SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended October 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-8570
CIRCUS CIRCUS ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Nevada 88-0121916
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
2880 Las Vegas Boulevard South, Las Vegas, Nevada 89109-1120
(Address of principal executive offices)
(702) 734-0410
(Registrant's telephone number, including area code)
N/A
(Former name, former address and former fiscal year, if changed since
last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at November 30, 1996
Common Stock, $.01-2/3 par value 98,336,978 shares
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
Form 10-Q
INDEX
Page No.
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements:
Condensed Consolidated Balance Sheets at
October 31, 1996 (Unaudited) and January 31,
1996........................................... 3-4
Condensed Consolidated Statements of Income
(Unaudited) for the Three and Nine Months
Ended October 31, 1996 and 1995................ 5
Condensed Consolidated Statements of Cash
Flows (Unaudited) for the Nine Months Ended
October 31, 1996 and 1995...................... 6-7
Notes to Condensed Consolidated Financial
Statements (Unaudited)......................... 8-20
Item 2. Management's Discussion and Analysis of Fi-
nancial Condition and Results of Operations.... 21-30
Part II. OTHER INFORMATION 31
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
ASSETS
October 31, January 31,
1996 1996
(Unaudited)
CURRENT ASSETS:
Cash and cash equivalents................ $ 55,842 $ 62,704
Receivables.............................. 22,256 14,527
Inventories.............................. 19,007 20,459
Prepaid expenses and other............... 29,389 26,690
Total current assets................ 126,494 124,380
PROPERTY, EQUIPMENT AND LEASEHOLD INTERESTS,
at cost, less accumulated depreciation
and amortization of $509,659 and $490,596
respectively............................. 1,708,714 1,474,684
EXCESS OF PURCHASE PRICE OVER FAIR MARKET
value of net assets acquired, net........ 388,135 394,518
NOTES RECEIVABLE............................ 36,495 27,508
INVESTMENTS IN UNCONSOLIDATED AFFILIATES.... 228,499 173,270
OTHER ASSETS................................ 20,617 17,533
Total Assets......................... $2,508,954 $2,211,893
The accompanying notes are an integral part of these
condensed consolidated financial statements.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
LIABILITIES AND STOCKHOLDERS' EQUITY
October 31, January 31,
1996 1996
(Unaudited)
CURRENT LIABILITIES:
Current portion of long-term debt................ $ 406 $ 863
Accounts payable - trade ........................ 49,307 16,824
Accounts payable - construction.................. 6,851 -
Accrued liabilities ............................. 81,924 76,235
Total current liabilities ................ 138,488 93,922
LONG-TERM DEBT ...................................... 979,674 715,214
DEFERRED INCOME TAX ................................. 160,039 148,096
OTHER LONG-TERM LIABILITIES ......................... 8,453 9,319
Total liabilities ........................ 1,286,654 966,551
REDEEMABLE PREFERRED STOCK........................... 18,530 18,530
STOCKHOLDERS' EQUITY:
Common stock, $.01-2/3 par value
Authorized - 450,000,000 shares
Issued - 112,808,337 and 112,795,332 shares ... 1,880 1,880
Preferred stock, $.01 par value
Authorized - 75,000,000 shares ................ - -
Additional paid-in capital ...................... 534,347 527,205
Retained earnings ............................... 969,224 883,630
Treasury stock (12,472,059 and 9,828,809 shares),
at cost........................................ (301,681) (185,903)
Total stockholders' equity ............... 1,203,770 1,226,812
Total Liabilities and
Stockholders' Equity .................. $2,508,954 $2,211,893
The accompanying notes are an integral part of these
condensed consolidated financial statements.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except share data)
(Unaudited)
Three Months Nine Months
Ended October 31, Ended October 31,
REVENUES: 1996 1995 1996 1995
Casino ......................... $163,589 $176,246 $506,620 $498,920
Rooms .......................... 73,638 74,059 222,421 209,260
Food and beverage .............. 53,055 53,540 163,603 153,159
Other .......................... 35,085 42,246 116,922 122,772
Earnings of unconsolidated
affiliates ................... 27,753 20,760 63,961 27,584
353,120 366,851 1,073,527 1,011,695
Less-complimentary allowances .. (15,130) (12,645) (43,846) (35,690)
337,990 354,206 1,029,681 976,005
COSTS AND EXPENSES:
Casino ......................... 75,459 72,318 225,659 202,719
Rooms .......................... 29,247 29,096 87,827 82,576
Food and beverage .............. 50,873 49,941 154,969 141,644
Other operating expenses ....... 21,947 24,856 71,329 70,145
General and administrative ..... 58,330 58,185 169,866 161,656
Depreciation and amortization .. 23,303 24,012 71,808 69,575
Abandonment losses ............. - - 48,309 45,148
259,159 258,408 829,767 773,463
OPERATING PROFIT BEFORE CORPORATE
EXPENSE ........................ 78,831 95,798 199,914 202,542
CORPORATE EXPENSE ................ 7,646 7,399 22,782 18,732
INCOME FROM OPERATIONS ........... 71,185 88,399 177,132 183,810
OTHER INCOME (EXPENSE):
Interest, dividend and
other income ................. 462 1,625 3,108 2,395
Interest income and guarantee
fees from unconsolidated
affiliate .................... 1,759 1,901 5,102 6,016
Interest expense ............... (12,973) (12,915) (36,546) (38,897)
Interest expense from
unconsolidated affiliates .... (4,774) (2,823) (10,871) (2,885)
(15,526) (12,212) (39,207) (33,371)
INCOME BEFORE PROVISION FOR
INCOME TAX...................... 55,659 76,187 137,925 150,439
Provision for income tax ....... 20,846 29,603 52,331 57,174
NET INCOME ....................... $ 34,813 $ 46,584 $ 85,594 $ 93,265
EARNINGS PER SHARE................ $ .34 $ .45 $ .83 $ .98
Average shares outstanding .. 103,259,217 102,824,169 103,426,436 95,292,952
The accompanying notes are an integral part of these
condensed consolidated financial statements.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
Nine Months
Ended October 31,
1996 1995
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 85,594 $ 93,265
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 77,389 71,239
Loss on disposition of fixed assets 47,732 10,959
Increase in other current assets (8,976) (5,082)
(Increase) decrease in other noncurrent assets (2,970) 647
Increase in interest payable 11,514 8,940
Increase in other current liabilities 26,658 13,942
Increase in deferred income tax 11,943 16,579
Decrease in other noncurrent liabilities (49) (49)
Unconsolidated affiliates' earnings in
excess of distributions (20,749) (7,189)
Total adjustments 142,492 109,986
Net cash provided by operating activities 228,086 203,251
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (351,045) (192,378)
Increase (decrease) in construction payables 6,851 (1,101)
(Increase) decrease in investments in
unconsolidated affiliates (34,711) 11,796
(Increase) decrease in notes receivable (8,987) 42,126
Proceeds from sale of equipment and other assets 2,056 979
Net cash paid for acquisition of Gold Strike
Resorts - (3,413)
Other (1,270) -
Net cash used in investing activities (387,106) (141,991)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of senior notes 199,562 -
Net effect on cash of issuances and payments
of debt with original maturities of
three months or less (187,324) (64,891)
Issuances of debt with original maturities
in excess of three months 268,934 20,652
Principal payments of debt with original
maturities in excess of three months (17,283) (12,423)
Exercise of stock options and warrants 17,912 14,695
Purchases of treasury stock (128,858) -
Sale of stock warrants - 2,000
Other (785) (352)
Net cash provided by (used in)
financing activities 152,158 (40,319)
Net increase (decrease) in cash and cash equivalents (6,862) 20,941
Cash and cash equivalents at beginning of period 62,704 53,764
Cash and cash equivalents at end of period $ 55,842 $ 74,705
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)
(In thousands)
(Unaudited)
Nine Months
Ended October 31,
1996 1995
SUPPLEMENTAL CASH FLOW DISCLOSURES
Cash paid during the period for:
Interest (net of amount capitalized) $ 23,312 $ 28,961
Income tax $ 48,043 $ 37,863
Acquisition of Gold Strike Resorts:
Current assets, other than cash $ - $ (1,487)
Property and equipment - (115,708)
Other assets - (484,508)
Current liabilities - 9,627
Long-term debt - 163,978
Other liabilities - 17,344
Subsidiary preferred stock - 18,530
Stockholders' equity - 388,811
Net cash used to acquire Gold Strike Resorts $ - $ (3,413)
The accompanying notes are an integral part of these
condensed consolidated financial statements.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(All information for the three and nine months ended October 31,
1996 and 1995 is unaudited.)
(1) Principles of consolidation and basis of presentation -
Circus Circus Enterprises, Inc. (the "Company") was
incorporated February 27, 1974. The Company owns and operates
hotel and casino facilities in Las Vegas, Reno, Laughlin, Jean
and Henderson, Nevada and a dockside casino in Tunica County,
Mississippi. It is also an investor in several unconsolidated
affiliates, with operations that include a casino in Windsor,
Canada, a riverboat casino in Elgin, Illinois, a hotel/casino in
Reno, Nevada and a hotel/casino on the Las Vegas Strip which
opened on June 21, 1996 (see Note 8).
The condensed consolidated financial statements include the
accounts of the Company and its wholly owned subsidiaries.
Material intercompany accounts and transactions have been
eliminated.
The condensed consolidated financial statements included
herein have been prepared by the Company, without audit, pursuant
to the rules and regulations of the Securities and Exchange
Commission. Certain information and footnote disclosures
normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed
or omitted pursuant to such rules and regulations, although the
Company believes that the disclosures are adequate to make the
information presented not misleading. In the opinion of
management, all adjustments (which include normal recurring
adjustments) necessary for a fair statement of results for the
interim periods have been made. The results for the three-month
and nine-month periods are not necessarily indicative of results
to be expected for the full fiscal year.
Certain reclassifications have been made to the financial
statements for the three and nine months ended October 31, 1995
to conform to the financial statement presentation for the three
and nine months ended October 31, 1996. These reclassifications
have no effect on net income.
These financial statements should be read in conjunction
with the financial statements and notes thereto included in the
Company's annual report on Form 10-K for the year ended January
31, 1996.
(2) Acquisition of Gold Strike Resorts -
On June 1, 1995, the Company completed its acquisition of a
group of affiliated entities (collectively "Gold Strike Resorts")
in which it acquired two hotel and casino facilities in Jean,
Nevada, one in Henderson, Nevada, a 50% interest in a joint
venture which owns a riverboat casino and land-based
entertainment complex in Elgin, Illinois, and a 50% interest in a
joint venture which owns a major destination resort on the Las
Vegas Strip. In exchange for the equity interests in Gold Strike
Resorts, the Company issued 16,291,551 shares of its common stock
and preferred stock of a subsidiary which is convertible into an
additional 793,156 shares of the Company's common stock. In
addition, the Company paid approximately $12 million in cash,
while assuming approximately $165 million of debt. The
acquisition has been accounted for by the purchase method of
accounting and resulted in a total purchase price of
approximately $430 million. The purchase price was allocated to
assets and liabilities based on their estimated fair values on
the date of acquisition. The excess of the purchase price over
the fair market value of the net assets acquired was
approximately $390 million and is being amortized on a straight-
line basis over 40 years.
(3) Long-term debt -
Long-term debt consists of the following (in thousands):
October 31, January 31,
1996 1996
(Unaudited)
Amounts due under corporate
debt program at floating
interest rates, weighted
average of 5.6% $374,448 $210,188
6.45% Senior Notes due 2006
(net of unamortized discount
of $407) 199,593 -
7-5/8% Senior Subordinated
Debentures due 2013 150,000 150,000
6-3/4% Senior Subordinated Notes
due 2003 (net of unamortized
discount of $107 and $119) 149,893 149,881
<PAGE>
(3) Long-term debt (continued) -
10-5/8% Senior Subordinated Notes
due 1997 (net of unamortized
discount of $11 and $24) 99,989 99,976
Amounts due under bank credit
agreements at floating interest
rates - 100,000
Other notes 6,157 6,032
980,080 716,077
Less - current portion 406 (863)
$979,674 $715,214
The Company has established a corporate debt program whereby
it can issue commercial paper or similar forms of short-term
debt. Although the debt instruments issued under this program are
short-term in tenor, they are classified as long-term debt
because (i) they are backed by a long-term debt facility (see
below) and (ii) it is management's intention to continue to
replace such borrowings on a rolling basis as various instruments
come due and to have such borrowings outstanding for longer than
one year. To the extent that the Company incurs debt under this
program, it must maintain an equivalent amount of credit
available under its bank credit facility discussed more fully
below.
In January 1996, the Company renegotiated its $250 million
unsecured 364-day facility and its $500 million unsecured
reducing revolver, both of which were dated September 30, 1993,
as well as a $145 million reducing revolving credit agreement
assumed by the Company upon its acquisition of Gold Strike
Resorts in June 1995. These agreements were replaced by a new
$1.5 billion unsecured credit facility (reducing to $1.2 billion
on December 31, 1999) which matures on December 31, 2000 (the
"Facility"). The maturity date and reduction date may each be
extended for an unlimited number of one-year periods with the
consent of the bank group. The Facility contains financial
covenants regarding minimum net worth, interest charge coverage,
total debt and new venture capital expenditures and investments.
The Facility is for general corporate purposes. The Company
incurs commitment fees of 22.50 basis points on the unused
portion of the Facility (25.00 basis points effective November
26, 1996). As of October 31, 1996, the Company had no borrowings
(3) Long-term debt (continued) -
under the Facility. At such date, the Company had $374.4 million
of indebtedness outstanding under the corporate debt program thus
reducing, by that amount, the credit available under the Facility
for purposes other than repayment of such
indebtedness. The fair value of the debt issued under the
corporate debt program approximates the carrying amount of the
debt due to the short-term maturities of the individual
components of the debt.
The Company filed a shelf registration statement, effective
January 11, 1996, with the Securities and Exchange Commission
which allows for the issuance of up to $400 million of various
types of debt securities. In February 1996, the Company issued
$200 million principal amount of 6.45% Senior Notes due February
1, 2006 (the "6.45% Notes"), with interest payable each February
and August. The 6.45% Notes, which were discounted to $199.6
million, are not redeemable prior to maturity and are not subject
to any sinking fund requirements. The net proceeds from this
offering were used primarily to repay borrowings under the
Company's corporate debt program.
The Company filed a second shelf registration statement,
effective November 20, 1996, which allows for the issuance of up
to $300 million of various types of debt securities. Pursuant to
this shelf registration statement, the Company, on November 26,
1996, issued $150 million principal amount of 7.0% Senior Notes
due November 2036 (the "7.0% Notes"). The 7.0% Notes may be
redeemed at the option of the holder in November 2008. Pursuant
to the shelf registration statement dated January 11, 1996, the
Company, on November 26, 1996, issued $150 million principal
amount of 6.70% Senior Notes due November 2096 (the "6.70%
Notes"). The 6.70% Notes may be redeemed at the option of the
holder in November 2003. Both the 7.0% Notes, which were
discounted to $149.8 million, and the 6.70% Notes, which were
discounted to $149.7 million, have interest payable each May and
November, are not redeemable by the Company prior to maturity,
and are not subject to any sinking fund requirements. The net
proceeds from these offerings were used primarily to repay
borrowings under the Company's corporate debt program.
In July 1993, the Company issued $150 million principal
amount of 6-3/4% Senior Subordinated Notes (the "6-3/4% Notes")
(3) Long-term debt (continued) -
due July 2003 and $150 million principal amount of 7-5/8% Senior
Subordinated Debentures (the "7-5/8% Debentures") due July 2013,
with interest payable each July and January. The 6-3/4% Notes,
which were discounted to $149.8 million, and the 7-5/8%
Debentures are not redeemable prior to maturity and are not
subject to any sinking fund requirements. The net proceeds from
these offerings were used primarily to repay borrowings under the
Company's corporate debt program.
In June 1990, the Company issued $100 million principal
amount of 10-5/8% Senior Subordinated Notes (the "10-5/8% Notes")
due June 1997, with interest payable each June and December. The
10-5/8% Notes, which were discounted to $99.9 million, are not
redeemable prior to maturity and are not subject to any sinking
fund requirements. Holders of the 10-5/8% Notes may require the
Company to repurchase all or any portion of their notes at par
upon the occurrence of both a Designated Event (as defined in the
indenture) and a Rating Decline (as defined in the indenture).
Although the 10-5/8% Notes are due June 1997, they have been
classified as long-term debt because it is the Company's
intention to replace the 10-5/8% Notes when they become due with
borrowings under its corporate debt program.
The Company has a policy aimed at managing interest rate
risk associated with its current and anticipated future
borrowings. This policy enables the Company to use any
combination of interest rate swaps, futures, options, caps and
similar arrangements. The Company has entered into various
interest rate swaps, principally with its bank group, to manage
interest expense, which is subject to fluctuation due to the
variable-rate nature of the debt under the Company's corporate
debt program. The Company has interest rate swap agreements
under which it pays a fixed interest rate (weighted average of
approximately 8.6%) and receives a variable interest rate
(weighted average of approximately 5.6% at October 31, 1996) on
$82 million notional amount of "initial" swaps, and pays a
variable interest rate of approximately 5.5% at October 31, 1996,
and receives a fixed interest rate of approximately 8.2% on $30
million notional amount of a "reversing" swap. The net effect of
all such swaps resulted in additional interest expense, due to an
interest rate differential which, at October 31, 1996, was
approximately 1.4% on the total notional amount of the swaps.
(3) Long-term debt (continued) -
One of the initial swaps provides for quarterly reductions in the
notional amount of up to $1 million. This swap has a current
notional amount of $27.5 million, but declines to $22.5 million
by its termination date in fiscal 1999. Excluding this swap, the
initial swaps have the following termination dates: $29.5
million in fiscal 1999 and $25 million in fiscal 2000. The
reversing swap expires in fiscal 2002.
In addition to the aforementioned swaps, the Company has
entered into an interest rate swap with a notional amount of $100
million in which the Company pays a floating rate (5.4% at
October 31, 1996 and capped at 6.5%) and receives a fixed
interest rate of 4.75%. This swap corresponds in both notional
amount and maturity to the Company's 10-5/8% Notes due in 1997.
The variable interest rates which the Company pays or receives
under the various swaps are based primarily upon the London
Interbank Offering Rate (LIBOR). The Company is exposed to
credit loss in the event of nonperformance by the other parties
to the interest rate swap agreements. However, the Company
considers the risk of nonperformance by the counterparties to be
minimal because the parties to the swaps and reverse swaps are
predominantly members of the Company's bank group.
As of October 31, 1996, under the Company's most restrictive
loan covenants, the Company was restricted as to the payment of
dividends in excess of approximately $179 million, the purchase
of its own capital stock in excess of approximately $289 million
and was restricted from issuing additional debt in excess of
approximately $384 million.
(4) Warrants and stock options -
In June 1989, the stockholders approved a stock purchase
warrant plan enabling the Company to offer warrants to its
officers and other key employees to purchase up to 4.5 million
shares of the Company's common stock. In accordance with the
provisions of such plan, the 4.5 million warrants were issued in
June 1989 at a price of $.17 per warrant with an exercise price
of $14.33 ($.67 per share over the fair market value on the date
the warrants were authorized). Each warrant had a term of seven
years, with 50% of the warrants becoming exercisable two years
from the date of grant and the remaining 50% three years from the
(4) Warrants and stock options (continued) -
date of grant. As of October 31, 1996, all of the warrants had
been exercised, including warrants representing 683,500 shares
which were exercised during the nine months ended October 31,
1996.
The Company also has various stock option plans for
executive, managerial and supervisory personnel as well as the
Company's outside directors and consultants. The plans permit
grants of options, performance shares and restricted stock
relating to the Company's common stock. During the nine months
ended October 31, 1996, options for 260,000 shares were granted
at prices ranging from $31.00 to $39.76 with a weighted average
exercise price of $33.68 per share, while options for 397,255
shares were exercised at prices ranging from $11.75 to $21.25
with a weighted average exercise price of $20.43 per share. As
of October 31, 1996, options for 7.2 million shares remained
exercisable at prices ranging from $8.58 to $39.76 with a
weighted average exercise price of $25.28 per share, while
options covering 2.4 million shares remained available for grant.
The stock options are generally exercisable in one or more
installments beginning not less than nine months after the grant
date.
(5) Stock rights -
On July 14, 1994, the Company declared a dividend of one
Common Stock Purchase Right (the "Rights") for each share of
common stock outstanding at the close of business on August 15,
1994. Each Right entitles the holder to purchase from the
Company one share of common stock at an exercise price of $125,
subject to certain antidilution adjustments. The Rights
generally become exercisable ten days after the earlier of an
announcement that an individual or group has acquired 15% or more
of the Company's outstanding common stock or the announcement of
commencement of a tender offer for 15% or more of the Company's
common stock. Effective April 16, 1996, the Rights Agreement was
amended to raise the trigger level from 10% to 15%.
In the event the Rights become exercisable, each Right
(except the Rights beneficially owned by the acquiring individual
or group, which become void) would entitle the holder to
(5) Stock rights (continued) -
purchase, for the exercise price, a number of shares of the
Company's common stock having an aggregate current market value
equal to two times the exercise price. The Rights expire August
15, 2004, and may be redeemed by the Company at a price of $.01
per Right any time prior to their expiration or the acquisition
of 15% or more of the Company's common stock. The Rights should
not interfere with any merger or other business combination
approved by the Company's Board of Directors and are intended to
cause substantial dilution to a person or group that attempts to
acquire control of the Company on terms not approved by the Board
of Directors.
(6) Share repurchases -
During the nine months ended October 31, 1996, the Company
repurchased 3.7 million shares of its common stock at a cost of
$128.9 million.
(7) Redeemable preferred stock -
In connection with the acquisition of Gold Strike Resorts,
New Way, Inc., a wholly-owned subsidiary of the Company, issued
1,069,926 shares of $10.00 Cumulative Preferred Stock. Dividends
are payable when, as and if declared by the Board of Directors.
Each share of preferred stock is exchangeable for approximately
3.9 shares of the Company's common stock, however no dividends
are payable in the event of exchange. In general, the preferred
stock is exchangeable by the holder thereof after two years from
the date of issuance, and is redeemable by the company on the
occurrence of certain events, including a merger of New Way, Inc.
into another subsidiary of the Company. The exchange rate is
subject to adjustment in the event of certain dilutive events.
The preferred stock is subject to mandatory redemption on the
fifteenth anniversary of the date of original issuance at a price
equal to the liquidation preference ($100) plus all unpaid
dividends. Of the preferred shares issued, 866,640 were issued
to another wholly-owned subsidiary of the company.
(8) Preferred stock -
The Company is authorized to issue up to 75 million shares
of $.01 par value preferred stock in one or more series having
(8) Preferred stock (continued) -
such respective terms, rights and preferences as are designated
by the Board of Directors. No such preferred stock has yet been
issued.
(9) Earnings per share -
Earnings per share is computed by dividing net income by the
weighted average number of common shares outstanding during the
period. Outstanding stock options and exchangeable preferred
stock are not included in earnings per share computations since
their assumed exercise or conversion would not have a material
dilutive effect.
(10) Investments in unconsolidated affiliates -
The Company has investments in unconsolidated affiliates
that are accounted for under the equity method. Using the equity
method, original investments are recorded at cost and adjusted by
the Company's share of earnings or losses of these entities. The
investment balance also includes interest capitalized during
construction. Investments in unconsolidated affiliates consist
of the following (in thousands):
October 31, January 31,
1996 1996
(Unaudited)
Silver Legacy (50%)
(Hotel/Casino, Reno, Nevada) $ 55,920 $ 52,917
Casino Windsor (33 1/3%)
(Casino, Windsor, Canada) 18,386 11,799
The Grand Victoria (50%)
(Riverboat Casino, Elgin, Illinois) 52,942 56,719
Monte Carlo (50%)
(Hotel/Casino, Las Vegas, Nevada) 101,251 51,835
$228,499 $173,270
(10) Investments in unconsolidated affiliates (continued) -
The Company's investments in unconsolidated affiliates
operate primarily with fiscal years ending on December 31.
Summarized results of operations of the unconsolidated affiliates
for the nine months ended September 30, 1996 and 1995 are as
follows (unaudited, in thousands):
1996 1995
Revenues $392,737 $207,600
Expenses 267,776 122,279
Operating income 124,961 85,321
Net income 96,861 74,625
Included in the above are revenues of The Grand Victoria of
$181,915 and $157,288 for the nine months ending September 30,
1996 and 1995. The property's operating margin during these
periods was 43% and 47%, respectively.
(11) Abandonment losses -
During the quarter ended July 31, 1996, the Company wrote-
off $40.1 million of various assets. These write-offs included
the special-effects films at Luxor, which are being replaced by
IMAX special-format filmed attractions ($12.0 million),
structural elements being demolished as part of Luxor's
remodeling ($12.1 million), and fixtures and equipment at Circus
Circus-Las Vegas, Excalibur and Circus Circus-Tunica being
replaced in the course of upgrading and expanding those
properties ($16.0 million).
During the quarter ended April 30, 1996, the Company wrote-
off $8.2 million of costs associated with the demolition of a
people-mover at Circus Circus-Las Vegas and the removal of the
Nile River at Luxor. These write-offs were related to the
ongoing construction of new hotel towers and related remodeling
at both properties.
During the third quarter of 1995, 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
Company sold its partially completed riverboat gaming facility in
(11) Abandonment losses (continued) -
Chalmette, Louisiana for $4 million. The Company had a net
investment (including a loan to the other joint venturer) of
$35.5 million in this project and thus recognized a loss of $31.5
million on this sale. After reevaluating the New Orleans market,
the Company determined that this project could no longer promise
a sufficiently high rate of return to meet Company objectives.
The Company also wrote off $6.2 million representing the
remaining value of the parking garage and people mover at Circus
Circus-Reno, $3.7 million for a dismantled monorail system
between Luxor and Excalibur, $2.1 million for a dismantled
gondola system at Circus Circus-Las Vegas and $1.6 million for
miscellaneous other assets.
(12) Commitments and contingent liabilities -
In December 1993, Windsor Casino Limited (WCL), a
corporation owned equally by Circus Circus Enterprises, Inc.,
Caesars World, Inc. and Hilton Hotels Corporation or their
subsidiaries, was selected to exclusively negotiate an agreement
to design, build and operate a casino complex in Windsor,
Ontario, Canada. Currently, WCL operates an interim casino which
opened in May 1994 in Windsor's central business district,
immediately across the Detroit River from Detroit, Michigan. In
December 1995, this interim facility was expanded to include a
dockside casino, bringing the total casino space to approximately
75,000 square feet. Definitive agreements concerning a permanent
facility are not yet completed, but under
arrangements with the applicable government authorities,
construction has begun on this facility, which will include a
75,000-square-foot casino and 400-room hotel, as well as a
showroom and meeting facilities. The total cost for this project
is estimated at $290 million and it is expected to be completed
by spring 1998. In connection
with the permanent facility, a revolving credit facility was
established in the amount of $90 million Canadian (approximately
$66 million U.S. as of October 31, 1996) and each of WCL's three
shareholders, including Circus, has guaranteed payment of one-
third of any amounts due under the facility. As of October 31,
1996, there were $8 million Canadian of borrowings under the
facility (approximately $2 million U.S. representing Circus' one-
third share).
(12) Commitments and contingent liabilities (continued) -
In July 1995, Silver Legacy, a 50/50 joint venture with the
Eldorado Hotel/Casino (a privately held company) opened in
downtown Reno, Nevada. As a condition to the joint venture's
$220 million bank credit agreement (which amended and restated
the joint venture's previous $230 million credit agreement),
Circus entered into a make-well agreement whereby it is obligated
to make additional contributions to the joint venture as may be
necessary to maintain a minimum coverage ratio (as defined). As
of October 31, 1996, the Company had outstanding loans to the
joint venture in the principal amount of $35.1 million.
The Company owns a 50% interest in a joint venture (with
Mirage Resorts, Incorporated) which developed Monte Carlo, a
major destination resort on the Las Vegas Strip which opened June
21, 1996, and for which the Company serves as the venture's
manager. Monte Carlo had a total cost of approximately $350
million including land and capitalized interest. The Company's
total equity contribution was $85.8 million, all of which had
been funded as of October 31, 1996.
In January 1996, the Company commenced construction on a
major expansion at Luxor that will include approximately 2,000
additional rooms, situated in two identical 22-story towers
designed in a stepped-pyramid style, located between Luxor and
Excalibur. The expansion will also include additional casino
space, retail area, restaurants, a multipurpose showroom, and a
reworking of the upstairs attractions level. The majority of the
rooms are expected to open December 24, 1996. Most of the
remodeling of the casino level will also be completed by year-
end, though portions of the remodeling related to retail areas,
restaurants, the showroom and the reworking of the attractions
level will continue into next fiscal year. The estimated cost
for this expansion is approximately $280 million and as of
October 31, 1996, $182.1 million had been incurred.
Also in January 1996, the Company commenced construction of
a 1,000-room tower addition at Circus Circus-Las Vegas, which is
scheduled for completion by the end of 1996. This addition will
bring the total number of rooms at Circus Circus-Las Vegas to
approximately 3,800. The estimated cost of the 1,000-room tower
is approximately $75 million and as of October 31, 1996, $65.4
million had been incurred. In addition to the new tower, the
(12) Commitments and contingent liabilities (continued) -
Company is currently refurbishing all of the 1,188 rooms in the
Skyrise Tower. This refurbishment is budgeted at $10 million, of
which approximately $5.3 million had been incurred as of October
31, 1996. The Company plans to remodel the balance of rooms at
this property, in phases, over the coming year.
In Reno, the Company recently completed refurbishing all of
the rooms at Circus Circus at a cost of approximately $17.4
million. Additionally, a new parking garage is under
construction immediately north of the property, between Circus
Circus-Reno and Interstate 80. This project is budgeted at $12
million and a total of $9.4 million had been spent through
October 31, 1996. The garage is scheduled for completion in
December 1996.
In Tunica County, Mississippi, the Company has commenced
construction of a 1,200-room tower addition to its casino which
will include remodeling and rethemeing the property into a more
elegant resort under the name Gold Strike Casino Resort. The
estimated cost of this expansion is $125 million with a
completion date of late 1997.
The Company has funded the above projects from internal cash
flows, project specific financing or its credit facility, and
anticipates that future funding for such projects will be from
these sources, including the $1.5 billion credit facility, of
which approximately $374 million was drawn as of October 31,
1996.
The Company is a defendant in various pending litigation. In
management's opinion, the ultimate outcome of such litigation
will not have a material effect on the results of operations or
the financial position of the Company.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations (Unaudited)
RESULTS OF OPERATIONS
Earnings per Share
For the third quarter ended October 31, 1996, the Company
reported net income of $34.8 million, or $.34 per share, versus
$46.6 million, or $.45 per share, in the prior year. For the
nine months, net income was $85.6 million, or $.83 per share,
against $93.3 million, or $.98 per share a year ago. Results for
the nine months in the current year reflect preopening expenses
of $5.6 million related to the June 21, 1996 opening of Monte
Carlo, a joint venture hotel/casino on the Las Vegas Strip, and
asset write-offs of $48.3 million. Results for the nine months
ended October 31, 1995 include preopening expenses of $6.2
million related to the July 28, 1995 opening of Silver Legacy, a
joint venture hotel/casino in Reno, Nevada, and asset write-offs
of $45.1 million.
The decrease in earnings for the third quarter and nine months
was attributable primarily to construction disruption at Luxor
and Circus Circus-Las Vegas. These lower comparisons were
partially offset by strong results at Monte Carlo, the Company's
50% owned hotel/casino on the Las Vegas Strip.
The asset write-offs of $48.3 million for the nine months ended
October 31, 1996 were necessitated by the construction and
remodeling at Luxor and Circus Circus-Las Vegas, as well as
planned construction and remodeling at the Company's other
properties. These write-offs included the removal of special-
effects films at Luxor, which are being replaced by IMAX special-
format filmed attractions ($12.0 million), structural elements
being demolished as part of Luxor's remodeling ($12.1 million),
the removal of furnishings and fixtures at Excalibur related to a
complete refurbishment of all the property's rooms slated to
begin next year ($10.4 million), the removal of fixtures and
equipment at Circus Circus-Tunica related to the retheming and
expansion of that property ($3.0 million), the removal of
furnishings and fixtures related to the rooms refurbishment at
Circus Circus-Las Vegas ($2.6 million), and the demolition of a
people-mover at Circus Circus-Las Vegas and the removal of the
Nile River at Luxor ($8.2 million). Write-offs in the prior year
totalled $45.1 million, the majority of which related to the
discontinued riverboat project in Chalmette, Louisiana. (See
Financial Position and Capital Resources for additional
discussion of ongoing and planned construction projects.)
<PAGE>
Revenues
Revenues for the Company for the third quarter ended October 31,
1996 decreased $16.2 million, or 5%, compared to the prior year.
The aforementioned construction disruption at Circus Circus-Las
Vegas and Luxor was the principal factor in the decrease for the
quarter, though this was partially offset by the opening of Monte
Carlo.
For the nine month period, revenues for the Company increased
$53.7 million, or 6% versus the prior year. This increase was
due primarily to the acquisition of Gold Strike Resorts on June
1, 1995, as these properties (Gold Strike, Nevada Landing,
Railroad Pass and The Grand Victoria) generated $47.1 million in
additional revenues during the nine months this year compared
against the prior year when they were owned for only five months.
The Company's 50% ownership in The Grand Victoria accounted for
the most significant portion of these increased revenues. (For
accounting purposes, the Company's share of the operating income
of joint ventures is reflected as revenue under earnings of
unconsolidated affiliates.) The acquisition of the Hacienda
Hotel and Casino on September 1, 1995 was also a contributing
factor, as this property produced $38.3 million in revenues for
the nine months this year versus $8.5 million the prior year. In
connection with the Company's planned construction of a new
hotel/casino on the Hacienda site, the Hacienda ceased operations
on December 1, 1996 and will be imploded on December 31, 1996.
The above increases were partially offset by lower results at
Circus Circus-Las Vegas and Luxor, where disruption from ongoing
construction projects significantly impacted results.
In Las Vegas, the Company's major wholly owned properties (Circus
Circus, Luxor and Excalibur) generated lower revenues, down 10%
in the quarter and 5% year-to-date. Results at Circus Circus-Las
Vegas and Luxor reflected substantial decreases in both periods,
as these properties experienced continuing disruption due to the
construction of 1,000 new rooms at Circus Circus and 2,000 new
rooms at Luxor, as well as remodeling projects at both
properties. The expansion at Circus Circus is expected to be
completed by year-end, with the new rooms scheduled to open
December 23, 1996. At Luxor, the majority of the new rooms are
also scheduled to open December 24. Most of the remodeling of
the casino level will also be completed by year-end, though
portions of the remodeling related to retail areas, restaurants,
the showroom and the reworking of the attractions level will
continue into next fiscal year (though the Company does not
expect significant disruption therefrom). It is anticipated that
disruptions from construction will continue in the fourth quarter
until the projects are substantially complete. The results at
Luxor and Circus Circus were partially offset by the performance
of Excalibur, whose revenues climbed 4% in the three months and
6% in the nine months. Additionally, Monte Carlo (a 50% owned
joint venture with Mirage) contributed $9.6 million in revenues
for the quarter and $12.9 million (before preopening expenses)
for the nine months.
In Reno, revenues at Circus Circus-Reno declined $2.1 million, or
7%, and $9.5 million, or 10%, for the three and nine months ended
October 31, 1996. This market has suffered from the absence of a
major bowling tournament this year (men's and women's tournaments
are held two out of every three years). Results at this property
have also been affected by competition from the adjacent Silver
Legacy (50% owned by the Company), which opened July 28, 1995.
The Company's share of the Silver Legacy generated increases in
revenues of $.3 million and $5.6 million (before preopening
expenses) for the quarter and year-to-date periods.
In Laughlin, results in the three and nine month periods at the
Colorado Belle and the Edgewater were essentially flat compared
with the prior year. Nonetheless, the Company believes that this
market may continue to decline, as it has for the past two years,
due to competition from unregulated Native American casinos in
Laughlin's Arizona and California feeder markets, as well as from
new resorts in Las Vegas, including the recently opened Monte
Carlo. At Circus Circus-Tunica, revenues fell 21% in the quarter
and 16% in the nine months, reflecting the presence of three new
competitors in the market compared to the prior year. The
Company has begun construction on a $125 million expansion that
will add 1,200 rooms to this property (there were previously no
rooms at this property) and retheme it into a more elegant resort
under the name Gold Strike Casino Resort.
Operating Income (excluding asset write-offs and preopening
expenses)
Income from operations decreased $17.2 million, or 19%, in the
third quarter and $4.1 million, or 2%, in the nine months
compared to the same periods a year ago. The Company's composite
operating margin was 21.1% and 22.3% for the three and nine
months ended October 31, 1996 versus 25.0% and 23.9% for the
comparable periods in the prior year.
The decrease in operating income and margin for the quarter was
attributable primarily to the construction disruption experienced
at Circus Circus-Las Vegas and Luxor, as well as declines at the
Company's Reno and Tunica properties, for reasons discussed
previously. Additionally, the Company's 50% interest in The
Grand Victoria riverboat casino in Elgin, Illinois experienced a
25% decline in operating income, as it contributed (and will
contribute on an ongoing basis) approximately 20% of its
operating income to public entities in Kane County and the City
of Elgin, in accordance with prior agreements.
The decrease in operating income and margin for the nine months
was similarly due to the reasons discussed previously for the
quarter. However, these declines were partially offset by the
June 1, 1995 acquisition of Gold Strike Resorts, which
contributed $16.3 million in additional operating income during
the nine months ended October 31, 1996 versus the prior year when
it was owned only five months. The Grand Victoria (the 50% owned
riverboat casino in Elgin, Illinois acquired as part of the Gold
Strike transaction) was the principal contributor. Also
positively, Excalibur is on course for a record year, posting a
17% increase in operating income year-to-date.
Interest Expense
Interest expense (excluding joint venture interest expense) was
essentially flat for the three months ended October 31, 1996
versus the prior year, but decreased $2.4 million in the nine
month period. This decrease was due primarily to higher
capitalized interest ($4.0 million and $10.5 million for the
quarter and nine months ended October 31, 1996 versus $2.8
million and $6.1 million in the prior year). Total indebtedness
at October 31, 1996 stood at $980 million compared to $741
million at October 31, 1995.
The Company also recorded interest expense related to joint-
venture projects of $4.8 million and $10.9 million in the three
and nine months ended October 31, 1996 against $2.8 million and
$2.9 million for the comparable periods last year. This
represents the Company's 50% share of Silver Legacy and Monte
Carlo interest expense.
Income Tax
The Company's effective tax rate for the three and nine months
ended October 31, 1996 was 37.5% and 37.9%, compared with 38.9%
and 38.0% for the three and nine months ended October 31, 1995.
These rates reflect the corporate statutory rate of 35% plus the
effect of various nondeductible expenses, including the
amortization of goodwill associated with the Gold Strike
acquisition.
Financial Position and Capital Resources
The Company had cash and cash equivalents of $55.8 million at
October 31, 1996, reflecting levels consistent with normal daily
operating requirements. The Company's pretax cash flow from
operations (before asset write-offs and preopening expenses) was
$96.5 million and $308.4 million for the three and nine months
ended October 31, 1996 versus $113.1 million and $306.4 million
for the same periods last year -- a decrease of 15% and an
increase of 1%, respectively. The decrease in cash flow for the
quarter reflected the construction disruption at Luxor and Circus
Circus-Las Vegas, as previously discussed. In this context,
pretax cash flow from operations is defined as the Company's
income from operations plus noncash operating expenses (primarily
depreciation and amortization).
Capital expenditures for the three and nine months ended October
31, 1996 were $190.4 million and $351.0 million. Of these
amounts, $105.3 million and $177.5 million related to the
construction of the new hotel towers at Luxor, $36.7 million and
$64.1 million related to the construction of the new hotel tower
at Circus Circus-Las Vegas, $4.5 million and $13.2 million
related to the rooms refurbishment at Circus Circus-Reno, and
$4.0 million and $8.8 million related to construction of a new
parking garage at Circus Circus-Reno. Expenditures for the nine
months include the acquisition of additional land near Circus
Circus-Reno at a cost of $5.1 million and $11.0 million spent on
upgrading slot equipment at Excalibur and Circus Circus-Las
Vegas.
Pursuant to its approved share repurchase program, the Company
repurchased 3.7 million shares of its common stock during the
third quarter ended October 31, 1996 at a total cost of $128.9
million. Subsequent to the end of the quarter and prior to
November 30, 1996, the Company has purchased an additional 2.0
million shares at a total cost of $68.8 million. The Company
anticipates continuing to opportunistically repurchase shares as
market conditions warrant.
In January 1996, the Company arranged a $1.5 billion unsecured
credit facility with its bank group (see Note 3 of Notes to
Condensed Consolidated Financial Statements). This facility
replaced facilities with borrowing limits aggregating $895
million. As of October 31, 1996, Circus had no borrowings under
its facility but did have $374.4 million of borrowings under its
corporate debt program, which reduces availability under the
facility.
On February 5, 1996, the Company issued $200 million principal
amount of 6.45% Senior Notes due February 1, 2006. Proceeds from
this offering were used to reduce the Company's then outstanding
bank borrowings.
On November 26, 1996, the Company issued $150 million principal
amount of 6.70% Senior Unsecured Debentures due November 15,
2096, which may be redeemed at the option of the holder in
November 2003. Simultaneously, the Company issued $150 million
principal amount of 7.0% Senior Unsecured Debentures due November
15, 2036, which may be redeemed at the option of the holder in
November 2008. The proceeds from these offerings will be used to
repay amounts due under the Company's corporate debt program.
The Company holds a 50% interest in and manages a joint venture
(with Mirage Resorts, Incorporated) which developed Monte Carlo,
a major destination resort which opened June 21, 1996 on the Las
Vegas Strip. Monte Carlo features over 3,000 rooms and a 90,000-
square-foot casino, with a palatial style reminiscent of the
Belle Epoque, the French Victorian architecture of the late 19th
century. This project had a total cost of approximately $350
million including land and capitalized interest. The Company's
total equity contribution was $85.8 million, all of which had
been funded as of October 31, 1996.
In July 1995, Silver Legacy, a 50/50 joint venture with the
Eldorado Hotel/Casino (a privately held company) opened in
downtown Reno, Nevada. As a condition to the joint venture's
$220 million bank credit agreement (which amended and restated
the joint venture's previous $230 million credit agreement),
Circus entered into a make-well agreement whereby it is obligated
to make additional contributions to the joint venture as may be
necessary to maintain a minimum coverage ratio (as defined). As
of October 31, 1996, the Company had outstanding loans to the
joint venture in the principal amount of $35.1 million.
During 1995, the Company purchased the Hacienda Hotel and Casino
(including 47 acres of land) and 73 acres of undeveloped land
south of the Hacienda. By virtue of these purchases, Circus owns
a contiguous mile of frontage on the Las Vegas Strip. This
includes Excalibur and Luxor and runs from Tropicana Avenue to
Russell Road, encompassing the first two freeway exits on
Interstate 15, the main artery from southern California, and
benefits from the most immediate access to the Strip from
McCarran International Airport. The Company is developing a
masterplan linking as many as five or six destination gaming
resorts on this parcel, including the existing Excalibur and
Luxor, that involves sequential stages of development commencing
this year.
In January 1996, the Company commenced construction on a major
expansion at Luxor that will add approximately 2,000 additional
rooms, situated in two identical 22-story towers designed in a
stepped-pyramid style, located between Luxor and Excalibur. The
expansion will also include additional casino space, retail area,
restaurants, a multipurpose showroom, and a reworking of the
upstairs attractions level. The majority of the rooms are
expected to open December 24, 1996. Most of the remodeling of
the casino level will also be completed by year-end, though
portions of the remodeling related to retail areas, restaurants,
the showroom and the reworking of the attractions level will
continue into next fiscal year. The estimated cost for this
expansion is approximately $280 million and as of October 31,
1996, $182.1 million had been incurred.
The Company has also 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 ceased operations on December 1 and will
be imploded on December 31, 1996. The Company expects to
announce the theme, cost and other elements later this year, and
anticipates this signature resort would open in the second half
of 1998. Included within the 4,000 rooms are plans for a stand-
alone, 400-room Four Seasons Hotel that will connect to the new
megastore, providing Las Vegas visitors with a luxury "five-star"
hospitality experience. This hotel, which will be owned by
Circus and managed by Four Seasons, represents the first step
pursuant to a cooperative effort with Four Seasons Regent Hotels
and Resorts to identify strategic opportunities for development
of hotel and casino properties worldwide.
It is the Company's view that the Las Vegas market can absorb
sizeable new capacity, including that contemplated in its
aforementioned masterplan. The direction of development in Las
Vegas has shifted toward the south end of the Strip, where the
Company can essentially create the gateway to Las Vegas.
Also in January 1996, the Company commenced construction of a
1,000-room tower addition at Circus Circus-Las Vegas which is
scheduled for completion by the end of 1996. This addition will
bring the total number of rooms at Circus Circus-Las Vegas to
approximately 3,800. The estimated cost of the 1,000-room tower
is approximately $75 million and as of October 31, 1996, $65.4
million had been incurred. In addition to the new tower, the
Company is currently refurbishing all of the 1,188 rooms in the
Skyrise Tower. This refurbishment is budgeted at $10 million, of
which approximately $5.3 million had been incurred as of October
31, 1996. The Company plans to refurbish the balance of rooms at
this property, in phases, over the coming year.
In Reno, the Company recently completed refurbishing all of the
rooms at Circus Circus at a cost of approximately $17.4 million.
Additionally, a new parking garage is under construction
immediately north of the property, between Circus Circus-Reno and
Interstate 80. This project is budgeted at $12 million and a
total of $9.4 million had been spent through October 31, 1996.
The garage is scheduled for completion in December 1996.
In Tunica County, Mississippi, the Company has commenced
construction of a 1,200-room tower addition to its casino which
will include remodeling and rethemeing the property into a more
elegant resort under the name Gold Strike Casino Resort. The
estimated cost of this expansion is $125 million with a
completion date of late 1997.
Also in Mississippi, the Company has announced that it plans to
develop a hotel/casino resort on the Mississippi Gulf Coast at
the north end of the Bay of St. Louis, near the DeLisle exit on
Interstate 10. The planned resort will feature 1,500 rooms and
has an estimated cost of $225 million. The Company anticipates
construction to begin after receipt of all customary approvals.
As presently contemplated, Circus will own 90% of the project,
with a partner contributing land (up to 500 acres) in exchange
for the remaining 10%.
In December 1993, Windsor Casino Limited (WCL), a corporation
owned equally by Circus Circus Enterprises, Inc., Caesars World,
Inc. and Hilton Hotels Corporation or their subsidiaries, was
selected to exclusively negotiate an agreement to design, build
and operate a casino complex in Windsor, Ontario, Canada.
Currently, WCL operates an interim casino which opened in May
1994 in Windsor's central business district, immediately across
the Detroit River from Detroit, Michigan. In December 1995, this
interim facility was expanded to include a dockside casino,
bringing the total casino space to approximately 75,000 square
feet. Definitive agreements concerning a permanent facility are
not yet completed, but under arrangements with the applicable
government authorities, construction has begun on this facility,
which will include a 75,000-square-foot casino and 400-room
hotel, as well as a showroom and meeting facilities. The total
cost for this project is estimated at $290 million and it is
expected to be completed by spring 1998. In connection with the
permanent facility, a revolving credit facility was established
in the amount of $90 million Canadian (approximately $66 million
U.S. as of October 31, 1996) and each of WCL's three
shareholders, including Circus, has guaranteed payment of one-
third of any amounts due under the facility. As of October 31,
1996, there was $8 million Canadian of borrowings under the
facility (approximately $2 million U.S. representing Circus' one-
third share).
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". While Mirage will act as
master-developer for the new Marina District, 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 believes that it has ample capital resources, through
its existing bank arrangements and its operating cash flows, to
meet all of its existing cash obligations, opportunistically
repurchase shares and fund its commitments on the projects
enumerated above. The Company believes that additional funds
could be raised through debt or equity markets, if necessary.
Safe Harbor Provision
The Private Securities Litigation Reform Act of 1995 provides a
"safe harbor" for forward-looking statements. Certain
information included in this report contains statements that are
forward-looking, such as statements relating to plans for future
expansion and other business development activities as well as
other capital spending, financing sources and the effects of
regulation (including gaming and tax regulation) and competition.
Such forward-looking information involves important risks and
uncertainties that could significantly affect anticipated results
in the future and, accordingly, such results may differ from
those expressed in any forward-looking statements made by or on
behalf of the Company. These risks and uncertainties include,
but are not limited to, those relating to development and
construction activities, dependence on existing management,
leverage and debt service (including sensitivity to fluctuation
in interest rates), domestic or global economic conditions,
changes in federal or state tax laws or the administration of
such laws, changes in gaming laws or regulations (including the
legalization of gaming in certain jurisdictions) and applications
for licenses and approvals under applicable laws and regulations
(including gaming laws and regulations).
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) The exhibits filed as part of this report are listed on
the Index to Exhibits accompanying this report.
(b) Reports on Form 8-K. No report on Form 8-K was filed
during the period covered by this report.
SIGNATURES
(Form 10-Q for quarterly period ended October 31, 1996)
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
CIRCUS CIRCUS ENTERPRISES, INC.
(Registrant)
Date: December 13, 1996 By CLYDE T. TURNER
Clyde T. Turner
Chairman of the Board and
Chief Executive Officer
Date: December 13, 1996 By GLENN W. SCHAEFFER
Glenn W. Schaeffer
President, Chief Financial
Officer and Treasurer
INDEX TO EXHIBITS
Exhibit
No. Description
4(a). Amendment No. 2 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.
4(b). Amendment No. 3 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.
4(c). Supplemental Indenture, dated as of November 15, 1996,
to an 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 6.70% Senior
Notes due November 15, 2096.
4(d). 6.70% Senior Notes due February 15, 2096 in the
principal amount of $150,000,000.
4(e). Indenture, dated November 15, 1996, by and between the
Company and Wells Fargo Bank (Colorado), N.A., as
Trustee.
4(f). Supplemental Indenture, dated November 15, 1996, to an
indenture dated November 15, 1996, by and between the
Company and Wells Fargo Bank (Colorado), N.A., as
Trustee, with respect to the Company's 7.0% Senior
Notes due November 15, 2036.
4(g). 7.0% Senior Notes due February 15, 2036 in the
principal amount of $150,000,000.
27. Financial Data Schedule for the nine months ended
October 31, 1996 as required under EDGAR.
EXHIBIT 4(a)
AMENDMENT NO. 2 TO LOAN AGREEMENT
This Amendment No. 2 to Loan Agreement (this
"Amendment") dated as of October 31, 1996 is entered into with
reference to the Loan Agreement dated as of January 29, 1996,
among Circus Circus Enterprises, Inc., a Nevada corporation
( Borrower ), the Banks party thereto, The Long-Term Credit
Bank of Japan, Ltd., Los Angeles Agency, First Interstate Bank
of Nevada, N.A. (to which Wells Fargo Bank, N.A. is successor
by merger), Societe Generale, Credit Lyonnais Los Angeles
Branch and Credit Lyonnais Cayman Island Branch, and Canadian
Imperial Bank of Commerce, as Co-Agents, and Bank of America
National Trust and Savings Association, as Issuing Bank and
Administrative Agent (as amended, the Loan Agreement ). The
Loan Agreement referred to above has been amended by an
Amendment No. 1 thereto dated as of April 15, 1996. Terms
defined in the Loan Agreement are used herein with the same
meanings.
Borrower and the Administrative Agent, acting with the
consent of the Requisite Banks in accordance with Section 11.2
of the Loan Agreement, hereby amend the Loan Agreement as
follows:
1. New Venture Capital Expenditures and Investments.
Section 6.15(b) of the Loan Agreement is hereby amended to read
in full as follows:
"(b) Make, or enter any legally binding commitment to
make, any New Venture Capital Expenditure or New Venture
Investment with respect to any single New Venture if the
aggregate New Venture Capital Expenditures and New Venture
Investments which are made, committed to be made, or
reasonably anticipated to be made, with respect to such
new Venture exceed or are reasonably anticipated to exceed
$250,000,000 (or, in the case of the proposed stepped
pyramid style hotel towers to be located between the
existing Luxor and Excalibur hotel casino properties,
$280,000,000) without first obtaining the written consent
of the Requisite Banks; or
2. Conditions Precedent. The effectiveness of this
Amendment shall be conditioned upon the receipt by the
Administrative Agent of the following:
(a) Counterparts of this Amendment executed by
Borrower and the Administrative Agent, acting on behalf of
the Banks;
(b) Written consents of each Significant
Subsidiary, as guarantors under the Subsidiary Guaranty,
to the execution, delivery and performance hereof,
substantially in the form of Exhibit A to this Amendment;
and
(c) Written consents to the execution, delivery
and performance hereof from Banks constituting the
Requisite Banks.
3. Representation and Warranty. Borrower represents and
warrants to the Administrative Agent and the Banks that no
Default or Event of Default has occurred and remains
continuing.
4. Confirmation. In all other respects, the terms of
the Loan Agreement and the other Loan Documents are hereby
confirmed.
IN WITNESS WHEREOF, Borrower and the Administrative
Agent have executed this Amendment as of the date first written
above by their duly authorized representatives.
CIRCUS CIRCUS ENTERPRISES, INC.
By CLYDE TURNER
CLYDE TURNER, CHAIRMAN
[Printed Name and Title]
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By JON VARNELL
JON VARNELL, MANAGING DIRECTOR
[Printed Name and Title]
Exhibit A to Amendment
CONSENT OF SUBSIDIARY GUARANTORS
This Consent, dated as of October 31, 1996, is
delivered with reference to the Loan Agreement dated as of
January 29, 1996 among Circus Circus Enterprises, Inc., the
Banks party thereto, The Long-Term Credit Bank of Japan, Ltd.,
Los Angeles Agency, First Interstate Bank of Nevada, N.A. (to
which Wells Fargo Bank, N.A. is successor by merger), Societe
Generale, Credit Lyonnais Los Angeles Branch and Credit
Lyonnais Cayman Island Branch and Canadian Imperial Bank of
Commerce, as Co-Agents, and Bank of America National Trust and
Savings Association, as Issuing Bank and Administrative Agent
(as so amended pursuant to an Amendment No. 1 on April 15,
1996, the "Loan Agreement"). Capitalized terms used but not
defined herein are used with the meanings set forth for those
terms in the Loan Agreement.
Each of the undersigned hereby consents to the
execution, delivery and performance by Borrower, the Banks and
the Administrative Agent of Amendment No. 2 to the Loan
Agreement dated as of October 31, 1996 and to the transactions
contemplated therein.
Each of the undersigned represents and warrants to
the Administrative Agent and the Banks that there is no
defense, counterclaim or offset of any type or nature to the
Subsidiary Guaranty, and that the same remains in full force
and effect.
CIRCUS CIRCUS CASINOS, INC., a Nevada
corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
SLOTS-A-FUN, INC., a Nevada
corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
EDGEWATER HOTEL CORPORATION, a Nevada
corporation
By CLYDE TURNER
CLYDE TURNER. PRESIDENT
[Printed Name and Title]
COLORADO BELLE CORP., a Nevada
corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
NEW CASTLE CORP., a Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
RAMPARTS, INC., a Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
CIRCUS CIRCUS MISSISSIPPI, INC., a
Mississippi corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
PINKLESS, INC., a Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
NEW WAY, INC., a Nevada corporation
By GLENN SCHAEFFER
GLENN SCHAEFFER. PRESIDENT
[Printed Name and Title]
CIRCUS CIRCUS DEVELOPMENT CORP., a
Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
GALLEON, INC., a Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
M.S.E. INVESTMENTS, INCORPORATED, a
Nevada corporation
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
LAST CHANCE INVESTMENTS, INCORPORATED,
a Nevada corporation
By WILLIAM RICHARDSON
WILLIAM RICHARDSON, PRESIDENT
[Printed Name and Title]
GOLDSTRIKE INVESTMENTS, INCORPORATED,
a Nevada corporation
By DAVID R. BELDING
DAVID R. BELDING, PRESIDENT
[Printed Name and Title]
DIAMOND GOLD, INC., a Nevada
corporation
By PETER SIMON
PETER SIMON, PRESIDENT
[Printed Name and Title]
OASIS DEVELOPMENT COMPANY, INC., a
Nevada corporation
By PETER SIMON
PETER SIMON, PRESIDENT
[Printed Name and Title]
GOLDSTRIKE FINANCE COMPANY, INC., a
Nevada corporation
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
RAILROAD PASS INVESTMENT GROUP, a
Nevada Partnership
By: M.S.E. INVESTMENTS, INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
JEAN DEVELOPMENT COMPANY, a
Nevada partnership
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
JEAN DEVELOPMENT WEST, a Nevada
partnership
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
NEVADA LANDING PARTNERSHIP, an
Illinois partnership
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
GOLD STRIKE L.V., a Nevada partnership
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
JEAN DEVELOPMENT NORTH, a Nevada
partnership
By: M.S.E INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
LAKEVIEW GAMING PARTNERSHIPS JOINT
VENTURE, a Nevada partnership
By: RAILROAD PASS INVESTMENT GROUP
Its: general partner
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
CONSENT OF BANK
This Consent of Bank is delivered with reference to the Loan
Agreement dated as of January 29, 1996, among Circus Circus
Enterprises, Inc., The Long-Term Credit Bank of Japan, Ltd., Los
Angeles Agency, First Interstate Bank of Nevada, N.A. (now known
as Wells Fargo Bank, N.A.), Societe Generale, Credit Lyonnais Los
Angeles Branch and Credit Lyonnais Cayman Island Branch and
Canadian Imperial Bank of Commerce, as Co-Agents, and Bank of
America National Trust and Savings Association, as Issuing Bank
and Administrative Agent.
The Loan Agreement referred to above has been amended by an
Amendment No. 1 thereto dated as of April 15, 1996 and an
Amendment No. 2 thereto dated as of October 31, 1996. References
herein to the Loan Agreement mean the Loan Agreement, as so
amended. Other capitalized terms used but not defined herein are
used with the meanings set forth for those terms in the Loan
Agreement.
The undersigned Bank hereby consents to the execution,
delivery and performance of the proposed Amendment No. 3 to Loan
Agreement by the Administrative Agent on behalf of the Banks,
substantially in the form presented to the undersigned as a
draft.
Bank of America NT&SA
[Typed/Printed Name of Bank]
By: JON VARNELL
JON VARNELL, MANAGING DIRECTOR
[Typed/Printed Name and Title]
Dated October 30 , 1996
EXHIBIT 4(b)
AMENDMENT NO. 3 TO LOAN AGREEMENT
This Amendment No. 3 to Loan Agreement (this
"Amendment") dated as of November 22, 1996 is entered into with
reference to the Loan Agreement dated as of January 29, 1996,
among Circus Circus Enterprises, Inc., a Nevada corporation
( Borrower ), the Banks party thereto, The Long-Term Credit
Bank of Japan, Ltd., Los Angeles Agency, First Interstate Bank
of Nevada, N.A. (to which Wells Fargo Bank, N.A. is successor
by merger), Societe Generale, Credit Lyonnais Los Angeles
Branch and Credit Lyonnais Cayman Island Branch, and Canadian
Imperial Bank of Commerce, as Co-Agents, and Bank of America
National Trust and Savings Association, as Issuing Bank and
Administrative Agent (as amended, the Loan Agreement ). The
Loan Agreement referred to above has been amended by an
Amendment No. 1 thereto dated as of April 15, 1996 and an
Amendment No. 2 thereto dated as of October 31, 1996. Terms
defined in the Loan Agreement are used herein with the same
meanings.
Borrower and the Administrative Agent, acting with
the consent of the Requisite Banks in accordance with Section
11.2 of the Loan Agreement, hereby amend the Loan Agreement as
follows:
1. Indebtedness and Contingent Guaranties. Section 6.10
of the Loan Agreement is hereby amended to read in full as
follows (with the added text underlined and in boldface type
herein for the convenience of the reader):
"6.10 Indebtedness and Contingent Guaranties.
Create, incur, assume or suffer to exist any Indebtedness
or Contingent Guaranty (other than Indebtedness of
Restricted Subsidiaries to Borrower or another Restricted
Subsidiary) if:
(a) a Default or Event of Default then exists
or would result therefrom, or
(b) after giving effect thereto, the aggregate
principal amount (without duplication) of (i) all
Indebtedness (other than the Obligations,
Subordinated Debt and Commercial Paper Debt) of
Borrower and its Restricted Subsidiaries, plus (ii)
the amount of all Contingent Guaranties to the extent
that the same are quantified pursuant to the
definition thereof (excluding Contingent Guaranties
in an amount not to exceed $30,000,000 (Canadian
dollars) in respect of Indebtedness of Windsor Casino
Financial Limited) would exceed $500,000,000."
2. Conditions Precedent. The effectiveness of this
Amendment shall be conditioned upon the receipt by the
Administrative Agent of the following:
(a) Counterparts of this Amendment executed by
Borrower and the Administrative Agent, acting on behalf of
the Banks;
(b) Written consents of each Significant
Subsidiary, as guarantors under the Subsidiary Guaranty,
to the execution, delivery and performance hereof,
substantially in the form of Exhibit A to this Amendment;
and
(c) Written consents to the execution, delivery
and performance hereof from Banks constituting the
Requisite Banks.
3. Representation and Warranty. Borrower represents and
warrants to the Administrative Agent and the Banks that no
Default or Event of Default has occurred and remains
continuing.
4. Confirmation. In all other respects, the terms of
the Loan Agreement and the other Loan Documents are hereby
confirmed.
IN WITNESS WHEREOF, Borrower and the Administrative
Agent have executed this Amendment as of the date first written
above by their duly authorized representatives.
CIRCUS CIRCUS ENTERPRISES, INC.
By CLYDE T. TURNER
CLYDE T. TURNER, CHAIRMAN
[Printed Name and Title]
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By JON VARNELL
JON VARNELL, MANAGING DIRECTOR
[Printed Name and Title]
Exhibit A to Amendment
CONSENT OF SUBSIDIARY GUARANTORS
This Consent, dated as of November 22, 1996, is
delivered with reference to the Loan Agreement dated as of
January 29, 1996 among Circus Circus Enterprises, Inc., the
Banks party thereto, The Long-Term Credit Bank of Japan, Ltd.,
Los Angeles Agency, First Interstate Bank of Nevada, N.A. (to
which Wells Fargo Bank, N.A. is successor by merger), Societe
Generale, Credit Lyonnais Los Angeles Branch and Credit
Lyonnais Cayman Island Branch and Canadian Imperial Bank of
Commerce, as Co-Agents, and Bank of America National Trust and
Savings Association, as Issuing Bank and Administrative Agent
(as so amended pursuant to an Amendment No. 1 on April 15,
1996, and an Amendment No. 2 on October 31, 1996, the "Loan
Agreement"). Capitalized terms used but not defined herein are
used with the meanings set forth for those terms in the Loan
Agreement.
Each of the undersigned hereby consents to the
execution, delivery and performance by Borrower, the Banks and
the Administrative Agent of Amendment No. 3 to the Loan
Agreement dated as of November 22, 1996 and to the transactions
contemplated therein.
Each of the undersigned represents and warrants to
the Administrative Agent and the Banks that there is no
defense, counterclaim or offset of any type or nature to the
Subsidiary Guaranty, and that the same remains in full force
and effect.
CIRCUS CIRCUS CASINOS, INC., a Nevada
corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
SLOTS-A-FUN, INC., a Nevada
corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
EDGEWATER HOTEL CORPORATION, a Nevada
corporation
By CLYDE TURNER
CLYDE TURNER. PRESIDENT
[Printed Name and Title]
COLORADO BELLE CORP., a Nevada
corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
NEW CASTLE CORP., a Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
RAMPARTS, INC., a Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
CIRCUS CIRCUS MISSISSIPPI, INC., a
Mississippi corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
PINKLESS, INC., a Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
NEW WAY, INC., a Nevada corporation
By GLENN SCHAEFFER
GLENN SCHAEFFER. PRESIDENT
[Printed Name and Title]
CIRCUS CIRCUS DEVELOPMENT CORP., a
Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
GALLEON, INC., a Nevada corporation
By CLYDE TURNER
CLYDE TURNER, PRESIDENT
[Printed Name and Title]
M.S.E. INVESTMENTS, INCORPORATED, a
Nevada corporation
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
LAST CHANCE INVESTMENTS, INCORPORATED,
a Nevada corporation
By WILLIAM RICHARDSON
WILLIAM RICHARDSON, PRESIDENT
[Printed Name and Title]
GOLDSTRIKE INVESTMENTS, INCORPORATED,
a Nevada corporation
By DAVID R. BELDING
DAVID R. BELDING, PRESIDENT
[Printed Name and Title]
DIAMOND GOLD, INC., a Nevada
corporation
By PETER SIMON
PETER SIMON, PRESIDENT
[Printed Name and Title]
OASIS DEVELOPMENT COMPANY, INC., a
Nevada corporation
By PETER SIMON
PETER SIMON, PRESIDENT
[Printed Name and Title]
GOLDSTRIKE FINANCE COMPANY, INC., a
Nevada corporation
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
RAILROAD PASS INVESTMENT GROUP, a
Nevada Partnership
By: M.S.E. INVESTMENTS, INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
JEAN DEVELOPMENT COMPANY, a
Nevada partnership
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
JEAN DEVELOPMENT WEST, a Nevada
partnership
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
NEVADA LANDING PARTNERSHIP, an
Illinois partnership
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
GOLD STRIKE L.V., a Nevada partnership
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
JEAN DEVELOPMENT NORTH, a Nevada
partnership
By: M.S.E INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
LAKEVIEW GAMING PARTNERSHIPS JOINT
VENTURE, a Nevada partnership
By: RAILROAD PASS INVESTMENT GROUP
Its: general partner
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By MICHAEL S. ENSIGN
MICHAEL S. ENSIGN, PRESIDENT
[Printed Name and Title]
CONSENT OF BANK
This Consent of Bank is delivered with reference to the Loan
Agreement dated as of January 29, 1996, among Circus Circus
Enterprises, Inc., The Long-Term Credit Bank of Japan, Ltd., Los
Angeles Agency, First Interstate Bank of Nevada, N.A. (now known
as Wells Fargo Bank, N.A.), Societe Generale, Credit Lyonnais Los
Angeles Branch and Credit Lyonnais Cayman Island Branch and
Canadian Imperial Bank of Commerce, as Co-Agents, and Bank of
America National Trust and Savings Association, as Issuing Bank
and Administrative Agent.
The Loan Agreement referred to above has been amended by an
Amendment No. 1 thereto dated as of April 15, 1996 and an
Amendment No. 2 thereto dated as of October 31, 1996. References
herein to the Loan Agreement mean the Loan Agreement, as so
amended. Other capitalized terms used but not defined herein are
used with the meanings set forth for those terms in the Loan
Agreement.
The undersigned Bank hereby consents to the execution,
delivery and performance of the proposed Amendment No. 3 to Loan
Agreement by the Administrative Agent on behalf of the Banks,
substantially in the form presented to the undersigned as a
draft.
Bank of America NT&SA
[Typed/Printed Name of Bank]
By: JON VARNELL
JON VARNELL, MANAGING DIRECTOR
[Typed/Printed Name and Title]
Dated October 30 , 1996
EXHIBIT 4(c)
CIRCUS CIRCUS ENTERPRISES, INC., Issuer
AND
WELLS FARGO BANK (COLORADO), N.A., Trustee
(as successor in interest to First Interstate Bank of Nevada,
N.A.)
$150,000,000
SUPPLEMENTAL INDENTURE
DATED AS OF
NOVEMBER 15, 1996
6.70% NOTES DUE NOVEMBER 15, 2096
This Supplemental Indenture, dated as of November 15,
1996, between Circus Circus Enterprises, Inc., a Nevada
corporation (hereinafter sometimes referred to as the "Company"),
and Wells Fargo Bank (Colorado), N.A. (as successor to First
Interstate Bank of Nevada, N.A.), a corporation organized and
existing as a national banking association under the laws of the
United States, as trustee (hereinafter sometimes referred to as
the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have entered into
an Indenture (the "Indenture") dated as of February 1, 1996
providing for the issuance of debt securities in series; and
WHEREAS, for its lawful corporate purposes, the Company
desires to create and authorize the series of 6.70% Debentures
due November 15, 2096 (hereinafter referred to as the "6.70%
Debentures") in an aggregate principal amount of $150,000,000,
and, to provide the terms and conditions upon which the 6.70%
Debentures are to be executed, registered, authenticated, issued
and delivered, the Company has duly authorized the execution and
delivery of this Supplemental Indenture; and
WHEREAS, the 6.70% Debentures and the certificates of
authentication to be borne by the 6.70% Debentures are to be
substantially in the following forms, respectively:
REGISTERED PRINCIPAL AMOUNT
NO. R-1 $150,000,000
CUSIP NO.
172909 AJ 2
CIRCUS CIRCUS ENTERPRISES, INC.
6.70% DEBENTURE
DUE NOVEMBER 15, 2096
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), 55 WATER
STREET, NEW YORK, NEW YORK TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH DEBENTURE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS DEBENTURE IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR
BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
CIRCUS CIRCUS ENTERPRISES, INC., a Nevada corporation
(the "Company," which term shall include any successor under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the
principal sum of $150,000,000 on November 15, 2096, and to pay
interest thereon at the rate of 6.70% per annum, until the entire
principal amount hereof is paid or duly provided for. This
Debenture is one of a duly authorized series issued by the
Company designated as the "6.70% Debentures due November 15,
2096" (herein called the "Debentures").
1. Interest.
The Company will pay interest semiannually on May 15 and
November 15 of each year ("Interest Payment Date"). Interest on
the Debentures will accrue from the most recent date to which
interest has been paid, unless the date hereof is a date to which
interest has been paid, in which case from the date of the
Debenture, or, if no interest has been paid, from November 15,
1996. Notwithstanding the foregoing, when there is no existing
default in the payment of interest on the Debentures, if the date
hereof is after a Record Date, as that term is defined below, and
before the next succeeding Interest Payment Date, this Debenture
shall bear interest from such Interest Payment Date; provided,
however, that if the Company shall default in the payment of
interest due on such Interest Payment Date, then this Debenture
shall bear interest from the next preceding Interest Payment Date
to which interest has been paid, or, if no interest has been paid
on the Debentures, from November 15, 1996. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Debentures (except
defaulted interest) to the persons who are registered Holders of
Debentures at the close of business on the May 1 or November 1
preceding the May 15 or November 15, as the case may be, on which
the Interest Payment Date occurs ("Record Date"). Holders must
surrender Debentures to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender
for payment of public and private debts. However, the Company
may pay principal and any interest by its check payable in such
money. It may mail an interest check to a holder's registered
address.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its
subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Debentures under an Indenture dated
as of February 1, 1996 and a Supplemental Indenture dated as of
November 15, 1996, each between the Company and the Trustee
(collectively, the "Indenture"). The terms of the Debentures
include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code sec. 77aaa-77bbbb) as in effect on the date of the
Indenture. The Debentures are subject to all such terms and
Holders are referred to the Indenture and such Act for a
statement of them. Terms used herein which are defined in the
Indenture shall have the respective meanings assigned to them in
the Indenture.
5. Redemption at the Option of the Company.
The Debentures will not be redeemable at the option of the
Company prior to their maturity. Notwithstanding the foregoing,
each Holder and beneficial owner of a Debenture by accepting or
otherwise acquiring an interest in the Debenture shall be deemed
to have agreed that if the Gaming Authority of any jurisdiction
in which the Company or any of its subsidiaries conducts or
proposes to conduct gaming requires that a person who is a Holder
or beneficial owner must be licensed, qualified or found suitable
under applicable Gaming Laws, such Holder or beneficial owner
shall apply for a license, qualification or a finding of
suitability within the required time period. If such person
fails to apply or become licensed or qualified or is found
unsuitable, the Company shall have the right, at its option, (i)
to require such person to dispose of its Debentures 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
Debentures 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 under the Indenture in writing of any such redemption
as soon as practicable. The Company shall not be responsible for
any costs or expenses any such Holder or beneficial owner may
incur in connection with its application for a license,
qualification or a finding of suitability.
6. Redemption at the Option of the Holders.
This Debenture will be redeemable on November 15, 2003
(the "Redemption Date"), at the option of the Holders hereof, at
100% of its principal amount, together with interest payable to
the date of redemption. Less than the entire principal amount of
this Debenture may be redeemed on the Redemption Date, provided
the principal amount which is to be redeemed is equal to $1,000
or an integral multiple of $1,000.
The Company must receive at the principal office of
the Paying Agent, during the period from and including the
September 15 to and including the October 15 immediately
preceding the Redemption Date (or, if such October 15 is not a
business day, the next succeeding business day): (i) this
Debenture with the form entitled "Option to Elect Repayment"
attached hereto, duly completed; or (ii)(x) a telegram, telex,
facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc., or a commercial bank or a trust company in the
United States of America, setting forth the name of the
registered Holder of this Debenture, the principal amount of this
Debenture, the amount of this Debenture to be repaid, a statement
that the option to elect repayment is being exercised thereby and
a guarantee that this Debenture to be repaid, with the form
entitled "Option to Elect Repayment" attached hereto, duly
completed, will be received by the Company not later than five
business days after the date of such telegram, telex, facsimile
transmission or letter; and (y) this Debenture and the form duly
completed are received by the Company by such fifth business day.
Any such notice received by the Company during the period from
and including such September 15 to and including such October 15
(or, if such October 15, 2003 is not a business day, the next
succeeding business day) shall be irrevocable. All questions as
to the validity, eligibility (including time of receipt) and the
acceptance of this Debenture for repayment will be determined by
the Company, whose determination will be final and binding.
7. Conditional Right to Shorten Maturity.
Upon the occurrence of a Tax Event (as defined below), the
Company will have the right to shorten the maturity of the
Debentures to the extent required, in the opinion of a nationally
recognized independent tax counsel experienced in such matters,
such that, after the shortening of the maturity, interest paid on
the Debentures will be deductible for Federal income tax
purposes.
In the event that the Company elects to exercise its right
to shorten the maturity of the Debentures on the occurrence of a
Tax Event, the Company will mail a notice of shortened maturity
to each holder of record of the Debentures of this series by
first-class mail not more than 60 days after the occurrence of
such Tax Event, stating the new maturity date of the Debentures.
Such notice shall be effective immediately upon mailing.
"Tax Event" means that the Company shall have received an
opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that on or after
November 26, 1996, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective
change) in laws, or any regulations thereunder, of the United
States, (b) any judicial decision, official administrative
pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to
adopt such procedures or regulation (an "Administrative Action"),
or (c) any amendment to, clarification of, or change in the
official position or the interpretation of such Administrative
Action or judicial decision that differs from the theretofore
generally accepted position, in each case, on or after November
26, 1996, such change in tax law creates more than insubstantial
risk that interest paid by the Company on the Debentures is not,
or will not be, deductible, in whole or in part, by the Company
for purposes of Federal income tax.
8. Denominations, Transfer, Exchange.
The Debentures are in registered form without coupons in
minimum denominations of $1,000 and in integral multiples
thereof. A Holder may transfer or exchange Debentures in
accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
9. Persons Deemed Owners.
The Holder of a Debenture may be treated as the owner of it
for all purposes.
10. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment unless
an abandoned property law designates another person, and all
liability of the Trustee and such Paying Agent with respect to
such money shall cease.
11. Discharge Prior to Maturity.
Subject to certain conditions, if the Company deposits with
the Trustee money or U.S. Government Obligations sufficient to
pay principal of and accrued interest on the Debentures to
maturity, the Company will be discharged (to the extent provided
in the Indenture) from the Indenture and the Debentures.
12. Amendment, Supplement, Waiver.
Subject to certain exceptions requiring the consent of the
Holders of each of the affected Debentures, the Indenture or the
Debentures may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the
Debentures then outstanding affected by such amendment,
supplement or waiver, and any past default or compliance with any
provision as to the Debentures may be waived with the consent of
the Holders of a majority in principal amount of the Debentures
then outstanding. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the
Debentures to, among other things, cure any ambiguity, defect or
inconsistency or to provide that the obligations of the Company
hereunder may be represented solely in the records of the Company
in addition to or in place of the issue of Debentures or to make
any change that does not materially adversely affect the rights
of any Holder.
13. Restrictive Covenants.
The Debentures are general unsecured obligations of the
Company limited to the aggregate principal amount of
$150,000,000. The Indenture does not limit the Company from
incurring unsecured Indebtedness other than the aggregate
principal amount of indebtedness to be issued pursuant to the
Supplemental Indenture. It does limit the ability of the Company
and its subsidiaries to grant certain security interests in their
property without equally and ratably securing the Debentures and
to engage in certain sale and leaseback transactions, subject to
certain important exceptions described therein. Once a year the
Company must report to the Trustee with respect to its compliance
with such limitations.
14. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the Debentures and the Indenture, the
predecessor corporation will be released from those obligations.
15. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on any of the Debentures; default in payment of
principal of any of the Debentures due and payable at maturity or
otherwise; failure by the Company for 30 days after notice to it
to comply with any of its other agreements in the Indenture or in
the Debentures; or the happening of an event of default under
other Indebtedness of the Company entitling the holders thereof
to declare at least $10,000,000 aggregate principal amount
thereof due and payable, unless cured or waived in accordance
with the provisions of the applicable instrument, or discharged
within 30 days after notice to the Company by the Trustee or to
the Company and the Trustee by Holders of not less than 25% in
aggregate principal amount of the Debentures then outstanding or
unless the Company by appropriate proceedings is in good faith
contesting such happening; and certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the
Trustee or the Holders of not less than 25% in principal amount
of the Debentures then outstanding may declare all the Debentures
to be due and payable immediately in accordance with Section 6.02
of the Indenture. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. The Trustee may
require security and indemnity satisfactory to it before it
enforces the Indenture or the Debentures. Subject to certain
limitations, Holders of a majority in principal amount of the
Debentures then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in
payment of principal or interest) if it determines that
withholding notice is in their interests.
16. Trustee Dealings with Company.
Wells Fargo Bank (Colorado), N.A. (successor to First
Interstate Bank of Nevada, N.A.), the Trustee under the
Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its subsidiaries or Affiliates, and may otherwise deal
with the Company or its subsidiaries or Affiliates, as if it were
not Trustee.
17. No Recourse Against Others.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or successor
corporation shall not have any liability for any obligations of
the Company under the Debentures or the Indenture or for any
claim based on, in respect of, or by reason of such obligations
or their creation. Each Holder by accepting a Debenture waives
and releases all such liability. The waiver and release are part
of the consideration for the issue of the Debentures.
18. Authentication.
This Debenture shall not be valid until the Trustee signs
the certificate of authentication at the end of this Debenture.
19. Copies of the Indenture.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made
to:
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Debenture or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties, ) JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Debentures as a
convenience to the Holders of the Debentures. No representation
is made as to the accuracy of such numbers as printed on the
Debentures and reliance may be placed only on the other
identification numbers printed hereon.
[Signature Page To Follow]
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal this 26th
day of November, 1996.
By:
Name:
Title:
By:
Name:
Title:
(SEAL)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debentures of the series designated
"6.70% Debentures due November 15, 2096," pursuant to the
Indenture.
Wells Fargo Bank (Colorado), N. A.
as Trustee
By:
Authorized Signatory
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address
including Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Debenture of __________________________________ and
______________ hereby does irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
Attorney to transfer said Debenture on the books of the within-
named Company with full power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with
the name as it appears on the first page of the within Debenture
in every particular, without alteration or enlargement or any
change whatever.
Signature Guaranteed:
Authorized Signature
Signature guarantee should be
made by a guarantor
institution participating in
the Securities Transfer
Agents Medallion Program or
in such guarantee program
acceptable to the Trustee.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Company to repay the Debenture (or portion hereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest to the repayment date, to
the undersigned, at
(Name, Address and Tax I.D. Number of the undersigned).
For the Debenture to be repaid, the Company must receive
at the office of the Paying Agent, during the period from and
including the September 15 to and including the October 15
immediately preceding the Redemption Date (or, if such October 15
is not a business day, the next succeeding business day): (i) the
Debenture with this "Option to Elect Repayment" form duly completed
or (ii)(x) a telegram, telex, facsimile transmission or letter from
a member of a national securities exchange or the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company in the United States of America, setting forth the
name of the registered holder of the Debenture, the principal
amount of the Debenture, the amount of the Debenture to be repaid,
a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Debenture, with this "Option to
Elect Repayment" form duly completed, will be received by the
Company not later than five business days after the date of such
telegram, telex, facsimile transmission or letter; and (y) the
Debenture and the form duly completed are received by the Company
by such fifth business day.
If less than the entire principal amount of the Debenture
is to be repaid, specify the portion thereof (which shall be $1,000
or an integral multiple of $1,000) which the Holder elects to have
repaid: $_________________. One Debenture will be issued for the
portion not being repaid.
Date Signature
NOTICE: The signature on this Option to Elect Repayment must
correspond with the name as written upon the face of the Debenture
in every particular without alteration or enlargement or any other
change whatsoever.
----------------
AND WHEREAS, all acts and things necessary to make the
6.70% Debentures of this series, when executed by the Company and
authenticated and delivered by or on behalf of the Trustee as in
this Supplemental Indenture provided, the valid, binding and legal
obligations of the Company, and to constitute these presents a
valid indenture and agreement according to its terms, have been
done and performed;
NOW, THEREFORE, in order to declare the terms and
conditions upon which the 6.70% Debentures of this series are
executed, registered, authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of
such 6.70% Debentures by the holders thereof and of the sum of one
dollar to it duly paid by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time
of such 6.70% Debentures, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
(a) Capitalized Terms.
Capitalized terms used herein and not otherwise defined
herein are used with the respective meanings ascribed to such terms
in the Indenture.
(b) Effectiveness.
This Supplemental Indenture shall become effective as of
November 15, 1996, and shall bind the parties hereto, upon its
execution by the parties hereto.
(c) Incorporation of Supplemental Indenture into Indenture.
This Supplemental Indenture is executed by the Company
and the Trustee pursuant to the provisions of Section 9.01 of the
Indenture, and the terms and conditions hereof shall be deemed to
be part of the Indenture for all purposes upon the effectiveness of
this Supplemental Indenture. The Indenture, as amended and
supplemented by this Supplemental Indenture, is in all respects
hereby adopted, ratified and confirmed.
(d) Effect of Headings.
The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
ARTICLE II
CREATION AND AUTHORIZATION OF SERIES
There is hereby created and authorized the series of
6.70% Debentures entitled the "6.70% Debentures due November 15,
2096", which shall be a closed series limited to $150,000,000
aggregate principal amount (except for 6.70% Debentures
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other 6.70% Debentures of this series
pursuant to Sections 3.06, 3.07, 3.09 or 11.06).
ARTICLE III
SPECIAL PROVISIONS APPLICABLE TO THIS SERIES
(a) Two officers signing the 6.70% Debentures for the
Company may do so by facsimile signature. The Company's seal may
be manually applied to the 6.70% Debentures.
(b) The Supplemental Indenture and each 6.70% Debenture
of this series shall be governed by and construed in accordance
with the laws of the State of Nevada, except as otherwise required
by mandatory provisions of law.
(c) The 6.70% Debentures shall be issuable only in
registered form without coupons and only in minimum denominations
of $1,000 and in integral multiples of $1,000.
(d) The 6.70% Debentures will be redeemable on
November 15, 2003 at the option of the Holders thereof, at 100% of
their principal amount, together with interest payable to the date
of redemption.
(e) Upon the occurrence of a Tax Event, the Company will
have the right to shorten the maturity of the 6.70% Debentures, to
the extent required, in the opinion of a nationally recognized
independent tax counsel experienced in such matters, such that,
after the shortening of the maturity, interest paid on the
Debentures will be deductible for Federal income tax purposes.
[Signature Page To Follow]
IN WITNESS WHEREOF, the Company and the Trustee have
caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first above
written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
BY: GLENN W. SCHAEFFER
Name: Glenn W. Schaeffer
Title: President, Chief Financial
Officer and Treasurer
WELLS FARGO BANK (COLORADO), N.A.
BY: RICHARD SULLIVAN
Name: Richard Sullivan
Title: Vice President/Assistant Cashier
BY: KENT EICHSTADT
Name: Kent Eichstadt
Title: Assistant Vice President
EXHIBIT 4(d)
REGISTERED PRINCIPAL AMOUNT
NO. R-1 $150,000,000
CUSIP NO.
172909 AJ 2
CIRCUS CIRCUS ENTERPRISES, INC.
6.70% DEBENTURE
DUE NOVEMBER 15, 2096
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), 55 WATER
STREET, NEW YORK, NEW YORK TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH DEBENTURE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS DEBENTURE IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR
BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
CIRCUS CIRCUS ENTERPRISES, INC., a Nevada corporation
(the "Company," which term shall include any successor under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the
principal sum of $150,000,000 on November 15, 2096, and to pay
interest thereon at the rate of 6.70% per annum, until the entire
principal amount hereof is paid or duly provided for. This
Debenture is one of a duly authorized series issued by the
Company designated as the "6.70% Debentures due November 15,
2096" (herein called the "Debentures").
1. Interest.
The Company will pay interest semiannually on May 15 and
November 15 of each year ("Interest Payment Date"). Interest on
the Debentures will accrue from the most recent date to which
interest has been paid, unless the date hereof is a date to which
interest has been paid, in which case from the date of the
Debenture, or, if no interest has been paid, from November 15,
1996. Notwithstanding the foregoing, when there is no existing
default in the payment of interest on the Debentures, if the date
hereof is after a Record Date, as that term is defined below, and
before the next succeeding Interest Payment Date, this Debenture
shall bear interest from such Interest Payment Date; provided,
however, that if the Company shall default in the payment of
interest due on such Interest Payment Date, then this Debenture
shall bear interest from the next preceding Interest Payment Date
to which interest has been paid, or, if no interest has been paid
on the Debentures, from November 15, 1996. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Debentures (except
defaulted interest) to the persons who are registered Holders of
Debentures at the close of business on the May 1 or November 1
preceding the May 15 or November 15, as the case may be, on which
the Interest Payment Date occurs ("Record Date"). Holders must
surrender Debentures to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender
for payment of public and private debts. However, the Company
may pay principal and any interest by its check payable in such
money. It may mail an interest check to a holder's registered
address.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its
subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Debentures under an Indenture dated
as of February 1, 1996 and a Supplemental Indenture dated as of
November 15, 1996, each between the Company and the Trustee
(collectively, the "Indenture"). The terms of the Debentures
include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code sec. 77aaa-77bbbb) as in effect on the date of the
Indenture. The Debentures are subject to all such terms and
Holders are referred to the Indenture and such Act for a
statement of them. Terms used herein which are defined in the
Indenture shall have the respective meanings assigned to them in
the Indenture.
5. Redemption at the Option of the Company.
The Debentures will not be redeemable at the option of the
Company prior to their maturity. Notwithstanding the foregoing,
each Holder and beneficial owner of a Debenture by accepting or
otherwise acquiring an interest in the Debenture shall be deemed
to have agreed that if the Gaming Authority of any jurisdiction
in which the Company or any of its subsidiaries conducts or
proposes to conduct gaming requires that a person who is a Holder
or beneficial owner must be licensed, qualified or found suitable
under applicable Gaming Laws, such Holder or beneficial owner
shall apply for a license, qualification or a finding of
suitability within the required time period. If such person
fails to apply or become licensed or qualified or is found
unsuitable, the Company shall have the right, at its option, (i)
to require such person to dispose of its Debentures 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
Debentures 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 under the Indenture in writing of any such redemption
as soon as practicable. The Company shall not be responsible for
any costs or expenses any such Holder or beneficial owner may
incur in connection with its application for a license,
qualification or a finding of suitability.
6. Redemption at the Option of the Holders.
This Debenture will be redeemable on November 15, 2003
(the "Redemption Date"), at the option of the Holders hereof, at
100% of its principal amount, together with interest payable to
the date of redemption. Less than the entire principal amount of
this Debenture may be redeemed on the Redemption Date, provided
the principal amount which is to be redeemed is equal to $1,000
or an integral multiple of $1,000.
The Company must receive at the principal office of
the Paying Agent, during the period from and including the
September 15 to and including the October 15 immediately
preceding the Redemption Date (or, if such October 15 is not a
business day, the next succeeding business day): (i) this
Debenture with the form entitled "Option to Elect Repayment"
attached hereto, duly completed; or (ii)(x) a telegram, telex,
facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc., or a commercial bank or a trust company in the
United States of America, setting forth the name of the
registered Holder of this Debenture, the principal amount of this
Debenture, the amount of this Debenture to be repaid, a statement
that the option to elect repayment is being exercised thereby and
a guarantee that this Debenture to be repaid, with the form
entitled "Option to Elect Repayment" attached hereto, duly
completed, will be received by the Company not later than five
business days after the date of such telegram, telex, facsimile
transmission or letter; and (y) this Debenture and the form duly
completed are received by the Company by such fifth business day.
Any such notice received by the Company during the period from
and including such September 15 to and including such October 15
(or, if such October 15, 2003 is not a business day, the next
succeeding business day) shall be irrevocable. All questions as
to the validity, eligibility (including time of receipt) and the
acceptance of this Debenture for repayment will be determined by
the Company, whose determination will be final and binding.
7. Conditional Right to Shorten Maturity.
Upon the occurrence of a Tax Event (as defined below), the
Company will have the right to shorten the maturity of the
Debentures to the extent required, in the opinion of a nationally
recognized independent tax counsel experienced in such matters,
such that, after the shortening of the maturity, interest paid on
the Debentures will be deductible for Federal income tax
purposes.
In the event that the Company elects to exercise its right
to shorten the maturity of the Debentures on the occurrence of a
Tax Event, the Company will mail a notice of shortened maturity
to each holder of record of the Debentures of this series by
first-class mail not more than 60 days after the occurrence of
such Tax Event, stating the new maturity date of the Debentures.
Such notice shall be effective immediately upon mailing.
"Tax Event" means that the Company shall have received an
opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that on or after
November 26, 1996, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective
change) in laws, or any regulations thereunder, of the United
States, (b) any judicial decision, official administrative
pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to
adopt such procedures or regulation (an "Administrative Action"),
or (c) any amendment to, clarification of, or change in the
official position or the interpretation of such Administrative
Action or judicial decision that differs from the theretofore
generally accepted position, in each case, on or after November
26, 1996, such change in tax law creates more than insubstantial
risk that interest paid by the Company on the Debentures is not,
or will not be, deductible, in whole or in part, by the Company
for purposes of Federal income tax.
8. Denominations, Transfer, Exchange.
The Debentures are in registered form without coupons in
minimum denominations of $1,000 and in integral multiples
thereof. A Holder may transfer or exchange Debentures in
accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
9. Persons Deemed Owners.
The Holder of a Debenture may be treated as the owner of it
for all purposes.
10. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment unless
an abandoned property law designates another person, and all
liability of the Trustee and such Paying Agent with respect to
such money shall cease.
11. Discharge Prior to Maturity.
Subject to certain conditions, if the Company deposits with
the Trustee money or U.S. Government Obligations sufficient to
pay principal of and accrued interest on the Debentures to
maturity, the Company will be discharged (to the extent provided
in the Indenture) from the Indenture and the Debentures.
12. Amendment, Supplement, Waiver.
Subject to certain exceptions requiring the consent of the
Holders of each of the affected Debentures, the Indenture or the
Debentures may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the
Debentures then outstanding affected by such amendment,
supplement or waiver, and any past default or compliance with any
provision as to the Debentures may be waived with the consent of
the Holders of a majority in principal amount of the Debentures
then outstanding. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the
Debentures to, among other things, cure any ambiguity, defect or
inconsistency or to provide that the obligations of the Company
hereunder may be represented solely in the records of the Company
in addition to or in place of the issue of Debentures or to make
any change that does not materially adversely affect the rights
of any Holder.
13. Restrictive Covenants.
The Debentures are general unsecured obligations of the
Company limited to the aggregate principal amount of
$150,000,000. The Indenture does not limit the Company from
incurring unsecured Indebtedness other than the aggregate
principal amount of indebtedness to be issued pursuant to the
Supplemental Indenture. It does limit the ability of the Company
and its subsidiaries to grant certain security interests in their
property without equally and ratably securing the Debentures and
to engage in certain sale and leaseback transactions, subject to
certain important exceptions described therein. Once a year the
Company must report to the Trustee with respect to its compliance
with such limitations.
14. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the Debentures and the Indenture, the
predecessor corporation will be released from those obligations.
15. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on any of the Debentures; default in payment of
principal of any of the Debentures due and payable at maturity or
otherwise; failure by the Company for 30 days after notice to it
to comply with any of its other agreements in the Indenture or in
the Debentures; or the happening of an event of default under
other Indebtedness of the Company entitling the holders thereof
to declare at least $10,000,000 aggregate principal amount
thereof due and payable, unless cured or waived in accordance
with the provisions of the applicable instrument, or discharged
within 30 days after notice to the Company by the Trustee or to
the Company and the Trustee by Holders of not less than 25% in
aggregate principal amount of the Debentures then outstanding or
unless the Company by appropriate proceedings is in good faith
contesting such happening; and certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the
Trustee or the Holders of not less than 25% in principal amount
of the Debentures then outstanding may declare all the Debentures
to be due and payable immediately in accordance with Section 6.02
of the Indenture. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. The Trustee may
require security and indemnity satisfactory to it before it
enforces the Indenture or the Debentures. Subject to certain
limitations, Holders of a majority in principal amount of the
Debentures then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in
payment of principal or interest) if it determines that
withholding notice is in their interests.
16. Trustee Dealings with Company.
Wells Fargo Bank (Colorado), N.A. (successor to First
Interstate Bank of Nevada, N.A.), the Trustee under the
Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its subsidiaries or Affiliates, and may otherwise deal
with the Company or its subsidiaries or Affiliates, as if it were
not Trustee.
17. No Recourse Against Others.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or successor
corporation shall not have any liability for any obligations of
the Company under the Debentures or the Indenture or for any
claim based on, in respect of, or by reason of such obligations
or their creation. Each Holder by accepting a Debenture waives
and releases all such liability. The waiver and release are part
of the consideration for the issue of the Debentures.
18. Authentication.
This Debenture shall not be valid until the Trustee signs
the certificate of authentication at the end of this Debenture.
19. Copies of the Indenture.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made
to:
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Debenture or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties, ) JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Debentures as a
convenience to the Holders of the Debentures. No representation
is made as to the accuracy of such numbers as printed on the
Debentures and reliance may be placed only on the other
identification numbers printed hereon.
[Signature Page To Follow]
<PAGE>
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal this 26th
day of November, 1996.
By: Clyde T. Turner
Name: Clyde T. Turner
Title: Chairman of the Board and
Chief Executive Officer
By: Glenn W. Schaeffer
Name: Glenn W. Schaeffer
Title: President, Chief Financial
Officer and Treasurer
(SEAL)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debentures of the series designated
"6.70% Debentures due November 15, 2096," pursuant to the
Indenture.
Wells Fargo Bank (Colorado), N. A.
as Trustee
By: Jennifer Owens
Authorized Signatory
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address
including Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
the within Debenture of __________________________________ and
______________ hereby does irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorney to transfer said Debenture on the books of the within-
named Company with full power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with
the name as it appears on the first page of the within Debenture
in every particular, without alteration or enlargement or any
change whatever.
Signature Guaranteed:
Authorized Signature
Signature guarantee should be
made by a guarantor institution
participating in the Securities
Transfer Agents Medallion
Program or in such guarantee
program acceptable to the
Trustee.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Company to repay the Debenture (or portion hereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest to the repayment date, to
the undersigned, at
(Name, Address and Tax I.D. Number of the undersigned).
For the Debenture to be repaid, the Company must receive
at the office of the Paying Agent, during the period from and
including the September 15 to and including the October 15
immediately preceding the Redemption Date (or, if such October 15
is not a business day, the next succeeding business day): (i) the
Debenture with this "Option to Elect Repayment" form duly completed
or (ii)(x) a telegram, telex, facsimile transmission or letter from
a member of a national securities exchange or the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company in the United States of America, setting forth the
name of the registered holder of the Debenture, the principal
amount of the Debenture, the amount of the Debenture to be repaid,
a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Debenture, with this "Option to
Elect Repayment" form duly completed, will be received by the
Company not later than five business days after the date of such
telegram, telex, facsimile transmission or letter; and (y) the
Debenture and the form duly completed are received by the Company
by such fifth business day.
If less than the entire principal amount of the Debenture
is to be repaid, specify the portion thereof (which shall be $1,000
or an integral multiple of $1,000) which the Holder elects to have
repaid: $_________________. One Debenture will be issued for the
portion not being repaid.
Date Signature
NOTICE: The signature on this Option to Elect Repayment must
correspond with the name as written upon the face of the Debenture
in every particular without alteration or enlargement or any other
change whatsoever.
EXHIBIT 4(e)
CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
And
WELLS FARGO BANK (COLORADO), N.A.,
Trustee
Indenture
Dated as of November 15, 1996
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.
TABLE OF CONTENTS
Page
Article One - Definitions And Incorporation By Reference . . . . . . . . 1
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 . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.01. Forms Generally . . . . . . . . . . . . . . . . . 7
Section 2.02. Form Of Trustee's Certificate Of
Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Article Three - The Securities . . . . . . . . . . . . . . . . . . . . . 8
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. . . . . . . . . . . . . . . 12
Section 3.06. Transfer And Exchange . . . . . . . . . . . . . . 12
Section 3.07. Replacement Securities. . . . . . . . . . . . . . 12
Section 3.08. Outstanding Securities. . . . . . . . . . . . . . 13
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. . . . . . . . . . . . . . . . . . 14
Article Four - Covenants . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.01. Payment Of Securities . . . . . . . . . . . . . . 14
Section 4.02. Corporate Existence . . . . . . . . . . . . . . . 15
Section 4.03. Payment Of Taxes And Other Claims . . . . . . . . 15
Section 4.04. Maintenance Of Properties . . . . . . . . . . . . 15
Section 4.05. Maintenance Of Office Or Agency . . . . . . . . . 16
Section 4.06. Compliance Certificate. . . . . . . . . . . . . . 16
Section 4.07. Reports . . . . . . . . . . . . . . . . . . . . . 16
Section 4.08. Waiver Of Stay; Extension Of Usury Laws . . . . . 17
Section 4.09. Limitation On Liens . . . . . . . . . . . . . . . 17
Section 4.10. Limitation On Sale And Lease-back
Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.11. Defeasance Of Certain Obligations . . . . . . . . 19
Article Five - Successor Corporation . . . . . . . . . . . . . . . . . . 21
Article Six - Defaults And Remedies. . . . . . . . . . . . . . . . . . . 21
Section 6.01. Events Of Default . . . . . . . . . . . . . . . . 21
Section 6.02. Acceleration. . . . . . . . . . . . . . . . . . . 23
Section 6.03. Other Remedies. . . . . . . . . . . . . . . . . . 24
Section 6.04. Waiver Of Past Defaults . . . . . . . . . . . . . 24
Section 6.05. Control By Majority . . . . . . . . . . . . . . . 24
Section 6.06. Limitation On Suits . . . . . . . . . . . . . . . 24
Section 6.07. Rights Of Holders To Receive Payment. . . . . . . 25
Section 6.08. Collection Suit By Trustee. . . . . . . . . . . . 25
Section 6.09. Trustee May File Proofs Of Claim. . . . . . . . . 25
Section 6.10. Priorities. . . . . . . . . . . . . . . . . . . . 25
Section 6.11. Undertaking For Costs . . . . . . . . . . . . . . 26
Article Seven - Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.01. Duties Of Trustee . . . . . . . . . . . . . . . . 26
Section 7.02. Rights Of Trustee . . . . . . . . . . . . . . . . 27
Section 7.03. Individual Rights Of Trustee. . . . . . . . . . . 28
Section 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . 28
Section 7.05. Notice Of Defaults. . . . . . . . . . . . . . . . 28
Section 7.06. Reports By Trustee. . . . . . . . . . . . . . . . 28
Section 7.07. Compensation And Indemnity. . . . . . . . . . . . 28
Section 7.08. Replacement Of Trustee. . . . . . . . . . . . . . 29
Section 7.09. Successor Trustee By Merger, Etc. . . . . . . . . 30
Section 7.10. Eligibility; Disqualification . . . . . . . . . . 30
Section 7.11. Preferential Collection Of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.12. Authenticating Agent. . . . . . . . . . . . . . . 31
Article Eight - Discharge Of Indenture . . . . . . . . . . . . . . . . . 33
Section 8.01. Termination Of Company's Obligations. . . . . . . 33
Section 8.02. Application Of Trust Money. . . . . . . . . . . . 34
Section 8.03. Repayment To The Company. . . . . . . . . . . . . 34
Section 8.04. Reinstatement . . . . . . . . . . . . . . . . . . 35
Article Nine - Amendments, Supplements And Waivers . . . . . . . . . . . 35
Section 9.01. Without Consent Of Holders. . . . . . . . . . . . 35
Section 9.02. With Consent Of Holders . . . . . . . . . . . . . 36
Section 9.03. Compliance With Trust Indenture Act . . . . . . . 37
Section 9.04. Revocation And Effect Of Consents . . . . . . . . 37
Section 9.05. Notation On Or Exchange Of Securities . . . . . . 37
Section 9.06. Trustee To Sign Amendments, Etc.. . . . . . . . . 38
Article Ten - Meetings Of Securityholders. . . . . . . . . . . . . . . . 38
Section 10.01. Purposes For Which Meetings May Be Called . . . . 38
Section 10.02. Manner Of Calling Meetings. . . . . . . . . . . . 38
Section 10.03. Call Of Meetings By Company Or Holders. . . . . . 39
Section 10.04. Who May Attend Vote At Meetings . . . . . . . . . 39
Section 10.05. Regulations May Be Made By Trustee; Conduct
Of The
Meeting; Voting Rights; Adjournment . . . . . . . . . 40
Section 10.06. Voting At The Meeting And Record To Be Kept . . . 40
Section 10.07. Exercise Of Rights Of Trustee Or
Securityholders
May Not Be Hindered Or Delayed By Call Of
Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Article Eleven - Redemption. . . . . . . . . . . . . . . . . . . . . . . 41
Section 11.01. Notices To Trustee . . . . . . . . . . . . . . . . 41
Section 11.02. Selection Of Securities To Be Redeemed . . . . . . 41
Section 11.03. Notice Of Redemption . . . . . . . . . . . . . . . 42
Section 11.04. Effect Of Notice Of Redemption . . . . . . . . . . 43
Section 11.05. Deposit Of Redemption Price. . . . . . . . . . . . 43
Section 11.06. Securities Redeemed In Part. . . . . . . . . . . . 43
Article Twelve - Miscellaneous . . . . . . . . . . . . . . . . . . . . . 43
Section 12.01. Trust Indenture Act Controls. . . . . . . . . . . 43
Section 12.02. Notices . . . . . . . . . . . . . . . . . . . . . 44
Section 12.03. Communication By Holders With Other Holders . . . 44
Section 12.04. Certificates And Opinion As To Conditions
Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 12.05. Statements Required In Certificate Or
Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 12.06. When Treasury Securities Disregarded. . . . . . . 45
Section 12.07. Rules By Paying Agent, Registrar. . . . . . . . . 45
Section 12.08. Legal Holidays. . . . . . . . . . . . . . . . . . 45
Section 12.09. Governing Law . . . . . . . . . . . . . . . . . . 46
Section 12.10. No Adverse Interpretation Of Other
Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 12.11. No Recourse Against Others. . . . . . . . . . . . 46
Section 12.12. Successors. . . . . . . . . . . . . . . . . . . . 46
Section 12.13. Duplicate Originals . . . . . . . . . . . . . . . 46
Section 12.14. Severability. . . . . . . . . . . . . . . . . . . 46
Section 12.15. Effect Of Headings, Table Of Contents, Etc. . . . 46
INDENTURE, dated as of November 15, 1996 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.
"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
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 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 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.
"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.
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
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) 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 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.
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 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.
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 and beneficial owner, by accepting or otherwise
acquiring an interest in 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 or
beneficial owner must be licensed, qualified or found suitable
under the applicable Gaming Laws, such Holder or beneficial owner
shall apply for a license, qualification or a finding of
suitability within the required time period. If such person
fails to apply or become licensed or qualified or is found
unsuitable, 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 or beneficial owner may incur in
connection with its application for a license, qualification or a
finding of suitability.
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.
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 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 of such
outstanding Securities 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;
(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 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:
(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 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
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 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 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 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 such 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.
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.
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.
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).
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.
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.
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
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:
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) such 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;
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.
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;
(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 such 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. 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
(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 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 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 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 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 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 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.
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 17th Street
Denver, Colorado 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;
(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.
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.
This Indenture has been delivered and adopted by the parties
hereto in the State of Nevada.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the Company and the Trustee have caused
their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first above
written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
BY: Glenn W. Schaeffer
Name: Glenn W. Schaeffer
Title: President, Chief Financial
Officer and Treasurer
WELLS FARGO BANK (COLORADO), N.A.,
as Trustee
BY: Richard T. Sullivan
Name: Richard T. Sullivan
Title: Vice President
BY: Kent E. Eichstadt
Name: Kent E. Eichstadt
Title: Assistant Vice President
EXHIBIT 4(f)
CIRCUS CIRCUS ENTERPRISES, INC., Issuer
AND
WELLS FARGO BANK (COLORADO), N.A., Trustee
$150,000,000
SUPPLEMENTAL INDENTURE
DATED AS OF
NOVEMBER 15, 1996
7.0% NOTES DUE NOVEMBER 15, 2036
This Supplemental Indenture, dated as of November 15,
1996, between Circus Circus Enterprises, Inc., a Nevada
corporation (hereinafter sometimes referred to as the "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 (hereinafter sometimes referred to
as the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have entered into
an Indenture (the "Indenture") dated as of November 15, 1996
providing for the issuance of debt securities in series; and
WHEREAS, for its lawful corporate purposes, the Company
desires to create and authorize the series of 7.0% Debentures due
November 15, 2036 (hereinafter referred to as the "7.0%
Debentures") in an aggregate principal amount of $150,000,000,
and, to provide the terms and conditions upon which the 7.0%
Debentures are to be executed, registered, authenticated, issued
and delivered, the Company has duly authorized the execution and
delivery of this Supplemental Indenture; and
WHEREAS, the 7.0% Debentures and the certificates of
authentication to be borne by the 7.0% Debentures are to be
substantially in the following forms, respectively:
<PAGE>
REGISTERED PRINCIPAL AMOUNT
NO. R-1 $150,000,000
CUSIP NO.
172909 AH 6
CIRCUS CIRCUS ENTERPRISES, INC.
7.0% DEBENTURE
DUE NOVEMBER 15, 2036
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), 55 WATER
STREET, NEW YORK, NEW YORK TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH DEBENTURE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS DEBENTURE IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR
BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
CIRCUS CIRCUS ENTERPRISES, INC., a Nevada corporation
(the "Company," which term shall include any successor under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the
principal sum of $150,000,000 on November 15, 2036, and to pay
interest thereon at the rate of 7.0% per annum, until the entire
principal amount hereof is paid or duly provided for. This
Debenture is one of a duly authorized series issued by the
Company designated as the "7.0% Debentures due November 15, 2036"
(herein called the "Debentures").
1. Interest.
The Company will pay interest semiannually on May 15 and
November 15 of each year ("Interest Payment Date"). Interest on
the Debentures will accrue from the most recent date to which
interest has been paid, unless the date hereof is a date to which
interest has been paid, in which case from the date of the
Debenture, or, if no interest has been paid, from November 15,
1996. Notwithstanding the foregoing, when there is no existing
default in the payment of interest on the Debentures, if the date
hereof is after a Record Date, as that term is defined below, and
before the next succeeding Interest Payment Date, this Debenture
shall bear interest from such Interest Payment Date; provided,
however, that if the Company shall default in the payment of
interest due on such Interest Payment Date, then this Debenture
shall bear interest from the next preceding Interest Payment Date
to which interest has been paid, or, if no interest has been paid
on the Debentures, from November 15, 1996. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Debentures (except
defaulted interest) to the persons who are registered Holders of
Debentures at the close of business on the May 1 or November 1
preceding the May 15 or November 15, as the case may be, on which
the Interest Payment Date occurs ("Record Date"). Holders must
surrender Debentures to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender
for payment of public and private debts. However, the Company
may pay principal and any interest by its check payable in such
money. It may mail an interest check to a holder's registered
address.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its
subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Debentures under an Indenture dated
as of November 15, 1996 and a Supplemental Indenture dated as of
November 15, 1996, each between the Company and the Trustee
(collectively, the "Indenture"). The terms of the Debentures
include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code sec. 77aaa-77bbbb) as in effect on the date of the
Indenture. The Debentures are subject to all such terms and
Holders are referred to the Indenture and such Act for a
statement of them. Terms used herein which are defined in the
Indenture shall have the respective meanings assigned to them in
the Indenture.
5. Redemption at the Option of the Company.
The Debentures will not be redeemable at the option of the
Company prior to their maturity. Notwithstanding the foregoing,
each Holder and beneficial owner of a Debenture by accepting or
otherwise acquiring an interest in the Debenture shall be deemed
to have agreed that if the Gaming Authority of any jurisdiction
in which the Company or any of its subsidiaries conducts or
proposes to conduct gaming requires that a person who is a Holder
or beneficial owner must be licensed, qualified or found suitable
under applicable Gaming Laws, such Holder or beneficial owner
shall apply for a license, qualification or a finding of
suitability within the required time period. If such person
fails to apply or become licensed or qualified or is found
unsuitable, the Company shall have the right, at its option, (i)
to require such person to dispose of its Debentures 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
Debentures 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 under the Indenture in writing of any such redemption
as soon as practicable. The Company shall not be responsible for
any costs or expenses any such Holder or beneficial owner may
incur in connection with its application for a license,
qualification or a finding of suitability.
6. Redemption at the Option of the Holders.
This Debenture will be redeemable on November 15, 2008
(the "Redemption Date"), at the option of the Holders hereof, at
100% of its principal amount, together with interest payable to
the date of redemption. Less than the entire principal amount of
this Debenture may be redeemed on the Redemption Date, provided
the principal amount which is to be redeemed is equal to $1,000
or an integral multiple of $1,000.
The Company must receive at the principal office of
the Paying Agent, during the period from and including the
September 15 to and including the October 15 immediately
preceding the Redemption Date (or, if such October 15 is not a
business day, the next succeeding business day): (i) this
Debenture with the form entitled "Option to Elect Repayment"
attached hereto, duly completed; or (ii)(x) a telegram, telex,
facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc., or a commercial bank or a trust company in the
United States of America, setting forth the name of the
registered Holder of this Debenture, the principal amount of this
Debenture, the amount of this Debenture to be repaid, a statement
that the option to elect repayment is being exercised thereby and
a guarantee that this Debenture to be repaid, with the form
entitled "Option to Elect Repayment" attached hereto, duly
completed, will be received by the Company not later than five
business days after the date of such telegram, telex, facsimile
transmission or letter; and (y) this Debenture and the form duly
completed are received by the Company by such fifth business day.
Any such notice received by the Company during the period from
and including such September 15 to and including such October 15
(or, if such October 15, 2008 is not a business day, the next
succeeding business day) shall be irrevocable. All questions as
to the validity, eligibility (including time of receipt) and the
acceptance of this Debenture for repayment will be determined by
the Company, whose determination will be final and binding.
7. Denominations, Transfer, Exchange.
The Debentures are in registered form without coupons in
minimum denominations of $1,000 and in integral multiples
thereof. A Holder may transfer or exchange Debentures in
accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
The Holder of a Debenture may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment unless
an abandoned property law designates another person, and all
liability of the Trustee and such Paying Agent with respect to
such money shall cease.
10. Discharge Prior to Maturity.
Subject to certain conditions, if the Company deposits with
the Trustee money or U.S. Government Obligations sufficient to
pay principal of and accrued interest on the Debentures to
maturity, the Company will be discharged (to the extent provided
in the Indenture) from the Indenture and the Debentures.
11. Amendment, Supplement, Waiver.
Subject to certain exceptions requiring the consent of the
Holders of each of the affected Debentures, the Indenture or the
Debentures may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the
Debentures then outstanding affected by such amendment,
supplement or waiver, and any past default or compliance with any
provision as to the Debentures may be waived with the consent of
the Holders of a majority in principal amount of the Debentures
then outstanding. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the
Debentures to, among other things, cure any ambiguity, defect or
inconsistency or to provide that the obligations of the Company
hereunder may be represented solely in the records of the Company
in addition to or in place of the issue of Debentures or to make
any change that does not materially adversely affect the rights
of any Holder.
12. Restrictive Covenants.
The Debentures are general unsecured obligations of the
Company limited to the aggregate principal amount of
$150,000,000. The Indenture does not limit the Company from
incurring unsecured Indebtedness other than the aggregate
principal amount of indebtedness to be issued pursuant to the
Supplemental Indenture. It does limit the ability of the Company
and its subsidiaries to grant certain security interests in their
property without equally and ratably securing the Debentures and
to engage in certain sale and leaseback transactions, subject to
certain important exceptions described therein. Once a year the
Company must report to the Trustee with respect to its compliance
with such limitations.
13. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the Debentures and the Indenture, the
predecessor corporation will be released from those obligations.
14. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on any of the Debentures; default in payment of
principal of any of the Debentures due and payable at maturity or
otherwise; failure by the Company for 30 days after notice to it
to comply with any of its other agreements in the Indenture or in
the Debentures; or the happening of an event of default under
other Indebtedness of the Company entitling the holders thereof
to declare at least $10,000,000 aggregate principal amount
thereof due and payable, unless cured or waived in accordance
with the provisions of the applicable instrument, or discharged
within 30 days after notice to the Company by the Trustee or to
the Company and the Trustee by Holders of not less than 25% in
aggregate principal amount of the Debentures then outstanding or
unless the Company by appropriate proceedings is in good faith
contesting such happening; and certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the
Trustee or the Holders of not less than 25% in principal amount
of the Debentures then outstanding may declare all the Debentures
to be due and payable immediately in accordance with Section 6.02
of the Indenture. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. The Trustee may
require security and indemnity satisfactory to it before it
enforces the Indenture or the Debentures. Subject to certain
limitations, Holders of a majority in principal amount of the
Debentures then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in
payment of principal or interest) if it determines that
withholding notice is in their interests.
15. Trustee Dealings with Company.
Wells Fargo Bank (Colorado), N.A., the Trustee under the
Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its subsidiaries or Affiliates, and may otherwise deal
with the Company or its subsidiaries or Affiliates, as if it were
not Trustee.
16. No Recourse Against Others.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or successor
corporation shall not have any liability for any obligations of
the Company under the Debentures or the Indenture or for any
claim based on, in respect of, or by reason of such obligations
or their creation. Each Holder by accepting a Debenture waives
and releases all such liability. The waiver and release are part
of the consideration for the issue of the Debentures.
17. Authentication.
This Debenture shall not be valid until the Trustee signs
the certificate of authentication at the end of this Debenture.
18. Copies of the Indenture.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made
to:
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Debenture or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties, ) JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Debentures as a
convenience to the Holders of the Debentures. No representation
is made as to the accuracy of such numbers as printed on the
Debentures and reliance may be placed only on the other
identification numbers printed hereon.
[Signature Page To Follow]
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal this 26th
day of November, 1996.
By:
Name:
Title:
By:
Name:
Title:
(SEAL)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debentures of the series designated
"7.0% Debentures due November 15, 2036," pursuant to the
Indenture.
Wells Fargo Bank (Colorado), N. A., as Trustee
By:
Authorized Signatory
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address
including Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Debenture of __________________________________ and
______________ hereby does irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorney to transfer said Debenture on the books of the within-
named Company with full power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with
the name as it appears on the first page of the within Debenture
in every particular, without alteration or enlargement or any
change whatever.
Signature Guaranteed:
Authorized Signature
Signature guarantee should be
made by a guarantor
institution participating in
the Securities Transfer
Agents Medallion Program or
in such guarantee program
acceptable to the Trustee.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Company to repay the Debenture (or portion hereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest to the repayment date, to
the undersigned, at
(Name, Address and Tax I.D. Number of the undersigned).
For the Debenture to be repaid, the Company must receive
at the office of the Paying Agent, during the period from and
including the September 15 to and including the October 15
immediately preceding the Redemption Date (or, if such October 15
is not a business day, the next succeeding business day): (i) the
Debenture with this "Option to Elect Repayment" form duly completed
or (ii)(x) a telegram, telex, facsimile transmission or letter from
a member of a national securities exchange or the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company in the United States of America, setting forth the
name of the registered holder of the Debenture, the principal
amount of the Debenture, the amount of the Debenture to be repaid,
a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Debenture, with this "Option to
Elect Repayment" form duly completed, will be received by the
Company not later than five business days after the date of such
telegram, telex, facsimile transmission or letter; and (y) the
Debenture and the form duly completed are received by the Company
by such fifth business day.
If less than the entire principal amount of the Debenture
is to be repaid, specify the portion thereof (which shall be $1,000
or an integral multiple of $1,000) which the Holder elects to have
repaid: $_________________. One Debenture will be issued for the
portion not being repaid.
Date Signature
NOTICE: The signature on this Option to Elect Repayment must
correspond with the name as written upon the face of the Debenture
in every particular without alteration or enlargement or any other
change whatsoever.
----------------
AND WHEREAS, all acts and things necessary to make the
7.0% Debentures of this series, when executed by the Company and
authenticated and delivered by or on behalf of the Trustee as in
this Supplemental Indenture provided, the valid, binding and legal
obligations of the Company, and to constitute these presents a
valid indenture and agreement according to its terms, have been
done and performed;
NOW, THEREFORE, in order to declare the terms and
conditions upon which the 7.0% Debentures of this series are
executed, registered, authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of
such 7.0% Debentures by the holders thereof and of the sum of one
dollar to it duly paid by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time
of such 7.0% Debentures, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
(a) Capitalized Terms.
Capitalized terms used herein and not otherwise defined
herein are used with the respective meanings ascribed to such terms
in the Indenture.
(b) Effectiveness.
This Supplemental Indenture shall become effective as of
November 15, 1996, and shall bind the parties hereto, upon its
execution by the parties hereto.
(c) Incorporation of Supplemental Indenture into Indenture.
This Supplemental Indenture is executed by the Company
and the Trustee pursuant to the provisions of Section 9.01 of the
Indenture, and the terms and conditions hereof shall be deemed to
be part of the Indenture for all purposes upon the effectiveness of
this Supplemental Indenture. The Indenture, as amended and
supplemented by this Supplemental Indenture, is in all respects
hereby adopted, ratified and confirmed.
(d) Effect of Headings.
The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
ARTICLE II
CREATION AND AUTHORIZATION OF SERIES
There is hereby created and authorized the series of 7.0%
Debentures entitled the "7.0% Debentures due November 15, 2036",
which shall be a closed series limited to $150,000,000 aggregate
principal amount (except for 7.0% Debentures authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other 7.0% Debentures of this series pursuant to
Sections 3.06, 3.07, 3.09 or 11.06).
ARTICLE III
SPECIAL PROVISIONS APPLICABLE TO THIS SERIES
(a) Two officers signing the 7.0% Debentures for the
Company may do so by facsimile signature. The Company's seal may
be manually applied to the 7.0% Debentures.
(b) The Supplemental Indenture and each 7.0% Debenture
of this series shall be governed by and construed in accordance
with the laws of the State of Nevada, except as otherwise required
by mandatory provisions of law.
(c) The 7.0% Debentures shall be issuable only in
registered form without coupons and only in minimum denominations
of $1,000 and in integral multiples of $1,000.
(d) The 7.0% Debentures will be redeemable on
November 15, 2008 at the option of the Holders thereof, at 100% of
their principal amount, together with interest payable to the date
of redemption.
[Signature Page To Follow]
IN WITNESS WHEREOF, the Company and the Trustee have
caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first above
written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
BY: GLENN W. SCHAEFFER
Name: Glenn W. Schaeffer
Title: President, Chief Financial
Officer and Treasurer
WELLS FARGO BANK (COLORADO), N.A.
BY: RICHARD SULLIVAN
Name: Richard Sullivan
Title: Vice President & Trust Officer
BY: KENT EICHSTADT
Name: Kent Eichstadt
Title: Assistant Vice President
EXHIBIT 4(g)
REGISTERED PRINCIPAL AMOUNT
NO. R-1 $150,000,000
CUSIP NO.
172909 AH 6
CIRCUS CIRCUS ENTERPRISES, INC.
7.0% DEBENTURE
DUE NOVEMBER 15, 2036
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), 55 WATER
STREET, NEW YORK, NEW YORK TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH DEBENTURE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS DEBENTURE IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR
BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
CIRCUS CIRCUS ENTERPRISES, INC., a Nevada corporation
(the "Company," which term shall include any successor under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the
principal sum of $150,000,000 on November 15, 2036, and to pay
interest thereon at the rate of 7.0% per annum, until the entire
principal amount hereof is paid or duly provided for. This
Debenture is one of a duly authorized series issued by the
Company designated as the "7.0% Debentures due November 15, 2036"
(herein called the "Debentures").
1. Interest.
The Company will pay interest semiannually on May 15 and
November 15 of each year ("Interest Payment Date"). Interest on
the Debentures will accrue from the most recent date to which
interest has been paid, unless the date hereof is a date to which
interest has been paid, in which case from the date of the
Debenture, or, if no interest has been paid, from November 15,
1996. Notwithstanding the foregoing, when there is no existing
default in the payment of interest on the Debentures, if the date
hereof is after a Record Date, as that term is defined below, and
before the next succeeding Interest Payment Date, this Debenture
shall bear interest from such Interest Payment Date; provided,
however, that if the Company shall default in the payment of
interest due on such Interest Payment Date, then this Debenture
shall bear interest from the next preceding Interest Payment Date
to which interest has been paid, or, if no interest has been paid
on the Debentures, from November 15, 1996. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Debentures (except
defaulted interest) to the persons who are registered Holders of
Debentures at the close of business on the May 1 or November 1
preceding the May 15 or November 15, as the case may be, on which
the Interest Payment Date occurs ("Record Date"). Holders must
surrender Debentures to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender
for payment of public and private debts. However, the Company
may pay principal and any interest by its check payable in such
money. It may mail an interest check to a holder's registered
address.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its
subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Debentures under an Indenture dated
as of November 15, 1996 and a Supplemental Indenture dated as of
November 15, 1996, each between the Company and the Trustee
(collectively, the "Indenture"). The terms of the Debentures
include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code sec. 77aaa-77bbbb) as in effect on the date of the
Indenture. The Debentures are subject to all such terms and
Holders are referred to the Indenture and such Act for a
statement of them. Terms used herein which are defined in the
Indenture shall have the respective meanings assigned to them in
the Indenture.
5. Redemption at the Option of the Company.
The Debentures will not be redeemable at the option of the
Company prior to their maturity. Notwithstanding the foregoing,
each Holder and beneficial owner of a Debenture by accepting or
otherwise acquiring an interest in the Debenture shall be deemed
to have agreed that if the Gaming Authority of any jurisdiction
in which the Company or any of its subsidiaries conducts or
proposes to conduct gaming requires that a person who is a Holder
or beneficial owner must be licensed, qualified or found suitable
under applicable Gaming Laws, such Holder or beneficial owner
shall apply for a license, qualification or a finding of
suitability within the required time period. If such person
fails to apply or become licensed or qualified or is found
unsuitable, the Company shall have the right, at its option, (i)
to require such person to dispose of its Debentures 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
Debentures 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 under the Indenture in writing of any such redemption
as soon as practicable. The Company shall not be responsible for
any costs or expenses any such Holder or beneficial owner may
incur in connection with its application for a license,
qualification or a finding of suitability.
6. Redemption at the Option of the Holders.
This Debenture will be redeemable on November 15, 2008
(the "Redemption Date"), at the option of the Holders hereof, at
100% of its principal amount, together with interest payable to
the date of redemption. Less than the entire principal amount of
this Debenture may be redeemed on the Redemption Date, provided
the principal amount which is to be redeemed is equal to $1,000
or an integral multiple of $1,000.
The Company must receive at the principal office of
the Paying Agent, during the period from and including the
September 15 to and including the October 15 immediately
preceding the Redemption Date (or, if such October 15 is not a
business day, the next succeeding business day): (i) this
Debenture with the form entitled "Option to Elect Repayment"
attached hereto, duly completed; or (ii)(x) a telegram, telex,
facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc., or a commercial bank or a trust company in the
United States of America, setting forth the name of the
registered Holder of this Debenture, the principal amount of this
Debenture, the amount of this Debenture to be repaid, a statement
that the option to elect repayment is being exercised thereby and
a guarantee that this Debenture to be repaid, with the form
entitled "Option to Elect Repayment" attached hereto, duly
completed, will be received by the Company not later than five
business days after the date of such telegram, telex, facsimile
transmission or letter; and (y) this Debenture and the form duly
completed are received by the Company by such fifth business day.
Any such notice received by the Company during the period from
and including such September 15 to and including such October 15
(or, if such October 15, 2008 is not a business day, the next
succeeding business day) shall be irrevocable. All questions as
to the validity, eligibility (including time of receipt) and the
acceptance of this Debenture for repayment will be determined by
the Company, whose determination will be final and binding.
7. Denominations, Transfer, Exchange.
The Debentures are in registered form without coupons in
minimum denominations of $1,000 and in integral multiples
thereof. A Holder may transfer or exchange Debentures in
accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
The Holder of a Debenture may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment unless
an abandoned property law designates another person, and all
liability of the Trustee and such Paying Agent with respect to
such money shall cease.
10. Discharge Prior to Maturity.
Subject to certain conditions, if the Company deposits with
the Trustee money or U.S. Government Obligations sufficient to
pay principal of and accrued interest on the Debentures to
maturity, the Company will be discharged (to the extent provided
in the Indenture) from the Indenture and the Debentures.
11. Amendment, Supplement, Waiver.
Subject to certain exceptions requiring the consent of the
Holders of each of the affected Debentures, the Indenture or the
Debentures may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the
Debentures then outstanding affected by such amendment,
supplement or waiver, and any past default or compliance with any
provision as to the Debentures may be waived with the consent of
the Holders of a majority in principal amount of the Debentures
then outstanding. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the
Debentures to, among other things, cure any ambiguity, defect or
inconsistency or to provide that the obligations of the Company
hereunder may be represented solely in the records of the Company
in addition to or in place of the issue of Debentures or to make
any change that does not materially adversely affect the rights
of any Holder.
12. Restrictive Covenants.
The Debentures are general unsecured obligations of the
Company limited to the aggregate principal amount of
$150,000,000. The Indenture does not limit the Company from
incurring unsecured Indebtedness other than the aggregate
principal amount of indebtedness to be issued pursuant to the
Supplemental Indenture. It does limit the ability of the Company
and its subsidiaries to grant certain security interests in their
property without equally and ratably securing the Debentures and
to engage in certain sale and leaseback transactions, subject to
certain important exceptions described therein. Once a year the
Company must report to the Trustee with respect to its compliance
with such limitations.
13. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the Debentures and the Indenture, the
predecessor corporation will be released from those obligations.
14. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on any of the Debentures; default in payment of
principal of any of the Debentures due and payable at maturity or
otherwise; failure by the Company for 30 days after notice to it
to comply with any of its other agreements in the Indenture or in
the Debentures; or the happening of an event of default under
other Indebtedness of the Company entitling the holders thereof
to declare at least $10,000,000 aggregate principal amount
thereof due and payable, unless cured or waived in accordance
with the provisions of the applicable instrument, or discharged
within 30 days after notice to the Company by the Trustee or to
the Company and the Trustee by Holders of not less than 25% in
aggregate principal amount of the Debentures then outstanding or
unless the Company by appropriate proceedings is in good faith
contesting such happening; and certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the
Trustee or the Holders of not less than 25% in principal amount
of the Debentures then outstanding may declare all the Debentures
to be due and payable immediately in accordance with Section 6.02
of the Indenture. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. The Trustee may
require security and indemnity satisfactory to it before it
enforces the Indenture or the Debentures. Subject to certain
limitations, Holders of a majority in principal amount of the
Debentures then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in
payment of principal or interest) if it determines that
withholding notice is in their interests.
15. Trustee Dealings with Company.
Wells Fargo Bank (Colorado), N.A., the Trustee under the
Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its subsidiaries or Affiliates, and may otherwise deal
with the Company or its subsidiaries or Affiliates, as if it were
not Trustee.
16. No Recourse Against Others.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or successor
corporation shall not have any liability for any obligations of
the Company under the Debentures or the Indenture or for any
claim based on, in respect of, or by reason of such obligations
or their creation. Each Holder by accepting a Debenture waives
and releases all such liability. The waiver and release are part
of the consideration for the issue of the Debentures.
17. Authentication.
This Debenture shall not be valid until the Trustee signs
the certificate of authentication at the end of this Debenture.
18. Copies of the Indenture.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made
to:
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Debenture or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties, ) JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Debentures as a
convenience to the Holders of the Debentures. No representation
is made as to the accuracy of such numbers as printed on the
Debentures and reliance may be placed only on the other
identification numbers printed hereon.
[Signature Page To Follow]
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal this 26th
day of November, 1996.
By: Clyde T. Turner
Name: Clyde T. Turner
Title: Chairman of the Board
and Chief Executive Officer
By: Glenn W. Schaeffer
Name: Glenn W. Schaeffer
Title: President, Chief
Financial Officer and
Treasurer
(SEAL)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debentures of the series designated
"7.0% Debentures due November 15, 2036," pursuant to the
Indenture.
Wells Fargo Bank (Colorado), N. A., as Trustee
By: Jennifer Owens
Authorized Signatory
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address
including Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
the within Debenture of __________________________________ and
______________ hereby does irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorney to transfer said Debenture on the books of the within-
named Company with full power of substitution in the premises.
Dated: . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with
the name as it appears on the first page of the within Debenture
in every particular, without alteration or enlargement or any
change whatever.
Signature Guaranteed:
Authorized Signature
Signature guarantee should be
made by a guarantor institution
participating in the Securities
Transfer Agents Medallion
Program or in such guarantee
program acceptable to the
Trustee.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Company to repay the Debenture (or portion hereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest to the repayment date, to
the undersigned, at
(Name, Address and Tax I.D. Number of the undersigned).
For the Debenture to be repaid, the Company must receive
at the office of the Paying Agent, during the period from and
including the September 15 to and including the October 15
immediately preceding the Redemption Date (or, if such October 15
is not a business day, the next succeeding business day): (i) the
Debenture with this "Option to Elect Repayment" form duly completed
or (ii)(x) a telegram, telex, facsimile transmission or letter from
a member of a national securities exchange or the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company in the United States of America, setting forth the
name of the registered holder of the Debenture, the principal
amount of the Debenture, the amount of the Debenture to be repaid,
a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Debenture, with this "Option to
Elect Repayment" form duly completed, will be received by the
Company not later than five business days after the date of such
telegram, telex, facsimile transmission or letter; and (y) the
Debenture and the form duly completed are received by the Company
by such fifth business day.
If less than the entire principal amount of the Debenture
is to be repaid, specify the portion thereof (which shall be $1,000
or an integral multiple of $1,000) which the Holder elects to have
repaid: $_________________. One Debenture will be issued for the
portion not being repaid.
Date Signature
NOTICE: The signature on this Option to Elect Repayment must
correspond with the name as written upon the face of the Debenture
in every particular without alteration or enlargement or any other
change whatsoever.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-31-1997
<PERIOD-END> OCT-31-1996
<CASH> 55,842
<SECURITIES> 0
<RECEIVABLES> 22,256
<ALLOWANCES> 0
<INVENTORY> 19,007
<CURRENT-ASSETS> 126,494
<PP&E> 2,218,373
<DEPRECIATION> 509,659
<TOTAL-ASSETS> 2,508,954
<CURRENT-LIABILITIES> 138,488
<BONDS> 979,674
18,530
0
<COMMON> 1,880
<OTHER-SE> 1,201,890
<TOTAL-LIABILITY-AND-EQUITY> 2,508,954
<SALES> 1,029,681
<TOTAL-REVENUES> 1,029,681
<CGS> 0
<TOTAL-COSTS> 829,767
<OTHER-EXPENSES> 22,782
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 39,207
<INCOME-PRETAX> 137,925
<INCOME-TAX> 52,331
<INCOME-CONTINUING> 85,594
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 85,594
<EPS-PRIMARY> .83
<EPS-DILUTED> .83
</TABLE>
