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MANDALAY RESORT GROUP,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
--------------------
INDENTURE
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Dated as of August 16, 2000
$200,000,000
9 1/2% Senior Notes due 2008
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CROSS-REFERENCE TABLE*
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TIA Indenture
Section Section
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310 (a)(1)...................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.08; 7.10; 12.02
(c)......................................................... N.A.
311 (a)......................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312(a)...................................................... 2.05
(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)......................................................... 2.04
318 (a)......................................................... 12.01
(b)......................................................... N.A.
(c)......................................................... 10.01
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N.A. means Not Applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions....................................................................... 1
SECTION 1.02. Incorporation By Reference Of Trust Indenture Act.................................10
SECTION 1.03. Rules Of Construction.............................................................10
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Forms Generally...................................................................11
SECTION 2.02. Execution And Authentication;
Aggregate Principal Amount; Delivery...........................................12
SECTION 2.03. Registrar And Paying Agent........................................................13
SECTION 2.04. Paying Agent To Hold Money In Trust...............................................13
SECTION 2.05. Securityholder Lists..............................................................14
SECTION 2.06. Transfer And Exchange.............................................................14
SECTION 2.07. Replacement Securities............................................................15
SECTION 2.08. Outstanding Securities............................................................15
SECTION 2.09. Temporary Securities..............................................................15
SECTION 2.10. Cancellation......................................................................16
SECTION 2.11. Defaulted Interest................................................................16
SECTION 2.12. Mandatory Disposition Of Securities Pursuant To Gaming Laws.......................16
SECTION 2.13. CUSIP Numbers.....................................................................17
SECTION 2.14. Restrictive Legends...............................................................17
SECTION 2.15. Book-Entry Provisions For Global
Security.......................................................................19
SECTION 2.16. Special Transfer Provisions.......................................................21
ARTICLE THREE
[INTENTIONALLY OMITTED]
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment Of Securities.............................................................24
SECTION 4.02. Corporate Existence...............................................................24
SECTION 4.03. Payment Of Taxes And Other Claims.................................................25
SECTION 4.04. Maintenance Of Properties.........................................................25
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SECTION 4.05. Maintenance Of Office Or Agency...................................................26
SECTION 4.06. Compliance Certificate; Notice of Default.........................................26
SECTION 4.07. Reports...........................................................................27
SECTION 4.08. Waiver Of Stay, Extension Of
Usury Laws.....................................................................27
SECTION 4.09. Limitation On Liens...............................................................28
SECTION 4.10. Limitation On Sale And Lease-Back Transactions....................................30
SECTION 4.11. Defeasance Of Certain Obligations.................................................31
SECTION 4.12. Limitation On Layering Debt.......................................................33
SECTION 4.13. Change of Control.................................................................33
ARTICLE FIVE
SUCCESSOR CORPORATION
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events Of Default.................................................................36
SECTION 6.02. Acceleration......................................................................38
SECTION 6.03. Other Remedies....................................................................39
SECTION 6.04. Waiver Of Past Defaults...........................................................39
SECTION 6.05. Control By Majority...............................................................40
SECTION 6.06. Limitation On Suits...............................................................40
SECTION 6.07. Rights Of Holders To Receive Payment..............................................40
SECTION 6.08. Collection Suit By Trustee........................................................41
SECTION 6.09. Trustee May File Proofs Of Claim..................................................41
SECTION 6.10. Priorities........................................................................41
SECTION 6.11. Undertaking For Costs.............................................................42
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties Of Trustee.................................................................42
SECTION 7.02. Rights Of Trustee.................................................................44
SECTION 7.03. Individual Rights Of Trustee......................................................45
SECTION 7.04. Trustee's Disclaimer..............................................................45
SECTION 7.05. Notice Of Defaults................................................................46
SECTION 7.06. Reports By Trustee................................................................46
SECTION 7.07. Compensation And Indemnity........................................................46
SECTION 7.08. Replacement Of Trustee............................................................47
SECTION 7.09. Successor Trustee By Merger, Etc..................................................49
SECTION 7.10. Eligibility; Disqualification.....................................................49
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SECTION 7.11. Preferential Collection Of Claims Against Company.................................49
SECTION 7.12. Authenticating Agent..............................................................50
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination Of Company's Obligations..............................................52
SECTION 8.02. Application Of Trust Money........................................................54
SECTION 8.03. Repayment To The Company..........................................................54
SECTION 8.04. Reinstatement.....................................................................55
ARTICLE NINE
DMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent Of Holders........................................................55
SECTION 9.02. With Consent Of Holders...........................................................56
SECTION 9.03. Compliance With Trust Indenture Act...............................................57
SECTION 9.04. Revocation And Effect Of Consents.................................................57
SECTION 9.05. Notation On Or Exchange Of Securities.............................................58
SECTION 9.06. Trustee To Sign Amendments, Etc...................................................58
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. Purposes For Which Meetings May Be Called.........................................59
SECTION 10.02. Manner Of Calling Meetings........................................................59
SECTION 10.03. Call Of Meetings By Company
Or Holders.....................................................................60
SECTION 10.04. Who May Attend And Vote At Meetings...............................................60
SECTION 10.05. Regulations May Be Made By Trustee; Conduct Of The Meeting; Voting Rights;
Adjournment....................................................................61
SECTION 10.06. Voting At The Meeting And Record To Be Kept.......................................62
SECTION 10.07. Exercise Of Rights Of Trustee Or Securityholders May Not Be Hindered
Or Delayed By Call Of Meeting..................................................62
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. Notices To Trustee................................................................63
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SECTION 11.02. Selection Of Securities To Be Redeemed............................................63
SECTION 11.03. Notice Of Redemption..............................................................64
SECTION 11.04. Effect Of Notice Of Redemption....................................................65
SECTION 11.05. Deposit Of Redemption Price.......................................................65
SECTION 11.06. Securities Redeemed In Part.......................................................65
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls......................................................65
SECTION 12.02. Notices...........................................................................66
SECTION 12.03. Communication By Holders With Other Holders.......................................66
SECTION 12.04. Certificates And Opinion As To Conditions Precedent...............................67
SECTION 12.05. Statements Required In Certificate Or Opinion.....................................67
SECTION 12.06. When Treasury Securities Disregarded..............................................67
SECTION 12.07. Rules By Paying Agent, Registrar..................................................68
SECTION 12.08. Legal Holidays....................................................................68
SECTION 12.09. Governing Law.....................................................................68
SECTION 12.10. No Adverse Interpretation Of Other Agreements.....................................68
SECTION 12.11. No Recourse Against Others........................................................68
SECTION 12.12. Successors........................................................................69
SECTION 12.13. Duplicate Originals...............................................................69
SECTION 12.14. Severability......................................................................69
SECTION 12.15. Effect Of Headings, Table Of Contents, Etc........................................69
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Certificate To Be Delivered in Connection with Transfers to
Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection with Transfers Pursuant
To Regulation S
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INDENTURE, dated as of August 16, 2000, between Mandalay
Resort Group, a Nevada corporation ("Company"), and The Bank of New York, a New
York banking corporation, as Trustee ("Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its 9 1/2% Series A Senior Notes
due 2008 (the "Initial Securities") and the issuance of 9 1/2% Series B Senior
Notes due 2008 to be exchanged for the Initial Securities (the "Exchange
Securities" and, together with the Initial Securities, the "Securities")
pursuant to the Registration Rights Agreement (as defined herein).
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
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.
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"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.
"Certificated Securities" means Securities in definitive
registered form.
"Change of Control" means the occurrence of any of the
following events: (a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a person shall be deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 50% of the total Voting Stock of the Company; or (b) the Company
consolidates with, or merges with or into, another person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any person or any person consolidates with, or merges with or
into, the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is converted into or exchanged for cash,
securities or other property, other than any such transaction where (i) the
outstanding Voting Stock of the Company is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the surviving or transferee
corporation or its parent corporation and (ii) immediately after such
transaction no "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) is the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total Voting Stock of
the surviving or transferee corporation, as applicable; or (c) during any
consecutive two-year period, individuals who at the beginning of such period
constituted the Board (together with any new directors whose election by the
Board of Directors or whose nomination for election by the stockholders of the
Company was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors then in office.
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"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.
"Credit Facilities" means, with respect to the Company, any
one or more debt facilities or commercial paper facilities, in each case with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, including without limitation,
the Amended and Restated Loan Agreement dated as of May 23, 1997 among the
Company, as Borrower, Bank of America National Trust and Savings Association, as
Administrative Agent, and the lenders that are or become parties thereto, in
each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.
"Custodian" shall have the meaning provided in Section 6.01.
"Debt" of any person means (a) any Debt 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 Debt incurred
in connection with the acquisition by such person or any of its subsidiaries of
any other business or entity, if
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and to the extent such Debt 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 Debt, obligation, liability or dividend of any
person, but shall not include Debt 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,
"Debt" 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 and Permitted 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.
"Default" means any event which is, or after notice or passage
of time would be, an Event of Default.
"Depositary" shall mean The Depository Trust Company.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, matures or is mandatorily redeemable (in each case,
other than into common stock of the Company), pursuant to a sinking fund
obligation or otherwise, or is exchangeable for Debt, or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to the final
maturity date of the specified security. Notwithstanding the foregoing, in no
event shall Capital Stock that is considered Disqualified Stock solely by reason
of such Capital Stock being convertible at the option of the holder of such
Capital Stock into other Capital Stock (other than Disqualified Stock)
constitute Disqualified Stock.
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"Event of Default" shall have the meaning provided in Section
6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer Registration Statement" means the registration
statement filed by the Company pursuant to the Registration Rights Agreement.
"Exchange Securities" shall have the meaning provided in the
Recitals.
"Funded Debt" means all Debt 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 Debt and (ii)
ranks at least equal in right of payment with the Securities.
"Gaming Authority" means the Nevada Gaming Commission, the
Nevada Gaming Control Board, the Mississippi Gaming Commission, the Illinois
Gaming Board and the Michigan Gaming Control Board, or any similar federal,
state or local commission, agency or other regulatory body 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 joint venture
in which the Company or a subsidiary of the Company is a participant) 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 (or any joint
venture in which the Company or a subsidiary of the Company is a participant)
is, or may at any time after the date of this Indenture be, subject.
"Global Security" shall have the meaning provided in Section
2.01.
"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Initial Purchasers" means Banc of America Securities LLC,
Merrill Lynch, Pierce, Fenner and Smith Incorporated, Deutsche Bank Securities
Inc., Salomon Smith Barney Inc.,
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Credit Lyonnais Securities (USA) Inc., J.P. Morgan Securities Inc. and
Commerzbank Capital Markets Corporation.
"Initial Securities" shall have the meaning provided in the
Recitals.
"Interest Rate Protection Obligations" means, with respect to
any person, the obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and (ii) other agreements or arrangements designed to protect such person
against fluctuations in interest rates.
"Issue Date" means August 16, 2000.
"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 Vice 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. The Trustee
shall have no duty or
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obligation to investigate the accuracy of such Officer's Certificate.
"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.
"Paying Agent" shall have the meaning provided in Section
2.03.
"person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Physical Securities" shall have the meaning provided in
Section 2.01.
"Predecessor Securities" of any Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 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.
"Private Placement Legend" shall have the meaning provided in
Section 2.14.
"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 ex-
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cluding the following: principal or interest payments on any Debt (other than
interest which is required to be capitalized in accordance with generally
accepted accounting principles, 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. The Trustee shall have no duty or obligation to investigate the
accuracy of such Officers' Certificate.
"Representative" means the indenture trustee or other trustee,
agent or representative for any Debt.
"Registrar" shall have the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of August 16, 2000, among the Company and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time in accordance with the terms thereof.
"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.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Restricted Security" shall have the meaning provided in
Section 2.14.
"Rule 144A" means Rule 144A under the Securities Act.
"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
Com-
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pany 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.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"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, except as
provided in Section 9.03 hereto.
"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.
"U.S. Government Obligations" means direct non-cancelable
obligations of the United States of America for the payment of which the full
faith and credit of the United States is pledged.
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"Value" means, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (i)
the net proceeds of the sale or transfer of property leased pursuant to such
Sale and Lease-Back Transaction or (ii) the fair value, in the opinion of the
Board of Directors as evidenced by a board resolution, of such property at the
time of entering into such Sale and Lease Back Transaction.
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling the Holders
thereof to vote in the election of members of the board of directors of such
Person.
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;
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(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORMS GENERALLY.
The Initial Securities and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of EXHIBIT A
and shall be in a principal amount at maturity not greater than $200,000,000.
The Exchange Securities and the Trustee's certificate of authentication relating
thereto shall be substantially in the form of EXHIBIT B. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
Depositary rule or usage. The Company and the Trustee shall approve the form of
the Securities and any notation, legend or endorsement on them. If required, the
Securities may bear the appropriate legend regarding any original issue discount
for federal income tax purposes. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the Securities, annexed
hereto as EXHIBIT A and EXHIBIT B, shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Securities in
registered form, substantially in the form set forth in EXHIBIT A (the "Global
Security"), deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided, and shall bear the legend set forth in Section 2.14. The aggregate
principal amount of the Global Security may from
<PAGE>
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time to time be increased or decreased by adjustments made on the records of
the Trustee, as custodian for the Depositary, as hereinafter provided.
Securities issued in exchange for interests in a Global
Security pursuant to Section 2.15 may be issued in the form of permanent
certificated Securities in registered form in substantially the form set forth
in EXHIBITS A AND B (the "Physical Securities").
SECTION 2.02. EXECUTION AND AUTHENTICATION;
AGGREGATE PRINCIPAL AMOUNT; DELIVERY
Two Officers shall sign the Securities for the Company by
original or facsimile signature.
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 Trustee shall authenticate (i) Initial Securities for
original issue in the aggregate principal amount not to exceed $200,000,000 and
(ii) Exchange Securities for issue only in a registered Exchange Offer, pursuant
to the Registration Rights Agreement, for a like principal amount of Initial
Securities, in each case upon a written order of the Company in the form of an
Officers' Certificate of the Company. Each such written order shall specify the
amount of Securities to be authenticated and the date on which the Securities
are to be authenticated, whether the Securities are to be Initial Securities or
Exchange Securities and whether the Securities are to be issued as Physical
Securities or Global Securities or such other information as the Trustee may
reasonably request. In addition, with respect to authentication pursuant to
clause (ii) of the first sentence of this paragraph, the first such written
order from the Company shall be accompanied by an Opinion of Counsel of the
Company in a form reasonably satisfactory to the Trustee stating that the
issuance of the Exchange Securities complies with this Indenture and has been
duly author-
<PAGE>
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ized by the Company. The aggregate principal amount of Securities outstanding
at any time may not exceed $200,000,000.
The Securities shall be issuable only in registered form
without coupons and only in minimum denominations of $1,000 and in integral
multiples of $1,000 in denominations above $1,000.
The Company and the Trustee, by their execution and
authentication, respectively, of the Securities, expressly agree to the terms
and conditions stated therein and to be bound thereby.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where the
Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where the Securities 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 the Securities
may be presented for the above purposes. The Registrar shall keep a register of
the Securities 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
the 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 the
Securities, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.04. 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
the 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
<PAGE>
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Company acts as Paying Agent, it shall, on or before each due date of
principal of or interest on the Securities, segregate the money and hold it
as a separate trust fund. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon doing so the Paying Agent
shall have no further liability for the money.
SECTION 2.05. 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 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 relating to
such interest payment date or request, as the case may be.
SECTION 2.06. 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 New
York Uniform Commercial Code are met. Where Securities are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Trustee shall authenticate
Securities at the Registrar's request. The Company may charge a reasonable fee
for any transfer or exchange but not for any exchange pursuant to Section 2.09
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 during a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of the Securities for redemption under Section 11.02 and
ending at the close of business on the day of such mailing, or (ii) any Security
so selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
<PAGE>
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SECTION 2.07. 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 if the
requirements of Section 8-405 of the New York 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 issued hereunder.
SECTION 2.08. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except for those canceled by it and those
described in this Section. Subject to the provisions of Section 12.06 hereof, a
Security does not cease to be outstanding because the Company or an Affiliate
holds the Security. If a Security is replaced pursuant to Section 2.07, 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.
SECTION 2.09. 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.
<PAGE>
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SECTION 2.10. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall cancel and dispose of
any Securities surrendered to them for registration of transfer, exchange,
payment or cancellation in accordance with their customary procedures. The
Company may not issue new Securities to replace Securities it has paid or
delivered to the Trustee for cancellation.
SECTION 2.11. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. After the deposit by the
Company with the Trustee of money sufficient to pay such defaulted interest, the
Company shall fix the record date and payment date. At least 15 days before the
record date, the Company shall mail to each Securityholder, with a copy to the
Trustee, a notice that states the record date, the payment date, and the amount
of defaulted interest to be paid. The Company may pay defaulted interest in any
other lawful manner.
SECTION 2.12. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO
GAMING LAWS.
Each Holder and beneficial owner of Securities, 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 (or any joint venture in which the Company or a
subsidiary of the Company is a participant) now or hereafter conducts or
proposes to conduct gaming requires that a person who is a Holder or beneficial
owner of Securities must be licensed, qualified or found suitable, or comply
with any other requirement under applicable Gaming Laws, such Holder or
beneficial owner shall apply for a license, qualification or a finding of
suitability or comply with such other requirement, as the case may be, within
the prescribed time period. The Trustee shall have no duty to conduct or perform
any due diligence or investigation to determine whether any Holder must comply
with any applicable Gaming Laws. If such Holder or beneficial owner fails to
apply to be, or fails to become, licensed or qualified, is found unsuitable
under applicable gaming laws or fails to comply with any other requirement, as
the case may be (a "failure of compliance"), then the Company shall have the
right, at its option, (i) to require such person to dispose of
<PAGE>
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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 the Gaming Authority or (ii) to redeem such Securities (which
redemption may be less than 30 days following the notice of redemption if so
requested or prescribed by the Gaming Authority) at a redemption price equal
to the lesser of (A) such person's cost, (B) 100% of the principal amount
thereof, plus accrued and unpaid interest to the earlier of the redemption
date and the date of any failure of compliance, or (C) such other amount as
may be required by applicable law or by order of any Gaming Authority. The
Company shall notify the Trustee in writing of any such redemption as soon as
practicable. The Company and the Trustee 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
or its compliance with any other requirement of a Gaming Authority.
Immediately upon the imposition by a Gaming Authority of a requirement that a
Holder or beneficial owner of Securities dispose of Securities, such Holder
or beneficial owner shall, to the extent required by applicable Gaming Laws,
have no further right (i) to exercise, directly or indirectly, through any
trustee, nominee or any other person or entity, any right conferred by the
Securities or (ii) to receive any interest, dividends or any other
distributions or payments with respect to the Securities or any remuneration
in any form with respect to the Securities from the Company or the Trustee,
except the redemption price referred to in this Section 2.12.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
SECTION 2.14. RESTRICTIVE LEGENDS.
Each Global Security and Physical Security that constitutes a
Restricted Security shall bear the following legend (the "Private Placement
Legend")(each, a "Restricted Security")
<PAGE>
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on the face thereof until after the second anniversary of the later of the
Issue Date and the last date on which the Company or any Affiliate of the
Company was the owner of such Security (or any predecessor security) (or such
shorter period of time as permitted by Rule 144(k) under the Securities Act
or any successor provision thereunder) (or such longer period of time as may
be required under the Securities Act or applicable state securities laws in
the opinion of counsel for the Company, unless otherwise agreed by the
Company and the Holder thereof):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)
OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THE SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE ACT, (C) INSIDE THE UNITED
STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE OR TRANSFER AGENT A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE OR TRANSFER AGENT FOR THIS SECURITY), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE OR
TRANSFER AGENT AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS
<PAGE>
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OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY
REGULATION S UNDER THE ACT.
Each Global Security shall also bear the following legends on
the face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR
BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE
OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE
INDENTURE GOVERNING THIS NOTE.
SECTION 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL
SECURITY.
(a) The Global Securities initially shall (i) be registered in
the name of the Depositary or the nominee of such
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Depositary, (ii) be delivered to the Trustee as custodian for such Depositary
and (iii) bear legends as set forth in Section 2.14.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Securities, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of a Global Security shall be limited to
transfers in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global Security may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depositary and the provisions of Section 2.16. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security if (i) the
Depositary notifies the Company and the Trustee that it is unwilling or unable
to continue as Depositary for the Global Securities and a successor depositary
is not appointed by the Company within 90 days of such notice or (ii) an Event
of Default has occurred and is continuing and the Registrar has received a
written request from the Depositary to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in a Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute and prepare and the Trustee shall authenticate and
deliver one or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global
Security to beneficial owners pursuant to paragraph (b),
<PAGE>
-21-
such Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute and prepare and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Global Security, an
equal aggregate principal amount of Physical Securities of authorized
denominations registered in the name of such beneficial owners. The Trustee is
not responsible for any delay in said delivery as it is contingent upon the
Depositary's delivery of information and the co-delivery of the Physical
Securities.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) or (c) shall, except as otherwise provided by paragraphs
(a)(i)(x) and (c) of Section 2.16, bear the legend regarding transfer
restrictions applicable to the Physical Securities set forth in Section 2.14.
(f) The Holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.16. SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
AND NON-U.S. PERSONS. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor that is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such
Security bears the Private Placement Legend, if (x) the requested
transfer is after the second anniversary of the Issue Date (PROVIDED,
HOWEVER, that, to the knowledge of the Registrar, neither the Company
nor any Affiliate of the Company has held any beneficial interest in
such Security, or portion thereof, at any time on or prior to the
second anniversary of the Issue Date) or (y) (1) in the case of a
transfer to an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of EXHIBIT C and
any legal opinions and certifications required thereby or (2) in the
case of a transfer to a Non-U.S. Person, the
<PAGE>
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proposed transferor has delivered to the Registrar a certificate
substantially in the form of EXHIBIT D; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, upon receipt by the
Registrar of (x) the certificate, if any, required by paragraph (i)
above and (y) written instructions given in accordance with the
Depositary's and the Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date
and (if the transfer does not involve a transfer of outstanding Physical
Securities) a decrease in the principal amount of such Global Security in an
amount equal to the principal amount of the beneficial interest in the Global
Security to be transferred, and (b) the Company shall execute and the Trustee
shall authenticate and deliver one or more Physical Securities of like tenor
and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Security stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form
of Security stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Security for its own
account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which
after transfer are to be evidenced by an
<PAGE>
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interest in a Global Security, upon receipt by the Registrar of
written instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of such
Global Security in an amount equal to the principal amount of the
Physical Securities to be transferred, and the Trustee shall cancel
the Physical Securities so transferred.
(c) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that
bear the Private Placement Legend unless (i) the requested transfer is after
the second anniversary of the Issue Date (PROVIDED, HOWEVER, that, to the
knowledge of the Registrar, neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Security, or portion thereof,
at any time prior to or on the second anniversary of the Issue Date), or (ii)
there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(d) GENERAL. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 2.15 or this
Section 2.16. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time during the Registrar's normal business hours upon the giving of
reasonable written notice to the Registrar.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or
among Agent Members or beneficial owners of interests in any Global Security)
<PAGE>
-24-
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
(e) TRANSFERS OF SECURITIES HELD BY AFFILIATES. Any
certificate (i) evidencing a Security that has been transferred to an
Affiliate of the Company within three years after the Issue Date, as evidenced
by a notation on the Assignment Form for such transfer or in the
representation letter delivered in respect thereof, or (ii) evidencing a
Security that has been acquired from an Affiliate (other than by an Affiliate)
in a transaction or a chain of transactions not involving any public offering,
shall, until two years after the last date on which either the Company or any
Affiliate of the Company was an owner of such Security, in each case, bear a
legend in substantially the form set forth in Section 2.14, unless otherwise
agreed by the Company (with written notice thereof to the Trustee).
ARTICLE THREE
[INTENTIONALLY OMITTED]
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay by 10:00 a.m. New York City time, 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,
<PAGE>
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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
<PAGE>
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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; NOTICE OF DEFAULT.
The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company an Officers' Certificate (one
of the signers of which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company) stating
whether or not the signers know of any default by the Company in performing
its covenants hereunder, without regard to notice requirements or periods of
grace, in Sections 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. If they do know of
such a default, the certificate shall describe the default in detail.
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The Company shall deliver to the Trustee, as soon as
possible and in any event within five days after the Company becomes aware of
the occurrence of any Event of Default or an event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or default and
the action which the Company proposes to take with respect thereto.
SECTION 4.07. REPORTS.
The Company shall file with the Trustee within 15 days after
it files them with the SEC copies of the quarterly and annual reports and of
the information, documents, and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe) which
the Company is required to file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. The Company also shall comply with the other provisions
of TIA Section 314(a).
So long as any of the Securities remain outstanding the
Company shall cause to be mailed to the Holders at their addresses appearing
in the register of Securities maintained by the Registrar all annual,
quarterly or other reports which the Company mails or causes to be mailed to
its stockholders generally, concurrently with such mailing to stockholders,
and will cause to be disclosed in such annual reports as of the date of the
most recent financial statements in each such report the amount available for
dividends and other payments pursuant to the most restrictive covenant
therefor as of such date.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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
<PAGE>
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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 Debt; PROVIDED, HOWEVER, that neither the Company nor any of its
subsidiaries may issue, assume or guarantee any Debt 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 Debt so long as
such Debt 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 of acquisition through a merger, consolidation or otherwise by
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 Debt 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 Debt incurred to provide
funds for that purpose in a principal amount not exceeding the cost of
these improvements or construction;
(e) Liens to secure Debt of a subsidiary of the Company to
the Company or to a subsidiary of the Company;
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(f) Liens to secure Debt of the Company, the proceeds of
which are used substantially simultaneously with the incurrence of
such Debt to retire Funded Debt;
(g) purchase money security Liens on personal property;
(h) Liens securing Debt of the Company, the proceeds of which
are used within 24 months of the incurrence of such Debt 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 the Joint Venture to
secure Debt, PROVIDED the amount of such Debt is contributed and/or
advanced solely to such Joint Venture;
(j) Liens securing any Debt under the Credit Facilities;
(k) Liens in favor of any government or governmental body,
including the United States or any state thereof, or any department,
agency, instrumentality, or political subdivision of any such
jurisdiction, including, without limitation, Liens to secure Debt 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 or any subsidiary with or at the
request of a governmental entity, 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 either
(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 prop-
<PAGE>
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erty 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 Debt secured thereby; PROVIDED that the principal amount of
Debt secured thereby shall not exceed the principal amount of Debt 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 Debt which would otherwise
be subject to the foregoing restrictions in an aggregate principal amount
which, together with all other such Debt of the Company and its subsidiaries
which would otherwise be subject to the foregoing restrictions (not including
Debt 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 Debt 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
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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 the 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 at the expense of the Company, 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
the Securities to have a conflicting interest for purposes of the TIA
with respect to the 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 that with the giving of
notice or lapse of time, or both, would become an Event of Default
with respect to the Securities shall have occurred and be continuing
on the date of such deposit and
<PAGE>
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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 the Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit and defeasance had
not occurred and (ii) (A) the trust funds will not be subject to any
rights of holders of Debt under the Credit Facilities and (B) after
the passage of 90 days following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally; PROVIDED that if a court were to rule under any
such law in any case or proceeding that the trust funds remained
property of the Company, no opinion need be given as to the effect of
such laws on the trust funds except the following: (x) assuming such
trust funds remained in the Trustee's possession prior to such court
ruling to the extent not paid to Holders of the Securities, the
Trustee will hold, for the benefit of the Holders of the Securities,
a valid and perfected security interest in such trust funds that is
not avoidable in bankruptcy or otherwise and (y) no property, rights
in property or other interests granted to the Trustee for the benefit
of the Holders of the Securities or to the Holders of the Securities
in exchange for or with respect to any of such trust funds will be
subject to any prior rights of holders of Debt under the Credit
Facilities; and
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(7) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section have been complied with.
SECTION 4.12. LIMITATION ON LAYERING DEBT.
The Company may not create, incur, assume or suffer to exist
any Debt that is subordinate in right of payment to any other Debt of the
Company, unless, by its terms or the terms of the instrument creating or
evidencing it, such Debt is subordinate in right of payment to, or ranks PARI
PASSU with, the Securities.
SECTION 4.13. CHANGE OF CONTROL.
(a) Following the occurrence of a Change of Control (the date
of such occurrence being the "Change of Control Date"), the Company shall,
within 30 days after the Change of Control Date, make an offer to purchase (a
"Change of Control Offer") all of the then outstanding Securities at a purchase
price (the "Change of Control Purchase Price") in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the purchase date. The Company shall be required to purchase all Securities
properly tendered in the Change of Control Offer and not withdrawn. The Change
of Control Offer shall remain open for 20 days and until the close of business
on the Change of Control Payment Date (as defined below).
(b) Within 45 days following the date upon which the Change
of Control occurred, the Company shall mail, or cause the Trustee to mail, by
first class mail, a notice to each Holder at such Holder's last registered
address, with a copy to the Trustee, if applicable, which notice shall govern
the terms of the Change of Control Offer. The notice to the Holders shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Change of Control Offer. Such notice shall
state:
(i) that the Change of Control Offer is being made pursuant
to this Section 4.13 and that all Securities tendered and not
withdrawn shall be accepted for payment;
(ii) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier than 30
days nor later than 45 days from the date
<PAGE>
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such notice is mailed, other than as may be required by law) (the
"Change of Control Payment Date");
(iii) that any Security not tendered shall continue to accrue
interest;
(iv) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(v) that Holders electing to have a Security purchased
pursuant to a Change of Control Offer shall be required to surrender
the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the Paying
Agent at the address specified in the notice prior to the close of
business on the third business day prior to the Change of Control
Payment Date;
(vi) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the second
business day prior to the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Securities the Holder delivered
for purchase and a statement that such Holder is withdrawing his
election to have such Securities purchased;
(vii) that Holders whose Securities are purchased only in
part shall be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered; PROVIDED, HOWEVER,
that each Security purchased and each new Security issued shall be in
an original principal amount of $1,000 or integral multiples thereof;
and
(viii) the circumstances and relevant facts regarding such
Change of Control.
On the Change of Control Payment Date, the Company shall, to
the extent permitted by law, (i) accept for payment all Securities or portions
thereof properly tendered pursuant to the Change of Control Offer, (ii)
deposit with the Paying Agent an amount equal to the aggregate Change of
Control Payment in respect of all Securities or portions thereof so tendered
and (iii) deliver, or cause to be delivered, to the Trustee for cancellation
the Securities so accepted together with
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an Officers' Certificate stating that such Securities or portions thereof have
been tendered to and purchased by the Company. The Paying Agent will promptly
either (x) pay to the Holder against presentation and surrender (or, in the
case of partial payment, endorsement) of the Global Securities or (y) in the
case of Certificated Securities, mail to each Holder of Securities the Change
of Control Payment for such Securities, and the Trustee will promptly
authenticate and deliver to the Holder of the Global Securities a new Global
Security or Securities or, in the case of Certificated Securities, mail to
each Holder new Certificated Securities, as applicable, equal in principal
amount to any unpurchased portion of the Securities surrendered, if any,
provided that each new Certificated Security will be in a principal amount of
$1,000 or an integral multiple thereof. The Company will notify the Trustee
and the Holders of the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
Neither the Board of Directors of the Company nor the
Trustee may waive the provisions of this Section 4.13 relating to the
Company's obligation to make a Change of Control Offer or a Holder's right to
redemption upon a Change of Control.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Securities pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section 4.13, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached their obligations under the provisions of this Section 4.13 by
virtue thereof.
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 cor-
<PAGE>
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poration, 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
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(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 Debt of
the Company or a subsidiary, whether such Debt now exists or shall
hereafter be created, shall happen and shall entitle the holders of
such Debt to declare an aggregate principal amount of at least
$10,000,000 of such Debt 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 Debt 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 Debt 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
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(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 the Securities until the Trustee or the
Holders of at least 25% in principal amount of the Securities then outstanding
notify the Company (with a copy to the Trustee) 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 the Securities then
outstanding by notice in writing to the Company and the Trustee, may declare
the unpaid principal (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 princi-
<PAGE>
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pal amount of the Securities then outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration as to the
Securities and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) the principal of the Securities that has become
due otherwise than by such declaration of acceleration
(together with interest, if any, payable thereon); and
(B) all sums paid 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 the 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 the 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 the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the 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 the Securities then outstanding by notice to the Trustee
may waive an existing Default or Event of Default with respect to the
Securities and its consequences. When a Default or Event of Default is waived,
it is cured and stops continuing.
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SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the
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 the 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 the Securities,
or that would involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of the Securities may not pursue any remedy with
respect to this Indenture or any of the 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 the
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 the Securities may not use this Indenture to
prejudice the rights of another Holder of the Securities or to obtain a
preference or priority over another Holder of the 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
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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 the
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 the Securities) and interest, if any, remaining unpaid on
the 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 the 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 the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on
the 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 the Securities pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of any such record date and
payment date.
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SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, 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 person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) The 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, in the case of any such certificates or
opinions which by any provision hereof are specifically
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required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(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 Responsible 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.
(4) The Trustee shall, subject to Section 7.08, comply with
any order or directive of a Gaming Authority that the Trustee submit an
application for any license, finding of suitability or other approval
pursuant to any Gaming Law and will cooperate fully and completely in
any proceeding related to such application; PROVIDED, HOWEVER, that if
the Trustee's resignation is pending, the failure to comply with this
Section 7.01(b)(4) shall not be a violation of this Indenture.
(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 in writing with the Company.
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SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively 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 Officers' 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.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or satisfactory indemnity against such risk or liability
is not reasonably assured to it.
(f) The Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(g) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(h) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note,
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other evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such matter inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation.
(i) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the principal corporate trust
office of the Trustee, and such notice references the Securities and this
Indenture.
(j) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other person
employed to act hereunder.
(k) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
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
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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 the Securities and is
continuing and if it is known to a Responsible Officer of the Trustee, the
Trustee shall mail to each Holder of the 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 the Securities, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Securities.
SECTION 7.06. REPORTS BY TRUSTEE.
Within 60 days after each June 15 beginning with the June 15
following the date of this Indenture, the Trustee shall mail to each
Securityholder a brief report dated as of such June 15 that complies with TIA
Section 313(a) if required by such 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 promptly notify the Trustee when the
Securities are listed on any stock exchange or of any delisting thereof.
To the extent reasonably requested in writing 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 such
compensation for its services as shall be agreed in writing by the Company and
the Trustee. 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 each of the Trustee and any predecessor Trustee against
any and all loss,
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damage, claim (whether asserted by the Company, a Holder or any other
Person), liability or expense, including taxes (other than taxes based on the
income of the Trustee) 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
of its selection 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(5) or Section
6.01(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
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 the Securities then outstanding
may remove the Trustee with respect to the 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 the Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
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(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If, as to the 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, upon payment of
its charges, 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 the Securities. A successor
Trustee shall mail notice of its succession to the Holders of the Securities.
If a successor Trustee as to the Securities does not take
office within 45 days after the retiring Trustee resigns or is removed, then (i)
the retiring Trustee or the Company may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Trustee
and (ii) the Holders of a majority in principal amount of the 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 the Securities, any Holder of the 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 the
Securities.
In case of appointment hereunder of a successor Trustee with
respect to the Securities, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities 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
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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 the 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 the Securities.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Securities shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee as to the 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).
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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 the 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 the Securities, and
such 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 Securities by the Authenticating Agent
pursuant to this Section shall be deemed to be the authentication and delivery
of such Securities "by the Trustee." Notwithstanding anything to the contrary
contained in Section 2.02, 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 all or
substantially all of 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 pa-
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per 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 in writing if it
shall cease to be so qualified; and it will indemnify the Trustee against any
loss, liability or expense incurred by the Trustee and will defend any claim
asserted against the Trustee by reason of any act or failure to act of the
Authenticating Agent but it shall have no liability for any action taken by it
at the specific written direction of the Trustee.
The Company agrees that it will pay to the Authenticating
Agent from time to time reasonable compensation for its services.
The provisions of Sections 7.02, 7.03 and 7.04 shall bind and
inure to the benefit of any Authenticating Agent to the same extent that they
bind and inure to the benefit of the Trustee.
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If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities referred to in the within
mentioned Indenture.
THE BANK OF NEW YORK,
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 the Securities
and this Indenture, except those obligations referred to in the immediately
succeeding paragraph, if:
(a) all Securities previously authenticated and delivered
(other than mutilated, destroyed, lost or stolen Securities which have
been replaced or the Securities which are paid for pursuant to Section
4.01 or the Securities for whose payment money or securities have
theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 8.03) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder
with respect to such series; or
(b)(1) the 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
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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 the 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 10:00 a.m., New York City time, on the relevant due date,
money in an amount, or (C) a combination thereof, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee,
sufficient to pay and discharge the principal of and each installment
of interest on such series of Securities then outstanding on the date
of maturity of such principal or installment of interest, or, on the
redemption date, as the case may be; and
(c)(2) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent provided for in clause (c) and in Section 4.11 relating to
the satisfaction and discharge of this Indenture with respect to such
series of Securities have been complied with.
Notwithstanding the foregoing clause (c), prior to the end of
the 90-day period referred to in clause (6)(ii) of Section 4.11, none of the
Company's obligations under this Indenture shall be discharged, and subsequent
to the end of the 90-day period only the Company's obligations in Sections 2.03,
2.04, 2.05, 2.06, 2.07, 4.01, 4.02, 7.07, 7.08, 8.03 and 8.04
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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 Securities and this Indenture, except for those surviving obligations
specified above. The Trustee shall not be responsible for any calculations made
by the Company in connection with the deposit of funds pursuant to clauses
(b)(2) or (c)(1) of this Section 8.01.
The Company may make an irrevocable deposit pursuant to this
Section 8.01 only if at such time the Company shall have delivered to the
Trustee and any such Paying Agent an Officers' Certificate to that effect.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.01 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of outstanding Securities.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall, with respect to the
Securities, hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 8.01, and shall apply the deposited money and the money from
U.S. Government Obligations in accordance with this Indenture, to the payment of
principal of and interest on the 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 written 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 written request any money held by them for the
payment of principal or interest that remains unclaimed for two years; PROVIDED,
HOWEVER, that the Company
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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 the Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of the 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 the Securities may amend or
supplement this Indenture or the Securities without notice to or consent of any
Securityholder:
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(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 the Securities, PROVIDED, HOWEVER, that
any such addition, change or elimination (A) shall neither (i) apply to
any 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 created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision;
or
(6) to make any change that does not adversely affect the
rights of any Securityholder.
SECTION 9.02. WITH CONSENT OF HOLDERS.
The Company and the Trustee as to the Securities may amend or
supplement this Indenture or the 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 affected by such amendment or
supplement. The Holders of a majority delivered to the Trustee in principal
amount of the Securities then outstanding may also waive compliance in a
particular instance by the Company with any provision of this Indenture with
respect to the 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;
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(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) affect the ranking of the Securities;
(6) make any Security payable in money other than that stated
in the Security; or
(7) make any changes in Section 6.04, 6.07 and 9.02 (second
sentence).
An amendment or waiver under this Section may not make any
change that adversely affects the rights of any holder of Debt under the Credit
Facilities unless such holder consents to such amendment or waiver.
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 the Securities 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
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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 the Securities 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 the Securities required hereunder for such amendment,
supplement or waiver to be effective shall have also been given and not revoked
within such 90-day period.
After an amendment, supplement or waiver becomes effective, it
shall bind the Holder of every Security unless it makes a change described in
clause (1), (2), (3), (4), (5), (6) or (7) of Section 9.02. In that case the
amendment, supplement or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Company 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 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 and an Officer's Certificate, each
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receive, and shall be fully protected in relying upon an Opinion of Counsel
and an Officer's Certificate, each 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 the Securities 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 the
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, or in the Borough of
Manhattan, The City of New York, as the Trustee shall determine. Notice of every
meeting of Holders of the 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
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Holders of the 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 all Holders of the Securities then outstanding are present in
person or by proxy, or if notice is waived before or after the meeting by all
Holders of the Securities then outstanding, 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 the 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 AND 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 per-
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sons 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
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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.
<PAGE>
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ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE.
If the Company elects to redeem the Securities pursuant to any
optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of the Securities 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 the
Securities 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 are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method that complies
with the requirements of any exchange on which the Securities are listed, or, if
the Securities 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 the Securities outstanding and not previously
called for redemption. Securities and portions thereof that the Trustee selects
shall be in amounts equal to the minimum authorized denomination for the
Securities 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.
<PAGE>
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SECTION 11.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any series of Securities,
at least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption to each Holder with a copy to the Trustee
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 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 Securities 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 no-
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tice 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 10:00 a.m., New York City time, on 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.
<PAGE>
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SECTION 12.02. NOTICES.
Any notice or communication shall be sufficiently given if in
writing and delivered in person or mailed by first-class mail postage prepaid,
addressed as follows:
if to the Company:
Mandalay Resort Group
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119
Attention: General Counsel
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee
Administration
Re: Mandalay Resort Group
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 date 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).
<PAGE>
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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,
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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 a Responsible Officer of the Trustee actually
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
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
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 li-
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abilities 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.
<PAGE>
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
MANDALAY RESORT GROUP
By: /s/ GLENN SCHAEFFER
-------------------------------
Name: Glenn Schaeffer
Title: President
THE BANK OF NEW YORK,
as Trustee
By: /s/ BARBARA A. BEVELAQUA
-------------------------------
Name: Barbara A. Bevelaqua
Title: Vice President
<PAGE>
EXHIBIT A
REGISTERED CUSIP NO.
PRINCIPAL AMOUNT
$
NO.
MANDALAY RESORT GROUP
9 1/2% SERIES A SENIOR NOTE
DUE 2008
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A
U.S. BROKER-DEALER) TO THE TRUSTEE OR TRANSFER AGENT A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE OR
TRANSFER AGENT FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF AVAILABLE),
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE OR TRANSFER AGENT AND THE ISSUER
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S
UNDER THE ACT.
A-1
<PAGE>
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE
OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.16 OF THE INDENTURE GOVERNING THIS NOTE.
MANDALAY RESORT GROUP, 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 $ on August 1, 2008, and to
pay interest thereon at the rate of 9 1/2% per annum, until the entire
principal amount hereof is paid or duly provided for. This Note is one of a
duly authorized series issued by the Company designated as the "9 1/2% Series
A Senior Notes due 2008" (herein called the "Notes").
1. Interest.
The Company will pay interest semiannually on February 1 and
August 1 of each year (each, an "Interest Payment Date") commencing February 1,
2001. Interest on the Notes 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 Note, or, if no interest has been
paid, from August 16, 2000. Notwithstanding the foregoing, when there is no
existing default in the payment of interest on the Notes, if the date hereof is
after a Record Date, as that term is defined below, and before the next
succeeding Interest Payment Date, this Note shall bear interest from such
Interest Payment Date; PROVIDED, HOWEVER, that if the Company shall default in
the payment of interest due on such
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<PAGE>
Interest Payment Date, then this Note 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 Notes, from August 16, 2000. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Notes (except defaulted
interest) to the persons who are registered Holders of Notes at the close of
business on the January 15 or July 15 preceding the February 1 or August 1, as
the case may be, on which the Interest Payment Date occurs (each, a "Record
Date"). Holders must surrender Notes 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 Notes under an Indenture dated as of
August 16, 2000, between the Company and the Trustee (the "Indenture"). The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
77aaa-77bbbb), as amended, as in effect on the date of the Indenture. The Notes
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.
a. Optional Redemption. The Company may not redeem the Notes
prior to maturity, except that upon not less than 30 nor more than 60 days'
notice, the Company may redeem the Notes in whole but not in part, at a
redemption price equal to 100% of the principal amount thereof plus the
Make-Whole Premium, together with accrued and unpaid interest thereon to the
applicable redemption date.
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<PAGE>
"Make-Whole-Premium" means, with respect to any Note at any
redemption date, the excess, if any, of (a) the present value of the sum of the
principal amount that would be payable at maturity of such Note and all
remaining interest payments to and including August 1, 2008, discounted on a
semi-annual bond equivalent basis from August 1, 2008 to the redemption date at
a per annum interest rate equal to the sum of the Treasury Yield (determined on
the Business Day immediately preceding the date of such redemption), plus 50
basis points, over (b) the aggregate principal amount of the Note being
redeemed.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two business days prior
to the date fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar data)) most nearly equal to
the then remaining average life of the Notes, PROVIDED that if the average life
of the Notes is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Yield shall be
obtained by linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States Treasury securities for
which such yields are given, except that if the average life of the Notes is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
b. Mandatory Redemption. The Company will not be required to
make any mandatory sinking fund payments in respect of the Notes.
6. Offers to Purchase.
Section 4.13 of the Indenture provides that upon the
occurrence of a Change of Control (as defined in the Indenture) and subject to
further limitations contained therein, the Company will make an offer to
purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
7. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 and in integral multiples of $1,000. A Holder may
transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer docu-
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<PAGE>
ments and to pay any taxes and fees required by law or permitted by the
Indenture.
8. Persons Deemed Owners.
The Holder of a Note 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 written 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 Notes to maturity, the Company will be discharged
(to the extent provided in the Indenture) from the Indenture and the Notes.
11. Amendment, Supplement, Waiver.
Subject to certain exceptions requiring the consent of the
Holders of each of the affected Notes, the Indenture or the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding affected by such amendment,
supplement or waiver, and any past default or compliance with any provision as
to the Notes may be waived with the consent of the Holders of a majority in
principal amount of the Notes then outstanding. Without the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture of the
Notes 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 Notes
or to make any change that does not materially adversely affect the rights of
any Holder.
12. Restrictive Covenants.
The Notes are general unsecured obligations of the Company
limited to the aggregate principal amount of $ . The Indenture does not limit
the Company from incurring unsecured Debt other than the aggregate principal
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<PAGE>
amount of debt to be issued pursuant to the 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 Notes and to engage in certain
sales 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 Notes and the Indenture, the predecessor corporation
will be released from those obligations.
14. Defaults and Remedies.
An Event of Default is anyone of the following: (i) failure of
the Company to pay (whether or not prohibited by the subordination provisions)
interest for 30 days on, or the principal when due of, the Notes; (ii) failure
to perform any other covenant contained in the Indenture for 30 days after
notice (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 clause); (iii) the occurrence of an event of default under any instrument
evidencing Debt of the Company or its subsidiaries entitling the holder or
holders thereof to accelerate the payment of an aggregate principal amount of
$10,000,000 or more of such Debt, which event of default is not cured or waived
in accordance with the provisions of such instrument, or such Debt is not
discharged, within 30 days after the receipt by the Company of notice from the
Trustee or the holders of 25% in principal amount of such series of Debt
Securities then outstanding of such event of default and requiring the Company
to cause such event of default to be cured or such Debt to be discharged; and
(iv) certain events of bankruptcy, insolvency or reorganization. If an Event of
Default occurs and is continuing, the Trustee or the Holders of not less than
25% in principal amount of the Notes then outstanding may declare all the Notes
to be due and payable immediately in accordance with Section 6.02 of the
Indenture. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may require security and indemnity satisfactory to
it before it enforces the Indenture or the Notes. Subject to certain
limitations, Holders of a majority in principal amount of the Notes 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
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<PAGE>
interest) if it determines that withholding notice is in their interests.
15. Trustee Dealings with Company.
The Bank of New York, 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 any successor
corporation shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder by accepting a Note
waives and released all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
17. Authentication.
This Note shall not be valid until the Trustee signs the
certificate of authentication at the end of this Note.
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:
Mandalay Resort Group
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119
Attention: General Counsel
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of
a Note 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).
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<PAGE>
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 Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
21. Registration Rights.
Pursuant to a registration rights agreement by and among the
Company and the Initial Purchasers, the Company will be obligated to consummate
an exchange offer pursuant to which the Holder of this Note shall have the right
to exchange this Note for Exchange Securities (as defined in the Indenture),
which have been registered under the Securities Act, in like principal amount
and having terms identical in all material respects as the Notes. The Holders of
the Notes shall be entitled to receive certain additional interest payments in
the event such exchange offer is not consummated and upon certain other
conditions, all pursuant to and in accordance with the terms of the registration
rights agreement.
22. Governing Law.
This Note shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflict of laws
principles thereof.
(Signature Page To Follow)
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed by its duly authorized officers.
SIGNATURES
MANDALAY RESORT GROUP
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated "9 1/2%
Senior Notes due 2008," pursuant to the Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
----------------------------------
Authorized Signatory
Date of Authentication:
<PAGE>
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed by an Eligible Guarantor Institution
(bank, stock broker, savings and loan association or credit union) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15:
I or we assign and transfer this Note to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint ______________________________________________________,
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
----------------------- ---------------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
----------------------------------------------------------
In connection with any transfer of this Note occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act") covering resales of this Note
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer:
[CHECK ONE]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
<PAGE>
(3) __ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933,
as amended) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(4) __ pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended; or
(5) __ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) __ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
/ / The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; PROVIDED, HOWEVER, that if item
(3), (4) or (6) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Notes, in their sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3)) and other information as the Trustee or the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended.
If none of the foregoing items are checked, the Trustee or
Registrar shall not be obligated to register this Note in the name of any person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.16 of the Indenture
shall have been satisfied.
<PAGE>
Dated: Signed:
----------------------- ---------------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
----------------------------------------------------------
<PAGE>
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
---------------------------- -----------------------------------------
NOTICE: To be executed by an executive
officer
<PAGE>
EXHIBIT B
REGISTERED CUSIP NO.
PRINCIPAL AMOUNT
$
NO.
MANDALAY RESORT GROUP
9 1/2% SERIES B SENIOR NOTE
DUE 2008
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY 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 NOTE 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 NOTE IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN CERTIFICATED FORM, THIS NOTE 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.
MANDALAY RESORT GROUP, 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 $ on August 1, 2008, and to pay interest
thereon at the rate of 9 1/2% per annum, until the entire principal amount
hereof is paid or duly provided for. This Note is one of a duly authorized
series issued by the Company designated as the "9 1/2% Series B Senior Notes
due 2008" (herein called the "Notes").
1. Interest.
The Company will pay interest semiannually on February 1 and
August 1 of each year (each, an "Interest Payment Date") commencing February 1,
2001. Interest on the Notes 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 Note, or, if no
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<PAGE>
interest has been paid, from August 16, 2000. Notwithstanding the foregoing,
when there is no existing default in the payment of interest on the Notes, if
the date hereof is after a Record Date, as that term is defined below, and
before the next succeeding Interest Payment Date, this Note 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 Note 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 Notes, from August 16, 2000. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Notes (except defaulted
interest) to the persons who are registered Holders of Notes at the close of
business on the January 15 or July 15 preceding the February 1 or August 1, as
the case may be, on which the Interest Payment Date occurs (each, a "Record
Date"). Holders must surrender Notes 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 Notes under an Indenture dated as of
August 16, 2000, between the Company and the Trustee (the "Indenture"). The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
77aaa-77bbbb), as amended, as in effect on the date of the Indenture. The Notes
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.
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<PAGE>
5. Redemption.
a. Optional Redemption. The Company may not redeem the Notes
prior to maturity, except that upon not less than 30 nor more than 60 days'
notice, the Company may redeem the Notes in whole but not in part, at a
redemption price equal to 100% of the principal amount thereof plus the
Make-Whole Premium, together with accrued and unpaid interest thereon to the
applicable redemption date.
"Make-Whole-Premium" means, with respect to any Note at any
redemption date, the excess, if any, of (a) the present value of the sum of the
principal amount that would be payable at maturity of such Note and all
remaining interest payments to and including August 1, 2008, discounted on a
semi-annual bond equivalent basis from August 1, 2008 to the redemption date at
a per annum interest rate equal to the sum of the Treasury Yield (determined on
the Business Day immediately preceding the date of such redemption), plus 50
basis points, over (b) the aggregate principal amount of the Note being
redeemed.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two business days prior
to the date fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar data)) most nearly equal to
the then remaining average life of the Notes, PROVIDED that if the average life
of the Notes is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Yield shall be
obtained by linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States Treasury securities for
which such yields are given, except that if the average life of the Notes is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
b. Mandatory Redemption. The Company will not be required to
make any mandatory sinking fund payments in respect of the Notes.
6. Offers to Purchase.
Section 4.13 of the Indenture provides that upon the
occurrence of a Change of Control (as defined in the Indenture) and subject to
further limitations contained therein, the Company will make an offer to
purchase certain amounts of the
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<PAGE>
Notes in accordance with the procedures set forth in the Indenture.
7. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 and in integral multiples of $1,000. A Holder may
transfer or exchange Notes 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 Note 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 written 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 Notes to maturity, the Company will be discharged
(to the extent provided in the Indenture) from the Indenture and the Notes.
11. Amendment, Supplement, Waiver.
Subject to certain exceptions requiring the consent of the
Holders of each of the affected Notes, the Indenture or the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding affected by such amendment,
supplement or waiver, and any past default or compliance with any provision as
to the Notes may be waived with the consent of the Holders of a majority in
principal amount of the Notes then outstanding. Without the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture of the
Notes 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 Com-
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<PAGE>
pany in addition to or in place of the issue of Notes or to make any change
that does not materially adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Notes are general unsecured obligations of the Company
limited to the aggregate principal amount of $ . The Indenture does not limit
the Company from incurring unsecured Debt other than the aggregate principal
amount of debt to be issued pursuant to the 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 Notes and to engage in certain
sales 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 Notes and the Indenture, the predecessor corporation
will be released from those obligations.
14. Defaults and Remedies.
An Event of Default is anyone of the following: (i) failure of
the Company to pay (whether or not prohibited by the subordination provisions)
interest for 30 days on, or the principal when due of, the Notes; (ii) failure
to perform any other covenant contained in the Indenture for 30 days after
notice (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 clause); (iii) the occurrence of an event of default under any instrument
evidencing Debt of the Company or its subsidiaries entitling the holder or
holders thereof to accelerate the payment of an aggregate principal amount of
$10,000,000 or more of such Debt, which event of default is not cured or waived
in accordance with the provisions of such instrument, or such Debt is not
discharged, within 30 days after the receipt by the Company of notice from the
Trustee or the holders of 25% in principal amount of such series of Debt
Securities then outstanding of such event of default and requiring the Company
to cause such event of default to be cured or such Debt to be discharged; and
(iv) certain events of bankruptcy, insolvency or reorganization. If an Event of
Default occurs and is continuing, the Trustee or the Holders of not less than
25% in principal amount of the Notes then outstanding may declare all the Notes
to be due and pay-
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<PAGE>
able immediately in accordance with Section 6.02 of the Indenture. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
The Trustee may require security and indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders
of a majority in principal amount of the Notes 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.
The Bank of New York, 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 any successor
corporation shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in respect of, or
by reason of such obligations or their creation. Each Holder by accepting a
Note waives and released all such liability. The waiver and release are part
of the consideration for the issue of the Notes.
17. Authentication.
This Note shall not be valid until the Trustee signs the
certificate of authentication at the end of this Note.
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:
Mandalay Resort Group
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119
Attention: General Counsel
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<PAGE>
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Note 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 Notes as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
21. Governing Law
This Note shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflict of laws
principles thereof.
(Signature Page To Follow)
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed by its duly authorized officers.
SIGNATURES
MANDALAY RESORT GROUP
By:
-----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated "9 1/2%
Senior Notes due 2008," pursuant to the Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------
Authorized Signatory
Date of Authentication:
<PAGE>
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed by an Eligible Guarantor Institution
(bank, stock broker, savings and loan association or credit union) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint _______________________________________________________,
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
------------------------ --------------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
-----------------------------------------------------------
<PAGE>
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[ ], [ ]
Registrar
[ ]
[ ]
[ ]
Ladies and Gentlemen:
In connection with our proposed purchase of Series A 9 1/2%
Senior Notes due 2008 (the "Notes") of Mandalay Resort Group, a Nevada
corporation (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated August 9, 2000, relating to the Notes and
such other information as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agreed to the
matters stated in the section entitled "Transfer Restrictions" of such
Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture relating to the Notes (the "Indenture") as described in the
Offering Memorandum and the undersigned agrees to be bound by, and not
to resell, pledge or otherwise transfer the Notes except in compliance
with, such restrictions and conditions and the Securities Act of 1933,
as amended (the "Securities Act"), and all applicable State securities
laws.
3. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except as permitted in the following sentence.
We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell any Notes, we
will do so only (i) to the Company or any subsidiary thereof, (ii)
inside the United States in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined in Rule
144A promulgated under the Securities Act), (iii) inside the United
States to an institutional
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<PAGE>
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
the Trustee (as defined in the Indenture) a signed letter containing
certain representations and agreements relating to the restrictions
on transfer of the Notes (the form of which letter can be obtained
from the Trustee), (iv) outside the United States in accordance with
Rule 904 of Regulation S promulgated under the Securities Act to
non-U.S. persons, (v) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), or (vi)
pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any person purchasing any of
the Notes from us a notice advising such purchaser that resales of
the Notes are restricted as stated herein.
4. We understand that, on any proposed resale of any Notes, we
will be required to furnish to the Trustee and the Company such
certification, legal opinions and other information as the Trustee and
the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that
the Notes purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or their
investment, as the case may be.
6. We are acquiring the Notes purchased by us for our account
or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
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<PAGE>
You, the Company, the Trustee and others are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-----------------------
Name:
Title:
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<PAGE>
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
PURSUANT TO REGULATION S
[ ], [ ]
[ ]
[ ]
[ ]
[ ]
Re: Mandalay Resort Group (the "Company")
Series A 9 1/2% Senior
NOTES DUE 2008 (THE "NOTES")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, we represent
that:
(1) the offer of the Notes was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You, the Company and counsel for the Company are entitled to
rely upon this letter and are irrevocably authorized
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<PAGE>
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------
Authorized Signature
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