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Commission File No. 022-22267
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT No. 1
TO
FORM T-3
FOR APPLICATION FOR QUALIFICATION OF INDENTURES UNDER THE TRUST
INDENTURE ACT OF 1939
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CAPITAL GAMING INTERNATIONAL, INC.
(Name of Applicant)
Bayport One, Suite 250
8025 Black Horse Pike
West Atlantic City, New Jersey 08232
(Address of Principal Executive Offices)
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SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
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TITLE OF CLASS AMOUNT
12% Senior Secured Notes due 2001 $23,100,000 Aggregate Principal
2001 Amount
Approximate date of proposed public offering: On or soon as practicable
after the Effective Date (as defined in the Plan referred to hereinafter).
Name and address of agent for service:
William S. Papazian
Capital Gaming International, Inc.
Bayport One, Suite 250
8025 Black Horse Pike
West Atlantic City, New Jersey 08232
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copy to:
Barry N. Seidel, Esq.
WILLKIE FARR & GALLAGHER
One Citicorp Center
153 East 53rd Street
New York, New York 10022
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The obligor hereby amends this application for qualification on such
date or dates as may be necessary to delay its effectiveness until (1) the 20th
day after the filing of a further amendment which specifically states that it
shall supercede this application, or (ii) such date as the Commission, acting
pursuant to section 307(c) of the Act, may determine upon the written request of
the obligor.
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GENERAL
1. General Information. Furnish the following as to the applicant:
(a) Form of organization: A corporation
(b) State or other sovereign power under the laws of which organized: New
Jersey
2. Securities Act exemption applicable. State briefly the facts relied upon by
the applicant as a basis for the claim that registration of the indenture
securities under the Securities Act of 1933 is not required.
On December 23, 1996, Capital Gaming International, Inc. (the "Debtor"),
filed its Plan of Reorganization, dated December 22, 1996, with the United
States Bankruptcy Court for the District of New Jersey (the "Bankruptcy
Court"). On February 6, 1997, the Debtor filed its First Amended Plan of
Reorganization (the "Plan"). At a hearing before the Bankruptcy Court on
February 6, 1997, the Bankruptcy Court, pursuant to section 1125 of title 11
of the United States Code (the "Bankruptcy Code"), approved the Disclosure
Statement for the Plan (the "Disclosure Statement") as containing adequate
information. By order of the Bankruptcy Court dated March 31, 1997, the Plan,
as further modified, was confirmed, as of March 19, 1997. A copy of the
Disclosure Statement is attached as Exhibit T3E.1 to this Form T-3. The Plan
is hereby incorporated by reference to exhibit 2.1 of the Applicant's Form
8-K filed with the Securities and Exchange Commission on April 3, 1997.
The 12% Senior Secured Notes due 2001 (the "Securities") of the Company, the
securities to be issued under the indenture to be qualified (the
"Indenture"), are offered and intended to be exchanged, pursuant to the Plan,
for claims against the Debtors classified in Class 2, Class 4, and certain
key officers of the Debtor under the Plan. Under the terms of the Plan, the
Securities will be distributed if certain conditions precedent are satisfied
or waived as set forth in the Plan.
Section 1145 of the Bankruptcy Code exempts the offer or sale of securities
under a plan of reorganization from registration under the Securities Act of
1933 and state law. Under section 1145, the issuance of securities is exempt
from registration if three principal requirements are satisfied: (1) the
securities are issued by a debtor, its successor, or an affiliate
participating in a joint plan
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with the debtor, under a plan of reorganization; (2) the recipients of the
securities hold a claim against the debtor or such affiliate, an interest in
the debtor or such affiliate, or a claim for an administrative expense
against the debtor or such affiliate; and (3) the securities are issued
entirely in exchange for the recipient's claim against or interest in the
debtor or such affiliate, or "principally" in such exchange and "partly" for
cash or property. The Debtors believe that the issuance of the Securities to
holders of Allowed Noteholder Secured Claims in Class 2 under the Plan will
satisfy all three conditions because: (a) the issuances are expressly
contemplated under the Plan; (b) the recipients are holders of "Claims"
against in the Debtors; and (c) the recipients would obtain the Securities in
exchange for their prepetition claims.
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AFFILIATIONS
3. Affiliates. Furnish a list or diagram of all affiliates of the applicant and
indicate the respective percentages of voting securities or other bases of
control.
State of Percentage of Voting
Affiliate Incorporation Securities
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Capital Development Rhode Island 100% owned by the
Gaming Corp. Company
Capital Gaming New Jersey 100% owned by the
Management, Inc. Company
As of Effective Date
State of Percentage of Voting
Affiliate Incorporation Securities
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Capital Development Rhode Island 100% owned by the
Gaming Corp. Company
Capital Gaming New Jersey 100% owned by the
Management, Inc. Company
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MANAGEMENT AND CONTROL
4. Directors and executive officers. List the names and complete mailing
addresses of all directors and executive officers of the applicant and all
persons chosen to become directors or executive officers. Indicate all offices
with the applicant held or to be held by each person named.
NAME ADDRESS OFFICE
Edward M. Tracy c/o Capital Gaming Director; President
International, Inc., Bayport and Chief Executive
One, Suite 250, 8025 Black Officer 0
Horse Pike, West Atlantic City,
New Jersey 08232
Col. Clinton L. Pagano c/o Capital Gaming Director; Executive
International, Inc., Bayport Vice President of
One, Suite 250, 8025 Black Compliance
Horse Pike, West Atlantic City,
New Jersey 08232
William S. Papazian c/o Capital Gaming Senior Vice
International, Inc., Bayport President, Secretary
One, Suite 250, 8025 Black and General Counsel;
Horse Pike, West Atlantic City, will become a
New Jersey 08232 Director as of the
Effective Date
Cory H. Morowitz c/o Capital Gaming Acting Chief
International, Inc., Bayport Financial Officer
One, Suite 250, 8025 Black
Horse Pike, West Atlantic City,
New Jersey 08232
5. Principal owners of voting securities. Furnish the following information as
to each person owning 10 percent or more of the voting securities of the
applicant.
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As of Effective Date
NAME AND COMPLETE TITLE OF PERCENTAGE OF VOTING
MAILING ADDRESS CLASS OWNED AMOUNT OWNED SECURITIES OWNED
Grace Brothers Ltd. common stock $32,500,000 20%
1560 Sherman Avenue
Suite 900
Evanston, IL 60201
Continental Casualty common stock 21,058,000 13%
c/o Loews Corporation
667 Madison Avenue
New York, NY 10021
Funsten Asset Management common stock 16,145,000 10%
121 Outrigger Mall
Marina Del Rey, CA 90292
SunAmerica Inc. common stock 18,000,000 11%
One SunAmerica Center
Los Angeles, CA 90067
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UNDERWRITERS
6. Underwriters. Give the name and complete mailing address of (a) each person
who, within three years prior to the date of filing the application, acted as an
underwriter of any securities of the obligor which were outstanding on the date
of filing the application and (b) each proposed principal underwriter of the
securities proposed to be offered. As to each person specified in (a), give the
title of each class of securities underwritten.
(a) No person, within three years of the date hereof, acted as a
underwriter of any of the securities of the Company that are
outstanding on the date hereof.
(b) The securities proposed to be offered will be exchanged with existing
security holders without the assistance of any underwriter.
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CAPITAL SECURITIES
7. Capitalization. (a) Furnish the following information as to each authorized
class of securities of the Applicant.
As of April 10, 1997
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
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Common Stock, no par value 75,000,000 shares 19,329,574
Preferred Stock, no par value 5,000,000 shares 0
11 1/2% Senior Secured
Notes Payable due 2001 $135,000,000 $104,688,850
(b) Give a brief outline of the voting rights of each class of voting
securities referred to in paragraph (a) above.
With respect to the Common Stock, each holder of a share of Common
Stock is entitled to one vote for each share of Common Stock so held on all
matters on which shareholders are entitled to vote.
With respect to the Preferred Stock, each holder of a share of
Preferred Stock is not entitled to vote on any matter on which shareholders are
entitled to vote.
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INDENTURE SECURITIES
8. Analysis of indenture provisions. Insert at this point the analysis of
indenture provisions required under section 305(a)(2) of the Act.
The terms of the indenture securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The following is
an analysis of certain terms defined in the Indenture. The following analysis
does not purport to be a complete description of the Indenture provisions
discussed and is qualified in its entirety by express reference to the
Indenture. (Section references are to the relevant provisions of the Indenture).
(a) Definition of default; Withholding Notice.
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The following events are defined in the Indenture as "Events of Default":
(1) the failure of the Company to pay any installment of
interest on the Securities (other than in respect of the Amended
Original Guaranty) as and when due and payable and the continuance of
any such failure for 10 days;
(2) the failure by the Company (other than in respect of the
Amended Original Guaranty) to pay all or any part of the principal, or
premium, if any, on the Securities when and as the same become due and
payable at maturity, redemption, by acceleration or otherwise,
including, without limitation, failure to pay any Offer to Purchase
Price, or otherwise;
(3) except as provided in clauses (1) or (2) of Section 7.1,
failure to have obtained Advisory Committee approval of a Definitive
Budget pursuant to Section 5.20(a) or failure of the Company or any
Guarantor or any Subsidiary thereof, as applicable, to comply with any
provision of Section 5.3, 5.10, 5.11, 5.12, 5.13, 5.15, 5.17, 5.18,
5.19, 5.20(d) or Section 6.1 which failure continues for 30 days;
(4) except as otherwise provided herein, the failure by the
Company or any Guarantor to observe or perform any other covenant or
agreement contained in the Securities or the Indenture (other than in
each case Amended Original Guaranty Obligations) and the continuance of
such failure for a period of 30 days after written notice is given to
the Company by the Trustee or to the Company and Trustee by the Holders
of at least 25% in aggregate principal amount of the Securities
outstanding;
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(5) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or a
Subsidiary of the Company as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company or a
Subsidiary of the Company under any bankruptcy or similar law, and such
decree or order shall have continued undischarged and unstayed for a
period of 60 days; or a decree or order of a court of competent
jurisdiction in respect of the appointment of a receiver, liquidator,
trustee, or assignee in bankruptcy or insolvency of the Company or a
Subsidiary of the Company, or of the Property of any such person, or
for the winding up or liquidation of the affairs of any such person,
shall have been entered, and such decree, judgment, or order shall have
remained in force undischarged and unstayed for a period of 60 days;
(6) the Company or a Subsidiary of the Company shall institute
proceedings to be adjudicated a voluntary bankrupt, or shall consent to
the filing of a bankruptcy proceeding against it, or shall file a
petition or answer or consent seeking reorganization under any
bankruptcy or similar law or similar statute, or shall consent to the
filing of any such petition, or shall consent to the appointment of a
Custodian, receiver, liquidator, trustee, or assignee in bankruptcy or
insolvency of it or any of its assets or property, or shall make a
general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due, or
shall, within the meaning of any Bankruptcy Law, become insolvent,
fails generally to pay their debts as they become due, or takes any
corporate action in furtherance of or to facilitate, conditionally or
otherwise, any of the foregoing;
(7) a default in the payment of principal, premium or interest
when due which extends beyond any stated period of grace applicable
thereto or an acceleration for any other reason of maturity of any
Indebtedness (excluding Indebtedness described in clause (iii) of the
second proviso to the definition of Indebtedness) of the Company or any
Subsidiary of the Company with an aggregate principal amount in excess
of $500,000;
(8) final unsatisfied judgments not covered by insurance
aggregating in excess of $500,000, at any one time rendered against the
Company or a Subsidiary of the Company and not stayed, bonded or
discharged within 60 days;
(9) an event of default specified in the Mortgage; or
(10) any of the documents comprising the Mortgage fails to
become or ceases to be in full force and effect in accordance with the
terms of the Indenture, or ceases (once effective) to create in favor
of the Trustee, with respect
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to any material amount of Collateral, a valid and perfected first
priority Lien on the Collateral to be covered thereby (unless a prior
or exclusive Lien is specifically permitted by the Indenture).
If a Default occurs and is continuing, the Trustee must, within 90 days
after the occurrence of such default, give to the Holders notice of such
default.
(b) Authentication and Delivery; Application of Proceeds.
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A Security will not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security, but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the term of the Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $23,100,000 upon a written order of the
Company in the form of an Officers' Certificate. The Officers' Certificate shall
specify the amount of Securities to be authenticated and the date on which the
Securities are to be authenticated. The aggregate principal amount of Securities
(other than in respect of the Amended Original Guaranty) outstanding at any time
may not exceed $23,100,000, except as provided in Section 2.7. Upon the written
order of the Company in the form of an Officers' Certificate, the Trustee shall
authenticate Securities in substitution of Securities originally issued to
reflect any name change of the Company.
Securities shall be issuable only in registered form without coupons in
denominations of $100 and any integral multiple thereof or such smaller
denominations as are required to comply with the Plan.
The Securities will be issued in exchange for claims and interests as
provided in the Plan, and accordingly, the issuance of the Securities will not
result in proceeds to the Company.
(c) Release and Substitution of Property Subject to the Lien of the
Indenture.
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Subject to applicable law, the release of any Collateral from Liens
created by the Mortgage or the release of, in whole or in part, the Liens
created by the Mortgage, will not be deemed to impair the Mortgage in
contravention of the provisions of the Indenture if and to the extent the
Collateral or Liens are released pursuant to, and in accordance with, the
applicable agreement creating the Mortgage and pursuant to, and in accordance
with, the terms hereof. To the extent applicable, without limitation, the
Company and each obligor on the Securities shall cause Trust Indenture Act
s314(d) relating to the release of Property or securities from the Liens of the
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Mortgage to be complied with. Any certificate or opinion required by TIA ss.
314(d) may be made by one officer prior to the qualification of the Indenture
under the TIA and by two officers after such qualification, except in cases
which Trust Indenture Act ss. 314(d) requires that such certificate or opinion
be made by an independent person.
Upon written request of the Company, subject to applicable law, and
presentation to the Collateral Agent of an Officers' Certificate evidencing
compliance with Section 5.14, the Collateral Agent shall release funds (and the
Trustee's Lien with respect thereto) in accordance with the terms of the Cash
Collateral and Disbursement Agreement; provided, that the Lien on the funds so
released shall immediately attach in like manner to the assets and property
purchased by the Company with such funds (except to the extent such funds are
applied to the repayment of Securities in compliance with the requirements of
the Indenture) to the extent required by the Indenture.
(d) Satisfaction and Discharge
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The Company shall be deemed to have paid and discharged the entire
Indebtedness on the Securities and the provisions of the Indenture shall cease
to be of further effect (subject to the survival of certain provisions of the
Indenture), if:
(1) The Company irrevocably deposits in trust with the
Trustee, pursuant to an irrevocable trust and security agreement in
form and substance reasonably satisfactory to the Trustee, (i) U.S.
Legal Tender, (ii) U.S. Government Obligations, or (iii) a combination
thereof, in an amount after payment of all Federal, state and local
taxes or other charges or assessments in respect thereof payable by the
Trustee, which through the payment of principal and interest will
provide, not later than one Business Day before the due date of payment
in respect of the Securities, U.S. Legal Tender in an amount which, in
the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof (in
form and
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substance reasonably satisfactory to the Trustee) delivered to
the Trustee, is sufficient to pay the principal of, premium, if any,
and each installment of principal and interest on the Securities (other
than in respect of the Amended Original Guaranty) then outstanding on
the dates on which any such payments are due and payable in accordance
with the terms of the Indenture and of the Securities;
(2) Such deposits shall not cause the Trustee to have a
conflicting interest as defined in and for purposes of the TIA;
(3) No Default or Event of Default shall have occurred or be
continuing on the date of such deposit or shall occur on or before the
91st day (or one day after such other
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greater period of time in which any such deposit of trust funds may
remain subject to bankruptcy or insolvency laws) after the date of such
deposit, and such deposit will not result in a Default or Event of
Default under the Indenture or a breach or violation of, or constitute
a default under, any other instrument to which the Company, any
Guarantor or any Subsidiary of the Company or the Guarantor is a party
or by which it or its Property is bound;
(4) The deposit, defeasance and discharge will not be deemed,
or result in, a Federal income taxable event to the Holders of such
Securities and the Holders will be subject to Federal income tax only
in the same amounts and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred;
(5) The deposit shall not result in the Company, the Trustee
or the trust becoming an "investment company" under the Investment
Company Act of 1940;
(6) After the passage of 91 days (or any greater period of
time in which any such deposit of trust funds may remain subject to any
Bankruptcy Laws insofar as those laws apply to the Company) following
the deposit of the trust funds, such funds will not be subject to any
Bankruptcy Laws affecting creditors' rights generally;
(7) Holders of such Securities will have a valid, perfected
and unavoidable first-priority security interest in the trust funds;
and
(8) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (who may be outside counsel to
the Company, but not in-house counsel to the Company or any of its
Subsidiaries), each in form and substance satisfactory to the Trustee,
stating that all conditions precedent specified herein relating to the
defeasance contemplated by Section 9.1 have been complied with.
In the event all or any portion of such Securities are to be redeemed
through such irrevocable trust, the Company must make arrangements satisfactory
to the Trustee, at the time of such deposit, for the giving of the notice of
such redemption or redemptions by the Trustee in the name and at the expense of
the Company.
(e) Evidence of Compliance
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The Company shall deliver to the Trustee within 90 days after the end
of its fiscal year an Officers' Certificate complying (whether or not required)
with Section 314(a)(4) of the TIA and stating that a review of its activities
and the activities of its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with
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a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under the Indenture and further stating, as to each
such Officer signing such certificate, whether or not the signer knows of any
failure of the Company, any Guarantor or any Subsidiary of the Company or any
Guarantor to comply with any conditions or covenants in the Indenture and, if
such signer does know of such a failure to comply, the certificate shall
describe such failure with particularity. The Officers' Certificate shall also
notify the Trustee should the relevant fiscal year end on any date other than
the current fiscal year end date.
9. Other obligors. Give the name and complete mailing address of any person,
other than the Applicant, who is an obligor upon the indenture securities.
Capital Gaming Management Inc.
c/o Capital Gaming International, Inc.
Bayport One, Suite 250
8025 Black Horse Pike
West Atlantic City, New Jersey 08232
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CONTENTS
Contents of application for qualification. This application for qualification
comprises--
(a) Pages numbered 1 to ____, consecutively.
(b) The statement of eligibility and qualification of each trustee under the
indenture to be qualified (previously filed).
(c) The following exhibits in addition to those filed as a part of the statement
of eligibility and qualification of each trustee.
EXHIBIT
T3A Restated Certificate of Incorporation (Incorporated
by reference to exhibit 3.1 filed in connection with
the Applicant's Form 10-K filed with the Securities
and Exchange Commission on September 28, 1994).
T3B Bylaws (Incorporated by reference to exhibit 3.2
filed in connection with the Applicant's Form 10-K
filed with the Securities and Exchange Commission on
September 28, 1993).
T3C Form of Indenture, including exhibits thereto
(previously filed)
T3E Disclosure Statement (previously filed)
T3F See the cross-reference sheet following the cover
page of the Indenture of the provisions inserted
therein pursuant to Section 310 through 318(a),
inclusive, of the Trust Indenture Act of 1939
(contained in Exhibit T3C hereof)
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Capital Gaming International, Inc., a corporation organized and
existing under the laws of New Jersey, has duly caused this amendment to the
application to be signed on its behalf by the undersigned, thereunto duly
authorized , and its seal to be hereunto affixed and attested, all in the city
of West Atlantic City and State of New Jersey on the 17th day of April, 1997.
(SEAL)
CAPITAL GAMING INTERNATIONAL, INC.
By /s/ William S. Papazian
William S. Papazian
Senior Vice-President and
Counsel
Attest: /s/ Edward M. Tracy
Edward M. Tracy
Chairman and CEO
