
42
<PAGE>
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
43
<PAGE>
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.
44
<PAGE>
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.
45
<PAGE>
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
46
<PAGE>
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.
47
<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
48
<PAGE>
if to the Trustee:
Wells Fargo Bank (Colorado), N.A.
633 Seventeenth Street
Denver, CO 80270
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:
49
<PAGE>
(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:
WELLS FARGO BANK (COLORADO), N.A.,
as Trustee
(SEAL)
By:
--------------------------------
Name:
Title:
S-1
<PAGE>
EXHIBIT 4(o)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
And
WELLS FARGO BANK (COLORADO), 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
<PAGE>
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
Wells Fargo Bank (Colorado), 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
4
<PAGE>
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.
5
<PAGE>
"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.
6
<PAGE>
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
7
<PAGE>
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;
8
<PAGE>
(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
9
<PAGE>
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.
10
<PAGE>
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
11
<PAGE>
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.
12
<PAGE>
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.
13
<PAGE>
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
14
<PAGE>
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.
15
<PAGE>
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;
16
<PAGE>
(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;
17
<PAGE>
(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.
18
<PAGE>
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
19
<PAGE>
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.
20
<PAGE>
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
21
<PAGE>
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
22
<PAGE>
(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.
23
<PAGE>
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.
24
<PAGE>
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.
25
<PAGE>
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.
26
<PAGE>
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).
27
<PAGE>
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.
28
<PAGE>
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.
29
<PAGE>
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
30
<PAGE>
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:
31
<PAGE>
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
32
<PAGE>
(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.
33
<PAGE>
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;
34
<PAGE>
(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
35
<PAGE>
(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
36
<PAGE>
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
37
<PAGE>
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
38
<PAGE>
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
39
<PAGE>
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:
Wells Fargo Bank (Colorado), N.A.
633 Seventeenth Street
Denver, CO 80270
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
<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.
45
<PAGE>
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
<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:
Wells Fargo Bank (Colorado), N.A.,
As Trustee
(SEAL) BY:
--------------------------
Name:
Title:
S-1
<PAGE>
EXHIBIT 4(p)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
and
WELLS FARGO BANK (COLORADO), 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
<PAGE>
<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>
ii
<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 Wells Fargo Bank
(Colorado), 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.
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.
3
<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
4
<PAGE>
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.
5
<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;
6
<PAGE>
(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
7
<PAGE>
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
8
<PAGE>
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;
9
<PAGE>
(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.
10
<PAGE>
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
11
<PAGE>
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.
12
<PAGE>
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,
13
<PAGE>
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") the Senior Unsecured Notes issued by
the Company pursuant to the Indenture by and between the Company and the
Trustee dated _______ __, ____, and the 6.45% Senior Notes of the Company Due
2006, 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
14
<PAGE>
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.
15
<PAGE>
(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
16
<PAGE>
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
17
<PAGE>
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.
18
<PAGE>
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.
19
<PAGE>
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.
20
<PAGE>
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.
21
<PAGE>
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;
22
<PAGE>
(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).
23
<PAGE>
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;
24
<PAGE>
(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
25
<PAGE>
(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.
26
<PAGE>
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;
27
<PAGE>
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
28
<PAGE>
(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.
29
<PAGE>
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.
30
<PAGE>
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.
31
<PAGE>
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.
32
<PAGE>
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.
33
<PAGE>
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;
34
<PAGE>
(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.
35
<PAGE>
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
36
<PAGE>
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.
37
<PAGE>
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
38
<PAGE>
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.
39
<PAGE>
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
40
<PAGE>
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
41
<PAGE>
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.
42
<PAGE>
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
43
<PAGE>
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
44
<PAGE>
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,
45
<PAGE>
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.
46
<PAGE>
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.
47
<PAGE>
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.
48
<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:
Wells Fargo Bank (Colorado), N.A.
633 Seventeenth Street
Denver, CO 80270
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
<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.
52
<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:
WELLS FARGO BANK (COLORADO), N.A.,
as Trustee
(SEAL) By: _________________________
Name:
Title:
53
<PAGE>
EXHIBIT 4(q)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
AND
WELLS FARGO BANK (COLORADO), 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
i
<PAGE>
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
ii
<PAGE>
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
iii
<PAGE>
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
<PAGE>
INDENTURE, dated as of [________ __, ____,] between Circus Circus
Enterprises, Inc., a Nevada corporation ("Company"), and Wells Fargo Bank
(Colorado), 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.
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.
3
<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
4
<PAGE>
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.
5
<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;
6
<PAGE>
(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.
7
<PAGE>
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
8
<PAGE>
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
9
<PAGE>
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;
10
<PAGE>
(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.
11
<PAGE>
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
12
<PAGE>
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.
13
<PAGE>
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,
14
<PAGE>
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 6.45% Senior Notes of the Company due 2006, 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
15
<PAGE>
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.
16
<PAGE>
(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
17
<PAGE>
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
18
<PAGE>
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.
19
<PAGE>
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.
20
<PAGE>
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.
21
<PAGE>
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.
22
<PAGE>
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
23
<PAGE>
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:
24
<PAGE>
(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
25
<PAGE>
(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
26
<PAGE>
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
27
<PAGE>
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.
28
<PAGE>
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.
29
<PAGE>
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;
30
<PAGE>
(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.
31
<PAGE>
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.
32
<PAGE>
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.
33
<PAGE>
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.
34
<PAGE>
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.
35
<PAGE>
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:
36
<PAGE>
(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.
37
<PAGE>
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
38
<PAGE>
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
39
<PAGE>
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.
40
<PAGE>
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.
41
<PAGE>
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.
42
<PAGE>
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
43
<PAGE>
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
44
<PAGE>
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.
45
<PAGE>
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.
46
<PAGE>
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.
47
<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:
Wells Fargo Bank (Colorado), N.A.
633 Seventeenth Street
Denver, CO 80270
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:
48
<PAGE>
(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:
WELLS FARGO BANK (COLORADO), 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
November 18, 1996
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Re: Registration Statement No. 333-[ ];
$300,000,000 Aggregate Principal
Amount of Debt Securities
------------------------------------------------
Ladies and Gentlemen:
In connection with the registration of $300,000,000 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 November 18, 1996 (File No. 333- ) (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. Capitalized terms used herein without
definition have the meanings ascribed to them in the Registration Statement.
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 or Blue Sky laws.
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. We express no opinion with respect to (a) the enforceability of
the waiver of rights contained in Section 4.08 of each of the Indentures; (b)
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 and (c) 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 constitute
the legally valid, binding and enforceable obligation of the Trustee enforceable
against the Trustee in accordance with their 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,
SCHRECK, JONES, BERNHARD,
WOLOSON & GODFREY
<PAGE>
EXHIBIT 12
CIRCUS CIRCUS ENTERPRISES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(dollars in thousands)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JULY 31, YEARS ENDED JANUARY 31,
-------------- ---------------------------------------------------------------
1996 1996 1995 1994 1993 1992
-------------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Income before income tax and
extraordinary loss............. $ 82,266 $ 205,759 $ 214,490 $ 182,608 $ 183,313 $ 157,004
Equity earnings of less-
than-fifty-percent owned
venture not distributed........ (4,185) (6,336) 0 0 0 0
Fixed charges:
Interest expense.............. 23,573 51,537 42,734 17,770 22,989 43,632
Rentals representing an
interest factor............. 569 1,138 1,151 1,087 1,036 1,060
-------------- ----------- ----------- ----------- ----------- -----------
Earnings as defined............. $ 102,223 $ 252,098 $ 258,375 $ 201,465 $ 207,338 $ 201,696
-------------- ----------- ----------- ----------- ----------- -----------
-------------- ----------- ----------- ----------- ----------- -----------
Fixed charges (including
capitalized items):
Interest expense.............. $ 23,573 $ 51,537 $ 42,734 $ 17,770 $ 22,989 $ 43,632
Capitalized interest.......... 6,524 8,581 4,153 18,456 7,994 1,171
Rentals representing an
interest factor............. 569 1,138 1,151 1,087 1,036 1,060
-------------- ----------- ----------- ----------- ----------- -----------
Fixed charges as defined........ $ 30,666 $ 61,256 $ 48,038 $ 37,313 $ 32,019 $ 45,863
Ratio of Earnings to Fixed
Charges........................ 3.33 4.12 5.38 5.40 6.48 4.40
-------------- ----------- ----------- ----------- ----------- -----------
-------------- ----------- ----------- ----------- ----------- -----------
</TABLE>
<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
28, 1996 incorporated by reference in Circus Circus Enterprises, Inc.'s Annual
Report on Form 10-K for the year ended January 31, 1996 and to all references to
our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Las Vegas, Nevada
November 18, 1996
<PAGE>
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
_______________________________
WELLS FARGO BANK (COLORADO), N.A.
(Exact name of trustee as specified in its charter)
(Exact name of trustee as agent for service)
Not applicable 84-0005100
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
National Bank)
633 17th Street
Denver, Colorado 80270
(Address of principal executive offices) (Zip Code)
CIRCUS CIRCUS ENTERPRISES, INC.
(Exact name of obligor as specified in its charter)
Nevada 88-0121916
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2880 Las Vegas Boulevard South
Las Vegas, NV 89109
(Address of principal executive offices) (Zip Code)
_______________________________
Senior Secured Debt Securities
(Title of the Indenture Securities)
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervision authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
Board of Governors of The Federal
Reserve System Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the obligor is an affiliate of
the trustee.
13. Defaults by the Obligor.
There have been no defaults by the obligor with respect to the securities
covered by this shelf registration.
16. List of Exhibits:
Exhibit 1 Articles of Association of First Interstate Bank of Denver,
N.A.
Exhibit 2 By-laws of First Interstate Bank of Denver, N.A.
Exhibit 3 Certificate of Authority to transact business from
Comptroller of the Currency
Exhibit 4 Resolution adopted by Board of Directors of First Interstate
Bank of Denver, N.A.
Exhibit 5 A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 6 Consent under Section 321(b) of the Trust Indenture Act of
1939
Exhibit 7 Certificate from Comptroller of the Currency concerning
change of name to Wells Fargo Bank (Colorado), N.A.
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
Wells Fargo Bank (Colorado), N.A., a corporation organized and existing under
the laws of the United States of America, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City and County of Denver, and State of Colorado, on the
13th day of November, 1996.
WELLS FARGO BANK (COLORADO), N.A.
By: /s/ Kent E. Eichstadt
-----------------------------
Kent E. Eichstadt
Assistant Vice President
<PAGE>
WELLS FARGO BANK (COLORADO), N.A. Call Date: 09/30/96 ST-BK: 080350 FFIEC 032
633 SEVENTEENTH STREET Page RC-1
DENVER, CO 80270 Vendor ID: D CERT: 03009 9
Transit Number: 10200001 Transmitted to EDS as 0018758 on 10/30/96 at
16:19:32 CST
CONSOLIDATED REPORT OF CONDITION FOR INSURED
COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
C300
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin (1) . . . . . . . . . . 0081. 351,699 1.a
b. Interest-bearing balances (2). . . . . . . . . . . . . . . . . . . . . . . 0071. 200 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) . . . . . . . . 1754. 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . . . . 1773. 114,786 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0276. 104,517 3.a
b. Securities purchased under agreements to resell. . . . . . . . . . . . . . 0277. 58,230 3.b
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . RCON
(from Schedule RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122. 787,544 4.a
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . . . 3123 12,728 4.b
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . 2125. 774,816 4.d
5. Assets held in trading accounts (from Schedule RC-D). . . . . . . . . . . . . . 3545. 0 5.
6. Premises and fixed assets (including capitalized leases). . . . . . . . . . . . 2145 8,230 6.
7. Other real estate owned (from Schedule RC-M . . . . . . . . . . . . . . . . . . 2150. 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2130. 0 8.
9. Customers' Liability to this bank on acceptances outstanding. . . . . . . . . . 2155. 289 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . 2143. 88,861 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . . . . . 2160. 31,366 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . . . . . . . 2170 1,532,994 12.
___________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposits not held in trading accounts.
</TABLE>
<PAGE>
SCHEDULE RC - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
13. Deposits: RCON
a. In domestic offices (sum of totals of
columns A and C from Schedule RC-E 2200. 1,104,053 13.a
RCON
(1) Noninterest-bearing (1) 6631. 714,414 13.a.1
(2) Interest-bearing 6636. 389,639 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased 0278. 45,709 14.a
b. Securities sold under agreements to repurchase 0279. 0 14.b
15. a. Demand notes issued to the U.S. Treasury 2840. 0 15.a
b. Trading Liabilities 3548. 0 15.b
16. Other borrowed money:
a. With original maturity of one year or less 2332. 110,865 16.a
b. With original maturity of more than one year 2333. 25,661 16.b
17. Mortgage indebtedness and obligations under capitalized leases 2910. 0 17.
18. Bank's Liability on acceptances executed and outstanding 2920. 289 18.
19. Subordinated notes and debentures 3200. 20,000 19.
20. Other Liabilities (from Schedule RC-G) 2930. 57,264 20.
21. Total Liabilities (sum of items 13 through 20) 2948. 1,363,841 21.
22. Limited-life preferred stock and related surplus 3282. 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838. 0 23.
24. Common stock 3230. 35,000 24.
25. Surplus (exclude all surplus related to preferred stock) 3839. 123,986 25.
26. a. Undivided profits and capital reserves 3632. 9,986 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities 8434. 181 26.b
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) 3210. 169,153 28.
29. Total liabilities, limited-life preferred stock, and equity capital
(sum of items 21, 22, and 28) 3300. 1,532,994 29.
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1993 6724. N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 1
Effective October 1, 1983
Amended February 24, 1987
Charter No. 12517
ARTICLES OF ASSOCIATION
of
FIRST INTERSTATE BANK OF DENVER,
NATIONAL ASSOCIATION
FIRST. The title of this Association shall be "First Interstate
Bank of Denver, National Association".
SECOND. The main office shall be in the City and County of Denver,
State of Colorado. The general business of the Association shall be conducted
at its main office and its legally established branches.
THIRD. The Board of Directors of this Association shall consist of
not less than five nor more than twenty-five shareholders. At any meeting of
the shareholders held for the purpose of electing directors, or changing the
number thereof, the number of directors amy be determined by a majority of the
votes cast by the shareholders in person or by proxy. A majority of the Board
of Directors shall be necessary to constitute a quorum for the transaction of
business at any Directors' meeting. The Board of Directors, by the vote of a
majority of the full Board, may, between annual meetings of Shareholders,
increase the membership of the
-1-
<PAGE>
Board by not more than two members if the number of directors last elected by
the shareholders was fifteen or fewer and may increase the membership of the
Board by not more than four if the number of directors last elected by the
shareholders was sixteen or more, and by like vote appoint qualified persons to
fill the vacancies created thereby, but in no event shall the number of
directors exceed twenty-five.
FOURTH. The Regular Annual Meeting of the Shareholders of this
Association shall be held at its main office or other convenient place duly
authorized by the Board of Directors on such day of each year as is specified
therefor in the By-Laws.
FIFTH. The amount of authorized capital stock of this Association
shall be Thirty-Five Million Dollars ($35,000,000) divided into 700,000 shares
of common stock of the par value per share of fifty dollars ($50.00) but said
capital stock may be increased or decreased from time to time, in accordance
with the provisions of the laws of the United States.
If the capital stock is increased by the sale of additional shares
thereof, each shareholder shall be entitled to subscribe for such additional
shares in proportion to the number of shares of said capital stock owned by him
at the time the increase is authorized by the shareholders, unless another time
subsequent to the date of the shareholders' meeting is specified in a resolution
adopted by the shareholders at the time the increase is authorized. The Board
of Directors shall have the power to prescribe a reasonable period of time
within which the preemptive rights to subscribe to the new shares of capital
stock must be exercised.
-2-
<PAGE>
If the capital stock is increased by a stock dividend, each
shareholder shall be entitled to his proportionate amount of such increase in
accordance with the number of shares of capital stock owned by him at the time
the increase is authorized by the shareholders, unless another time subsequent
to the date of the shareholders' meeting is specified in a resolution adopted by
the shareholders at the time the increase is authorized.
SIXTH. The Board of Directors shall appoint from among its members
a Chairman of the Board, a Vice Chairman and a President of this Association.
The Vice Chairman shall be authorized, in the absence of the Chairman of the
Board, to perform all acts and duties pertaining to the office of the Chairman.
The Board of Directors shall also have the power to appoint one or more Vice
Presidents, a Cashier, a Secretary and such other officers and employees as may
be required to transact the business of this Association; to fix the salaries to
be paid such officers and employees of this Association, and to dismiss any of
such officers or employees and appoint others to take their place.
The Board of Directors shall have the power to define the duties of
officers and employees of this Association and to require adequate bonds from
them for the faithful performance of their duties; to make all By-Laws that may
be lawful for the general regulation of the business of this Association and the
management of its affairs, and generally to do and perform all acts that may be
lawful for a Board of Directors to do and perform.
-3-
<PAGE>
The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City and County of Denver, Colorado, without the approval of the shareholders,
and shall have the power to change the location of any branch or branches of
this Association to any other location, subject to the laws of the United
States.
SEVENTH. The corporate existence of this Association shall continue
until terminated in accordance with the laws of the United States.
EIGHTH. The Board of Directors of this Association, or any
shareholder or group of shareholders owning, in the aggregate, not less than ten
per centum (10%) of the stock of this Association, may call a special meeting
of shareholders at any time.
Unless otherwise provided by the laws of the United States, a notice
of the time, place, and purpose of every regular annual, and every special
meeting of the shareholders shall be given by first-class mail, postage prepaid,
mailed at least ten days prior to the date of such meeting to each shareholder
of record at his address as shown upon the books of this Association.
Subject to the provisions of the laws of the United States, these
Articles of Association may be amended at any meeting of the shareholders for
which adequate notice has been given, by the affirmative vote of the owners of a
majority of the stock of this Association, voting in person or by proxy.
-4-
<PAGE>
NINTH. By action of its Board of Directors, this Association may in
its absolute discretion indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit, proceeding or appeal, whether civil, criminal, administrative, or
investigative, by reason of the fact that such person is or was a director,
officer, trustee, or other employee of the Association or of any of its
subsidiaries or of any organization served in any such capacity at the request
of the Association, and his personal representatives, against all reasonable
expenses (including, but not limited to, judgments, fines, investigation fees,
costs, and counsel fees) actually and necessarily incurred by such person in
connection with the defense of an action, suit, proceeding, or appeal, whether
such person is a director, officer, trustee, or employee at the time of
incurring such expense and whether any or all of the directors of the
Association then acting are or were parties to any such proceeding; provided,
however, that such person shall not be reimbursed in relation to matters as to
which such person has been finally adjudged guilty of, or liable for, willful
misconduct, gross neglect of duty, or criminal acts in the performance of his
duties to the Association, subsidiary, or other organization.
By action of its Board of Directors, the Association may in its sole
discretion purchase and maintain insurance, in such amounts as the Board of
Directors may deem appropriate, insuring the Association against loss resulting
form indemnification, and insuring such directors, officers, trustees, and
employees against loss, including costs and expenses, in connection with a claim
asserted against them in such capacity or arising out
-5-
<PAGE>
of their status as such, whether or not the Association would have the
authority to indemnify them against such liability.
-6-
<PAGE>
EXHIBIT 2
[LOGO] FIRST
INTERSTATE
BANK
FIRST INTERSTATE BANK
OF DENVER, N.A.
BYLAWS
<PAGE>
AS AMENDED AND RESTATED
APRIL 24, 1995
<PAGE>
BYLAWS
OF
FIRST INTERSTATE BANK OF DENVER
TABLE OF CONTENTS
Page
ARTICLE I. SHAREHOLDER MEETINGS
Section 1.1. Place of Meeting . . . . . . . . . . . 1
Section 1.2. Annual Meetings . . . . . . . . . . . . 2
Section 1.3. Special Meetings . . . . . . . . . . . 3
Section 1.4. Actions without a Meeting . . . . . . . 4
Section 1.5. Notice of Meetings . . . . . . . . . . 5
Section 1.6. Quorum . . . . . . . . . . . . . . . . 6
Section 1.7. Organization . . . . . . . . . . . . . 7
Section 1.8. Voting . . . . . . . . . . . . . . . . 8
Section 1.9. Irregularities . . . . . . . . . . . . 9
ARTICLE II. BOARD OF DIRECTORS
Section 2.1. General Powers . . . . . . . . . . . . . 10
Section 2.1.1. Indemnification . . . . . . . . . . . . 10
Section 2.2. Number . . . . . . . . . . . . . . . . . 11
Section 2.2.1. Executive Board . . . . . . . . . . . . 11
Section 2.3. Qualification, Election and Term
of Office . . . . . . . . . . . . . . . 12
Section 2.4. Quorum and Manner of Acting . . . . . . 13
Section 2.5. Organizational Meeting . . . . . . . . . 14
Section 2.6. Regular Meetings . . . . . . . . . . . . 15
Section 2.7. Special Meetings . . . . . . . . . . . . 16
Section 2.8. Actions without a Meeting . . . . . . . 17
Section 2.9. Special Meetings - Notice . . . . . . . 18
Section 2.10. Organization . . . . . . . . . . . . . . 19
Section 2.11. Order of Business . . . . . . . . . . . 20
Section 2.12. Resignations . . . . . . . . . . . . . . 21
Section 2.13. Vacancies . . . . . . . . . . . . . . . 22
Section 2.14. Compensation . . . . . . . . . . . . . . 23
<PAGE>
TABLE OF CONTENTS (Continued)
ARTICLE III. COMMITTEES
Section 3.1. Executive Committee . . . . . . . . . . 24
Section 3.2. Audit Committee . . . . . . . . . . . . 25
Section 3.3. Trust Committee . . . . . . . . . . . . 26
Section 3.4. Other Committees of the Board . . . . . 27
Section 3.4.1 Other Committees . . . . . . . . . . . . 27
Section 3.5. Resignations . . . . . . . . . . . . . . 28
Section 3.6. Quorum . . . . . . . . . . . . . . . . . 29
ARTICLE IV. OFFICERS
Section 4.1. Number and Titles. . . . . . . . . . . . 30
Section 4.2. Election, Appointments and Removals . . 31
Page
Section 4.3. Duties and Bonds . . . . . . . . . . . . 32
Section 4.4. Chairman of the Board . . . . . . . . . 33
Section 4.4.1. Vice Chairman . . . . . . . . . . . . . 33
Section 4.4.2. Chief Executive Officer . . . . . . . . 33
Section 4.4.3. President . . . . . . . . . . . . . . . 33
Section 4.5. Area President/Area Manager . . . . . . 34
Section 4.6. Vice Presidents . . . . . . . . . . . . 35
Section 4.7. Delegation of Duties Generally
Performed by Cashier . . . . . . . . . . 36
Section 4.8. Controller . . . . . . . . . . . . . . . 37
Section 4.9. General Auditor . . . . . . . . . . . . 38
Section 4.10. Secretary to the Board of Directors . . 39
Section 4.10.1. Assistant Secretary to the Board
of Directors . . . . . . . . . . . . . . 39
Section 4.11. Loans to Officers . . . . . . . . . . . 40
Section 4.11.1. Loans to Executive Officers . . . . . . 40
ARTICLE V. BOARD OF DIRECTORS
Section 5.1. Fiscal Year . . . . . . . . . . . . . . 42
Section 5.2. Records . . . . . . . . . . . . . . . . 43
Section 5.3. Execution of Instruments . . . . . . . . 44
ARTICLE VI. OPENING AND CLOSING
Section 6.1. Days and Hours of Business . . . . . . . 45
<PAGE>
TABLE OF CONTENTS (Continued)
Section 6.2. Emergency Closing . . . . . . . . . . . 46
Section 6.2.1. Emergency Preparedness . . . . . . . . . 46
ARTICLE VII. WAIVER OF NOTICE
Section 7.1. Waiver of Notice . . . . . . . . . . . . 48
ARTICLE VIII. SHARES OF STOCK AND THEIR TRANSFER
Section 8.1. Certificates of Stock . . . . . . . . . 49
Section 8.2. Transfer of Stock . . . . . . . . . . . 50
Section 8.3. Closing of Transfer Books . . . . . . . 51
ARTICLE IX. SEAL
Section 9.1. Seal . . . . . . . . . . . . . . . . . . 52
ARTICLE X. BYLAWS
Section 10.1. Inspection . . . . . . . . . . . . . . . 53
Section 10.2. Amendments to Bylaws . . . . . . . . . . 54
<PAGE>
ARTICLE I.
SHAREHOLDER MEETINGS
Section 1.1. PLACE OF MEETING. All meetings of shareholders of this
Association shall be held at its main office in the City of Denver, Colorado, or
such other place as the Board of Directors may designate and as may not be
contrary to the provisions of law or the Articles of Association.
Restated: 3/23/92
----------
Article I: Section 1.1
Page 1
<PAGE>
ARTICLE I.
SHAREHOLDER MEETINGS
Section 1.2. ANNUAL MEETINGS. The annual meeting of the shareholders
shall be on the fourth Monday in April of each year unless a different day is
set, or if that day is a legal holiday in Colorado, then on the next day
thereafter which is not a legal holiday, for the purpose of electing Directors
and for the transaction of such other business as may properly come before the
meeting. The meeting shall be held at the hour of 8:00 a.m. of said day unless
a different time is stated in the notice.
If in any year no election of directors shall be held on the date
designated for the annual shareholder meeting, or at any adjournment of such
meeting, such election may be held on any subsequent day established by the
incumbent Board of Directors in accordance with the provisions of the banking
laws of the United States. All elections shall be held according to such
regulations as may be prescribed by the Board of Directors, not inconsistent
with law or the provisions of the bylaws.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article I: Section 1.2
Page 2
<PAGE>
ARTICLE I.
SHAREHOLDER MEETINGS
Section 1.3. SPECIAL MEETINGS. Special meetings of the shareholders may
be called for any purpose or purposes at any time, unless otherwise prescribed
by statute, by the Chairman of the Board, the Chief Executive Officer, or by the
Board of Directors, or by any shareholder or group of shareholders holding not
less than twenty-five (25) percent of the shares entitled to vote at the
meeting.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article I: Section 1.3
Page 3
<PAGE>
ARTICLE I.
SHAREHOLDER MEETINGS
Section 1.4. ACTIONS WITHOUT A MEETING. Any actions required to be taken
at shareholder meetings by the bylaws of this Association may be taken without a
shareholder meeting and shareholder vote if consent in writing, setting forth
the action so taken, is signed by all shareholders entitled to vote.
Restated: 3/23/92
----------
Article I: Section 1.4
Page 4
<PAGE>
ARTICLE I.
SHAREHOLDER MEETINGS
Section 1.5. NOTICE OF MEETINGS. Except as otherwise provided by the laws
of the United States, or in these bylaws, a notice of the time, place and
purpose of every annual and special meeting of the shareholders shall be given
by first-class mail, postage prepaid, mailed at least ten (10) days prior to the
date of such meeting to each shareholder of record at his or her address as
shown upon the books of this Association.
When a meeting is adjourned for thirty (30) days or less, it shall not be
necessary to give any notice of the time or place of the adjourned meeting or of
the business to be transacted thereat other than by announcement at the meeting
in which the adjournment is taken.
Restated: 3/23/92
----------
Article I: Section 1.5
Page 5
<PAGE>
ARTICLE I.
SHAREHOLDER MEETINGS
Section 1.6. QUORUM. At any meeting of the shareholders, the presence, in
person or by proxy, of the holders of a majority of the issued and outstanding
stock of this Association entitled to vote at such meeting shall constitute a
quorum for the transaction of business except where otherwise provided by law or
by these bylaws.
Restated: 3/23/92
----------
Article I: Section 1.6
Page 6
<PAGE>
ARTICLE I.
SHAREHOLDER MEETINGS
Section 1.7. ORGANIZATION. At every meeting of the shareholders, the
Chairman of the Board or Chief Executive Officer shall preside, or in the
absence of such persons, a Chairman chosen by a majority vote of the
shareholders present or in person or by proxy and entitled to vote thereat,
shall act as Chairman. The Secretary of the Board or an Acting Secretary
appointed by the Chairman shall act as Secretary at all meetings of the
shareholders.
Restated: 3/23/92
----------
Article I: Section 1.7
Page 7
<PAGE>
ARTICLE I.
SHAREHOLDER MEETINGS
Section 1.8. VOTING. Save for the statutory right of shareholders to
cumulate their votes for the election of directors, in deciding all questions at
shareholder meetings of this Association, each shareholder of this Association
shall be entitled to one vote or corresponding fraction thereof for each share
of stock or fraction thereof standing in his or her name on the books of this
Association, or if some record date is fixed for the determination of
shareholders of record, then registered in his or her name on such record date.
Any vote by stock may be given by the shareholder entitled thereto in person by
his or her proxy appointed by an instrument in writing, subscribed by such
shareholder or by his or her attorney thereunto authorized and delivered to the
Secretary of the meeting but no such proxy shall be voted or acted upon after
eleven months from the date of its execution unless the proxy provides for a
longer period.
At all shareholder meetings, all matters (except where otherwise provided
by law, the Articles of Association or these bylaws) shall be decided by the
vote of the holder of record of a majority of the shares of stock present in
person or by proxy and entitled to vote thereat.
Restated: 3/23/92
----------
Article I: Section 1.8
Page 8
<PAGE>
ARTICLE I.
SHAREHOLDER MEETINGS
Section 1.9. IRREGULARITIES. All informalities and irregularities at any
meeting of the shareholders with respect to calls, notices of meetings, the
manner of voting, the form of proxies and credentials, and the method of
ascertaining those present shall be deemed waived if no objection is made at the
meeting.
Restated: 3/23/92
----------
Article I: Section 1.9
Page 9
<PAGE>
ARTICLE I.
BOARD OF DIRECTORS
Section 2.1. GENERAL POWERS. The property, affairs and business of this
Association shall be managed by the Board of Directors. The Board of Directors
shall have power and authority to make rules and regulations for the guidance of
the officers and employees of this Association and the transaction of its
business, not inconsistent with law, and subject to such laws may declare
dividends; elect all officers, prescribe their duties and fix and change their
compensation; call shareholder meetings; fix and determine the rate of interest
to be paid on deposits; regulate the deposit and withdrawal of funds; provide
for the security of public deposits, make all bylaws deemed necessary or proper
for the general regulation of this Association and the management and
administration of its affairs within the limitations prescribed by law; and
generally to exercise all powers necessary for the transaction of the business
of this Association. Nothing herein contained shall limit or restrict the
powers conferred by law and the Articles of Association of this Association upon
the Board of Directors.
Section 2.1.1. INDEMNIFICATION. The Board of Directors shall be
indemnified to the full extent permitted by Delaware law, including but not
limited to the indemnification rights provided for in the Articles of
Association of this Association.
Restated: 3/23/92
----------
Article I: Section 2.1
Page 10
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.2. NUMBER. The Board of Directors of this Association shall
consist of such number of qualified individuals, not less than five (5) nor more
than twenty-five (25), as from time to time shall be determined in the manner
provided by law, except that no person shall be nominated to either the legal or
executive board who shall have attained the age of 70 on or before the annual
meeting at which directors are to be elected.
The Board of Directors, by vote of the majority of the full Board, may
between annual shareholder meetings increase the number of directors within the
limits provided by law, and by like vote elect qualified persons to fill
vacancies created thereby.
Section 2.2.1. EXECUTIVE BOARD. The Board of Directors may appoint an
Executive Board consisting of not less than five nor more than twenty members,
who shall hold office at the pleasure of the Board of Directors and shall serve
terms concurrent with those of the Board of Directors. The Executive Board's
sole responsibility is to keep management and the Board of Directors apprised of
business developments affecting and/or relevant to the goals and objectives of
this Association. Initially, the Executive Board shall provide to management
and the Board of Directors advice and recommendations concerning the
Association's market, appropriate products and services and methods of
effectively promoting and delivering them, the Association's role in its local
community, and such other matters as may be agreed upon between the Executive
Board and the Board of Directors. The Executive Board shall regularly be
furnished information concerning the Association's performance and plans
sufficient to enable its members to assess the appropriateness and feasibility
of courses of action which the Executive Board may wish to consider
recommending. The function of the Executive Board shall be more fully
delineated in a Charter established by management of the Association, which
shall be proposed by the Executive Board and adopted by it after revision, if
any, and approval by the Board of Directors. The Board of Directors, by
resolution adopted by a majority of the Board, may from time to time create and
appoint such committees of the Executive Board which shall have and may exercise
such duties and responsibilities as may be prescribed by the Board of Directors.
Executive Board members shall have no power to vote, shall not have any
authority to direct, nor any responsibility for the direction of, the management
of this Association, and shall not be entitled to any of the rights and
privileges of other Directors, except for the receipt of compensation and
reimbursement for expenses incurred in attending meetings of the Executive Board
as may be fixed by the Board of Directors. Executive Board members shall be
subject to the duties of loyalty and of confidentiality which are applicable to
Directors.
Article II: Section 2.2
Page 11
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
The Executive Board shall meet at such time and place as is established or
required by management of this Association.
Restated: 3/23/92
----------
Amended: 5/24/93
----------
Amended: 12/10/93
----------
Amended: 4/25/94
----------
Article II: Section 2.2
Page 12
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.3. QUALIFICATION, ELECTION AND TERM OF OFFICE. Directors shall
hold qualifying shares of stock of a value meeting the requirements of the
National Bank Act and regulations promulgated pursuant thereto. Directors shall
be elected at the annual shareholder meeting or at any special shareholder
meeting, or by the Board of Directors to fill vacancies, as provided by law or
by these bylaws. Each director shall take and subscribe his or her oath of
office in form and manner required by law before entering upon his or her duties
of such director.
At each annual election each director shall be elected to hold office for
one year and until his or her successor is elected and has qualified, or until
his or her death, or until he or she shall resign or shall have become
disqualified or shall have been removed from office. Any director who fails to
own qualifying stock in the amount and manner provided by the National Bank Act
and regulations promulgated pursuant thereto shall be disqualified and, without
the necessity of any formal resignation, shall cease to be a director, provided
that no action of the Board of Directors, based upon the vote or written consent
of such disqualified director, shall be invalidated by reason of such
disqualification until notice of such disqualification shall have been served
upon or come to the attention of the Board of Directors.
Restated: 3/23/92
----------
Article II: Section 2.3
Page 13
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.4. QUORUM AND MANNER OF ACTING. A majority of all the members
of the Board of Directors shall constitute a quorum for the transaction of
business at any meeting and, except as otherwise expressly provided by law or by
these bylaws, the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors. Any
Director may participate in the transaction of business and vote in any meeting
of the Board of Directors by telephone and such Director's participation shall
count towards determination of a quorum hereunder. Such telephonic
participation shall be treated in the same manner as if such Director was
physically present at the meeting. The transaction of business by use of proxy
vote is not authorized. In the absence of a quorum a majority of the directors
present, or if only one director shall be present, such director, may adjourn
any meeting to a day certain or from day to day or from time to time until a
quorum is in attendance. Notice of adjourned meeting need not be given, except
as required by law.
In the event of an emergency declared by the President of the United States
or by the person performing the President's functions, or of a disaster of
sufficient severity to prevent the direction of this Association by the Board as
contemplated by these bylaws, a majority of the members of the Board who are
available for the transaction of business shall constitute a quorum and be
vested with all the authority of the Board except as to transactions which, by
the laws of the United States, require approval by a greater number of
directors.
Restated: 3/23/92
----------
Article II: Section 2.4
Page 14
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.5. ORGANIZATIONAL MEETING. The Board of Directors shall meet
for the purpose of organization and the transaction of other business as soon as
practicable after the annual shareholder meeting at which they have been
elected. The meeting may be held on the same day and at the same place as the
shareholder meeting, or, if permitted by law, as may be otherwise provided by
vote of the shareholders at said shareholder meeting. Notice of such meeting
need not be given.
At the first meeting of the Board of Directors hereinabove described the
newly elected and re-elected directors shall proceed to take their oaths, elect
officers, establish or approve salary programs, approve committees of the Board
and management, and otherwise organize the Board. The Board may transact such
other business as may properly come before the meeting.
In addition to the officers of this Association enumerated in Section 4.1
of Article IV of these bylaws, the Board shall proceed to elect a secretary to
the board in accordance with Section 4.10 below who shall act as such until the
next annual meeting of the Board of Directors or until his or her successor
shall have been elected. The secretary to the board shall also act as secretary
of shareholder meetings of this Association.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article II: Section 2.5
Page 15
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.6. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held in accordance with a Schedule of Meetings established by the
Chairman of the Board at the main office of this Association or at such other
place or places as may be authorized or hereinafter provided. The regular April
meeting may be held immediately following the Annual Meeting of the Shareholders
and the organizational meeting of the Board of Directors. When any regular
meeting of the Board of Directors falls upon a holiday, such meeting shall be
held upon such other day as the Board of Directors may previously designate by
resolution, and if no such other day be designated, the same meeting shall be
held on the day immediately following the holiday, or holidays. The Board of
Directors may cancel any regular meeting through an appropriate resolution
adopted by the Board of Directors, and may, upon the vote of a majority of the
directors present at any meeting, adjourn any meeting to a day certain or from
day to day. Notice of adjourned meeting need not be given, except as required
by law.
Any regular meeting of the Board of Directors may be held at any other time
or place where authorized by the Board of Directors at any prior meeting or by
the Chairman of the Board, the Chief Executive Officer, or the President between
meetings of the Board.
Notice of regular meetings of the Board of Directors need not be given
except in cases where the Chairman of the Board has designated a different day
of meeting than that previously set for in his or her Schedule of Meetings, or
has designated another place for such meeting in which event notice of such
meeting, stating the time and place thereof, shall be given.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article II: Section 2.6
Page 16
<PAGE>
ARTICLE II.
BOARD OF DIRECTOR
Section 2.7. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be held whenever called by the Chairman of the Board, the Chief Executive
Officer, or by any other officer designated to act on their behalf. Special
meetings of the Board of Directors shall be called by the Chairman of the Board,
the Chief Executive Officer, or the Secretary to the Board at the written
request of three or more directors. Special meetings shall be held at the main
office of this Association or at such other locations as may be specified in the
notice thereof.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article I: Section 2.9
Page 17
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.8. ACTIONS WITHOUT A MEETING. Any action required to be taken
at a meeting of the directors by the bylaws of this Association may be taken
without a directors meeting if consent in writing, setting forth the action so
taken, is signed by all directors entitled to vote with respect to the subject
matter thereof.
Restated: 3/23/92
----------
Article II: Section 2.8
Page 18
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.9. SPECIAL MEETINGS - NOTICE. Notice of special meetings shall
be given by written or printed notice, by telegraph, by telephone, by facsimile
transmission, or orally, provided that oral notice is confirmed in writing.
A record of such notice shall be entered upon the minutes of any special
meeting of the Board of Directors, and the said minutes on being read and
approved at any subsequent meeting of the Board shall be conclusive upon the
question of service.
The attendance of any director at any regular or special meeting of the
Board of Directors, or a prior or subsequent consent thereto, shall constitute a
waiver of any such notice and a consent to the holding of such meeting and to
the consideration and action upon all matters which may come before such
meeting, except when he or she attends the meeting for the express purpose of
objecting to the transaction of any business because the meeting is not lawfully
called or convened.
Restated: 3/23/92
----------
Article II: Section 2.9
Page 19
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.10. ORGANIZATION. At any meeting of the Board of Directors, the
Chairman of the Board, or in the absence of such person, the Vice Chairman, or
in the absence of such person, a director to be chosen by a majority of the
directors present, shall act as Chairman. The Secretary of the Board, or in the
Secretary's absence such person as may be designated by the presiding director,
shall act as Secretary of the meeting and keep the minutes thereof.
Restated: 3/23/92
----------
Amended 12/10/93
----------
Article II: Section 2.10
Page 20
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.11. ORDER OF BUSINESS. At all meetings of the Board of
Directors business shall be transacted in such order as the Board of Directors
may from time to time by resolution determine, or in the absence of such
determination as the Chairman of the meeting may determine. To the extent the
Board elects to establish committees of the Board, copies of the minutes of
meetings of such committees, approved by such committees since the last meeting
of the Board of Directors, shall be made available to each director present, and
the activities of such committee shall be reviewed in depth by a member of that
committee. Notation of such review shall be entered upon the minutes of the
Board of Directors.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article II: Section 2.11
Page 21
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.12. RESIGNATIONS. Any director of this Association may resign
at any time by giving written notice of his or her resignation to the Chairman
of the Board, the Chief Executive Officer, the President or to the Secretary to
the Board of this Association. Any such resignation shall take effect at the
time specified therein or, if the time when it shall become effective is not
specified therein, it shall take effect immediately upon its receipt by the
Chairman of the Board, the Chief Executive Officer, the President or the
Secretary, as the case may be; and, unless otherwise specified therein, the
acceptance of such resignation by the Board of Directors shall not be necessary
to make it effective.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article II: Section 2.12
Page 22
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.13. VACANCIES. Any vacancy in the Board of Directors caused by
death, resignation, removal, or any other cause, including disqualification as
provided in Article II, Section 2.3 of these bylaws, and any newly created
directorship, shall be filled as soon as deemed practical under the
circumstances, by a majority vote of the remaining directors in office,
including any director whose resignation from the Board becomes effective at a
future time, though less than a quorum, or by a sole remaining director,
provided that any vacancy not filled by the directors may be filled at any
special shareholder meeting by vote of shareholders entitled to exercise a
majority of the voting power of this Association. Each director so elected
shall hold office for a term to expire at the next annual election of directors
and until his or her successor shall be duly elected and qualified, or until his
or her death, or until he or she shall resign or shall have become disqualified
or shall have been removed from office in the manner herein provided. During
the existence of any vacancy, howsoever caused, the remaining directors shall
possess and exercise all of the powers of the Board of Directors.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article II: Section 2.13
Page 23
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 2.14. COMPENSATION. Directors shall receive such compensation as
may be fixed by the Board of Directors. Directors may receive compensation,
fees, and reimbursement of expenses as may be fixed by the Board for services on
any committee of the Board or for any special services rendered upon and under
the direction of the Board.
Restated: 3/23/92
----------
Article II: Section 2.14
Page 24
<PAGE>
ARTICLE III.
COMMITTEES
Section 3.1. EXECUTIVE COMMITTEE. During the intervals between the
meetings of the Board of Directors the general authority of the Board of
Directors may be vested in an Executive Committee. To the extent one is
established, and subject to the review of its actions by the Board of Directors,
the Executive Committee shall decide questions of corporate policy and shall
counsel with and aid the officers of this Association in matters concerning its
interests and the management of its business, except that such committee shall
have no power or authority as to the following:
- The adoption, amendment, or repeal of the bylaws;
- The declaration of dividends; and
- Any other action prohibited by law or by ruling of a regulatory
authority.
The Board of Directors may designate three or more of its number as an
Executive Committee which may meet at stated times or on notice to all by any of
its number. The Chairman of the Board, the Chief Executive Officer, and/or the
President may be members of the Executive Committee.
The Board of Directors may elect the Chairman of the Executive Committee
and may appoint one or more Vice Chairman of the Executive Committee. All
members of the Executive Committee shall enjoy the same privilege of voice and
vote and shall have the same rights and duties.
A majority of all members of the Executive Committee shall constitute a
quorum for the transaction of business. The act of a majority of the members
present at any meeting at which there is a quorum shall be the act of such
committee.
In the absence or disqualification of any member of the Executive
Committee, absent objection by any qualified member or members thereof present
at any meeting, whether or not a quorum has been constituted, the Secretary may
invite another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
The Executive Committee is authorized to appoint a Secretary, who need not
be a member of the Board of Directors, and such other officers as it may deem
necessary or advisable and may make such rules and regulations as it shall deem
necessary or advisable, consistent with these bylaws and resolutions of the
Board.
The Executive Committee shall keep true and correct minutes of all
meetings. Copies of such minutes shall be filed with the Board of Directors
prior to each regular meeting of the Board of Directors.
Article III: Section 3.1
Page 25
<PAGE>
ARTICLE III.
COMMITTEES
In the event of an emergency declared by the President of the United States
or by the person performing his functions, or of a disaster of sufficient
severity to prevent the direction of this Association by its directors and
officers as contemplated by these bylaws, and in the event of the
unavailability, at such time, of a minimum of two members of any then incumbent
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and direction of the affairs and
business of this Association, including, but not limited to, all the powers
reserved to or vested in other committees of the Board of Directors as well as
the Executive Committee.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article III: Section 3.1
Page 26
<PAGE>
ARTICLE III.
COMMITTEES
Section 3.2. AUDIT COMMITTEE. The Board of Directors may appoint an Audit
Committee consisting of a minimum of two directors. The Audit Committee's
responsibility is to insure that the Association has a strategic audit plan and
an efficient and effective audit program, consistent with generally accepted
auditing standards. The strategic plan and audit program shall contribute to
the goals and objectives of the Association. The Committee shall have authority
to employ such assistance in the performance of its duties as it may deem
necessary.
The Audit Committee shall report significant audit matters on a timely
basis to the Board of Directors. External audit reports and Trust Division
audit reports, together with action taken thereon, shall be noted in the minutes
of the Board of Directors.
The Audit Committee shall perform such other duties as the Board of
Directors or any Executive Committee may from time to time assign.
Restated: 3/23/92
----------
Amended: 7/19/93
----------
Amended: 12/10/93
----------
Article III: Section 3.2
Page 27
<PAGE>
ARTICLE III.
COMMITTEES
Section 3.3. TRUST COMMITTEE. The Board of Directors may appoint a Trust
Committee.
To the extent one is established, the Trust Committee is responsible for
the proper exercise by this Association of its fiduciary powers. All matters
pertinent thereto, including the determination of policy, the investment and
disposition of property held in a fiduciary capacity, and the direction and
review of actions of officers and committees utilized by this Association in the
exercise of its fiduciary powers, are the responsibility of this Committee,
acting for the Board. In discharging this responsibility the Trust Committee
may assign, by action duly entered in the minutes of its meetings, the
administration of such of the fiduciary powers of this Association as it may
consider proper to assign to such officer or officers or committee or committees
as it may designate.
Through appropriate assignment of performance of responsibility, direct
inquiry on a regular or periodic basis, or other means determined by the
Committee, any Trust Committee shall ensure compliance by the Trust Division
with laws, regulations, rulings governing operations of the Trust Division
including:
1. The proper acceptance of fiduciary accounts and the maintenance
of written records of all such acceptances and of all relinquishments of
fiduciary accounts.
2. As required by law, the periodic review of all trust accounts to
determine the advisability of retaining or disposing of the assets held in each
fiduciary account where the bank has investment responsibilities.
3. The designation, employment, or retention of legal counsel, to
provide counsel readily available to pass upon fiduciary matters and to advise
the Trust Division.
4. The periodic review of the extent of utilization by the Trust
Division of personnel and facilities of other divisions and offices of this
Association, to preserve the separate identity of the Trust Division.
The Trust Committee shall hold formal meetings as a committee, shall
maintain separate minutes of all meetings held and of actions taken, and shall
report its actions and recommendations at regular meetings of the Board of
Directors.
Article III: Section 3.3
Page 28
<PAGE>
ARTICLE III.
COMMITTEES
Restated: 3/23/92
----------
Article III: Section 3.3
Page 29
<PAGE>
ARTICLE III.
COMMITTEES
Section 3.4. OTHER COMMITTEES OF THE BOARD. The Board of Directors, by
resolution or resolutions adopted by a majority of the whole Board, may from
time to time create and appoint any committee or committees which shall in each
case have and may exercise insofar as permitted by law such duties,
responsibilities, and authority as may be prescribed by the Board of Directors.
A majority of all the members of any such committee may determine its
action and fix the time and place, whether within or without the State of
Colorado, of its meetings and specify what notice thereof, if any, shall be
given, unless the Board shall otherwise by resolution provide. The Board of
Directors, the Chairman of the Board, the Chief Executive Officer or the
President pursuant to the authority of the Board to appoint such committee,
shall have power to, with or without cause, change the members of any such
committee, to fill vacancies and to dissolve any such committee at any time.
Any committee may appoint one or more sub-committees, of its own members,
to advise with such committee, or to apportion the work of such committee.
Section 3.4.1 OTHER COMMITTEES. The Board of Directors may appoint other
committees from time to time, the members of which may or may not be directors
of this Association, to perform such limited or specific duties or functions as
the Board from time to time may prescribe.
Any committee may appoint one or more sub-committees, of its own members,
to advise with such committee, or to apportion the work of such committee.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article III: Section 3.4
Page 30
<PAGE>
ARTICLE III.
COMMITTEES
Section 3.5. RESIGNATIONS. To the extent the Board elects to establish a
committee of the Board, any member of such committee may resign therefrom at any
time by giving written notice of his or her resignation to the Chairman of the
Board, the Chief Executive Officer, or the Secretary to the Board of this
Association. Any such resignation shall take effect at the time specified
therein, or if the time when it shall become effective is not specified therein,
it shall take effect immediately upon its receipt by the Chairman of the Board,
the Chief Executive Officer, or the Secretary, as the case may be; unless
otherwise specified therein, the acceptance of such resignation by the Board of
Directors shall not be necessary to make it effective.
Restated: 3/23/92
Amended: 12/10/93
Article III: Section 3.5
Page 31
<PAGE>
ARTICLE III.
COMMITTEES
Section 3.6. QUORUM. A majority of all the members of any Committee,
exclusive of ex-officio members, if any, shall constitute a quorum for the
transaction of business at any meeting. However, ex-officio members, if present
at any meeting, shall be counted in determining the presence of a quorum. The
act of a majority of the members present at any meeting at which a quorum is
present shall be the act of the Committee.
In the absence of a quorum a majority of the members present, or if only
one member is present, such member, may adjourn any meeting to a day certain or
from time to time until a quorum is in attendance. Notice of an adjourned
meeting need not be given.
Restated: 3/23/92
----------
Article III: Section 3.6
Page 32
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.1. NUMBER AND TITLES. The following official designations for
corporate officers are established for this Association:
CORPORATE TITLES
----------------
Chairman of the Board
Chief Executive Officer
Chairman of any Executive Committee
President
Executive Vice President (one or more)
Senior Vice President (one or more)
Area President/Area Manager (one or more)
Vice President (one or more)
Controller
General Auditor
Secretary to the Board of Directors
Assistant Vice President (one or more)
Banking Officer
In addition to the above, the Board of Directors or any Executive Committee
may elect such officers with such titles as it may from time to time find are
required for the transaction of the business of this Association. Precedence
among officers shall be determined by the Board of Directors or any Executive
Committee.
Official titles may be used in combination, when so determined in the
manner outlined in Section 4.2 of this Article, except that one officer shall
not be designated as Chairman of the Board, Chief Executive Officer, or
President, and the officer designated pursuant to Section 4.7 below to perform
the duties of a cashier as the same may be prescribed by applicable law and
regulation.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IV: Section 4.1
Page 33
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.2. ELECTION, APPOINTMENTS AND REMOVALS. The officers shall be
elected or appointed by the Board of Directors at the annual organizational
meeting (the first meeting after the election of the Board) and shall hold
office at the pleasure of the Board. Other officers, either in addition to or
in place of officers elected at the organizational meeting of the Board, may
also be appointed by the Board of Directors or by any Executive Committee at any
regular or special meeting during the year.
The authority of the Board of Directors to appoint Banking Officers is
delegated, without restriction, to the Chairman of the Board and the Manager of
the Southwest Region Human Resources Management Group, each of whom may appoint
members of the staff to the title of Banking Officer, which appointees shall
hold office at the pleasure of the Board or until their appointment is
terminated by the appointing authority, whichever occurs first.
Notwithstanding anything to the contrary contained in these bylaws, the
authority of the Board of Directors to dismiss officers at pleasure is
delegated, without restriction, to the Chairman of the Board and to the Manager
of the Southwest Region Human Resources Management Group, each of whom is
authorized to dismiss any officer of equal or lesser corporate title, or to
appoint an officer to a corporate title in a lower level than that to which he
or she was elected by the Board of Directors, or to appoint an officer to a
corporate title or position of a lower salary grade or level than that to which
he or she was elected by the Board of Directors, or to remove a corporate title
from any officer of equal or lesser corporate title.
Restated: 3/23/92
----------
Amended: 12/10/93
Article IV: Section 4.2
Page 34
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.3. DUTIES AND BONDS. The accountabilities, responsibilities and
authority of the officers shall be as provided by law, or specifically set forth
in these bylaws, or shall be such as have been or may be prescribed and
established by the Board of Directors or any Executive Committee at any time or
from time to time. For officers whose major accountabilities and
responsibilities are set forth in these bylaws, the Chairman of the Board, the
Chief Executive Officer, the President or officer acting under the authority of
the Chairman of the Board, the Chief Executive Officer or the President may, at
any time or from time to time, add new or collateral accountabilities and
responsibilities to meet the needs of this Association.
Accountabilities and responsibilities of officers shall be such as have
been set forth in job description summaries prepared and approved in accordance
with procedures established by the Chairman of the Board, the Chief Executive
Officer, or the President, or their designee.
Authority of officers to sign documents on behalf of this Association shall
be prescribed in Article V of these bylaws. When the signatures of two officers
are required, a person holding two offices shall act or sign only in his or her
capacity as one of such officers.
The Board of Directors shall provide for such fidelity insurance and surety
bonds covering the officers and employees of this Association as it may
determine to be prudent and advisable in the interest of this Association.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IV: Section 4.3
Page 35
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.4. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a
member of the Board of Directors and shall preside as Chairman at meetings of
the Board and as Chairman at shareholder meetings.
Section 4.4.1. VICE CHAIRMAN. During the absence or inability of the
Chairman of the Board to so act, or if otherwise so requested by the Chairman,
the Vice Chairman shall perform the duties and have the authority of the
Chairman of the Board. In the absence or disability of such officer and if
another officer shall have not been designated by the Chairman of the Board, an
officer designated by the Board of Directors shall perform such duties and have
such authority.
Section 4.4.2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be a member of the Board of Directors and shall have general executive
supervision of the business and affairs of the Association and over its several
officers.
Section 4.4.3. PRESIDENT. The President shall be a member of the Board of
Directors and shall have general executive supervision of the business and
affairs of the Association and over its several officers, as directed by the
Board, the Chairman of the Board, and the Chief Executive Officer.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IV: Section 4.4
Page 36
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.5. AREA PRESIDENT/AREA MANAGER. The Board of Directors may
elect one or more Area Presidents/Area Managers with such accountabilities,
responsibilities, and authority as may be prescribed by the Chairman of the
Board, the Chief Executive Officer, or the President.
In addition to regularly assigned accountabilities and responsibilities,
which shall be defined in job description summaries developed in accordance with
Section 4.3 of these bylaws, the Area Presidents shall serve on such committees,
represent this Association at such meetings and conventions, and perform such
other functions as may be directed by the Chairman of the Board, the Chief
Executive Officer, or the President.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IV: Section 4.5
Page 37
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.6. VICE PRESIDENTS. The Board of Directors may elect one or
more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents and
Assistant Vice Presidents (collectively, the "Vice Presidents") with such
accountabilities, responsibilities, and authority as may be prescribed by the
Chairman of the Board, the Chief Executive Officer, or the President.
In addition to regularly assigned accountabilities and responsibilities,
which shall be defined in job description summaries developed in accordance with
Section 4.3 of these bylaws, the Vice Presidents shall serve on such committees,
represent this Association at such meetings and conventions, and perform such
other functions as may be directed by the Chairman of the Board, the Chief
Executive Officer, or the President.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IV: Section 4.6
Page 38
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.7. DELEGATION OF DUTIES GENERALLY PERFORMED BY CASHIER. The
officer designated by the Board of Directors as its Secretary pursuant to
Section 4.10 shall also perform and discharge the duties of a cashier as the
same may be prescribed by applicable law and regulation.
In addition to regularly assigned accountabilities and responsibilities,
which shall be defined in job description summaries developed in accordance with
Section 4.3 of these bylaws, the designated officer shall serve on such
committees, represent this Association at such meetings and conventions, and
perform such other functions as may be directed by appropriate authority.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IV: Section 4.7
Page 39
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.8. CONTROLLER. Under the direction of the Chairman of the
Board, the Chief Executive Officer, the President or the officer acting under
the authority of the Chairman of the Board, the Chief Executive Officer, or the
President, the Controller shall have supervision of and be responsible for
corporate accounting, including tax accounting, investment accounting, cost
accounting, and related accounting functions and for reporting of the fiscal
results of operations.
When directed by the Chairman of the Board, the Chief Executive Officer,
the President or the officer acting under the authority of the Chairman of the
Board, the Chief Executive Officer, or the President, the Controller shall be
responsible through designated supervisors for the effective operations of other
organizational groupings with duties related to the fiscal functions.
In addition to regularly assigned accountabilities and responsibilities,
which shall be defined in job description summaries developed in accordance with
Section 4.3 of these bylaws, the Controller shall serve on such committees,
represent the bank at such meetings and conventions, and perform such other
functions as may be directed by appropriate authority.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IV: Section 4.8
Page 40
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.9. GENERAL AUDITOR. The Board of Directors shall appoint a
General Auditor.
The General Auditor, with the concurrence of the Board of Directors, shall
develop and implement a strategic audit plan, and an efficient and effective
audit program consistent with generally accepted auditing standards. The
strategic plan and audit program shall contribute to the goals and objectives of
this Association.
The General Auditor shall have access to all Association records and
personnel necessary for the timely completion of official duties.
The General Auditor shall be accountable to the Board of Directors, for
administrative purposes the General Auditor shall be responsible to the Chairman
of the Board.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IV: Section 4.9
Page 41
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.10. SECRETARY TO THE BOARD OF DIRECTORS. The Board of Directors
shall elect an officer of this Association as Secretary to the Board. The
Secretary shall also serve in that capacity at shareholder meetings.
Under the direction of the Chairman of the Board, the Secretary is
responsible to prepare the agenda and to make other arrangements for shareholder
meetings, and Board of Directors, and to prepare minutes thereof, and to
generally maintain the official corporate records of the Association.
The Secretary may be assigned other duties and responsibilities which shall
be defined in accordance with Section 4.3 of the bylaws. The Secretary need not
be a member of the Board of Directors.
Section 4.10.1. ASSISTANT SECRETARY TO THE BOARD OF DIRECTORS. The Board
of Directors may elect one or more Assistant Secretaries who, in the absence of
the Secretary, shall perform the duties of the latter office.
The Assistant Secretaries may be assigned other duties and responsibilities
which shall be defined in accordance with Section 4.3 of these bylaws.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IV: Section 4.10
Page 42
<PAGE>
ARTICLE IV.
OFFICERS
Section 4.11. LOANS TO OFFICERS. Except for limitations on loans to
executive officers, within the meaning of the term "executive officer" as set
forth below for specific application to the provisions of this section,
management is hereby authorized to extend credit to any officer of this
Association deemed eligible for credit under prudent lending policies, and under
rates, terms, and other conditions as provided for under relevant laws, rules
and regulations.
Management shall establish procedures that provide for loan approvals
either in a division or office other than the division or office to which the
officer loan applicant is assigned or, if within the same office or division, by
a lending officer at least one level senior to the immediate supervisor of the
applicant, provided however, that all loans and extensions of credit to Senior
Vice Presidents shall be referred to and approved by the Chief Credit Officer
of the Association or his or her designee.
Officers whose positions are other than those listed in the definition of
"executive officer" shall be deemed to be responsible only for the
administration of policy and, within prudent lending policy, shall be eligible
for loans beyond limits established for executive officers.
Section 4.11.1. LOANS TO EXECUTIVE OFFICERS. For the purpose of
determining eligibility for loans by this Association, an "executive officer" is
defined, to the exclusion of all other officers of the Association, as those
individuals designated from time to time be a resolution of the Board of
Directors in accordance with Federal Reserve Regulation O.
Management is hereby authorized to extend loans to executive officers
within the limitations and for the purposes prescribed by current laws and by
regulations and rulings of the Comptroller of the Currency. The terms "loans"
shall include all extensions of credit set forth in such laws, regulations, and
rulings. Permissible exclusions, as advances for travel or other expenses on
behalf of this Association and allowances for indebtedness under time credit
accounts, bank credit card, and similar plans, are authorized for this
Association.
Article IV: Section 4.11 (continued)
Page 43
<PAGE>
ARTICLE IV.
OFFICERS
Within established limitations and subject to prudent judgment, loans to an
executive officer may be approved by the Chief Credit Officer, or in his
absence his designee possessing appropriate lending authority. Internal
reporting procedures for borrowings by executive officers, including borrowings
from other banks, shall conform to regulations of the Comptroller of the
Currency.
The existence of loans beyond established limitations for executive
officers shall in no way preclude consideration of officers for promotions or
committee assignments which would change their status to executive officers.
Article IV: Section 4.11 (continued)
Page 44
<PAGE>
ARTICLE IV.
OFFICERS
Provisions of this section do not apply to any extension of credit,
regardless of amount, contracted or otherwise entered on for purposes of
protecting this Association against loss.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Amended: 04/24/95
----------
Article IV: Section 4.11 (continued)
Page 45
<PAGE>
ARTICLE IV.
OFFICERS
Article IV: Section 4.11 (continued)
Page 46
<PAGE>
ARTICLE V.
BOARD OF DIRECTORS
Section 5.1. FISCAL YEAR. The fiscal year of this Association shall be
the calendar year.
Restated: 3/23/92
----------
Article V: Section 5.1
Page 47
<PAGE>
ARTICLE V.
BOARD OF DIRECTORS
Section 5.2. RECORDS. The Articles of Association, the bylaws and the
proceedings of all shareholder meetings, the Board of Directors, standing
committees of the Board, shall be recorded in appropriate minute books provided
for the purpose. The minutes of each meeting shall be signed by the Secretary,
Assistant Secretary, or other officer appointed to act as Secretary of the
meeting.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article V: Section 5.2
Page 48
<PAGE>
ARTICLE V.
BOARD OF DIRECTORS
Section 5.3. EXECUTION OF INSTRUMENTS. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, schedules,
accounts, affidavits, bonds, undertakings, proxies and other instruments or
documents may be signed, executed, acknowledged, verified, delivered or accepted
in behalf of this Association by the Chairman of the Board, Chief Executive
Officer, President, or Chairman of any Executive Committee, or any Executive
Vice President, Area President/Area Manager, Senior Vice President, or Vice
President, or the Secretary, or if in connection with the exercise of fiduciary
powers of the Association, by any of said officers or by any officer assigned to
the trust department. Any such instruments may also be executed, acknowledged,
verified. delivered, or accepted in behalf of this Association in such other
manner and by such other officers as the Board of Directors may from time to
time direct. The provisions of this Section 5.3 are supplementary to any other
provisions of these bylaws.
Restated: 3/23/92
----------
Article V: Section 5.3
Page 49
<PAGE>
ARTICLE VI.
OPENING AND CLOSING
Section 6.1. DAYS AND HOURS OF BUSINESS. This Association and the various
offices thereof shall be open for business on such days of the year, excepting
those days designated by law as days which banks are required to remain closed,
and during such hours of the day as the Board of Directors or management may
prescribe, it being understood that such days or hours of the day on which the
various offices of this Association close or remain open for business may be
varied depending upon the circumstances.
Restated: 3/23/92
----------
Article VI: Section 6.1
Page 50
<PAGE>
ARTICLE VI.
OPENING AND CLOSING
Section 6.2. EMERGENCY CLOSING. In the event either fire, flooding,
extreme weather, riot, insurrection or other emergency conditions is determined
by the Chairman of the Board or Chief Executive Officer to pose an immediate
threat to bank property or to the personal safety of members of its staff, the
Chairman of the Board or Chief Executive Officer may, on his or her own
initiative, suspend business and temporarily close the office or offices
directly threatened.
Under the above conditions of temporary closure during established banking
hours, the Chairman of the Board or Chief Executive Officer shall exert every
feasible effort to direct the usual business of offices closed to the nearest
offices which are not affected by the emergency conditions.
Authority established under this Section may be delegated by the Chairman
of the Board or Chief Executive Officer to one or more senior management
officers.
Circumstances attending suspensions of business shall be reported at the
next regular meeting of the Board of Directors or any Executive Committee,
whichever occurs first.
Section 6.2.1. EMERGENCY PREPAREDNESS. During an emergency declared under
the authority of the office of the President of the United States - or during a
disaster of sufficient severity to prevent the direction of this Association by
its directors and officers as contemplated by these bylaws - available officers
and other staff members shall endeavor to conduct the affairs of this
Association under the general guidance of such directors as may be available
(Sections 2.4 and 3.1 of these bylaws) and under the supervision of the most
senior officer available determined in order of precedence from the following
(precedence between or among officers of the same title shall be determined by
length of service in that position):
President
Executive Vice President
Area President/Area Manager
Senior Vice President
Vice President
who shall assume the office of Chairman of the Board and Chief Executive
Officer, with all the responsibilities and authority of that office, using as a
headquarters any available banking office of this Association.
Article VI: Section 6.2
Page 51
<PAGE>
ARTICLE VI.
OPENING AND CLOSING
Upon assumption of office, the Chairman of the Board and Chief Executive
Officer shall appoint such other officers as are required to maintain the
business of this Association.
Persons dealing with this Association may accept a certification by any
three officers that a specified individual is acting as Chairman of the Board
and Chief Executive Officer or that a specified individual is acting as a
designated officer in accordance with these bylaws, and that anyone accepting
such certification may continue to consider it in force until notified in
writing of change.
Article VI: Section 6.2
Page 52
<PAGE>
ARTICLE VI.
OPENING AND CLOSING
Officers who have assumed or have been appointed to temporary offices under
this section of the bylaws shall continue in this office until they resign, at
which time they shall be replaced in the same manner prescribed for their
assumption of office; until they have been replaced by the return to duty of a
regularly elected officer of higher precedence; or until they have been replaced
by a duly constituted Board of Directors.
The office of this Association at which its business shall be conducted
shall be the Home Office thereof and branch offices at any other legally
authorized locations which may be leased or acquired by this Association to
carry on its business. During an emergency resulting in any authorized place of
business of this Association being unable to function, the business ordinarily
conducted at such location shall be relocated elsewhere in suitable quarters, in
addition to or in lieu of the location theretofore authorized, as may be
designated by the Board of Directors or by the Executive Committee or by such
persons as are then, in accordance with resolutions adopted from time to time by
the Board of Directors dealing with the exercise of authority in the time of
such emergency, conducting the affairs of this Association. Any temporarily
relocated place of business of this Association shall be returned to its legally
authorized location as soon as practicable and such temporary place of business
shall then be discontinued.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article VI: Section 6.2 (continued)
Page 53
<PAGE>
ARTICLE VII.
WAIVER OF NOTICE
Section 7.1. WAIVER OF NOTICE. Whenever any notice whatever is required
to be given by law or by these bylaws or the Articles of Association, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to
such notice.
Restated: 3/23/92
----------
Article VII: Section 7.1
Page 54
<PAGE>
ARTICLE VIII.
SHARES OF STOCK AND THEIR TRANSFER
Section 8.1. CERTIFICATES OF STOCK. Certificates for shares of capital
stock of this Association shall be in such form as shall be approved by the
Board of Directors. Such certificates shall be signed by the Chairman of the
Board, the President, or any Executive Vice President, and by the Secretary, or
an Assistant Secretary and shall bear the seal of this Association or a
facsimile thereof. The signature of such officers thereon may be facsimiles.
In case of a lost, stolen or destroyed certificate, a new one may be issued
therefor upon such terms and indemnity to this Association as the Board of
Directors may prescribe
Restated: 3/23/92
----------
Article VIII: Section 8.1
Page 55
<PAGE>
ARTICLE VIII.
SHARES OF STOCK AND THEIR TRANSFER
Section 8.2. TRANSFER OF STOCK. Transfer of shares of capital stock of
this Association shall be made only on the books of the Association by the
registered holder thereof or by his or her attorney thereunto authorized by a
power of attorney duly executed, and on surrender of the certificate or
certificates of such shares properly endorsed or accompanied by a proper
instrument of transfer. The Board of Directors may make such additional rules
and regulations as it may deem expedient concerning the issue, registration,
transfer and replacement of certificates for shares of capital state of this
Association and may appoint one or more transfer agents, transfer clerks or
registrars. This Association shall be entitled to treat the holder of record of
any share or shares of capital stock as the owner thereof in fact.
Restated: 3/23/92
----------
Article VIII: Section 8.2
Page 56
<PAGE>
ARTICLE VIII.
SHARES OF STOCK AND THEIR TRANSFER
Section 8.3. CLOSING OF TRANSFER BOOKS. The transfer books may be closed
for the purpose of any meeting of shareholders or the payment of dividends or
for any other purpose, at such time and for such period not exceeding 50 days,
as the Board of Directors may direct. In lieu of closing the transfer books,
the Board of Directors may in its discretion fix a day and hour not more than 50
days prior to the day designated for the holding of any meeting of the
shareholders or the day appointed for the payment of any dividends or for any
other purpose at the time as of which shareholders entitled to notice of and to
vote at such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
Restated: 3/23/92
----------
Article VIII: Section 8.3
Page 57
<PAGE>
ARTICLE IX.
SEAL
Section 9.1. SEAL. The seal of the Association shall not be requisite to
the validity of any instrument executed by or on behalf of the Association.
Nevertheless, if in any instance such seal is used, the same shall be in the
form impressed on the margin of this Article IX. Said seal, if required, may be
affixed imprinted or reproduced by facsimile on any instrument or document,
including certificates for shares of stock of this Association by the Secretary,
Assistant Secretary, or any other individual acting on their behalf or at their
direction.
Restated: 3/23/92
----------
Amended: 12/10/93
----------
Article IX: Section 9.1
Page 58
<PAGE>
ARTICLE X.
BYLAWS
Section 10.1. INSPECTION. A copy of the bylaws, with all amendments
thereto, shall at all times be kept in a convenient place at the principal
banking house of this Association, and shall be open for inspection to all
shareholders, during banking hours.
Restated: 3/23/92
----------
Article IX: Section 10.1
Page 59
<PAGE>
ARTICLE X.
BYLAWS
Section 10.2. AMENDMENTS TO BYLAWS. These bylaws may be altered, amended,
or repealed, or new bylaws may be adopted, at any regular meeting of the Board,
without prior notice, or at any special meeting called for this purpose, by a
vote of the majority of the whole number of Directors.
Restated: 3/23/92
----------
Article X: Section 10.2
Page 60
<PAGE>
CERTIFICATION
I, Leo L. Miller, the duly elected secretary of First Interstate Bank of
Denver, N.A., a national banking association, hereby certify that the attached
is a true and correct copy of the Amended and Restated Bylaws of the
Association as of the date of this certificate.
IN WITNESS WHEREOF, I have executed this certificate this 7th day of
June, 1995.
/s/ Leo L. Miller
------------------------------------
Leo L. Miller, Secretary
First Interstate Bank of Denver, N.A.
<PAGE>
EXHIBIT 3
TREASURY DEPARTMENT )
OFFICE OF ) SS:
COMPTROLLER OF THE CURRENCY )
I, DEAN E. MILLER. DEPUTY COMPTROLLER FOR TRUST AND SECURITIES. DO HEREBY
CERTIFY THAT THE DOCUMENT HERETO ATTACHED IS A TRUE AND COMPLETE COPY. AS
RECORDED IN THIS OFFICE, OF THE CERTIFICATE EVIDENCING THE RIGHT OF FIRST
INTERSTATE BANK OF DENVER, NATIONAL ASSOCIATION, DENVER, COLORADO. TO ACT IN
THE FIDUCIARY CAPACITIES THEREIN SPECIFIED. I FURTHER CERTIFY THAT THE POWERS
THEREIN SPECIFIED ARE IN FULL FORCE AND EFFECT.
IN TESTIMONY WHEREOF, I HAVE
HEREUNTO SUBSCRIBED MY NAME
AND CAUSED THE SEAL OF OFFICE
OF THE COMPTROLLER OF THE
CURRENCY TO BE AFFIXED TO
[STATE SEAL] THESE PRESENTS AT THE TREASURY
DEPARTMENT IN THE CITY OF
WASHINGTON AND DISTRICT OF
COLUMBIA, THIS THIRD DAY OF
AUGUST, 1984
/S/ DEAN E. MILLER
DEPUTY COMPTROLLER
FOR TRUST & SECURITIES
<PAGE>
[PICTURE]
WHEREAS, FIRST INTERSTATE BANK OF DENVER, NATIONAL ASSOCIATION, located in
Denver, State of Colorado, being a National Banking Association, organized under
the statutes of the United States, has made application for authority to act as
fiduciary
AND WHEREAS, applicable provisions of the statutes of the United States
authorize the grant of such authority
NOW THEREFORE, I hereby certify that the necessary approval has been given
and that the said association is authorized to act in all fiduciary capacities
permitted by such statutes.
IN TESTIMONY WHEREOF, witness
my signature and seal of
[STATE SEAL] office this first day of
June, 1981.
/S/ (illegible)
Acting comptroller of the
currency
Charter No. 12517
<PAGE>
EXHIBIT 4
RESOLUTION
RESOLVED, that any and all indentures, trust agreements, deeds of trust,
corporate mortgages, releases, satisfactions, agreements with issuing and paying
agents or other instruments on behalf of this Bank in any trust, agency, or
other fiduciary capacity, shall be signed by the President, any Executive Vice
President, any Senior Vice President, any Vice President, or by any other
officer designated by the Trust Committee.
RESOLVED, that authentications, registrations and other certifications to be
signed by this Bank as trustee, fiscal agent, registrar or otherwise under any
mortgage, deed of trust, trust agreement, agreement or other instrument
authorizing the issuance and registration of bonds, debentures, notes or other
obligations of any corporation, state, public agency or political subdivision,
and trust certificates issued by this Bank or its agents shall be signed by any
officer of this Bank under the designation of the title of such officer or under
the designation of the title "Authorized Officer" or "Authorized Signature".
The above Resolution was adopted by the Board of Directors First Interstate Bank
of Denver, N.A.
October 25, 1983
<PAGE>
EXHIBIT 5
<TABLE>
<CAPTION>
Board of Governors of the Federal Reserve System
OMB Number 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
[ 1 ]
[LOGO] CONFIDENTIAL Please refer to page i,
Table of Contents, for
the required disclosure
of estimated burden.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC OFFICE ONLY AND
TOTAL ASSETS OF $300 MILLION OR MORE -- FFIEC 032
(960930)
----------
REPORT AT THE CLOSE OF BUSINESS SEPTEMBER 30, 1996 (RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State member banks); 12
U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section 161 (National
banks).
This report form is be filed by banks with domestic offices only. Banks with
branches and consolidated subsidiaries in U.S. territories and possessions, Edge
or Agreement subsidiaries, foreign branches, consolidated foreign subsidiaries,
or International Banking Facilities must file FFIEC 031.
- --------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for the State nonmember banks and three directors for State
member and National banks.
I, Dennis M. Steen, Senior Vice President
-----------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are true
to the best of my knowledge and belief.
/S/ Dennis M. Steen
- ----------------------------------------------
Signature of Officer Authorized to Sign Report
October 25, 1996
- ----------------------------------------------
Date of Signature
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in some
cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it has
been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
and correct.
/S/ Roy M. Whitehead
- ----------------------------------------------
Director (Trustee)
/S/ Paul Watson
- ----------------------------------------------
Director (Trustee)
/S/ Joseph P. Stiglich
- ----------------------------------------------
Director (Trustee)
- --------------------------------------------------------------------------------
For Banks Submitting Hard Copy Report Forms:
STATE MEMBER BANKS: Return the original and one copy to the appropriate Federal
Reserve District Bank.
STATE NONMEMBER BANKS: Return the original only in the SPECIAL RETURN ADDRESS
ENVELOPE PROVIDED. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
NATIONAL BANKS: Return the original only in the SPECIAL RETURN ADDRESS ENVELOPE
PROVIDED. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
[ ]
FDIC Certificate Number |_|_|_|_|_| Banks should afix the address label in this space.
(RCRI 9050)
CALL NO. 197 32 09-30-96 ___________
STBK: 08-0350 01976 STCERT: 08-03009
WELLS FARGO BANK (COLORADO), NA
633 SEVENTEENTH STREET ___________
DENVER CO 80270
___________
State Abbrev. (Text 9200) ZIP Code (Text 9200)
[ ]
</TABLE>
Board of Governors of the Federal Reserve System, Federal Deposit
Insurance Corporation, Office of the Comptroller of the Currency
<PAGE>
2
<TABLE>
<CAPTION>
Consolidated Reports of Condition and Income for
A Bank with Domestic Offices Only and Total Assets of $300 Million or More
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
TABLE OF CONTENTS
SIGNATURE PAGE COVER REPORT OF CONDITION
REPORT OF INCOME Schedule RC-Balance Sheet . . . . . . . . . . . RC-1, 2
Schedule RI-Income Statement . . . . . . . . . . . . . . . .RI-1, 2, 3 Schedule RC-A-Cash and Balances Due From
Depository Institutions . . . . . . . . . . . . .RC-3
Schedule RI-A-Changes in Equity Capital. . . . . . . . . . . . . .RI-3
Schedule RC-B-Securities. . . . . . . . . . .RC-3, 4, 5
Schedule RI-B-Charge-offs and Recoveries and
Changes in Allowance for Loan and Lease Losses . . . . . . . RI-4, 5 Schedule RC-C-Loans and Lease Financing
Receivables:
Schedule RI-C-Applicable Income Taxes by Part I. Loans and Leases. . . . . . . . . . . RC-6, 7
Taxing Authority . . . . . . . . . . . . . . . . . . . . . . . .RI-5 Part II. Loans to Small Businesses and
Small Farms (included in the forms for
Schedule RI-E-Explanations . . . . . . . . . . . . . . . . . . RI-5, 6 June 30 only) . . . . . . . . . . . . . . RC-7a, 7b
Schedule RC-D-Trading Assets and Liabilities
(to be completed only by selected banks). . . . .RC-8
Schedule RC-E-Deposit Liabilities . . . . . . .RC-9, 10
Schedule RC-F-Other Assets. . . . . . . . . . . . RC-11
Schedule RC-G-Other Liabilities . . . . . . . . . RC-11
Schedule RC-K-Quarterly Averages. . . . . . . . . RC-12
Schedule RC-L-Off-Balance Sheet Items . . RC-13, 14, 15
Schedule RC-M-Memoranda . . . . . . . . . . . RC-16, 17
Schedule RC-N-Past Due and Nonaccrual Loans,
DISCLOSURE OF ESTIMATED BURDEN Leases, and Other Assets. . . . . . . . . . RC-18, 19
The estimated average burden associated with this information Schedule RC-O-Other Data for Deposit
collection is 32.2 hours per respondent and is estimated to vary Insurance Assessments . . . . . . . . . . . RC-20, 21
from 15 to 230 hours per response, depending on individual
circumstances. Burden estimates include the time for reviewing Schedule RC-R-Regulatory Capital. . . . . . . RC-22, 23
instructions, gathering and maintaining data in the required form,
and completing the information collection, but exclude the time Optional Narrative Statement Concerning
for compiling and maintaining business records in the normal the Amounts Reported in the Reports
course of a respondent's activities. Comments concerning the of Condition and Income . . . . . . . . . . . . RC-24
accuracy of this burden estimate and suggestions for reducing
this burden should be directed to the Office of Information SPECIAL REPORT (TO BE COMPLETED BY ALL BANKS)
and Regulatory Affairs, Office of Management and Budget,
Washington, D.C. 20503, and to one of the following: Schedule RC-J-Repricing Opportunities (sent only to
and to be completed only by savings banks)
Secretary
Board of Governors of the Federal Reserve System
Washington, D.C. 20551
Legislative and Regulatory Analysis Division
Office of the Comptroller of the Currency
Washington, D.C. 20219
Assistant Executive Secretary
Federal Deposit Insurance Corporation
Washington, D.C. 20429
For information or assistance, national and state nonmember banks should contact the FDIC's Call Reports Analysis Unit, 550 17th
Street, NW, Washington, D.C. 20429, toll free on (800) 688-FDIC(3342), Monday through Friday between 8:00 a.m. and 5:00 p.m.,
Eastern time. State member banks should contact their Federal Reserve District Bank.
</TABLE>
<PAGE>
3
CONSOLIDATED REPORT OF INCOME
FOR THE PERIOD JANUARY 1, 1996 - SEPTEMBER 30, 1996
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars
SCHEDULE RI - INCOME STATEMENT
<TABLE>
<CAPTION>
I380
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------
RIAD
----
<S> <C> <C> <C>
1. Interest income:
a. Interest and fee income on loans:
(1) Loans secured by real estate______________________________________________________4011 5,779 1.a.1
(2) Loans to finance agricultural production and other loans to farmers_______________4024 92 1.a.2
(3) Commercial and industrial loans___________________________________________________4012 5,681 1.a.3
(4) Loans to individuals for household, family, and other personal expenditures:
(a) Credit cards and related plans________________________________________________4054 410 1.a.4a
(b) Other_________________________________________________________________________4055 13,903 1.a.4b
(5) Loans to foreign governments and official institutions____________________________4056 0 1.a.5
(6) Obligations (other than securities and leases) of states and political
subdivisions in the U.S.:
(a) Taxable obligations___________________________________________________________4503 0 1.a.6a
(b) Tax-exempt obligations________________________________________________________4504 652 1.a.6b
(7) All other loans___________________________________________________________________4508 351 1.a.7
b. Income from lease financing receivables:
(1) Taxable leases____________________________________________________________________4505 4,802 1.b.1
(2) Tax-exempt leases_________________________________________________________________4307 0 1.b.2
c. Interest income on balances due from depository institutions (1)______________________4115 0 1.c
d. Interest and dividend income on securities:
(1) U.S. Treasury securities and U.S. Government agency and corporation
obligations_______________________________________________________________________4027 3,398 1.d.1
(2) Securities issued by states and political subdivisions in the U.S.:
(a) Taxable securities____________________________________________________________4506 0 1.d.2a
(b) Tax-exempt securities_________________________________________________________4507 0 1.d.2b
(3) Other domestic debt securities____________________________________________________3657 435 1.d.3
(4) Foreign debt securities___________________________________________________________3658 3 1.d.4
(5) Equity securities (including investments in mutual funds)_________________________3659 103 1.d.5
e. Interest income from trading assets___________________________________________________4069 0 1.e
f. Interest income on federal funds sold and securities purchased under agreements to
resell________________________________________________________________________________4020 3,003 1.f
g. Total interest income (sum of items 1.a through 1.f)__________________________________4107 38,612 1.g
_________________
(1) Includes interest income on time certificates of deposit not held for trading.
</TABLE>
<PAGE>
4
<TABLE>
<CAPTION>
SCHEDULE RI - CONTINUED
DOLLAR AMOUNTS IN THOUSANDS
__________________________________________________________________________________________________________________
<S> <C> <C> <C>
2. Interest expense:
a. Interest on deposits:
(1) Transaction accounts (NOW accounts, ATS accounts, and RAID Year-to-date
telephone and preauthorized transfer accounts)____________4508..... 1,064 ............ 2.a.1
(2) Nontransaction accounts:
(a) Money market deposit accounts (NMDAs)________________4509..... 2,703 ............ 2.a.2a
(b) Other savings deposits_______________________________4511..... 717 ............ 2.a.2b
(c) Time certificates of deposit of $100,000 or more_____4174..... 139 ............ 2.a.2c
(d) All other time deposits______________________________4512..... 1,387 ............ 2.a.2d
b. Expense of federal funds purchased and securities sold under
agreements to repurchase_______________________________________4180..... 6,372 ............ 2.b
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and on other borrowed money_______________________4185..... 914 ............ 2.c
d. Interest on mortgage indebtedness and obligations under
capitalized leases_____________________________________________4072..... 0 ............ 2.d
e. Interest on subordinated notes and debentures__________________4200..... 375 ............ 2.e
f. Total interest expense (sum of items 2.a through 2.e)__________4073..... 13,671 ............ 2.f
3. Net interest income (item 1.g minus 2.f)___________________________4074................. 24,941 3.
4. Provisions:
a. Provision for loan and lease losses____________________________4230................. 0 4.a
b. Provision for allocated transfer risk__________________________4243................. 0 4.b
5. Noninterest income:
a. Income from fiduciary activities_______________________________4070..... 6,752 ............ 5.a
b. Service charges on deposit accounts____________________________4080..... 8,024 ............ 5.b
c. Trading revenue (must equal Schedule RI, sum of Memorandum
items 8.a through 8.d)_________________________________________A220..... 0 ............ 5.c
d. Other foreign transaction gains (losses)_______________________4076..... 72 ............ 5.d
e. Not applicable
f. Other noninterest income:
(1) Other fee inocme__________________________________________5407..... 2,158 ............ 5.f.1
(2) All other noninterest income *____________________________5408..... 396 ............ 5.f.2
g. Total noninterest income (sum of items 5.a through 5.f)________4079................. 17,402 5.g
6. a. Realized gains (losses) on held-to-maturity securities_________3521................. 0 6.a
b. Realized gains (losses) on available-for-sale securities_______3196................. 19 6.b
7. Noninterest expense:
a. Salaries and employee benefits_________________________________4135..... 5,339 ............ 7.a
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage
interest)______________________________________________________4217..... 3,444 ............ 7.b
c. Other noninterest expense *____________________________________4092..... 15,425 ............ 7.c
d. Total noninterest expense (sum of items 7.a through 7.c)_______4093................. 24,208 7.d
8. Income (loss) before income taxes and extraordinary items and
other adjustments (item 3 plus or minus items 4.a, 4.b, 5.g,
6.a, 6.b, and 7.d)_________________________________________________4301................. 18,154 8.
9. Applicable income taxes (on time 8)________________________________4302................. 8,168 9.
10. Income (loss) before extraordinary items and other adjustments
(item 8 minus 9)___________________________________________________4300................. 9,986 10.
11. Extraordinary items and other adjustments:
a. Extraordinary items and other adjustments, gross of income
taxes *________________________________________________________4310..... 0 ............ 11.a
b. Applicable income taxes (on item 11.a) *_______________________4315..... 0 ............ 11.b
c. Extraordinary items and other adjustments, net of
income taxes (item 11.a minus 11.b)____________________________4320................. 0 11.c
12. Net income (loss) (sum of items 10 and 11.c)_______________________4340................. 9,986 12.
</TABLE>
_______________
* Describe on Schedule 21-E - Explanations.
<PAGE>
5
<TABLE>
5
SCHEDULE RI - CONTINUED
I381 (-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
MEMORANDA
1. Interest expense incurred to carry tax-exempt securities, loans, and RIAD Year-to-date
leases acquired after August 7, 1986, that is not deductible for federal ----
income tax purposes____________________________________________________________4513 141 M.1
2. Income from the sale and servicing of mutual funds annuities (included in
Schedule VI, item 8)___________________________________________________________8431 0 M.2
3. Not applicable
4. Number of full-time equivalent employees on payroll at end of current period Number
(round to nearest whole number)________________________________________________4150 199 M.4
5. -6. Not applicable
7. If the reporting bank has restated its balance as a result of applying push MM DD YY
down accounting this calendar year, report the date of the bank's
acquisition____________________________________________________________________9106 04-01-96 M.7
8. Trading revenue (from cash instruments and off-balance sheet derivative
instruments) RIAD Year-to-date
(Sum of Memorandum items 8.a through 8.d must equal Schedule B1, item 5.c): ----
a. Interest rate exposures_____________________________________________________8757 0 M.8.a
b. Foreign exchange exposures__________________________________________________8758 0 M.8.b
c. Equity security and index exposures_________________________________________8759 0 M.8.c
d. Commodity and other exposures_______________________________________________8760 0 M.8.d
9. Impact on income of off-balance sheet derivatives held for purposes other
than trading:
a. Net increase (decrease) to interest income__________________________________8761 0 M.9.a
b. Net (increase) decrease to interest expense_________________________________8762 0 M.9.b
c. Other (noninterest) allocations_____________________________________________8763 72 M.9.c
10.Credit losses on off-balance sheet derivatives (see instructions)____________A251 0 M.10
</TABLE>
SCHEDULE RI-A - CHANGES IN EQUITY CAPITAL
Indicate decreases and losses in parentheses.
<TABLE>
I383 (-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
RIAD
1. Total equity capital originally reported in the December 31, 1995, Reports of ----
Condition and income_____________________________________________________________3215 104,530 1.
2. Equity capital adjustments from amended Reports of income, net *_________________3216 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2)_____________3217 104,530 3.
4. Net income (loss) (must equal Schedule RI, item 12)______________________________4340 9,986 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net_______________4346 0 5.
6. Changes incident to business combinations, net___________________________________4356 54,456 6.
7. LESS: Cash dividends declared on preferred stock_________________________________4470 0 7.
8. LESS: Cash dividends declared on common stock____________________________________4460 0 8.
9. Cumulative effect of changes in accounting principles from prior years * (see
instructions for this schedule)__________________________________________________4411 0 9.
10.Corrections of material accounting errors from prior years * (see instructions
for this schedule)_______________________________________________________________4412 0 10.
11.Change in net unrealized holding gains (losses) on available-for-sale
securities_______________________________________________________________________8433 181 11.
12.Other transactions with parent holding company * (not included in items 5,
7, or 8 above)___________________________________________________________________4415 0 12.
13.Total equity capital end of current period (sum of items 3 through 12)
(must equal Schedule RC, item 2B)________________________________________________3210 169,153 13.
- ----------------
Describe on Schedule RI-E - Explanations
</TABLE>
<PAGE>
6
<TABLE>
<CAPTION>
Schedule RI-B - Charge-offs and Recoveries and Changes in Allowance for Loan and Lease Losses
Part I. Charge-offs and Recoveries on Loans and Leases
I386 (-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
-------calendar year-to-date-------
(Column A) (Column B)
Charge-offs Recoveries
Part I excludes charge-offs and recoveries through the --------------- ---------------
allocated transfer risk reserve. RIAD RIAD
1. Loans secured by real estate: ---- ----
a. To U.S. addressees (domicile)_________________________________________ 4651. . 10 4661. . 299 1.a
b. To non-U.S. addressees (domicile)_____________________________________ 4652. . 0 4662. . 0 1.b
2. Loans to depository institutions and acceptances of other banks:
a. To U.S. banks and other U.S. depository institutions__________________ 4653. . 0 4663. . 0 2.a
b. To foreign banks______________________________________________________ 4654. . 0 4664. . 0 2.b
3. Loans to finance agricultural production and other loans to farmers_______ 4655. . 2,800 4665. . 1 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile)_________________________________________ 4645. . 10 4617. . 161 4.a
b. To non-U.S. addressees (domicile)_____________________________________ 4646. . 0 4618. . 0 4.b
5. Loans to individuals for household, family, and other personal
expenditures:
a. Credit cards and related plans________________________________________ 4656. . 72 4666. . 17 5.a
b. Other (includes single payment, installment, and all student
loans)________________________________________________________________ 4657. . 2,079 4667. . 708 5.b
6. Loans to foreign governments and official institutions____________________ 4643. . 0 4627. . 0 6.
7. All other loans___________________________________________________________ 4644. . 74 4628. . 58 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile)_________________________________________ 4658. . 982 4668. . 100 8.a
b. Of non-U.S. addressees (domicile)_____________________________________ 4659. . 0 4669. . 0 8.b
9. Total (sum of items 1 through 8)__________________________________________ 4635. . 6,027 4605. . 1,344 9.
Memoranda
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
-------calendar year-to-date-------
(Column A) (Column B)
Charge-offs Recoveries
1.-3. Not applicable. --------------- ---------------
4. Loans to finance commercial real estate, construction, and land RIAD RIAD
development activities (not secured by real estate) included in ---- ----
Schedule RI-B, part 1, items 4 and 7, above_______________________________ 5409. . 0 5410. . 0 M.4
5. Loans secured by real estate (sum of Memorandum items 5.a through 5.e
must equal sum of Schedule RI-B, part 1, items 1.a and 1.b, above):
a. Construction and land development_____________________________________ 3582. . 0 3583. . 0 M.5.a
b. Secured by farmland___________________________________________________ 3584. . 0 3585. . 0 M.5.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential
properties and extended under lines of credit_____________________ 5411. . 0 5412. . 0 M.5.c1
(2) All other loans secured by 1-4 family residential properties______ 5413. . 10 5414. . 9 M.5.c2
d. Secured by multifamily (5 or more) residential properties_____________ 3588. . 0 3589. . 0 M.5.d
e. Secured by nonfarm nonresidential properties__________________________ 3590. . 0 3591. . 290 M.5.e
</TABLE>
<PAGE>
7
SCHEDULE RI-B - CONTINUED
Part II. Changes in Allowance for Loan and Lease Losses
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD
----
1. Balance originally reported in the December 31, 1995, Reports of Condition and Income________3124 17,568 1.
2. Recoveries (must equal part I, item 9, column B above)_______________________________________4605 1,344 2.
3. LESS: Charge-offs (must equal part I, item 9, column a above)________________________________4635 6,027 3.
4. Provision for Loand and Lease losses (must equal Schedule RI, item 4.a)______________________4230 0 4.
5. Adjustments * (see instructions for this schedule)___________________________________________4815 ( 157) 5.
6. Balance end of current period (sum of items 1 through 5)(must equal Schedule RC, item 4.b)___3123 12,728 6.
- -----------------------------
* Describe on Schedule RI-E - Explanations.
</TABLE>
SCHEDULE RI-C - APPLICABLE INCOME TAXES BY TAXING AUTHORITY
<TABLE>
<CAPTION>
I389 (-
Dollar Amounts
Schedule RI-C is to be reported with the December Report of Income in Thousands
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD
----
1. Federal______________________________________________________________________________________4780 N/A 1.
2. State and local______________________________________________________________________________4790 N/A 2.
3. Foreign______________________________________________________________________________________4795 N/A 3.
4. Total (sum of items 1 through 3)(must equal sum of Schedule RI, items 9 and 11.b)____________4770 N/A 4.
5. Deferred portion of item 4___________________________________________________________________4772 N/A 5.
</TABLE>
SCHEDULE RI-E - EXPLANATIONS
Schedule RI-E is to be completed each quarter on a calendar year-to-date
basis.
Detail all adjustments in Schedules RI-A and RI-B, all extraordinary items
and other adjustment in Schedule RI, and all significant items of other
noninterest income and other noninterest expense in Schedule RI. (See
instructions for details.)
<TABLE>
<CAPTION>
I395 (-
Dollar Amounts
in Thousands
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD Year-to-
---- Date
1. All other noninterest income (from Schedule RI, item 5.f.(2))
Report amounts that exceed 10% of Schedule RI, item 5.f.(2):
a. Net gains on other real estate owned______________________________________________________________5415 N/A 1.a
b. Net gains on sales of loans_______________________________________________________________________5416 N/A 1.b
c. Net gains on sales of premises and fixed assets___________________________________________________5417 N/A 1.c
Itemize and describe the three largest other amounts that exceed 10% of Schedule RI, item 5.f.(2):
TEXT
----
d. 4661: Gain on sale of subsidiary__________________________________________________________________4461 104 1.d
e. 4462: Check sale income___________________________________________________________________________4462 70 1.e
f. 4463: ____________________________________________________________________________________________4463 N/A 1.f
</TABLE>
<PAGE>
8
<TABLE>
<CAPTION>
Schedule RI-E - Continued
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
RIAD
2. Other noninterest expense (from Schedule RI, item 7.c): ---- Year-to-date
a. Amortization expense of intangible assets___________________________________________ 4531. . 4,427 2.a
Report amounts that exceed 10% of Schedule RI, item 7.c:
b. Net losses on other real estate owned_______________________________________________ 5418. . N/A 2.b
c. Net losses on sales of loans________________________________________________________ 5419. . N/A 2.c
d. Net losses on sales of premises and fixed assets____________________________________ 5420. . N/A 2.d
Itemize and describe the three largest other amounts that exceed 10% of
Schedule RI, item 7.c:
TEXT RIAD
---- ----
e. 4464: Affiliate charges_____________________________________________________________ 4464. . 8,982 2.e
f. 4467:_______________________________________________________________________________ 4467. . N/A 2.f
g. 4468:_______________________________________________________________________________ 4468. . N/A 2.g
3. Extraordinary items and other adjustments (from Schedule RI, item 11.a) and applicable
income tax effect (from Schedule RI, item 11.b) (itemize and describe all extraordinary
items and other adjustments):
TEXT RIAD
---- ----
a. (1) 4469:_______________________________________________________ . . . . 4469. . 0 3.a.1
(2) Applicable income tax effect________________________________ 4486. . 0 . . . . . . . . 3.a.2
b. (1) 4487:_______________________________________________________ . . . . 4487. . 0 3.b.1
(2) Applicable income tax effect________________________________ 4488. . 0 . . . . . . . . 3.b.2
c. (1) 4489:_______________________________________________________ . . . . 4489. . 0 3.c.1
(2) Applicable income tax effect________________________________ 4491. . 0 . . . . . . . . 3.c.2
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A, item 2)
(itemize and describe all adjustments):
TEXT RIAD
---- ----
a. 4492:_______________________________________________________________________________ 4492. . N/A 4.a
b. 4493:_______________________________________________________________________________ 4493. . N/A 4.b
5. Cumulative effect of changes in accounting principles from prior years (from
Schedule RI-A, item 9) (itemize and describe all changes in accounting principles):
TEXT RIAD
---- ----
a. 4494:_______________________________________________________________________________ 4494. . N/A 5.a
b. 4495:_______________________________________________________________________________ 4495. . N/A 5.b
6. Corrections of material accounting errors from prior years (from Schedule RI-A, item 10)
(itemize and describe all corrections):
TEXT RIAD
---- ----
a. 4496:_______________________________________________________________________________ 4496. . N/A 6.a
b. 4497:_______________________________________________________________________________ 4497. . N/A 6.b
7. Other transactions with parent holding company (from Schedule RI-C, item 12)
(itemize and describe all such transactions)
TEXT RIAD
---- ----
a. 4498:_______________________________________________________________________________ 4498. . N/A 7.a
b. 4499:_______________________________________________________________________________ 4499. . N/A 7.b
8. Adjustments to allowance for loan and lease losses (from Schedule RI-B, part II, item 5)
(itemize and describe all adjustments):
TEXT RIAD
---- ----
a. 4521: See note below________________________________________________________________ 4521. . ( 157) 8.a
b. 4522:_______________________________________________________________________________ 4522. . N/A 8.b
I398 I399, < -
9. Other explanations (the space below is provided for the bank to briefly describe, at
its option, any other significant items affecting the Report of Income):
No comment: (RIAD 4769)
Other explanations (please type or print clearly):
(TEXT 4769)
Effective April 1, 1996 Wells Fargo and Company purchased First Interstate of Denver and First Interstate Bank of Englewood.
These transactions were accounted for using push down accounting. Effective June 1, 1996 First Interstate Bank of Englewood
was consolidated with First Interstate Bank of Denver. This transaction was accounted for as a pooling of interest. As a
result of the above transactions equity was adjusted $54,456 as reported on line 6 of Schedule RI-A and Allowance for Loan and
Lease Losses was adjusted by $(157) as reported on line 5 of Schedule RI-B.
The FTE figure includes only active employees.
</TABLE>
<PAGE>
9
CONSOLIDATED REPORT OF CONDITION FOR INSURED
COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
C300
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin (1) . . . . . . . . . . 0081. 351,699 1.a
b. Interest-bearing balances (2). . . . . . . . . . . . . . . . . . . . . . . 0071. 200 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) . . . . . . . . 1754. 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . . . . 1773. 114,786 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0276. 104,517 3.a
b. Securities purchased under agreements to resell. . . . . . . . . . . . . . 0277. 58,230 3.b
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . RCON
(from Schedule RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122. 787,544 4.a
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . . . 3123 12,728 4.b
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . 2125. 774,816 4.d
5. Assets held in trading accounts (from Schedule RC-D). . . . . . . . . . . . . . 3545. 0 5.
6. Premises and fixed assets (including capitalized leases). . . . . . . . . . . . 2145 8,230 6.
7. Other real estate owned (from Schedule RC-M . . . . . . . . . . . . . . . . . . 2150. 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2130. 0 8.
9. Customers' Liability to this bank on acceptances outstanding. . . . . . . . . . 2155. 289 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . 2143. 88,861 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . . . . . 2160. 31,366 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . . . . . . . 2170 1,532,994 12.
</TABLE>
___________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposits not held in trading accounts.
<PAGE>
10
Schedule RC - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C>
13. Deposits: RCON
a. In domestic offices (sum of totals of ----
columns A and C from Schedule RC-E)________________________________________2200. . 1,104,053 13.a
RCON
----
(1) Noninterest-bearing (1)____________________6631. . 714,414 . . . . . . 13.a.1
(2) Interest-bearing___________________________6636. . 389,639 . . . . . . 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs______________ . . . . . .
(1) Noninterest-bearing____________________________________________________ . . . . . .
(2) Interest-bearing_______________________________________________________ . . . . . .
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased____________________________________________________0278. . 45,709 14.a
b. Securities sold under agreements to repurchase_____________________________0279. . 0 14.b
15. a. Demand notes issued to the U.S. Treasury___________________________________2840. . 0 15.a
b. Trading liabilities (from Schedule RC-D)___________________________________3548. . 0 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less______________________________2332. . 110,865 16.a
b. With a remaining maturity of more than one year____________________________2333. . 25,661 16.b
17. Mortgage indebtedness and obligations under capitalized leases________________2910. . 0 17.
18. Bank's liability on acceptances executed and outstanding______________________2920. . 289 18.
19. Subordinated notes and debentures_____________________________________________3200. . 20,000 19.
20. Other liabilities (from Schedule RC-G)________________________________________2930. . 57,264 20.
21. Total liabilities (sum of items 13 through 20)________________________________2948. . 1,363,841 21.
22. Limited-life preferred stock and related surplus______________________________3282. . 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus_________________________________3838. . 0 23.
24. Common stock__________________________________________________________________3230. . 35,000 24.
25. Surplus (exclude all surplus related to preferred stock)______________________3839. . 123,986 25.
26. a. Undivided profits and capital reserves_____________________________________3632. . 9,986 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities_____8434. . 181 26.b
27. Cumulative foreign currency translation adjustments___________________________ . . . . . .
28. Total equity capital (sum of items 23 through 27)_____________________________3210. . 169,153 28.
29. Total liabilities, limited-life preferred stock, and equity capital
(sum of items 21, 22, and 28)_________________________________________________3300. . 1,532,994 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external auditors as of any date during 1995_____________6724. . N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
______________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
11
Schedule RC-A - Cash and Balances Due from Depository Institutions
Exclude assets held for trading.
<TABLE>
<CAPTION>
C305 ( -
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and currency and coin: BCON
a. Cash items in process of collection and unposted debits_________________ 0020 255,285 1.a
b. Currency and coin_______________________________________________________ 0080 30,989 1.b
2. Balances due from depository institutions in the U.S.:
a. U.S. branches and agencies of foreign banks_____________________________ 0083 0 2.a
b. Other commercial banks in the U.S. and other depository institutions in
the U.S._______________________________________________________________ 0085 32,257 2.b
3. Balances due from banks in foreign countries and foreign central banks:
a. Foreign branches of other U.S. banks___________________________________ 0073 0 3.a
b. Other banks in foreign countries and foreign central banks_____________ 0074 0 3.b
4. Balances due from Federal Reserve Banks___________________________________ 0090 33,368 4.
5. Total (sum of items 1 through 4) (must equal Schedule RC, sum of
items 1.a and 1.b_________________________________________________________ 0010 351,899 5.
</TABLE>
<TABLE>
<CAPTION>
Memorandum Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Noninterest-bearing balances due from commercial banks in the U.S.
(included in items 2.a and 2.b above)_____________________________________ 0050 32,045 M.1
</TABLE>
Schedule RC-B - Securities
Exclude assets held for trading.
<TABLE>
<CAPTION>
C310 ( -
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value (1)
------------------ --------------- ------------------ ------------------
<S> <C> <C> <C> <C> <C>
1. U.S. Treasury RCON RCON RCON RCON
securities _____ 0211 0 0213 0 1286 70,488 1287 70,317 1.
2. U.S. Government
agency and
corporation
obligations (exclude
mortgage-backed
securities):
a. Issued by U.S.
Government RCON RCON RCON RCON
agencies (2)__ 1289 0 1290 0 1291 0 1293 0 2.a
b. Issued by U.S.
Government-
sponsored
agencies (3)__ 1294 0 1295 0 1297 0 1298 0 2.b
- ---------
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.c. column D.
(2) Includes Small Business Administration "Guaranteed Loan Pool
Certificates," U.S. Maritime Administration obligations, and
Export-Import Bank participation certificates.
(3) Includes obligations (other than mortgage-backed securities) issued by
the Farm Credit System, the Federal Home Loan Bank System, the Federal
Home Loan Mortgage Corporation, the Federal National Mortgage
Association, the Financing Corporation, Resolution Funding Corporation,
the Student Loan Marketing Association, and the Tennessee Valley Authority.
</TABLE>
<PAGE>
SCHEDULE RC-B - CONTINUED 12
Exclude assets held for trading.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
Held-to maturity Available-for-sale
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value (1)
------------------------- --------------------- ------------------- --------------
<S> <C> <C> <C> <C>
3. Securities issued by states and political subdivisions in the U.S.:
RCON RCON RCON RCON
---- ---- ---- ----
a. General obligations ___________1676.. 0 1677.. 0 1678.. 0 1679.. 0 3.a
b. Revenue obligations____________1681.. 0 1686.. 0 1690.. 0 1691.. 0 3.b
c. Industrial development and
similar obligations____________1694.. 0 1695.. 0 1696.. 0 1697.. 0 3.c
4. Mortgaged-backed securities (MBS):
a. Pass-through securities:
(1) Guaranteed by GNMA ________1698.. 0 1699.. 0 1701.. 0 1702.. 0 4a1
(2) Issued by FNMA and
FHLMC______________________1703.. 0 1705.. 0 1706.. 18,629 1707.. 19,048 4a2
(3) Other pass-through
securities_________________1709.. 0 1710.. 0 1711.. 0 1713 0 4a3
b. Other mortgage-backed
securities (include CMOs,
REMICs, and stripped MBS):
RCON RCON RCON RCON
(1) Issued or guaranteed by ---- ---- ---- ----
FNMA, FHLMC, or GNMA______1714.. 0 1715.. 0 1716.. 6,711 1717.. 6,720 4b1
(2) Collateralized by MBS RCON RCON RCON RCON
issued or guaranteed ---- ---- ---- ----
by FNMA, FHLMC or GNMA____1718.. 0 1719.. 0 1731.. 0 1732.. 0 4b2
(3) All other mortgage-backed
securities________________1733 0 1734.. 0 1735.. 7,982 1736.. 8,016 4b3
5. Other debt securities:
RCON RCON RCON RCON
---- ---- ---- ----
a. Other domestic debt securities_1737.. 0 1738.. 0 1739.. 5,784 1741.. 5,799 5.a
b. Foreign debt securities________1742.. 0 1743.. 0 1744.. 116 1746.. 116 5.b
6. Equity securities:
RCON RCON
---- ----
a. Investments in mutual funds_____ ................... ..................1747.. 0 1748.. 0 6.a
b. Other equity securities with
readily determinable fair
values__________________________ ................... ..................1749.. 0 1751.. 0 6.b
c. All other equity securities_____ ................... ..................1752.. 4,770 1753.. 4,770 6.c
7. Total (sum of items 1 through 6)
(total of column A must equal
Schedule RC, item 2.a) (total of RCON RCON RCON RCON
column D must equal Schedule RC, ---- ---- ---- ----
item 2.b)__________________________1754.. 0 1771 0 1772 114,480 1773 114,786 7.
- ---------
(1) Includes equity securities without readily determinable fair values at historical
cost in Item 6.c, column D.
</TABLE>
<PAGE>
13
Schedule RC-B Continued
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCON
----
1. Pledged securities (2)__________________________________________________________ 0416 92,987 M.1
2. Maturity and repricing data for debt securities (2,3,4) (excluding those in
nonaccrual status):
a. Fixed rate debt securities with a remaining maturity of:
(1) Three months or less_____________________________________________________ 0343 10,025 M.2.a1
(2) Over three months through 12 months______________________________________ 0344 0 M.2.a2
(3) Over one year through five years_________________________________________ 0345 69,213 M.2.a3
(4) Over five years__________________________________________________________ 0346 15,485 M.2.a4
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1)
through 2.a.(4))_________________________________________________________ 0347 94,723 M.2.a5
b. Floating rate debt securities with a repricing frequency of:
(1) Quarterly or more frequently_____________________________________________ 4544 15,293 M.2.b1
(2) Annually or more frequently, but less frequently than quarterly__________ 4565 0 M.2.b2
(3) Every five years or more frequently, but less frequently than annually___ 4551 0 M.2.b3
(4) Less frequently than every five years____________________________________ 4552 0 M.2.b4
(5) Total floating rate debt securities (sum of Memorandum items 2.b.(1)
through 2.b.(4))_________________________________________________________ 4553 15,293 M.2.b5
c. Total debt securities (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must
equal total debt securities from Schedule RC-B, sum of items 1 through 5,
columns A and D, minus nonaccrual debt securities included in Schedule
RC-W, item 9, column C)_____________________________________________________ 0393 110,016 M.2.c
3. Not applicable__________________________________________________________________
4. Held-to-maturity debt securities restructured and in compliance with modified
terms (included in Schedule RC-B, items 3 through 5, column A, above)___________ 5365 0 M.4
5. Not applicable__________________________________________________________________
6. Floating rate debt securities with a remaining maturity of one year or less
(2,4) (included in Memorandum items 2.b.(1) through 2.b.(4) above)______________ 5519 0 M.6
7. Amortized cost of held-to-maturity securities sold or transferred to available-
for-sale or trading securities during the calendar year-to-date (report the
amortized cost at date of sale or transfer)_____________________________________ 1778 0 M.7
8. High-risk mortgage securities (included in the held-to-maturity and available-
for-sale accounts in Schedule RC-B, item 4.b):
a. Amortized cost______________________________________________________________ 8780 0 M.8.a
b. Fair value__________________________________________________________________ 8781 0 M.8.b
9. Structured notes (included in the held-to-maturity and available-for-sale
accounts in Schedule RC-B, (items 2, 3, and 5):
a. Amortized cost______________________________________________________________ 8782 0 M.9.a
b. Fair value__________________________________________________________________ 8783 0 M.9.b
- -------------------------------
(2) Includes held-to-maturity securities at amortized cost and available-for-sale securities at fair value.
(3) Exclude equity securities, e.g., investments in mutual funds, Federal Reserve stock, common stock, and preferred stock.
(4) Memorandum items 2 and 6 are not applicable to savings banks that must complete supplemental Schedule RC-J.
</TABLE>
<PAGE>
14
SCHEDULE RC-C - LOANS AND LEASE FINANCIING RECEIVABLES
PART I. LOANS AND LEASES
Do not deduct the allowance for loan and lease losses from amounts reported
in this schedule. Report total loans and leases, net of unearned income.
Exclude assets held for trading.
<TABLE>
<CAPTION>
C315 -
Dollar Amounts in Thousands
_______________________________________________________________________________________________________________________
<S> <C> <C> <C>
1. Loans secured by real estate: RCON
----
a. Construction and land development____________________________________________1415..... 14,990 1.a
b. Secured by farmland (including farm residential and other improvements)______1420..... 176 1.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential properties
and extended under lines of credit______________________________________1797..... 8,156 1.c.1
(2) All other loans secured by 1-4 family residential properties:
(a) Secured by first liens_____________________________________________5367..... 43,223 1.c.2a
(b) Secured by junior liens____________________________________________5368..... 5,810 1.c.2b
d. Secured by multifamily (5 or more) residential properties____________________1460..... 21,181 1.d
e. Secured by nonfarm nonresident properties____________________________________1480..... 26,856 1.e
2. Loans to depository institutions:
a. To commercial banks in the U.S.:
(1) To U.S. branches and agencies of foreign banks__________________________1506..... 0 2.a.1
(2) To other commercial banks in the U.S.___________________________________1507..... 845 2.a.2
b. To other depository institutions in the U.S._________________________________1517..... 0 2.b
c. To banks in foreign countries:
(1) To foreign branches of other U.S. banks_________________________________1513..... 0 2.c.1
(2) To other banks in foreign countries_____________________________________1516..... 83 2.c.2
3. Loans to finance agricultural production and other loans to farmers______________1590..... 1,247 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile)________________________________________________1763..... 162,107 4.a
b. To non-U.S. addressees (domicile)____________________________________________1764..... 0 4.b
5. Acceptances of other banks:
a. Of U.S. banks________________________________________________________________1756..... 0 5.a
b. Of foreign banks_____________________________________________________________1757..... 0 5.b
6. Loans to individuals for household, family, and other personal expenditures
(i.e., consumer loans) (includes purchased paper):
a. Credit cards and related plans (includes check credit and other revolving
credit plans)________________________________________________________________2008..... 20,042 6.a
b. Other (includes single payment, installment, and all student loans)__________2011..... 330,702 6.b
7. Loans to foreign governments and official institutions (including foreign
central banks)___________________________________________________________________2081..... 0 7.
8. Obligations (other than securities and leases) of states and political
subdivisions in the U.S. (includes nonrated industrial development obligations)__2107..... 25,354 8.
9. Other loans:
a. Loans for purchasing or carrying securities (secured and unsecured)__________1545..... 1,624 9.a
b. All other loans (exclude consumer loans)_____________________________________1564..... 24,844 9.b
10. Lease financing receivables (net of unearned income):
a. Of U.S. addressees (domicile)________________________________________________2182..... 97,369 10.a
b. Of non-U.S. addressees (domicile)____________________________________________2183..... 2,935 10.b
11. LESS: Any unearned income on loans reflected in items 1-9 above_________________2123..... 0 11.
12. Total loans and leases, net of unearned income (sum of item 1 through 10 minus
item 11) (must equal Schedule RC, item 4.a)______________________________________2122..... 787,544 12.
</TABLE>
<PAGE>
15
Schedule RC-C - Continued
Part I. Continued
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
_______________________________________________________________________________________________________________________________
<S> <C> <C> <C>
RCON
____
1. Commercial paper included in Schedule RC-C, part I, above _____________________________ 1696 0 M.1
2. Loans and Leases restructured and in compliance with modified terms (included in
Schedule RC-C, part I, above, and not reported as past due or nonaccrual in Schedule
RC-M, Memorandum item 1):
a. Loans secured by real estate:
(1) To U.S. addressees (domicile) __________________________________________________ 1687 0 M.2.a1
(2) To non-U.S. addressees (domicile)_______________________________________________ 1689 0 M.2.a2
b. All other Loans and all lease financing receivables (exclude Loans to individuals
for household, family, and other personal expenditures) ____________________________ 8691 0 M.2.b
c. Commercial and industrial Loans to and Lease financing receivables of non-U.S.
addressees (domicile) included in Memorandum item 2.b above ________________________ 8692 0 M.2.c
3. Maturity and repricing data for Loans and Leases (1) (excluding those in nonaccrual
status):
a. Fixed rate Loans and Leases with a remaining maturity of:
(1) Three months or less ___________________________________________________________ 0348 40,899 M.3.a1
(2) Over three months through 12 months ____________________________________________ 0349 33,361 M.3.a2
(3) Over one year through five years _______________________________________________ 0356 287,872 M.3.a3
(4) Over five years ________________________________________________________________ 0357 83,129 M.3.a4
(5) Total fixed rate Loans and Leases (sum of Memorandum items 3.a.(1) through
3.a.(4)) _______________________________________________________________________ 0358 445,261 M.3.a5
b. Floating rate Loans with a repricing frequency of:
(1) Quarterly or more frequently ___________________________________________________ 4554 312,152 M.3.b1
(2) Annually or more frequently, but less frequently than quarterly ________________ 4555 12,582 M.3.b2
(3) Every five years or more frequently, but less frequently than annually _________ 4561 2,060 M.3.b3
(4) Less frequently than every five years __________________________________________ 4564 7,672 M.3.b4
(5) Total floating rate Loans (sum of Memorandum items 3.b.(1) through 3.b(4)) _____ 4567 334,466 M.3.b5
c. Total Loans and Leases (sum of Memorandum items 3.a.(5) and 3.b.(5)) (must equal
the sum of total Loans and Leases, net, from Schedule RC-C, part I, item 12, plus
unearned income from Schedule RC-C, part I, item 11, minus total nonaccrual loans
and Leases from Schedule RC-N, sum of items 1 through 8, column C) _________________ 1479 779,727 M.3.c
d. Floating rate Loans with a remaining maturity of one year or less (included in
Memorandum items 3.b.(1) through 3.b.(4) above) ____________________________________ 4246 125,780 M.3.d
4. Loans to finance commercial real estate, construction, and Land development activities
(not secured by real estate) included in Schedule RC-C, part I, items 6 and 9.b,
page RC-6 (2) _________________________________________________________________________ 2746 13,833 M.4
5. Loans and Leases held for sale (included in Schedule RC-C, part I, above) _____________ 5369 0 M.5
6. Adjustable rate closed-end Loans secured by first Liens on 1-4 family residential
properties (included in Schedule RC-C, part I, item 1.c.(2)(a), page RC-6) ____________ 5370 9,457 M.6
____________
(1) Memorandum item 3 is not applicable to savings banks that must complete supplemental Schedule RC-J.
(2) Exclude Loans secured by real estate that are included in Schedule RC-C, part I, items 1-a through 1.e.
</TABLE>
<PAGE>
16
Schedule RC-D - Trading Assets and Liabilities
Schedule RC-D is to be completed only by banks with $1 billion or more in
total assets or with $2 billion or more in par/notional amount of off-balance
sheet derivative contracts (as reported in Schedule RC-L, items 14.a through
14.e, columns A through D).
<TABLE>
<CAPTION>
C320 (-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
RCON
----
1. U.S. Treasury securities_____________________________________________________________________ 3531. . N/A 1.
2. U.S. Government agency and corporation obligations (exclude mortgage-backed securities)______ 3532. . N/A 2.
3. Securities issued by states and political subdivisions in the U.S.___________________________ 3533. . N/A 3.
4. Mortgage-backed securities (MBS):
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA_____________________ 3534. . N/A 4.a
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or GNMA
(include CMOs, REMICs, and stripped MBS)_________________________________________________ 3535. . N/A 4.b
c. All other mortgage-backed securities_____________________________________________________ 3536. . N/A 4.c
5. Other debt securities________________________________________________________________________ 3537. . N/A 5.
6. Certificates of deposit______________________________________________________________________ 3538. . N/A 6.
7. Commercial paper_____________________________________________________________________________ 3539. . N/A 7.
8. Bankers acceptances__________________________________________________________________________ 3540. . N/A 8.
9. Other trading assets_________________________________________________________________________ 3541. . N/A 9.
10. Not applicable_______________________________________________________________________________ . . . . . . . .
11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and equity
contracts____________________________________________________________________________________ 4549. . N/A 11.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5)____________ 3545. . N/A 12.
LIABILITIES
13. Liability for short positions________________________________________________________________ 3546. . N/A 13.
14. Revaluation losses on interest rate, foreign exchange rate, and other commodity and equity
contracts____________________________________________________________________________________ 3547. . N/A 14.
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC,
item 15.b)__________________________________________________________________________________ 3548. . N/A 15.
</TABLE>
<PAGE>
17
<TABLE>
<CAPTION>
Schedule RC-E - Deposit Liabilities
C325 (-
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
------------ Transaction Accounts ---------------- - Nontransaction Accounts--
(Column A) (Column B) (Column C)
Total transaction Memo: Total demand
accounts (including total deposits (included in Total nontransaction
demand deposits) column A) accounts (including MMDAS)
- ------------------------------------------------- -------------------------- ----------------------- ---------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Deposits of: RCON RCON RCON
---- ---- ----
1. Individuals, partnerships and corporations__ 2201 596,788 2240 491,212 2346 277,051 1.
2. U.S. Government_____________________________ 2202 2,987 2280 2,987 2520 1,185 2.
3. States and political subdivisions in
the U.S.____________________________________ 2203 23,976 2290 19,348 2530 2,357 3.
4. Commercial banks in the U.S.________________ 2206 184,028 2310 184,028 2250 0 4.
5. Other depository institutions in the U.S.___ 2207 124 2312 124 2349 0 5.
6. Banks in foreign countries__________________ 2213 9,657 2320 9,657 2236 0 6.
7. Foreign governments and official
institutions (including foreign central
banks)______________________________________ 2216 0 2300 0 2377 0 7.
8. Certified and official checks_______________ 2330 5,900 2330 5,900 8.
7. Total (sum of items 1 through 8) (sum of
columns A and C must equal Schedule RC,
item 13.a)__________________________________ 2215 823,460 2210 713,256 2385 280,593 9.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCON
1. Selected components of total deposits (i.e., sum of item 9, columns A and C): ----
a. Total individual Retirement Accounts (IRAs) and Keogh Plan accounts________________ 6835 17,556 M.1.a.
b. Total brokered deposits____________________________________________________________ 2365 0 M.1.b.
c. Fully insured brokered deposits (included in Memorandum item 1.b above):
(1) Issued in denominations of less than $100,000__________________________________ 2343 0 M.1.c1
(2) Issued either in denominations of $100,000 or in denominations greater than
$100,000 and participated out by the broker in shares of $100,000 or less______ 2344 0 M.1.c2
d. Maturity date for brokered deposits:
(1) Brokered deposits issued in denominations of less than $100,000 iwth a remaining
maturity of one year or less (included in Memorandum item 1.c.(1) above)_______ A243 0 M.1.d1
(2) Brokered deposits issued in denominations of $100,000 or more with a remaining
maturity of one year or less (included in Memorandum item 1.b above)___________ A244 0 M.1.d2
e. Preferred deposits (uninsured deposits of states and political subdivisions in the
U.S. reported in item 3 above which are secured or collateralized as required under
state law)_________________________________________________________________________ 5590 23,007 M.1.e
2. Components of total nontransaction accounts (sum of Memoranda items 2.a throught 2.d
must equal item 9, Column C, above):
a. Savings deposits:
(1) Money market deposit accounts (MMDAs)__________________________________________ 6810 164,564 M.2.a1
(2) Other savings deposits (excludes MMDAs)________________________________________ 0352 50,524 M.2.a2
b. Total time deposits of less than $100,000__________________________________________ 6648 59,465 M
.2.b
c. Time certificates of deposit of $100,000 or more___________________________________ 6645 6,040 M.2.c
d. Open-account time deposits of $100,000 or more_____________________________________ 6646 0 M.2.d
3. All NOW accounts (included in column A above)_________________________________________ 2398 110,204 M.3
4. Not applicable
</TABLE>
<PAGE>
18
Schedule RC-E - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
Memoranda (Continued)
<S> <C> <C> <C>
5. Maturity and repricing data for time deposits of less than $100,000 (sum of Memorandum
items 5.a.(1) through 5.b.(3) must equal Memorandum item 2.b above): (1) RCON
----
a. Fixed rate time deposits of less than $100,000 with a remaining maturity of:
(1) Three months or less______________________________________________________________A225. . 12,311 M.5.a1
(2) Over three months through 12 months_______________________________________________A226. . 29,394 M.5.a2
(3) Over one year_____________________________________________________________________A227. . 17,760 M.5.a3
b. Floating rate time deposits of less than $100,000 with a repricing frequency of:
(1) Quarterly or more frequently______________________________________________________A228. . 0 M.5.b1
(2) Annually or more frequently, but less frequently than quarterly___________________A229. . 0 M.5.b2
(3) Less frequently than annually_____________________________________________________A230. . 0 M.5.b3
c. Floating rate time deposits of less than $100,000 with a remaining maturity of
one year or less (included in Memorandum items 5.b.(1) through 5.b.(3) above)_________A231. . 2,854 M.5.c
6. Maturity and repricing data for time deposits of $100,000 or more (i.e., time
certificates of deposit of $100,000 or more and open-account time deposits of
$100,000 or more) (sum of Memorandum items 6.a.(1) through 6.b.(4) must equal
the sum of Memorandum items 2.c and 2.d above): (1)
a. Fixed rate time deposits of $100,000 or more with a remaining maturity of:
(1) Three months or less______________________________________________________________A232. . 2,854 M.6.a1
(2) Over three months through 12 months_______________________________________________A233. . 1,791 M.6.a2
(3) Over one year through five years__________________________________________________A234. . 1,395 M.6.a3
(4) Over five years___________________________________________________________________A235. . 0 M.6.a4
b. Floating rate time deposits of $100,000 or more with a repricing frequency of:
(1) Quarterly or more frequently______________________________________________________A236. . 0 M.6.b1
(2) Annually or more frequently, but less frequently than quarterly___________________A237. . 0 M.6.b2
(3) Every five years or more frequently, but less frequently than annually____________A238. . 0 M.6.b3
(4) Less frequently than every five years_____________________________________________A239. . 0 M.6.b4
c. Floating rate time deposits of $100,000 or more with a remaining maturity of
one year or less (included in Memorandum items 6.b.(1) through 6.b.(4) above)_________A240. . 0 M.6.c
_____________
(1) Memorandum items 5 and 6 are not applicable to savings banks that must complete supplemental Schedule RC-J.
</TABLE>
<PAGE>
19
Schedule RC-F - Other Assets
<TABLE>
<CAPTION>
C330 (-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCON
----
1. Income earned, not collected on loans________________________________________ 2164 8,368 1.
2. Net deferred tax assets (1)__________________________________________________ 2148 0 2.
3. Excess residential mortgage servicing fees receivable________________________ 5371 0 3.
4. Other (itemize and describe amounts that exceed 25% of this item)____________ 2168 22,998 4.
TEXT RCON
---- ----
a. 3549: Contract receivable____________________________ 3549 8,000 4.a
b. 3550: _______________________________________________ 3550 N/A 4.b
c. 3551: _______________________________________________ 3551 N/A 4.c
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11) _________ 2160 31,366 5.
Memorandum
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------
RCON
----
<S> <C> <C> <C>
1. Deferred tax assets disallowed for regulatory capital purposes_______________ 5610 0 M.1
SCHEDULE RC-G - OTHER LIABILITIES
C335 (-
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCON
----
1. a. Interest accrued and unpaid on deposits(2)________________________________ 3645 266 1.a
b. Other expenses accrued and unpaid (includes accrued income taxes payable)_ 3646 7,416 1.b
2. Net deferred tax liabilities (1)_____________________________________________ 3049 14,181 2.
3. Minority interest in consolidated subsidiaries_______________________________ 3000 0 3.
4. Other (itemize and describe amounts that exceed 25% of this item)____________ 2938 35,401 4.
TEXT RCON
---- ----
a. 3552: Fair value lease intangible ___________________ 3552 25,479 4.a
b. 3553: _______________________________________________ 3553 N/A 4.b
c. 3554: _______________________________________________ 3554 N/A 4.c
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20)___________ 2930 57,264 5.
</TABLE>
__________________
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) For savings banks, includes "dividends" accrued unpaid on deposits.
<PAGE>
20
Schedule RC-K - Quarterly Averages (1)
<TABLE>
C355 (-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS RCON
----
1. Interest-bearing balances due from depository institutions____________________________________3381. . 200 1.
2. U.S. Treasury securities and U.S. Government agency and corporation obligations(2)____________3382. . 111,013 2.
3. Securities issued by states and political subdivisions in the U.S.(2)_________________________3383. . 0 3.
4. a. Other debt securities(2)___________________________________________________________________3647. . 14,902 4.a
b. Equity securities (3)(includes investments in mutual funds and Federal Reserve stock)______3648. . 4,229 4.b
5. Federal funds sold and securities purchased under agreements to resell________________________3365. . 161,313 5.
6. Loans:
a. Total loans________________________________________________________________________________3360. . 642,645 6.a
b. Loans secured by real estate_______________________________________________________________3385. . 118,824 6.b
c. Loans to finance agricultural production and other loans to farmers________________________3386. . 2,717 6.c
d. Commercial and industrial loans____________________________________________________________3387. . 142,361 6.d
e. Loans to individuals for household, family, and other personal expenditures________________3388. . 326,457 6.e
7. Trading assets________________________________________________________________________________3401. . 0 7.
8. Lease financing receivables (net of unearned income)__________________________________________3484. . 104,179 8.
9. Total assets(4)_______________________________________________________________________________3368. . 1,361,670 9.
LIABILITIES
10. Interest-bearing transaction accounts (NOW accounts, ATS accounts, and telephone and
preauthorized transfer accounts) (exclude demand deposits)____________________________________3485. . 112,842 10.
11. Nontransaction Accounts:
a. Money market deposit accounts (MMDAs)______________________________________________________3486. . 164,001 11.a
b. Other savings deposits_____________________________________________________________________3487. . 51,630 11.b
c. Time certificates of deposit of $ 100,000 or more__________________________________________3345. . 5,447 11.c
d. All other time deposits____________________________________________________________________3469. . 60,303 11.d
12. Federal funds purchased and securities sold under agreements to repurchase____________________3353. . 231,683 12.
13. Other borrowed money__________________________________________________________________________3355. . 12,373 13.
</TABLE>
- -----------
(1) For all items, banks have the option of reporting either (1) an average
of daily figures for the quarter or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter).
(2) Quarterly averages for all debt securities should be based on amortized
cost.
(3) Quarterly averages for all equity securities should be based on historical
cost.
(4) The quarterly average for total assets should reflect all debt securities
(not held for trading) at amortized cost, equity securities with readily
determinable fair values at the lower of cost or fair value, and equity
securities without readily determinable fair values at historical cost.
<PAGE>
21
Schedule RC-L - Off-Balance Sheet Items
Please read carefully the instructions for the preparation of Schedule RC-L.
Some of the amounts reported in Schedule RC-L are regarded as volume indicators
and not necessarily as measures of risk.
<TABLE>
<CAPTION>
C360
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unused commitments: RCON
a. Revolving, open-end lines secured by 1-4 family residential ----
properties, e.g., home equity lines _________________________________ 3814 10,089 1.a
b. Credit card lines ___________________________________________________ 3815 12,218 1.b
c. Commercial real estate, construction, and Land development:
(1) Commitments to fund loans secured by real estate _______________ 3816 51,007 1.c.1
(2) Commitments to fund loans not secured by real estate ___________ 6550 12,168 1.c.2
d. Securities underwriting _____________________________________________ 3817 0 1.d
e. Other unused commitments ____________________________________________ 3818 492,853 1.e
2. Financial standby letters of credit _____________________________________ 3819 24,377 2.
a. Amount of financial standby letters of RCON
credit conveyed to others _____________ ----
3820 0 2.a
3. Performance standby letters of credit ___________________________________ 3821 4,512 3.
a. Amount of performance standby letters of RCON
credit conveyed to others _____________ ----
3822 0 3.a
4. Commercial and similar letters of credit ________________________________ 3411 5,291 4.
5. Participants in acceptances (as described in the instructions) conveyed
to others by the reporting bank _________________________________________ 3428 0 5.
6. Participations in acceptances (as described in the instructions) acquired
by the reporting (nonaccepting) bank ____________________________________ 3429 0 6.
7. Securities borrowed _____________________________________________________ 3432 0 7.
8. Securities lent (including customers' securities lent where the customer
is indemnified against loss by the reporting bank) ______________________ 3433 0 8.
9. Loans transferred (i.e., sold or swapped) with recourse that have been
treated as sold for Call Report purposes:
a. FNMA and FHLMC residential mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of the
report date _____________________________________________________ 3650 0 9.a.1
(2) Amount of recourse exposure on these mortgages as of the report
date ____________________________________________________________ 3651 0 9.a.2
b. Private (nongovernment-issued or -guaranteed) residential mortgage
loan pools:
(1) Outstanding principal balance of mortgages transferred as of the
report date _____________________________________________________ 3652 0 9.b.1
(2) Amount of recourse exposure on these mortgages as of the report
date ____________________________________________________________ 3653 0 9.b.2
c. Farmer Mae agricultural mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of the
report date _____________________________________________________ 3654 0 9.c.1
(2) Amount of recourse exposure on these mortgages as of the report
date ____________________________________________________________ 3655 0 9.c.2
d. Small business obligations transferred with recourse under Section 208
of the Riegle Community Development and Regulatory Improvement Act
of 1994:
(1) Outstanding principal balance of small business obligations
transferred as of the report date _______________________________ A249 0 9.d.1
(2) Amount of retained recourse on these obligtions as of the report
date ____________________________________________________________ A250 0 9.d.2
10. When-issued securities:
a. Gross commitments to purchase ______________________________________ 3434 0 10.a
b. Gross commitments to sell _________________________________________ 3435 0 10.b
11. Spot foreign exchange contracts _______________________________________ 8765 0 11.
12. All other off-balance sheet liabilties (exclude off-balance sheet
derivatives) (itemize and describe each component of this item over
25% of Schedule RC, item 28, "Total equity capital") ___________________ 3430 0 12.
TEXT RCON
---- ----
a. 3555: __________________________________ 3555 N/A 12.a
b. 3556: __________________________________ 3556 N/A 12.b
c. 3557: __________________________________ 3557 N/A 12.c
d. 3558: __________________________________ 3558 N/A 12.d
</TABLE>
<PAGE>
22
Schedule RC-L - Continued
<TABLE>
<CAPTION>
C361 (-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
13. All other off-balance sheet assets (exclude off-balance sheet derivatives)
(itemize and describe each component of this item over 25% of Schedule RC,
item 28, "Total equity capital")____________________________________________________5591. . 0 13.
TEXT RCON
---- ----
a. 5592:___________________________________________________5592. . N/A . . . . . . 13.a
b. 5593:___________________________________________________5593. . N/A . . . . . . 13.b
c. 5594:___________________________________________________5594. . N/A . . . . . . 13.c
d. 5595:___________________________________________________5595. . N/A . . . . . . 13.d
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Off-balance Sheet Equity Commodity
Derivatives Interest Rate Foreign Exchange Derivative and Other
Position Indicators Contracts Contracts Contracts Contracts
- ------------------------------------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
14. Gross amounts (e.g.,
notional amounts) (for
each column, sum of
items 14.a through 14.e
must equal sum of items
15, 16.a, and 16.b):
a. Futures contracts__ 0 0 0 0 14.a
RCON 8693 RCON 8694 RCON 8695 RCON 8696
b. Forward contracts__ 0 0 0 0 14.b
RCON 8697 RCON 8698 RCON 8699 RCON 8700
c. Exchange-traded
option contracts:
(1) Written
options________ 0 0 0 0 14.c1
RCON 8701 RCON 8702 RCON 8703 RCON 8704
(2) Purchased
options________ 0 0 0 0 14.c2
RCON 8705 RCON 8706 RCON 8707 RCON 8708
d. Over-the-counter
option contracts:
(1) Written
options________ 0 0 0 0 14.d1
RCON 8709 RCON 8710 RCON 8711 RCON 8712
(2) Purchased
options________ 0 0 0 0 14.d2
RCON 8713 RCON 8714 RCON 8715 RCON 8716
e. Swaps______________ 0 0 0 0 14.e
RCON 3450 RCON 3826 RCON 8719 RCON 8720
15. Total gross notional
amounts of derivative
contracts held for
trading_______________ 0 0 0 0 15.
RCON A126 RCON A127 RCON 8723 RCON 8724
16. Total gross notional
amount of derivative
contracts held for
purposes other than
trading:
a. Contracts marked
to market__________ 0 0 0 0 16.a
RCON 8725 RCON 8726 RCON 8727 RCON 8728
b. Contracts not
marked to market___ 0 0 0 0 16.b
RCON 8729 RCON 8730 RCON 8731 RCON 8732
</TABLE>
<PAGE>
23
Schedule RC-L - Continued
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Off-balance Sheet Equity Commodity
Derivatives Position Interest Rate Foreign Exchange Derivative And Other
Indicators Contracts Contracts Contracts Contracts
- --------------------------------------------------------------------------------
17. Gross fair
values:
a. Contracts
held for
trading: RCON RCON RCON RCON
(1) Gross ---- ---- ---- ----
positive
fair
value____8733 0 8734 0 8735 0 8736 0 17.a1
(2) Gross
negative
fair
value____8737 0 8738 0 8739 0 8740 0 17.a2
b. Contracts
held for
purposes
other than
trading that
are marked to
market:
(1) Gross
positive
fair
value____8741 0 8742 0 8743 0 8744 0 17.b1
(2) Gross
negative
fair
value____8745 0 8746 0 8747 0 8748 0 17.b2
c. Contracts
held for
purposes
other than
trading that
are not
marked
to market:
(1) Gross
positive
fair
value____8749 0 8750 0 8751 0 8752 0 17.c1
(2) Gross
negative
fair
value____8753 0 8754 0 8755 0 8756 0 17.c2
Memoranda Dollar Amounts in Thousands
- --------------------------------------------------------------------------------
RCON
----
1,-2. Not applicable_____________________________________
3. Unused commitments with an original maturity exceeding
one year that are reported in Schedule RC-L, items 1.a
through 1.e, above (report only the unused portions of
commitments that are fee paid or otherwise legally
binding)______________________________________________3833 452,443 M.3
a. Participations in commitments with an original RCON
----
maturity exceeding one year conveyed to others_____3836 132,443 M.3.a
4. To be completed only by banks with $1 billion or more
in total assets: Standby letters of credit (both
financial and performace) issued to non-U.S.
addressees (domicile) included in Schedule RC-L,
items 2 and 3, above__________________________________3377 N/A M.4
5. Installment loans to individuals for household,
family, and other personal expenditures that have been
securitized and sold without recourse (with servicing
retained), amounts outstanding by type of loan:
a. Loans to purchase private passenger automobiles (to
be completed for the September report only)________2741 0 M.5.a
b. Credit cards and related plans (TO BE COMPLETED
QUARTERLY)_________________________________________2742 0 M.5.b
c. All other consumer installment credit (including
mobile home loans)(to be completed for the
September report only)_____________________________2743 0 M.5.c
<PAGE>
24
Schedule RC-M - Memorandum
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
_________________________________________________________________________________________________________________________
<S> <C> <C> <C>
1. Extensions of credit by the reporting bank to its executive officers, directors,
principal shareholders, and their related interests as of the report date:
a. Aggregate amount of all extensions of credit to all executive officers, directors, RCON
----
principal shareholders and their related interests___________________________________6164..... 0 1.a
b. Number of executive officers, directors, and principal
shareholders to whom the amount of all extensions of
credit by the reporting bank (including extensions of
credit to related interests) equals or exceeds the RCON Number
lesser of $500,000 or 5 percent of total capital ---- ------
as defined for this purpose in agency regulations________6165..... 0 .......... 1.b
2. Federal funds sold and securities purchased under agreements to resell with U.S.
branches and agencies of foreign banks (1) (included in Schedule RC,
items 3.a and 3.b)_______________________________________________________________________3405..... 0 2.
3. Not applicable.
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for
others (include both retained servicing and purchased servicing):
a. Mortgages serviced under the GMNA contract___________________________________________5500..... 0 4.a
b. Mortgages serviced under the FHLMC contract:
(1) Serviced with recourse to servicer______________________________________________5501..... 0 4.b.1
(2) Serviced without recourse to servicer___________________________________________5502..... 0 4.b.2
c. Mortgages serviced under the FNMA contract:
(1) Serviced under a regular option contract________________________________________5503..... 0 4.c.1
(2) Serviced under a special option contract________________________________________5504..... 0 4.c.2
d. Mortgages serviced under other servicing contracts___________________________________5505..... 0 4.d
5. To be completed only by banks with $1 billion or more in total assets:
Customers' liability to this bank on acceptance outstanding (sum of items 5.a and 5.b
must equal Schedule RC, item 9):
a. U.S. addressees (domicile)___________________________________________________________2103..... 289 5.a
b. Non-U.S. addressees (domicile)_______________________________________________________2104..... N/A 5.b
6. Intangible assets:
a. Mortgage servicing rights____________________________________________________________3164..... 0 6.a
b. Other identifiable intangible assets:
(1) Purchased credit card relationships_____________________________________________5506..... 0 6.b.1
(2) All other identifiable intangible assets________________________________________5507..... 40,758 6.b.2
c. Goodwill_____________________________________________________________________________3163..... 48,103 6.c
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10)_______________2143..... 88,861 6.d
e. Amount of intangible assets (included in item 6.b.(2) above) that have been
grandfathered or are otherwise qualifying for regulatory capital purposes____________6442..... 16,711 6.e
7. Mandatory convertible debt, net of common or perpetual preferred stock dedicated to
redeem the debt__________________________________________________________________________3295..... 0 7.
____________
(1) Do not report federal funds sold and securities purchased under agreements to resell with other
commercial banks in the U.S. in this item.
</TABLE>
<PAGE>
25
Schedule RC-M - Continued
Dollar Amounts
in Thousands
_______________________________________________________________________________
RCOW
8. a. Other real estate owned: ----
(1) Direct and indirect investments in real estate
ventures__________________________________________5372 0 8.a.1
(2) All other real estate owned:
(a) Construction and Land development_____________5508 0 8.a.2a
(b) Farmland______________________________________5509 0 8.a.2b
(c) 1-4 family residential properties_____________5510 0 8.a.2c
(d) Multifamily (5 or more) residential
properties____________________________________5511 0 8.a.2d
(e) Nonfarm nonresidential properties_____________5512 0 8.a.2e
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must
equal Schedule RC, item 7)________________________2150 0 8.a.3
b. Investments in unconsolidated subsidiaries and
associated companies:
(1) Direct and indirect investments in real estate
ventures__________________________________________5374 0 8.b.1
(2) All other investments in unconsolidated
subsidiaries and associated companies_____________5375 0 8.b.2
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must
equal Schedule RC, item 8)________________________2130 0 8.b.3
c. Total assets of unconsolidated subsidiaries and
associated companies__________________________________5376 0 8.c
9. Noncumulative perpetual preferred stock and related
surplus included in Schedule RC, item 23, "Perpetual
preferred stock and related surplus"_____________________3778 0 9.
10. Mutual fund and annuity sales during the quarter
(include proprietary, private Label, and third party
products):
a. Money market funds___________________________________6441 0 10.a
b. Equity securities funds______________________________8427 0 10.b
c. Debt securities funds________________________________8428 0 10.c
d. Other mutual funds___________________________________8429 0 10.d
e. Annuities____________________________________________8430 0 10.e
f. Sales of proprietary mutual funds and annuities
(included in items 10.a through 10.e above___________8784 0 10.f
Memorandum Dollar Amounts
in Thousands
_______________________________________________________________________________
1. Interbank holdings of capital instruments (to be
completed for the December report only):
a. Reciprocal holdings of banking organizations' capital
instruments___________________________________________3836 N/A M.1.a
b. Nonreciprocal holdings of banking organizations'
capital instruments___________________________________3837 N/A M.1.b
<PAGE>
26
Schedule RC-N - Past Due and Nonaccrual Loans, Leases, and Other Assets
The FFIEC regards the information reported in all of Memorandum item 1, in
items 1 through 10, column A, and in Memorandum items 2 through 4, column A,
as confidential.
<TABLE>
<CAPTION>
C370
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
---(Column A)--- ---(Column B)--- ---(Column C)---
Past due 30 Past due 90 Nonaccrual
through 89 days days or more
and still and still
accruing accruing
------------------ ---------------- ----------------
<S> <C> <C> <C> <C> <C> <C> <C>
RCON RCON RCON
1. Loans secured by real estate: ---- ---- ----
a. To U.S. addressees (domicile)_________________________ 1245. . 1,007 1246. . 446 1247. . 27 1.a
b. To non-U.S. addressees (domicile)_____________________ 1248. . 0 1249. . 0 1250. . 0 1.b
2. Loans to depository institutions and acceptances of
other banks:
a. To U.S. banks and other U.S. depository
institutions_________________________________________ 5377. . 0 5378. . 0 5379. . 0 2.a
b. To foreign banks_____________________________________ 5380. . 0 5381. . 0 5382. . 0 2.b
3. Loans to finance agricultural production and other loans
to farmers_______________________________________________ 1594. . 0 1597. . 0 1583. . 102 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile)_________________________ 1251. . 24,306 1252. . 204 1253. . 4,753 4.a
b. To non-U.S. addressees (domicile)_____________________ 1254. . 0 1255. . 0 1256. . 0 4.b
5. Loans to individuals for household, family, and other
personal expenditures:
a. Credit cards and related plans_______________________ 5383. . 40 5384. . 8 5385. . 0 5.a
b. Other (includes single payment, installment, and
all student loans)___________________________________ 5386. . 4,559 5387. . 10 5388. . 0 5.b
6. Loans to foreign governments and official
institutions_____________________________________________ 5389. . 0 5390. . 0 5391. . 0 6.
7. All other loans__________________________________________ 5459. . 292 5460. . 0 5461. . 0 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile)________________________ 1257. . 1,231 1258. . 33 1259. . 0 8.a
b. Of non-U.S. addressees (domicile)____________________ 1271. . 0 1272. . 0 1791. . 2,935 8.b
9. Debt securities and other assets (exclude other real
estate owned and other repossessed assets)_______________ 3505. . 0 3506. . 0 3507. . 0 9.
==================================================================================================================================
</TABLE>
Amounts reported in items 1 through 8 above include guaranteed and
unguaranteed portions of past due and nonaccrual loans and leases. Report in
item 10 below certain guaranteed loans and leases that have already been
included in the amounts reported in items 1 through 8.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
10. Loans and leases reported in items 1 through 8 above RCON RCON RCON
which are wholly or partially guaranteed by the U.S. ---- ---- ----
Government_______________________________________________ 5612. . 0 5613. . 0 5614. . 0 10.
a. Guaranteed portion of loans and leases included in
item 10 above________________________________________ 5615. . 0 5616. . 0 5617. . 0 10.a
</TABLE>
<PAGE>
27
Schedule RC-N - Continued
C373
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B) (Column C)
Past due 30 through 89 Past due 90 days or more Nonaccrual
days and still accruing and still accruing
--------------------------- -------------------------- -------------------------
<S> <C> <C> <C> <C>
1. Restructured Loans and Leases included in
Schedule RC-N, items 1 through 8, above
(and not reported in Schedule RC-C, RCON RCON RCON
Memorandum item 2) 1658 0 1659 0 1661 0 M.1
2. Loans to finance commercial real estate,
construction, and land development
activities (not secured by real estate)
included in Schedule RC-N, items 6 and
7, above 6558 0 6559 5 6560 0 M.2
3. Loans secured by real estate (sum of
Memorandum items 3.a through 3.e must
equal sum of Schedule RC-N, items 1.a and
1.b, above):
a. Construction and land development 2759 0 2769 0 3692 0 M.3a
b. Secured by farmland 3493 0 3696 0 3695 0 M.3b
c. Secured by 1-4 family residential
properties:
(1) Revolving, open-end loans secured
by 1-4 family residential properties
and extended under lines of credit 5398 0 5399 0 5400 0 M.3c1
(2) All other Loans secured by 1.4
family residential properties 5401 328 5402 104 5403 27 M.3c2
d. Secured by multifamily (5 or more)
residential properties 3499 0 3500 0 3501 0 M.3d
e. Secured by nonfarm nonresidential
properties 3502 679 3503 342 3504 0 M.3e
</TABLE>
<TABLE>
<CAPTION>
(Column A) (Column B)
Past due 30 through 89 Past due 90 days or more
days
--------------------------- --------------------------
<S> <C> <C>
4. Interest rate, foreign exchange rate, and
other commodity and equity contracts:
a. Book value of amounts carried as RCON RCON
assets 3522 0 3528 0 M.4.a
b. Replacement cost of contracts with a
positive replacement cost 3529 0 3530 0 M.4.b
</TABLE>
<PAGE>
28
Schedule RC-O - Other Data for Deposit Insurance Assessments
<TABLE>
<CAPTION>
C376 (-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
RCON
1. Unposted debits (see instructions): ----
a. Actual amount of all unposted debits____________________________________________________________0030. . N/A 1.a
OR
b. Separate amount of unposted debits:
(1) Actual amount of unposted debits to demand deposits_________________________________________0031. . 0 1.b.1
(2) Actual amount of unposted debits to time and savings deposits (1)___________________________0032. . 0 1.b.2
2. Unposted credits (see instructions):
a. Actual amount of all unposted credits___________________________________________________________3510. . 346 2.a
OR
b. Separate amount of unposted credits:
(1) Actual amount of unposted credits to demand deposits________________________________________3512. . N/A 2.b.1
(2) Actual amount of unposted credits to time and savings deposits (1)__________________________3514. . N/A 2.b.2
3. Uninvested trust funds (cash) held in bank's own trust department (not included in total deposits__3520. . 0 3.
4. Deposits of consolidated subsidiaries (not included in total deposits):
a. Demand deposits of consolidated subsidiaries____________________________________________________2211. . 0 4.a
b. Time and savings deposits (1) of consolidated subsidiaries______________________________________2351. . 0 4.b
c. Interest accrued and unpaid on deposits of consolidated subsidiaries____________________________5514. . 0 4.c
5. Not applicable.
Item 6 is not applicable to state nonmember banks that have not been authorized by the
Federal Reserve to act as pass-through correspondents.
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on
behalf of its respondent depository institutions that are also reflected as deposit RCON
liabilities of the reporting bank: ----
a. Amount reflected in demand deposits (included in Schedule RC-E, Memorandum item 4.a)____________2314. . 0 6.a
b. Amount reflected in time and savings deposits (1) (included in Schedule RC-E, Memorandum
item 4.b)_______________________________________________________________________________________2315. . 0 6.b
7. Unamortized premiums and discounts on time and savings deposits:(1)
a. Unamortized premiums____________________________________________________________________________5516. . 95 7.a
b. Unamortized discounts___________________________________________________________________________5517. . 0 7.b
8. To be completed by banks with "Oakar deposits."
Total "Adjusted Attributable Deposits" of all institutions acquired under Section 5(d)(3) of the
Federal Deposit Insurance Act (from most recent FDIC Oakar Transaction worksheet(s))_______________5518. . 0 8.
9. Deposits in lifeline accounts______________________________________________________________________ . . . . . . . 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in total deposits)_____8432. . 0 10.
</TABLE>
- -----------
(1) For FDIC insurance assessment purposes, "time and savings deposits" consists
of nontransaction accounts and all transaction accounts other than demand
deposits.
<PAGE>
29
SCHEDULE RC-O - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Adjustments to demand deposits reported in Schedule RC-E for certain reciprocal
demand balances:
a. Amount by which demand deposits would be reduced if reciprocal demand balances
between the reporting bank and savings associations were reported on a net basis RCON
rather than a gross basis in Schedule RC-E ---- 0 11.a
8785
b. Amount by which demand deposits would be increased if reciprocal demand balances
between the reporting bank and U.S. branches and agencies of foreign banks were
reported on a gross basis rather than a net basis in Schedule RC-E A181 0 11.b
c. Amount by which demand deposits would be reduced if cash items in process of
collection were included in the calculation of net reciprocal demand balances
between the reporting bank and the domestic offices of U.S. banks and savings
associations in Schedule RC-E A182 0 11.c
MEMORANDA
TO BE COMPLETED EACH QUARTER EXCEPT AS NOTED Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2. Total deposits of the bank:
(sum of Memorandum items 1.a.(1) and 1.b.(1) must equal Schedule RC, item 13.a):
a. Deposit accounts of $ 100,000 or less: RCON
----
(1) Amount of deposit accounts of $ 100,000 or less 2702 404,553 M.1.a1
(2) Number of deposit accounts of $ 100,000 or less RCON Number
(to be completed for the June report only) ---- ------
3779 N/A M.1.a2
b. Deposit accounts of more than $ 100,000
(1) Amount of deposit accounts of more than $ 100,000 2710 699,500 M.1.b1
(2) Number of deposit accounts of more than RCON Number
$ 100,000 ---- ------
2722 1,134 M.1.b2
3. Estimated amount of uninsured deposits of the bank:
a. An estimate of your bank's uninsured deposits can be determined by multiplying the number of
deposit accounts of more than $ 100,000 reported in Memorandum item 1.b.(2) above by $ 100,000
and subtracting the result from the amount of deposit accounts of more than $ 100,000 reported
in Memorandum item 1.b.(1) above.
Indicate in the appropriate box at right whether your bank has a method or procedure
for determining a better estimate of uninsured deposits than the estimate RCON YES NO
described above ---- --- --
6861 X M.2.a
b. If the box marked YES has been checked, report the estimate of uninsured deposits
determined by using your bank's method or procedure 5597 N/A M.2.b
</TABLE>
- --------------------------------------------------------------------------------
C377 (-
Person to whom questions about the Reports of Conditions and Income should be
directed:
602-858-8162
DOUGLAS ALLDREDGE, FINANCIAL REPORTING MANAGER
- --------------------------------------------------------------------------------
Name and Title (TEXT 8901) Area code/phone number/extension (TEXT 8902)
<PAGE>
30
Schedule RC-R - Regulatory Capital
This schedule must be completed by all banks as follows: Banks that reported
total assets of $1 billion or more in Schedule RC, item 12, for June 30,
1995, must complete items 2 through 9 and Memoranda items 1 and 2. Banks with
assets of less that $1 billion must complete items 1 through 3 below or
Schedule RC-R in its entirety, depending on their response to item 1 below.
<TABLE>
<S> <C> <C> <C>
1. Test for determining the extent to which Schedule RC-R
must be completed. To be completed only by banks with total
assets of less than $1 billion. Indicate in the appropriate RCON YES NO
box at the right whether the bank has total capital greater ---- --- --
than or equal to eight percent of adjusted total
assets______________________________________ 6056 N/A
</TABLE>
For purposes of this test, adjusted total assets equals total assets
less cash, U.S. Treasuries, U.S. Government agency obligations, and 80
percent of U.S. Government-sponsored agency obligations plus the allowance
for loan and lease losses and selected off-balance sheet items as reported
on Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to
complete items 2 and 3 below. If the box marked NO has been checked,
the bank must complete the remainder of this schedule. A NO response to
item 1 does not necessarily mean that the bank's actual risk-based capital
ratio is less than eight percent or that the bank is not in compliance with
the risk-based capital guidelines.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
NOTE: ALL BANKS ARE REQUIRED TO COMPLETE (COLUMN A) (COLUMN B)
ITEMS 2 AND 3 BELOW. SEE OPTIONAL SUBORDINATED DEBT (1) AND
WORKSHEET FOR ITEMS 3.a THROUGH 3.f. INTERMEDIATE TERM OTHER LIMITED-LIFE
PREFERRED STOCK CAPITAL INSTRUMENTS
----------------------------- ---------------------------
<S> <C> <C> <C> <C> <C>
1. Subordinated debt(1) and other limited-life capital
instruments (original weighted average maturity of at
least five years) with a remaining maturity of: RCON RCON
---- ----
a. One year or less____________________________________________3780. . 0 3786. . 0 2.a
b. Over one year through two years_____________________________3781. . 0 3787. . 0 2.b
c. Over two years through three years__________________________3782. . 0 3788. . 0 2.c
d. Over three years through four years_________________________3783. . 0 3789. . 0 2.d
e. Over four years through five years__________________________3784. . 0 3790. . 0 2.e
f. Over five years_____________________________________________3785. . 20,000 3791. . 0 2.f
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
3. Amounts used in calculating regulatory capital ratios (report amounts determined by
the bank for its own internal regulatory capital analyses consistent with applicable
capital standards): RCON
----
a. Tier 1 capital_________________________________________________________________________________8274. . 96,822 3.a
b. Tier 2 capital_________________________________________________________________________________8275. . 32,728 3.b
c. Total risk-based capital_______________________________________________________________________3792. . 129,550 3.c
d. Excess allowance for loan and lease losses_____________________________________________________A222. . 0 3.d
e. Risk-weighted assets (net of all deductions, including excess allowance)_______________________A223. . 1,024,909 3.e
f. "Average total assets" (net of all assets deducted from Tier 1 capital) (2)____________________A224. . 1,289,520 3.f
</TABLE>
<TABLE>
<CAPTION>
ITEMS 4-9 AND MEMORANDA ITEMS 1 AND 2 ARE TO BE COMPLETED
BY BANKS THAT ANSWERED NO TO ITEM 1 ABOVE AND BY BANKS
WITH TOTAL ASSETS OF $1 BILLION OR MORE.
(COLUMN A) (COLUMN B)
ASSETS RECORDED ON THE CREDIT EQUIVALENT AMOUNT
BALANCE SHEET OF OFF-BALANCE SHEET ITEMS (3)
----------------------------- ------------------------------
<S> <C> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance
sheet items assigned to the Zero percent risk category:
a. Assets recorded on the balance sheet:
(1) Securities issued by, other claims on, and
claims unconditionally guaranteed by, the RCON RCON
U.S. Government and its agencies and other OECD ---- ----
central governments________________________________3794. . 75,597 . . . . . . . . . . 4.a.1
(2) All other__________________________________________3795. . 64,357 . . . . . . . . . . 4.a.2
b. Credit equivalent amount of off-balance sheet items____ . . . . . . . . . 3796. . 7 4.b
</TABLE>
- ------------
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not deduct excess allowance for loan and lease losses.
(3) Do not report in column B the risk-weighted amount of assets reported in
column A.
<PAGE>
31
Schedule RC-R - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Assets Recorded on the Credit Equivalent Amount
Balance Sheet of Off-Balance Sheet Items (1)
---------------------- --------------------------------
<S> <C> <C> <C> <C> <C>
5. Assets and credit equivalent amounts of off-balance
sheet Items assigned to the 20 percent risk category:
a. Assets recorded on the balance sheet:
(1) Claims conditionally guaranteed by the U.S. RCOW 84,166 RCOW
Government and its agencies and other OECO ---- ---- 5.a.1
central governments_______________________________3798
(2) Claims collateralized by securities issued by
the U.S. Government and its agencies and other
OECO central government; by securities issued
by U.S. Government-sponsored agencies; and by
cash on deposit___________________________________5799 1,321 5.a.2
(3) All other_________________________________________3800 505,032 5.a.3
b. Credit equivalent amount of off-balance sheet items____ 3801 80,794 5.b
6. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 50 percent risk category: --
a. Assets recorded on the balance sheet___________________3802 50,261 6.a
b. Credit equivalent amount of off-balance sheet items____ 3803 258 6.b
7. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 100 percent risk category:
a. Assets recorded on the balance sheet___________________3804 764,682 7.a
b. Credit equivalent amount of off-balance sheet items____ 3805 172,854 7.b
8. On-balance sheet asset values excluded form the
calculation of the risk-based capital ratio(2)_____________3806 306 5.
9. Total assets recorded on the balance sheet (sum of
items 4.a, 5.a, 6.a, 7.a, and 8, column A) (must equal
Schedule RC, item 12 plus items 4.b and 4.c)_______________3807 1,545,722 9.
</TABLE>
MEMORANDA
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCON
1. Current credit exposure across all off-balance sheet derivative contracts covered by ----
The risk-based capital standards______________________________________________________8764 N/A M.1.
</TABLE>
<TABLE>
<CAPTION>
With a remaining maturity of
(Column A) (Column B) (Column C)
Over one year
One year or less Through five years Over five years
---------------- ---------------------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
2. National principal amounts
of off-balance sheet
derivative contracts:(3)
RCON RCON RCON
a. Interest rate ---- ---- ----
contracts______________________3809 N/A 8766 N/A 8767 N/A M.2a
b. Foreign exchange
contracts______________________3812 N/A 8769 N/A 8770 N/A M.2b
c. Gold contracts_________________8771 N/A 8772 N/A 8773 N/A M.2c
d. Other precious metals
contracts______________________8776 N/A 8775 N/A 8776 N/A M.2d
e. Other commodity
contracts______________________8777 N/A 8778 N/A 8779 N/A M.2e
f. Equity derivative
contracts______________________4000 N/A 4001 N/A 4002 N/A M.2f
</TABLE>
- ----------------
(1) Do not report in column B the risk-weighted amount of assets reported in
column A.
(2) Include the difference between the fair value and the amortized cost of
available-for-sale securities in item B and report the amortized cost of
these securities in items 4 through 7 above. Item 8 also Includes
on-balance sheet asset values (or portions thereof) of off-balance sheet
interest rate, foreign exchange rate, and commodity contracts and those
contracts (e.g. future contracts) not subject to risk-based capital.
Exclude for item 8 margin accounts and accrued receivables not included
in the calculation of credit equivalent amounts of off-balance sheet
derivatives as well as any portion of the allowance for loan and Lease
losses in excess of the amount that may be included in Tier 2 capital.
(3) Exclude foreign exchange contracts with an original maturity of 14 days
or less and all futures contracts.
<PAGE>
32
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on September 30, 1996
WELLS FARGO BANK (COLORADO), N.A. DENVER CO
- --------------------------------- ------ ------
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief narrative
statement on the amounts reported in the Reports of Condition and Income. This
optional statement will be made available to the public, along with the publicly
available data in the Reports of Condition and Income, in response to any
request for individual bank report data. However, the information reported in
column A and in all of Memorandum item 1 of Schedule RC-N is regarded as
confidential and will not be released to the public. BANKS CHOOSING TO
SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT DOES NOT CONTAIN
THE NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK CUSTOMERS, REFERENCES TO
THE AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN SCHEDULE RC-N, OR ANY OTHER
INFORMATION THAT THEY ARE NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD
COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing not to make a
statement may check the "No comment" box below and should make no entries of any
kind in the space provided for the narrative statement; i.e., DO NOT enter in
this space such phrases as "No statement," "Not applicable," "N/A," "No
comment," and "None."
The optional statement must be entered on this sheet. The statement should not
exceed 100 words. Further, regardless of the number of words, the statement
must not exceed 750 characters, including punctuation, indentation, and standard
spacing between words and sentences. If any submission should exceed 750
characters, as defined, it will be truncated at 750 characters with no notice
to the submitting bank and the truncated statement will appear as the bank's
statement both on agency computerized records and in computer-file releases to
the public.
All information furnished by the bank in the narrative statement must be
accurate and not misleading. Appropriate efforts shall be taken by the
submitting bank to ensure the statement's accuracy. The statement must be
signed, in the space provided below, by a senior officer of the bank who thereby
attests to its accuracy.
If, subsequent to the original submission, material changes are submitted for
the data reported in the Reports of Condition and Income, the existing narrative
statement will be deleted from the files, and from disclosure; the bank, at its
option, may replace it with a statement, under signature, appropriate to the
amended data.
The optional narrative statement will appear in agency records and in release
to the public exactly as submitted (or amended as described in the preceding
paragraph) by the management of the bank (except for the truncation of
statements exceeding the 750-character limit described above). THE STATEMENT
WILL NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY AGENCIES FOR
ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT SIGNIFY THAT ANY
FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE
INFORMATION CONTAINED THEREIN. A STATEMENT TO THE EFFECT WILL APPEAR ON ANY
PUBLIC RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE
REPORTING BANK.
- --------------------------------------------------------------------------------
C371 C372 (-
No comment: X (RCON 6979)
BANK MANAGEMENT STATEMENT (please type or print clearly) (TEXT 6980):
-------------------------------------- -----------------
Signature of Executive Officer of Bank Date of Signature
<PAGE>
<TABLE>
<S><C>
33
THIS PAGE IS TO BE COMPLETED BY ALL BANKS
- ------------------------------------------------------------------------------------------------------------------------------------
OMB No. For OCC: 1557-0061
OMB No. For FDIC: 3064-0052
OMB No. For Federal Reserve: 7100-0036
Expiration Date: 03/31/99
SPECIAL REPORT
(Dollar Amounts in Thousands)
CLOSE OF BUSINESS DATE: FDIC Certificate Number:
September 30, 1996 03009 C700 -
- ------------------------------------------------------------------------------------------------------------------------------------
LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
- ------------------------------------------------------------------------------------------------------------------------------------
The following information is required by Public Laws 90-44 and 102-242, but does not constitute a part of the Report of Condition.
With each Report of Condition, these Laws require all banks to furnish a report of all loans or other extensions of credit to its
executive officers made since the date of the previous Report of Condition. Data regarding individual loans or other extensions of
credit are not required. If no such loans or other extensions of credit were made during the period, insert "name" against subitem
(a) (Exclude the first $15,000 of indebtedness of each executive officer under bank credit card plan.) See Sections 215.2 and 215.3
of Title 12 of the Code of Federal Regulations (Federal Reserve Board Regulation Q) for the definitions of "executive officer" and
"extension of credit," respectively. Exclude loans and other extensions of credit to directors and principal shareholders who are
not executive officers.
- ------------------------------------------------------------------------------------------------------------------------------------
RCOM
----
a. Number of loans made to executive officers since the previous Call Report date_3561 NONE a.
b. Total dollar amount of above loans (in thousands of dollars)___________________3562 0 b.
c. Range of interest charged on above loans (example: 9 3/4% = 9.75)_________7701/7702 0.00% to 0.00% c.
/s/ Dennis M. Steen October 25, 1996
- ------------------------------------------------------------------------------------------------------------------------------------
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT: DATE (Month, Day, Year):
Dennis M. Steen, Senior Vice President
- ------------------------------------------------------------------------------------------------------------------------------------
NAME AND TITLE OF PERSON TO WHOM INQUIRIES MAY BE DIRECTED: (TEXT 8903) AREA CODE/PHONE NUMBER/EXTENSION:
(TEXT 8904)
602-858-8162
DOUGLAS ALLDREDGE, FINANCIAL REPORTING MANAGER
- --------------------------------------------------------------------------------
FDIC 8040/53 (6-95)
</TABLE>
<PAGE>
EXHIBIT 6
First Interstate Bank of Denver, N.A., consents that reports of
examinations made by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request.
<PAGE>
EXHIBIT 7
RECEIVED
[LOGO] JUNE 03 1996
FIRST INTERSTATE BANK
LEGAL SERVICES GROUP
- --------------------------------------------------------------------------------
[LETTERHEAD]
- --------------------------------------------------------------------------------
May 28, 1996
Mr. Julius L. Loeser
Vice President and Senior Counsel
Wells Fargo Bank, N.A.
633 West Fifth Street
Los Angeles, California 90071
Re: Application to Merge First Interstate Bank of Englewood, N.A.,
Englewood, Colorado, into First Interstate Bank of Denver, N.A.,
Denver, Colorado
Application Control Number 96-ML-02-24
Dear Mr. Loeser:
This letter is the official certification of the Office of the Comptroller of
the Currency ("OCC") to merge First Interstate Bank of Englewood, N.A.,
Englewood, Colorado, into First Interstate Bank of Denver, N.A., Denver,
Colorado effective as of June 1, 1996. The resulting bank title is Wells Fargo
Bank (Colorado), National Association, charter number 12517.
This is also the official authorization given to Wells Fargo Bank (Colorado),
N.A. to operate the main office of the target institution as a branch as
follows:
Popular Name: Englewood Branch
Address: 3333 South Bannock Street
Englewood, Colorado
Certificate Number: 101850A
A copy of this letter should be provided to personnel responsible for branch
administration.
Sincerely,
/s/ Mark L. O'Dell
Mark L. O'Dell
Director for Analysis
[CERTIFIED SEAL]
Charter Number 12517
<PAGE>
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
_______________________________
WELLS FARGO BANK (COLORADO), N.A.
(Exact name of trustee as specified in its charter)
(Exact name of trustee as agent for service)
Not applicable 84-0005100
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
National Bank)
633 17th Street
Denver, Colorado 80270
(Address of principal executive offices) (Zip Code)
CIRCUS CIRCUS ENTERPRISES, INC.
(Exact name of obligor as specified in its charter)
Nevada 88-0121916
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2880 Las Vegas Boulevard South
Las Vegas, NV 89109
(Address of principal executive offices) (Zip Code)
_______________________________
Senior Unsecured Debt Securities
(Title of the Indenture Securities)
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervision authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
Board of Governors of The Federal
Reserve System Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the obligor is an affiliate of
the trustee.
13. Defaults by the Obligor.
There have been no defaults by the obligor with respect to the securities
covered by this shelf registration.
16. List of Exhibits:
Exhibit 1 Articles of Association of First Interstate Bank of Denver,
N.A.
Exhibit 2 By-laws of First Interstate Bank of Denver, N.A.
Exhibit 3 Certificate of Authority to transact business from
Comptroller of the Currency
Exhibit 4 Resolution adopted by Board of Directors of First Interstate
Bank of Denver, N.A.
Exhibit 5 A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 6 Consent under Section 321(b) of the Trust Indenture Act of
1939
Exhibit 7 Certificate from Comptroller of the Currency concerning
change of name to Wells Fargo Bank (Colorado), N.A.
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
Wells Fargo Bank (Colorado), N.A., a corporation organized and existing under
the laws of the United States of America, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City and County of Denver, and State of Colorado, on the
13th day of November, 1996.
WELLS FARGO BANK (COLORADO), N.A.
By: /s/ Kent E. Eichstadt
-----------------------------
Kent E. Eichstadt
Assistant Vice President
<PAGE>
WELLS FARGO BANK (COLORADO), N.A. Call Date: 09/30/96 ST-BK: 080350 FFIEC 032
633 SEVENTEENTH STREET Page RC-1
DENVER, CO 80270 Vendor ID: D CERT: 03009 9
Transit Number: 10200001 Transmitted to EDS as 0018758 on 10/30/96 at
16:19:32 CST
CONSOLIDATED REPORT OF CONDITION FOR INSURED
COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
C300
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin (1) . . . . . . . . . . 0081. 351,699 1.a
b. Interest-bearing balances (2). . . . . . . . . . . . . . . . . . . . . . . 0071. 200 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) . . . . . . . . 1754. 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . . . . 1773. 114,786 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0276. 104,517 3.a
b. Securities purchased under agreements to resell. . . . . . . . . . . . . . 0277. 58,230 3.b
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . RCON
(from Schedule RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122. 787,544 4.a
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . . . 3123 12,728 4.b
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . 2125. 774,816 4.d
5. Assets held in trading accounts (from Schedule RC-D). . . . . . . . . . . . . . 3545. 0 5.
6. Premises and fixed assets (including capitalized leases). . . . . . . . . . . . 2145 8,230 6.
7. Other real estate owned (from Schedule RC-M . . . . . . . . . . . . . . . . . . 2150. 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2130. 0 8.
9. Customers' Liability to this bank on acceptances outstanding. . . . . . . . . . 2155. 289 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . 2143. 88,861 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . . . . . 2160. 31,366 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . . . . . . . 2170 1,532,994 12.
___________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposits not held in trading accounts.
</TABLE>
<PAGE>
SCHEDULE RC - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
13. Deposits: RCON
a. In domestic offices (sum of totals of
columns A and C from Schedule RC-E 2200. 1,104,053 13.a
RCON
(1) Noninterest-bearing (1) 6631. 714,414 13.a.1
(2) Interest-bearing 6636. 389,639 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased 0278. 45,709 14.a
b. Securities sold under agreements to repurchase 0279. 0 14.b
15. a. Demand notes issued to the U.S. Treasury 2840. 0 15.a
b. Trading Liabilities 3548. 0 15.b
16. Other borrowed money:
a. With original maturity of one year or less 2332. 110,865 16.a
b. With original maturity of more than one year 2333. 25,661 16.b
17. Mortgage indebtedness and obligations under capitalized leases 2910. 0 17.
18. Bank's Liability on acceptances executed and outstanding 2920. 289 18.
19. Subordinated notes and debentures 3200. 20,000 19.
20. Other Liabilities (from Schedule RC-G) 2930. 57,264 20.
21. Total Liabilities (sum of items 13 through 20) 2948. 1,363,841 21.
22. Limited-life preferred stock and related surplus 3282. 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838. 0 23.
24. Common stock 3230. 35,000 24.
25. Surplus (exclude all surplus related to preferred stock) 3839. 123,986 25.
26. a. Undivided profits and capital reserves 3632. 9,986 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities 8434. 181 26.b
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) 3210. 169,153 28.
29. Total liabilities, limited-life preferred stock, and equity capital
(sum of items 21, 22, and 28) 3300. 1,532,994 29.
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1993 6724. N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
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
_______________________________
WELLS FARGO BANK (COLORADO), N.A.
(Exact name of trustee as specified in its charter)
(Exact name of trustee as agent for service)
Not applicable 84-0005100
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
National Bank)
633 17th Street
Denver, Colorado 80270
(Address of principal executive offices) (Zip Code)
CIRCUS CIRCUS ENTERPRISES, INC.
(Exact name of obligor as specified in its charter)
Nevada 88-0121916
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2880 Las Vegas Boulevard South
Las Vegas, NV 89109
(Address of principal executive offices) (Zip Code)
_______________________________
Senior Subordinated Debt Securities
(Title of the Indenture Securities)
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervision authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
Board of Governors of The Federal
Reserve System Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the obligor is an affiliate of
the trustee.
13. Defaults by the Obligor.
There have been no defaults by the obligor with respect to the securities
covered by this shelf registration.
16. List of Exhibits:
Exhibit 1 Articles of Association of First Interstate Bank of Denver,
N.A.
Exhibit 2 By-laws of First Interstate Bank of Denver, N.A.
Exhibit 3 Certificate of Authority to transact business from
Comptroller of the Currency
Exhibit 4 Resolution adopted by Board of Directors of First Interstate
Bank of Denver, N.A.
Exhibit 5 A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 6 Consent under Section 321(b) of the Trust Indenture Act of
1939
Exhibit 7 Certificate from Comptroller of the Currency concerning
change of name to Wells Fargo Bank (Colorado), N.A.
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
Wells Fargo Bank (Colorado), N.A., a corporation organized and existing under
the laws of the United States of America, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City and County of Denver, and State of Colorado, on the
13th day of November, 1996.
WELLS FARGO BANK (COLORADO), N.A.
By: /s/ Kent E. Eichstadt
-----------------------------
Kent E. Eichstadt
Assistant Vice President
<PAGE>
WELLS FARGO BANK (COLORADO), N.A. Call Date: 09/30/96 ST-BK: 080350 FFIEC 032
633 SEVENTEENTH STREET Page RC-1
DENVER, CO 80270 Vendor ID: D CERT: 03009 9
Transit Number: 10200001 Transmitted to EDS as 0018758 on 10/30/96 at
16:19:32 CST
CONSOLIDATED REPORT OF CONDITION FOR INSURED
COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
C300
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin (1) . . . . . . . . . . 0081. 351,699 1.a
b. Interest-bearing balances (2). . . . . . . . . . . . . . . . . . . . . . . 0071. 200 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) . . . . . . . . 1754. 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . . . . 1773. 114,786 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0276. 104,517 3.a
b. Securities purchased under agreements to resell. . . . . . . . . . . . . . 0277. 58,230 3.b
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . RCON
(from Schedule RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122. 787,544 4.a
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . . . 3123 12,728 4.b
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . 2125. 774,816 4.d
5. Assets held in trading accounts (from Schedule RC-D). . . . . . . . . . . . . . 3545. 0 5.
6. Premises and fixed assets (including capitalized leases). . . . . . . . . . . . 2145 8,230 6.
7. Other real estate owned (from Schedule RC-M . . . . . . . . . . . . . . . . . . 2150. 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2130. 0 8.
9. Customers' Liability to this bank on acceptances outstanding. . . . . . . . . . 2155. 289 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . 2143. 88,861 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . . . . . 2160. 31,366 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . . . . . . . 2170 1,532,994 12.
___________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposits not held in trading accounts.
</TABLE>
<PAGE>
SCHEDULE RC - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
13. Deposits: RCON
a. In domestic offices (sum of totals of
columns A and C from Schedule RC-E 2200. 1,104,053 13.a
RCON
(1) Noninterest-bearing (1) 6631. 714,414 13.a.1
(2) Interest-bearing 6636. 389,639 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased 0278. 45,709 14.a
b. Securities sold under agreements to repurchase 0279. 0 14.b
15. a. Demand notes issued to the U.S. Treasury 2840. 0 15.a
b. Trading Liabilities 3548. 0 15.b
16. Other borrowed money:
a. With original maturity of one year or less 2332. 110,865 16.a
b. With original maturity of more than one year 2333. 25,661 16.b
17. Mortgage indebtedness and obligations under capitalized leases 2910. 0 17.
18. Bank's Liability on acceptances executed and outstanding 2920. 289 18.
19. Subordinated notes and debentures 3200. 20,000 19.
20. Other Liabilities (from Schedule RC-G) 2930. 57,264 20.
21. Total Liabilities (sum of items 13 through 20) 2948. 1,363,841 21.
22. Limited-life preferred stock and related surplus 3282. 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838. 0 23.
24. Common stock 3230. 35,000 24.
25. Surplus (exclude all surplus related to preferred stock) 3839. 123,986 25.
26. a. Undivided profits and capital reserves 3632. 9,986 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities 8434. 181 26.b
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) 3210. 169,153 28.
29. Total liabilities, limited-life preferred stock, and equity capital
(sum of items 21, 22, and 28) 3300. 1,532,994 29.
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1993 6724. N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
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
_______________________________
WELLS FARGO BANK (COLORADO), N.A.
(Exact name of trustee as specified in its charter)
(Exact name of trustee as agent for service)
Not applicable 84-0005100
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
National Bank)
633 17th Street
Denver, Colorado 80270
(Address of principal executive offices) (Zip Code)
CIRCUS CIRCUS ENTERPRISES, INC.
(Exact name of obligor as specified in its charter)
Nevada 88-0121916
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2880 Las Vegas Boulevard South
Las Vegas, NV 89109
(Address of principal executive offices) (Zip Code)
_______________________________
Subordinated Debt Securities
(Title of the Indenture Securities)
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervision authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
Board of Governors of The Federal
Reserve System Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the obligor is an affiliate of
the trustee.
13. Defaults by the Obligor.
There have been no defaults by the obligor with respect to the securities
covered by this shelf registration.
16. List of Exhibits:
Exhibit 1 Articles of Association of First Interstate Bank of Denver,
N.A.
Exhibit 2 By-laws of First Interstate Bank of Denver, N.A.
Exhibit 3 Certificate of Authority to transact business from
Comptroller of the Currency
Exhibit 4 Resolution adopted by Board of Directors of First Interstate
Bank of Denver, N.A.
Exhibit 5 A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 6 Consent under Section 321(b) of the Trust Indenture Act of
1939
Exhibit 7 Certificate from Comptroller of the Currency concerning
change of name to Wells Fargo Bank (Colorado), N.A.
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
Wells Fargo Bank (Colorado), N.A., a corporation organized and existing under
the laws of the United States of America, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City and County of Denver, and State of Colorado, on the
13th day of November, 1996.
WELLS FARGO BANK (COLORADO), N.A.
By: /s/ Kent E. Eichstadt
-----------------------------
Kent E. Eichstadt
Assistant Vice President
<PAGE>
WELLS FARGO BANK (COLORADO), N.A. Call Date: 09/30/96 ST-BK: 080350 FFIEC 032
633 SEVENTEENTH STREET Page RC-1
DENVER, CO 80270 Vendor ID: D CERT: 03009 9
Transit Number: 10200001 Transmitted to EDS as 0018758 on 10/30/96 at
16:19:32 CST
CONSOLIDATED REPORT OF CONDITION FOR INSURED
COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
C300
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin (1) . . . . . . . . . . 0081. 351,699 1.a
b. Interest-bearing balances (2). . . . . . . . . . . . . . . . . . . . . . . 0071. 200 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) . . . . . . . . 1754. 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . . . . 1773. 114,786 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0276. 104,517 3.a
b. Securities purchased under agreements to resell. . . . . . . . . . . . . . 0277. 58,230 3.b
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . RCON
(from Schedule RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122. 787,544 4.a
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . . . 3123 12,728 4.b
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . 2125. 774,816 4.d
5. Assets held in trading accounts (from Schedule RC-D). . . . . . . . . . . . . . 3545. 0 5.
6. Premises and fixed assets (including capitalized leases). . . . . . . . . . . . 2145 8,230 6.
7. Other real estate owned (from Schedule RC-M . . . . . . . . . . . . . . . . . . 2150. 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2130. 0 8.
9. Customers' Liability to this bank on acceptances outstanding. . . . . . . . . . 2155. 289 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . 2143. 88,861 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . . . . . 2160. 31,366 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . . . . . . . 2170 1,532,994 12.
___________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposits not held in trading accounts.
</TABLE>
<PAGE>
SCHEDULE RC - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
13. Deposits: RCON
a. In domestic offices (sum of totals of
columns A and C from Schedule RC-E 2200. 1,104,053 13.a
RCON
(1) Noninterest-bearing (1) 6631. 714,414 13.a.1
(2) Interest-bearing 6636. 389,639 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased 0278. 45,709 14.a
b. Securities sold under agreements to repurchase 0279. 0 14.b
15. a. Demand notes issued to the U.S. Treasury 2840. 0 15.a
b. Trading Liabilities 3548. 0 15.b
16. Other borrowed money:
a. With original maturity of one year or less 2332. 110,865 16.a
b. With original maturity of more than one year 2333. 25,661 16.b
17. Mortgage indebtedness and obligations under capitalized leases 2910. 0 17.
18. Bank's Liability on acceptances executed and outstanding 2920. 289 18.
19. Subordinated notes and debentures 3200. 20,000 19.
20. Other Liabilities (from Schedule RC-G) 2930. 57,264 20.
21. Total Liabilities (sum of items 13 through 20) 2948. 1,363,841 21.
22. Limited-life preferred stock and related surplus 3282. 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838. 0 23.
24. Common stock 3230. 35,000 24.
25. Surplus (exclude all surplus related to preferred stock) 3839. 123,986 25.
26. a. Undivided profits and capital reserves 3632. 9,986 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities 8434. 181 26.b
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) 3210. 169,153 28.
29. Total liabilities, limited-life preferred stock, and equity capital
(sum of items 21, 22, and 28) 3300. 1,532,994 29.
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1993 6724. N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
