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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 3, 1997
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STATION CASINOS, INC.
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(Exact name of registrant as specified in its charter)
NEVADA 000-21640 88-0136443
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
2411 WEST SAHARA AVENUE
LAS VEGAS, NEVADA 89102
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 702/367-2411
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N/A
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(Former name or former address, if changed since last report)
This is Page 1 of a Total of __ Pages; The Exhibit Index may be found on Page 4.
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ITEM 5. OTHER EVENTS.
Attached is a press release issued by the Registrant on April 3,
1997. The press release in incorporated herein by this reference.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
STATION CASINOS, INC.
a Nevada corporation
By: /s/ Glenn C. Christenson
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Glenn C. Christenson
Executive Vice President
Chief Financial Officer and Treasurer
Date: April 4, 1997
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EXHIBIT INDEX
Exhibit Exhibit
Number Description
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4.1 Indenture dated as of April 3, 1997 between Station Casinos, Inc.
and First Union National Bank, a national banking associaton, as
Trustee.
4.2 Registration Rights Agreement dated as of April 3, 1997 between
Station Casinos, Inc. and BancAmerica Securities, Inc.
20.01 The Registrant's press release, dated April 3, 1997.
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STATION CASINOS, INC.
____________________
$150,000,000
9 3/4% Senior Subordinated Notes Due 2007
____________________
INDENTURE
Dated as of April 3, 1997
____________________
FIRST UNION NATIONAL BANK
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
- ----------------- -----------------
310(a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(b)...................................................... 7.08; 7.10; 11.02
(c)...................................................... N.A.
311(a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312(a)...................................................... 2.05
(b)...................................................... 11.03
(c)...................................................... 11.03
313(a)...................................................... 7.06
(b)(1)................................................... N.A.
(b)(2)................................................... 7.06
(c)...................................................... 7.06; 11.02
(d)...................................................... 7.06
314(a)...................................................... 4.02; 11.02
(b)...................................................... N.A.
(c)(1)................................................... 11.04
(c)(2)................................................... 11.04
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(e)...................................................... 11.05
(f)...................................................... N.A.
315(a)...................................................... 7.01(b)
(b)...................................................... 7.05; 11.02
(c)...................................................... 7.01(a)
(d)...................................................... 7.01(c)
(e)...................................................... 6.11
316(a) (last sentence)...................................... 2.09
(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)...................................................... 11.01
N.A. means not applicable.
_______________
* This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.............. 1
Section 1.01. Definitions............................................. 1
Section 1.02. Other Definitions....................................... 12
Section 1.03. Incorporation by Reference of Trust Indenture Act....... 13
Section 1.04. Rules of Construction................................... 13
ARTICLE 2 THE NOTES............................................... 13
Section 2.01. Form and Dating......................................... 13
Section 2.02. Execution and Authentication............................ 15
Section 2.03. Registrar; Paying Agent; Depository; Note Custodian..... 16
Section 2.04. Paying Agent to Hold Money in Trust..................... 17
Section 2.05. Noteholder Lists........................................ 17
Section 2.06. Transfer and Exchange................................... 17
Section 2.07. Replacement Notes....................................... 24
Section 2.08. Outstanding Notes....................................... 25
Section 2.09. Treasury Notes.......................................... 25
Section 2.10. Temporary Notes......................................... 25
Section 2.11. Cancellation............................................ 25
Section 2.12. Defaulted Interest...................................... 25
Section 2.13. CUSIP Number............................................ 26
Section 2.14. Exchange Registration................................... 26
ARTICLE 3 REDEMPTION.............................................. 26
Section 3.01. Notices to Trustee...................................... 26
Section 3.02. Selection of Notes to Be Redeemed....................... 26
Section 3.03. Notice of Redemption.................................... 27
Section 3.04. Effect of Notice of Redemption.......................... 27
Section 3.05. Deposit of Redemption Price............................. 28
Section 3.06. Notes Redeemed in Part.................................. 28
Section 3.07. Mandatory Disposition Pursuant to Gaming Laws........... 28
ARTICLE 4 COVENANTS............................................... 28
Section 4.01. Payment of Notes........................................ 28
Section 4.02. SEC Reports, Financial Reports.......................... 28
Section 4.03. Compliance Certificate.................................. 29
Section 4.04. Stay, Extension and Usury Laws.......................... 30
Section 4.05. Restricted Payments and Restricted Investments.......... 30
Section 4.06. Limitation on Indebtedness.............................. 32
Section 4.07. Limitation on Capital Stock of Restricted Subsidiaries.. 32
Section 4.08. Corporate Existence..................................... 33
Section 4.09. Taxes................................................... 33
Section 4.10. Investment Company Act.................................. 33
Section 4.11. Limitation on Transactions with Affiliates.............. 33
Section 4.12. Change of Control....................................... 34
Section 4.13. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries....................... 35
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Section 4.14. Restriction on Layering Debt............................ 35
ARTICLE 5 SUCCESSORS.............................................. 36
Section 5.01. When Company May Merge, etc............................. 36
Section 5.02. Successor Corporation Substituted....................... 36
ARTICLE 6 DEFAULTS AND REMEDIES................................... 37
Section 6.01. Events of Default....................................... 37
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..................................... 39
Section 6.06. Limitation on Suits..................................... 39
Section 6.07. Rights of Holders to Receive Payment.................... 40
Section 6.08. Collection Suit by Trustee.............................. 40
Section 6.09. Trustee May File Proofs of Claim........................ 40
Section 6.10. Priorities.............................................. 40
Section 6.11. Undertaking for Costs................................... 41
ARTICLE 7 TRUSTEE................................................. 41
Section 7.01. Duties of Trustee....................................... 41
Section 7.02. Rights of Trustee....................................... 42
Section 7.03. Individual Rights of Trustee............................ 42
Section 7.04. Trustee's Disclaimer.................................... 42
Section 7.05. Notice of Defaults...................................... 42
Section 7.06. Reports by Trustee to Holders........................... 43
Section 7.07. Compensation and Indemnity.............................. 43
Section 7.08. Replacement of Trustee.................................. 43
Section 7.09. Successor Trustee by Merger, etc........................ 44
Section 7.10. Eligibility; Disqualification........................... 44
Section 7.11. Preferential Collection of Claims Against Company....... 45
ARTICLE 8 DISCHARGE OF INDENTURE.................................. 45
Section 8.01. Termination of Company's Obligations.................... 45
Section 8.02. Application of Trust Money.............................. 45
Section 8.03. Repayment to Company.................................... 46
Section 8.04. Reinstatement........................................... 46
ARTICLE 9 AMENDMENTS.............................................. 46
Section 9.01. Without Consent of Holders.............................. 46
Section 9.02. With Consent of Holders................................. 47
Section 9.03. Compliance with Trust Indenture Act..................... 47
Section 9.04. Revocation and Effect of Consents....................... 47
Section 9.05. Notation on or Exchange of Notes........................ 48
Section 9.06. Trustee Protected....................................... 48
ARTICLE 10 SUBORDINATION........................................... 48
Section 10.01. Notes Subordinated to Senior Indebtedness............... 48
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Section 10.02. Liquidation; Dissolution; Bankruptcy................... 49
Section 10.03. Default on Senior Indebtedness......................... 49
Section 10.04. When Distribution Must Be Paid Over.................... 50
Section 10.05. Notice by Company...................................... 50
Section 10.06. Subrogation............................................ 51
Section 10.07. Relative Rights........................................ 51
Section 10.08. Subordination May Not Be Impaired by Company........... 51
Section 10.09. Distribution or Notice to Representatives.............. 51
Section 10.10. Rights of Trustee and Paying Agent..................... 51
Section 10.11. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice...................................... 52
Section 10.12. Application by Trustee of Monies Deposited With It..... 52
Section 10.13. Trustee's Compensation Not Prejudiced.................. 52
Section 10.14. Officers' Certificate.................................. 52
Section 10.15. Certain Payments....................................... 53
Section 10.16. Names of Representatives............................... 53
Section 10.17. Article 10 Not To Prevent Events of Default or Limit
Right To Accelerate.................................... 53
Section 10.18. Reliance by Holders of Senior Indebtedness on
Subordinatio Provisions................................ 53
Section 10.19. Proof of Claim......................................... 53
Re: 9 3/4/% Senior Subordinated Notes due 2007 of Station Casinos, Inc.
ARTICLE 11 MISCELLANEOUS.......................................... 54
Section 11.01. Trust Indenture Act Controls........................... 54
Section 11.02. Notices................................................ 54
Section 11.03. Communication by Holders with Other Holders............ 54
Section 11.04. Certificate and Opinion as to Conditions Precedent..... 54
Section 11.05. Statements Required in Certificate or Opinion.......... 55
Section 11.06. Rules by Trustee and Agents............................ 55
Section 11.07. Legal Holidays......................................... 55
Section 11.08. No Recourse Against Others............................. 55
Section 11.09. Counterparts........................................... 55
Section 11.10. Variable Provisions.................................... 55
Section 11.11. Governing Law.......................................... 56
Section 11.12. No Adverse Interpretation of Other Agreements.......... 56
Section 11.13. Successors............................................. 56
Section 11.14. Severability........................................... 56
Section 11.15. Qualification of Indenture............................. 56
Section 11.16. Table of Contents, Headings, etc....................... 57
SIGNATURES.................................................................. 58
Exhibit A-1 Form of Note
Exhibit A-2 Form of Regulation S Temporary Note
Exhibit B-1 Form of Certificate for Exchange or Registration of Transfer
of Rule 144A Global Note to Regulation S Global Note
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Exhibit B-2 Form of Certificate for Exchange or Registration of Transfer
From Regulation S Global Note to Rule 144A Global Note
Exhibit B-3 Form of Certificate for Exchange or Registration of Transfer
of Certificated Notes
Exhibit B-4 Form of Certificate for Exchange or Registration of Transfer
From Rule 144A Global Note or Regulation S Permanent Global
Note to Certificated Note
Exhibit B-5 Form of Certificate for Exchange or Registration of Transfer
From Certificated Note to Rule 144A Global Note or Regulation
S Permanent Global Note
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INDENTURE dated as of April 3, 1997 among STATION CASINOS, INC., a
Nevada corporation (the "Company") and FIRST UNION NATIONAL BANK, a national
banking association, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 9 3/4%
A Senior Subordinated Notes due 2007 (the "Series A Notes") and the Company's
9 3/4% Series B Senior Subordinated Notes due 2007 (the "Series B Notes" and,
together with the Series A Notes, the "Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"AFFILIATE" of any specified person means any other person (i)
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified person, (ii)
which directly or indirectly through one or more intermediaries beneficially
owns or holds 10% or more of any class of the Voting Stock of such specified
person (or a 10% or greater equity interest in such person which is not a
corporation) or (iii) of which 10% or more of any class of the Voting Stock (or,
in the case of a person which is not a corporation, 10% or more of the equity
interest) is beneficially owned or held directly or indirectly through one or
more intermediaries by such person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"AGENT MEMBERS" means any member of, or participant in, the
Depository.
"AMORTIZATION EXPENSE" means, for any period, amounts recognized
during such period as amortization of all goodwill and other assets classified
as intangible assets in accordance with GAAP.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures of
the Depository that are applicable to such transfer or exchange
"AVERAGE LIFE" means, as of the date of determination, with
reference to any Indebtedness, the quotient obtained by dividing (i) the sum of
the products of the number of years from the date of determination to the dates
of each successive scheduled principal payment of such Indebtedness multiplied
by the amount of such principal payment by (ii) the sum of all such principal
payments.
"BANK FACILITY" means the Reducing Revolving Loan Agreement dated
as of July 5, 1995 by and among PSHC, BSI, TSI, Bank of Scotland and Societe
Generale, as co-agents, Bank of America National Trust and Savings Association,
as managing agent and certain lenders named therein, as amended, modified or
refinanced from time to time, provided that the managing agent for the lenders
under such refinancing is a banking institution with over $500 million in assets
and subject to supervision and examination by federal or state banking
authorities.
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"BOARD OF DIRECTORS" or "BOARD" means the Board of Directors of
the Company.
"BSI" means Boulder Station, Inc.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATIONS" of a person means any obligation that
is required to be classified and accounted for as a capital lease on the face of
a balance sheet of such person prepared in accordance with GAAP; the amount of
such obligation shall be the capitalized amount thereof, determined in
accordance with GAAP; the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty; and such obligation shall be deemed secured by a Lien on any property
or assets to which such lease relates.
"CAPITAL STOCK" means, with respect to any person, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents (including partnerships or partnership interests), or
ownership interests (however designated) of such person, including each class of
common stock and preferred stock of such person, but excluding convertible
Indebtedness.
"CERTIFICATED NOTES" means Notes that are in the form of the Notes
attached hereto as Exhibit A-1, that do not include the information called for
by footnotes 1 and 2 thereof.
"CHANGE OF CONTROL" means an event or series of events by which
(i) the Company sells, conveys, transfers or leases, directly or indirectly, all
or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries to any person, corporation, entity or group, (ii) any
"person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act)
(other than the Existing Equity Holders) 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 shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly of
securities representing 40% or more of the combined voting power of the
Company's Voting Stock and at such time as the Existing Equity Holders together
shall fail to beneficially own, directly or indirectly, securities representing
at least the same percentage of the combined voting power of the Company's
Voting Stock as is "beneficially owned" by such "person," (iii) the Company
consolidates with or merges into another corporation, or any corporation
consolidates with or merges into the Company, in either event pursuant to a
transaction in which the outstanding Voting Stock of the Company is changed into
or exchanged for cash, securities or other property, other than any such
transactions between the Company and its wholly-owned Restricted Subsidiaries,
with the effect that any "person" (other than the Existing Equity Holders)
becomes the "beneficial owner," directly or indirectly, of securities
representing 40% or more of the combined voting power of the Company's Voting
Stock and at such time as the Existing Equity Holders together shall fail to
beneficially own, directly or indirectly, securities representing at least the
same percentage of the combined voting power of the Company's Voting Stock as is
"beneficially owned" by such "person," (iv) during any period of 24 consecutive
months, individuals who at the beginning of such period constituted the
Company's Board of Directors (together with any new or replacement directors
whose election by the Company's Board of Directors, or whose nomination for
election by the Company's stockholders, was approved by a vote of at least 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
directors then in office or (v) the Company shall, as a result of any
transaction or series of transactions, cease to own all of the outstanding
Capital Stock of, or all or
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substantially all of the assets of, PSHC, BSI, SCRSI, SGSI and SWSI; PROVIDED,
HOWEVER, that no Change of Control shall be deemed to occur if the Company
sells, in one transaction or a series of transactions, stock or assets of such
Subsidiaries having an aggregate book value, determined in accordance with GAAP
and net of related debt, which is less than 5% of the aggregate book value of
the net assets of the Company and its consolidated Restricted Subsidiaries,
determined in accordance with GAAP.
"CHANGE OF CONTROL TRIGGERING EVENT" is defined as the occurrence
of both (i) a Change of Control and (ii) a Rating Decline.
"COMPANY" means the person named as such above until a successor
replaces it in accordance with Article 5 and thereafter means the successor.
"COMPLETION GUARANTEE AND KEEP-WELL AGREEMENT" means (i) the
guarantee by the Company or a Restricted Subsidiary of the completion of the
development, construction and opening of a new gaming facility by an Affiliate
of the Company, (ii) the agreement by the Company or a Restricted Subsidiary 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 connection with
the development, construction and opening of a new gaming facility by such
Affiliate and (iii) performance bonds incurred in the ordinary course of
business; provided that, in the case of clauses (i) and (ii) above, such
guarantee or agreement is entered into in connection with obtaining financing
for such gaming facility or is required by a Gaming Authority.
"CONSOLIDATED COVERAGE RATIO" means, for any period, for any
person, the ratio of the aggregate amount of Operating Cash Flow of such person
for such period to the aggregate amount of Consolidated Interest Expense of such
person for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total
interest expense of a person and its consolidated Restricted Subsidiaries
including (i) interest expense attributable to Capital Lease Obligations, (ii)
amortization of debt discount, (iii) capitalized interest, (iv) cash and noncash
interest payments, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (vi) net
costs under Interest Rate Protection Agreements (including amortization of
discount) and (vii) interest expense in respect of obligations of other persons
deemed to be Indebtedness of the Company or its Restricted Subsidiaries under
clause (v) or (vi) of the definition of Indebtedness.
"CONSOLIDATED NET INCOME" means, for any period, the net income of
a person and its consolidated Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP; PROVIDED, HOWEVER, that there
shall not be included in such Consolidated Net Income: (i) any net income (loss)
of any person if such person is not a Restricted Subsidiary, except that (a) the
Company's equity in the net income of any such person (including, without
limitation, an Unrestricted Subsidiary) for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such person during such period to the Company or a Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution to a Restricted Subsidiary, to the limitations
contained in clause (iii) below); and (b) the Company's equity in the net loss
of any such person for such period shall be included in determining such
Consolidated Net Income (subject, with respect to the net loss of an
Unrestricted Subsidiary, to clause (vi) below); (ii) any net income (loss) of
any person acquired by the Company or a Restricted Subsidiary in a pooling of
interests transaction for any period prior to the date of such acquisition;
(iii) any net income (loss) of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the payment of
dividends
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or the making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Company, except that (a) the Company's equity in the net
income of any such Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash which could have
been distributed by such Restricted Subsidiary during such period to the Company
or another Restricted Subsidiary as a dividend or other distribution (subject,
in the case of a dividend or other distribution to another Restricted
Subsidiary, to the limitation contained in this clause) unless at the time of
computation no cash would be permitted to be distributed and (b) the Company's
equity in the net loss of any such Restricted Subsidiary for such period shall
be included in determining such Consolidated Net Income; (iv) any gain or loss
realized upon the sale or other disposition of any property, plant or equipment
of the Company or its consolidated Restricted Subsidiaries which is not sold or
otherwise disposed of in the ordinary course of business and any gain or loss
realized upon the sale or other disposition of any Capital Stock of any person;
(v) the cumulative effect of a change in accounting principles; and (vi) the net
loss of any Unrestricted Subsidiary.
"CONSOLIDATED NET WORTH" of any person means the total of the
amounts shown on the balance sheet of such person and its consolidated
Restricted Subsidiaries, determined on a consolidated basis in accordance with
GAAP, as of any date selected by the Company not more than 90 days prior to the
taking of any action for the purpose of which the determination is being made
(and adjusted for any material events since such date), as (i) the par or stated
value of all outstanding Capital Stock plus (ii) paid-in capital or capital
surplus relating to such Capital Stock plus (iii) any retained earnings or
earned surplus, less (a) any accumulated deficit, (b) any amounts attributable
to Redeemable Stock and (c) any amounts attributable to Exchangeable Stock.
"DEFAULT" means any event which is, or after notice or passage of
time would be, an Event of Default.
"DEPOSITORY" means, with respect to the Notes issuable or issued
in whole or in part in global form, the person specified in Section 2.03 hereof
as the Depository with respect to the Notes, until a successor shall have been
appointed and become such Depository pursuant to the applicable provision of
this Indenture, and, thereafter, "Depository" shall mean or include such
successor.
"DESIGNATED SENIOR INDEBTEDNESS" shall mean each issue of Senior
Indebtedness that (i) has an outstanding principal amount of at least
$25,000,000 (including the amount of all reimbursement obligations pursuant to
letters of credit thereunder and the maximum principal amount available to be
drawn thereunder, assuming in the case of the Bank Facility that all conditions
precedent to any such drawing could be satisfied) and (ii) has been designated
as Designated Senior Indebtedness pursuant to an Officers' Certificate of the
Company received by the Trustee.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE OFFER" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Series B Notes for
Series A Notes.
"EXCHANGEABLE STOCK" means any Capital Stock of a corporation that
is exchangeable or convertible into another security (other than into Capital
Stock of such corporation that is neither Exchangeable Stock or Redeemable
Stock).
"EXISTING EQUITY HOLDERS" means Frank J. Fertitta III, Blake L.
Sartini, Delise F. Sartini, Lorenzo J. Fertitta, Glenn C. Christenson, Joseph J.
Canfora and Scott M. Nielson and the
4
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Former Equity Holder and their executors, administrators or the legal
representatives of their estates, their heirs, distributees and beneficiaries,
any trust as to which any of the foregoing is a settlor or co-settlor and any
corporation, partnership or other entity which is an Affiliate of any of the
foregoing. Existing Equity Holders shall also mean any lineal descendants of
such persons, but only to the extent that the beneficial ownership of the Voting
Stock held by such lineal descendants was directly received (by gift, trust or
sale) from any such person.
"EXISTING INDEBTEDNESS" means the following: (i) Note payable to
Primerit Bank, dated as of September 23, 1994 in the original principal amount
of approximately $5.5 million, (ii) Promissory Note secured by a Deed of Trust
payable to PH Property Development Company, dated as of September 12, 1995 in
the original principal amount of approximately $6.2 million, (iii) Note payable
to GE Capital Corp., amended and restated as of May 31, 1995 in the original
principal amount of approximately $16 million, (iv) Note payable to CIT Group
Financing, dated as of October 21, 1994 in the original principal amount of
approximately $10 million, (v) Note payable to Brad Pederson, dated as of
October 1992 in the original principal amount of approximately $400,000 and (vi)
Promissory Note payable to GE Capital, dated as of March 20, 1992 in the
original principal amount of approximately $1.5 million, in each case, existing
as of the date of the Indenture.
"EXISTING SENIOR SUBORDINATED NOTES" means the $110,000,000 9 1/8%
Senior Subordinated Notes of the Company Due 2003, the $83,000,000 9 1/8% Senior
Subordinated Notes of the Company Due 2003 and the $198,000,000 10 1/8% Senior
Subordinated Notes of the Company Due 2006.
"FF&E FINANCING" means Indebtedness which is non-recourse to the
borrower, the proceeds of which will be used to finance the acquisition or lease
by the Company or its Restricted Subsidiaries of furniture, fixtures or
equipment ("FF&E") used in the operation of its business and secured by a Lien
on such FF&E.
"FORMER EQUITY HOLDER" means Frank J. Fertitta, Jr.
"GAAP" means generally accepted accounting principles as in effect
in the United States on the date of this Indenture.
"GAMING AUTHORITY" means the Nevada Gaming Commission, the Nevada
Gaming Control Board or any agency of any state, county, city or other political
subdivision which has, or may at any time after the date of the Indenture have,
jurisdiction over all or any portion of the gaming activities of the Company or
any of its Subsidiaries or any successor to such authority.
"GAMING CONTROL ACT" means the Nevada Gaming Control Act, as from
time to time amended, or any successor provision of law, and the regulations
promulgated thereunder.
"GAMING LICENSE" of any person means every license, franchise or
other authorization on the date of the Indenture or thereafter required to own,
lease, operate or otherwise conduct the gaming operations of such person,
including, without limitation, all such licenses granted under the Gaming
Control Act, as from time to time amended, or any successor provision at law,
the regulations of Gaming Authorities and other applicable laws.
"GLOBAL NOTES" means, individually and collectively, the
Regulation S Temporary Global Note, the Regulation S Permanent Global Note and
the Rule 144A Global Note.
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"GOVERNMENTAL AUTHORITY" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any nature
whatsoever of any city or other political subdivision or otherwise and whether
now or hereafter in existence, or any officer or official thereof.
"GVSI" means Green Valley Station, Inc.
"GVV" means Green Valley Ventures.
"HOLDER" or "NOTEHOLDER" means a person in whose name a Note is
registered on the register maintained by the Registrar.
"INDEBTEDNESS" of any person means, without duplication, (i) the
principal of and premium (if any) in respect of (a) indebtedness of such person
for money borrowed and (b) indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such person is responsible or
liable; (ii) all Capital Lease Obligations of such person; (iii) all obligations
of such person issued or assumed as the deferred purchase price of property,
assets or services, all conditional sale obligations and all obligations under
any title retention agreement (but excluding operating leases and trade accounts
payable arising in the ordinary course of business); (iv) all obligations of
such person for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations
described in (i) through (iii) above) entered into in the ordinary course of
business of such person to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later than
the third Business Day following receipt by such person of a demand for
reimbursement following payment on the letter of credit); (v) all obligations of
the type referred to in clauses (i) through (iv) of other persons and all
dividends of other persons for the payment of which, in either case, such person
is responsible or liable as obligor, guarantor or otherwise; and (vi) all
obligations of the type referred to in clauses (i) through (v) of other persons
secured by any Lien on any property or asset of such person (whether or not such
obligation is assumed by such person), the amount of such obligation being
deemed to be the lesser of the value of such property or asset or the amount of
the obligation so secured.
"INDENTURE" means this Indenture as amended or supplemented from
time to time.
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect the Company or any Subsidiary against
fluctuations in interest rates.
"INVESTMENT GRADE" designates a rating of BBB- or higher by S&P or
Baa3 or higher by Moody's or the equivalent of such ratings by S&P or Moody's.
In the event that the Company shall select any other Rating Agency, the
equivalent of such ratings by such Rating Agency shall be used.
"KCSC" means Kansas City Station Corporation.
"LEGAL REQUIREMENTS" means, with respect to any project, all laws,
statutes and ordinances (including building codes and zoning and environmental
laws, regulations and ordinances), and all rules, orders, rulings, regulations,
directives and requirements of all Governmental Authorities, which are now or
which may hereafter be in existence, and which are applicable to the Company or
any Affiliate thereof in connection with the construction or development of any
project or the operation of its business, or any part thereof, including,
without limitation, the Gaming Control Act, as modified by
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any variances, special use permits, waivers, exceptions or other exemptions
which may from time to time be applicable to the Company or any Affiliate
thereof.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset (including any agreement to give any security interest). For all purposes
under this Indenture, a person shall be deemed to own subject to a Lien any
asset that it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, Capital Lease Obligation or other
title retention agreement (other than operating leases) relating to such asset.
"LIQUIDATED DAMAGES" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"MOODY'S" means Moody's Investors Service, Inc. and its
successors.
"NET PROCEEDS" means, with respect to any issuance, sale or
contribution in respect of Capital Stock, the aggregate proceeds of such
issuance, sale or contribution, including the fair market value (as determined
by the Board of Directors and net of any associated debt) of property other than
cash, received by the Company, net of attorneys' fees, accountants' fees,
underwriters' fees, placement agents' fees, discounts or commissions and
brokerage, consultant and other fees actually incurred in connection with such
issuance or sale and net of taxes paid or payable as a result thereof;
PROVIDED, HOWEVER, that if such fair market value as determined by the Board
of Directors of property other than cash is greater than $15 million, the
determination of fair market value thereof shall be based upon an opinion from
an independent nationally recognized firm experienced in the appraisal of
similar types of transactions.
"NOTE CUSTODIAN" means the person specified in Section 2.03, as
custodian with respect to the Global Notes, or any successor entity thereto.
"OFFICER" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary, the Chief Financial Officer, any
Assistant Treasurer or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by any two
Officers, one of whom must be the Chairman of the Board, the President, the
Treasurer or a Vice President of the Company.
"OPERATING CASH FLOW" means, for any period, for any person, the
aggregate amount of Consolidated Net Income of such person before Consolidated
Interest Expense, income taxes, depreciation expense, Amortization Expense and
any noncash amortization of debt issuance cost. Notwithstanding the foregoing,
the Consolidated Interest Expense, income taxes, depreciation expense,
Amortization Expense and any noncash amortization of debt issuance cost of a
subsidiary of a person shall be added to Consolidated Net Income to compute
Operating Cash Flow in the same proportion that the net income of such
subsidiary was included in calculating the Consolidated Net Income of such
person.
"OPINION OF COUNSEL" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. Unless otherwise required by the
Trustee, the counsel may be an employee of or counsel to the Company or the
Trustee.
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"PERMITTED REFINANCING INDEBTEDNESS" means Indebtedness of the
Company or a Restricted Subsidiary (i) issued in exchange for, or the proceeds
from the issuance and sale or disbursement of which are used to substantially
concurrently repay, redeem, refund, refinance, discharge or otherwise retire for
value, in whole or in part (collectively, "repay"), or (ii) constituting an
amendment, modification or supplement to, or a deferral or renewal of
(collectively, an "amendment"), any Indebtedness of the Company or a Restricted
Subsidiary (and any penalties, fees and expenses actually incurred by the
Company or such Restricted Subsidiary in connection with the repayment or
amendment thereof) existing immediately after the original issuance of the
Series A Notes or incurred pursuant to clauses (iii), (vi), (vii) and (viii)
(subject to proviso (c) below) of Section 4.06, in a principal amount (or, if
such Permitted Refinancing Indebtedness provides for an amount less than the
principal amount thereof to be due and payable upon the acceleration thereof,
with an original issue price) not in excess of (1) the principal amount of the
Indebtedness so refinanced (or, if such Permitted Refinancing Indebtedness
refinances Indebtedness under an agreement providing a commitment for subsequent
borrowings, with a maximum commitment not to exceed the maximum commitment under
such agreement) plus (2) unpaid accrued interest on such Indebtedness plus (3)
penalties, fees and expenses actually incurred by the Company or such Restricted
Subsidiary, as the case may be, in connection with the repayment or amendment
thereof; provided that (a) Permitted Refinancing Indebtedness of the Company
that repays or constitutes an amendment to Subordinated Indebtedness shall not
have an Average Life less than the Indebtedness to be so refinanced at the time
of such incurrence, and shall contain subordination and default provisions no
less favorable in any material respect to the Holders than those contained in
such repaid or amended Indebtedness, (b) notwithstanding the foregoing, any
Permitted Refinancing Indebtedness incurred to repay all of the Notes then
outstanding shall not be limited in principal amount or otherwise if the
Company, contemporaneously with such issuance, irrevocably deposits with the
Trustee or Paying Agent an amount of the proceeds of such Permitted Refinancing
Indebtedness sufficient to redeem or repay each installment of the outstanding
principal amount of the Notes on, and all interest accrued to, the date fixed
for such repayment, together with irrevocable instructions to redeem and repay
the Notes on the stated redemption date and (c) to the extent that Permitted
Refinancing Indebtedness includes Indebtedness incurred in connection with the
refinancing of the Bank Facility (whether or not such Indebtedness is existing
on or after the date of the Indenture) and the managing agent for the lenders
under such refinancing Indebtedness is a person other than a banking institution
with over $500 million in assets and subject to supervision and examination by
federal or state banking authorities, the provisions of clause (viii) of Section
4.06 shall terminate and be of no further force and effect with respect to such
refinancing Indebtedness.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" of any Indebtedness means the principal amount thereof
plus the premium, if any, thereon.
"PSHC" means Palace Station Hotel & Casino, Inc.
"QUALIFIED NON-RECOURSE DEBT" means Indebtedness (i) as to which
neither the Company nor any of its Restricted Subsidiaries (a) provides credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness), (b) is directly or indirectly liable (as a
guarantor or otherwise), or (c) constitutes the lender; and (ii) no default with
respect to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of
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the Company or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and (iii) as to which the lenders have been
notified in writing that they will not have any recourse to the stock or assets
of the Company or any of its Restricted Subsidiaries, other than by a pledge by
the Company or a Restricted Subsidiary of the stock of an Unrestricted
Subsidiary; PROVIDED, HOWEVER, that the Company or any of its Restricted
Subsidiaries may (x) execute a Completion Guarantee and Keep-Well Agreement for
an Unrestricted Subsidiary whose sole purpose is to develop, construct and
operate a new gaming facility or (y) make a loan to an Unrestricted Subsidiary
if such loan is permitted under Section 4.05 at the time of the incurrence of
such loan, and such actions referred to in the foregoing clauses (x) and (y)
shall not constitute Indebtedness which is not Qualified Non-Recourse Debt.
"RATING AGENCIES" means (i) S&P and (ii) Moody's or (iii) if S&P
or Moody's or both shall not make a rating of the Notes publicly available, a
nationally recognized securities rating agency or agencies, as the case may be,
selected by the Company, which shall be substituted for S&P or Moody's or both,
as the case may be.
"RATING CATEGORY" means (i) with respect to S&P, any of the
following categories: BB, B, CCC, CC, C and D (or equivalent successor
categories); and (ii) with respect to Moody's, any of the following categories:
Ba, B, Caa, Ca, C and D (or equivalent successor categories); and (iii) the
equivalent of any such category of S&P or Moody's used by another Rating Agency.
In determining whether the rating of the Notes has decreased by one or more
gradation, gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for
Moody's; or the equivalent gradations for another Rating Agency) shall be taken
into account (e.g., with respect to S&P, a decline in a rating from BB+ to BB,
as well as from BB- to B+, will constitute a decrease of one gradation).
"RATING DATE" means the date which is 90 days prior to the earlier
of (i) a Change of Control or (ii) public notice of the occurrence of a Change
of Control or of the intention by the Company to effect a Change of Control.
"RATING DECLINE" shall be deemed to occur if, within 90 days of
public notice of the occurrence of a Change of Control (which period shall be
extended so long as the rating of the Notes is under publicly announced
consideration for possible downgrade by either of the Rating Agencies): (a) in
the event the Notes are rated by either Rating Agency on the Rating Date as
Investment Grade the rating of the Notes by both Rating Agencies shall be below
Investment Grade, or (b) in the event the Notes are rated below Investment Grade
by both Rating Agencies on the Rating Date, the rating of the Notes by either
Rating Agency shall be decreased by one or more gradations (including gradations
within Rating Categories as well as between Rating Categories).
"REDEEMABLE STOCK" means any Capital Stock that by its terms or
otherwise (other than in consideration of Capital Stock that is not Redeemable
Stock) is, or upon the happening of an event would be, required to be redeemed
or repurchased, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part, at any time
prior to the first anniversary of the stated maturity of the Notes.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of April 3, 1997, by and among the Company and the other
party named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the Securities
Act.
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"REGULATION S GLOBAL NOTE" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent global note
that contains the paragraph referred to in footnote 1 and the additional
schedule referred to in footnote 2 to the form of the Note attached hereto as
Exhibit A-1, and that is deposited with and registered in the name of the
Depository, representing the Notes sold in reliance on Regulation S.
"REGULATION S TEMPORARY GLOBAL NOTE" means a single temporary
global note in the form of the Note attached hereto as Exhibit A-2 that is
deposited with and registered in the name of the Depository, representing Notes
sold in reliance on Regulation S.
"RELATED PERSON" of any person means (i) (a) if such person is a
corporation, any person who is a director, officer or employee (x) of such
person, (y) of any subsidiary of such person or (z) of any Affiliate of such
person or (b) if such person is an individual, any immediate family member or
lineal descendent of such person or spouse of such immediate family member or of
such lineal descendant, or (ii) any Affiliate of any person included in clause
(i) and any person who is a director, officer or employee of such Affiliate.
"REPRESENTATIVE" means the indenture trustee or other trustee,
agent or representative, if any, for an issue of Senior Indebtedness.
"RESTRICTED SUBSIDIARY" of a person means any subsidiary of the
referent person that is not an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 144A GLOBAL NOTE" means a permanent global note that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Note attached hereto as Exhibit
A-1, and that is deposited with and registered in the name of the Depository.
"S&P" means Standard & Poor's Corporation and its successors.
"SCRSI" means St. Charles Riverfront Station, Inc.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" means (x) all obligations of the Company now
or hereafter existing to pay the principal of, and interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization to the extent a claim for post-filing interest is allowed in such
proceedings) on, any Indebtedness (other than Capital Lease Obligations) of the
Company, whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed, guaranteed or in effect guaranteed by the Company, (y)
Indebtedness of the Company represented by Capital Lease Obligations if the
instrument creating or evidencing the same expressly provides that such
Indebtedness shall be senior in right of payment to the Notes and (z)
Indebtedness of the Company with respect to Interest Rate Protection Agreements.
Notwithstanding the foregoing, Senior Indebtedness shall not include (a) any
Indebtedness, if the instrument creating or evidencing the same or the
assumption or guarantee thereof
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expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes, (b) in the case of each Note, the other Notes, (c) the
Existing Senior Subordinated Notes, (d) Indebtedness of the Company to, or
guaranteed on behalf of, an Affiliate of the Company (other than a Restricted
Subsidiary), (e) Indebtedness to trade creditors incurred or assumed in the
ordinary course of business in connection with obtaining goods, materials or
services, (f) Indebtedness represented by Exchangeable Stock or Redeemable
Stock, (g) any liability for federal, state, local or other taxes owed or owing
by the Company, (h) Indebtedness incurred in violation of Section 4.06 hereof
and (i) any Indebtedness which is, by its express terms, subordinated in right
of payment to any other Indebtedness of the Company.
"SGSI" means Southwest Gaming Services, Inc.
"SSI" means Sunset Station, Inc.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of the Company
(whether outstanding on the date hereof or hereafter incurred) which is
subordinate or junior in right of payment to the Notes.
"SUBSIDIARY" of a person means any corporation, association,
partnership, limited liability company or other business entity of which 50% or
more of the Voting Stock is at the time of determination owned or controlled,
directly or indirectly, by such person or by one or more of the other
subsidiaries of that person (or a combination thereof); provided that with
respect to any such corporation, association, partnership, limited liability
company or other business entity of which no more than 50% of the total Voting
Stock is so owned or controlled, then such corporation, association,
partnership, limited liability company or other business entity shall not be
deemed to be a subsidiary of such person unless such person has the power to
direct the policies or management of such corporation, association, partnership,
limited liability company or other business entity.
"SUBSIDIARY" means any subsidiary of the Company.
"SWSI" means Southwest Services, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is first
qualified under the TIA, except as provided in Section 9.03.
"TRANSFER RESTRICTED SECURITY" means a security that bears or is
required to bear the legend set forth in Section 2.06(g) hereof.
"TRUSTEE" means the person named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture, and
thereafter means the successor.
"TRUST OFFICER" means the Chairman of the Board, the President or
any other officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"TSI" means Texas Station, Inc.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary (other than PSHC,
BSI, SCRSI, KCSC, TSI, SGSI and SWSI or any successor to any of them) that at
the time of determination shall be designated by the Board of Directors of the
Company as an Unrestricted Subsidiary of the Company by
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a Board Resolution and any Subsidiary of an Unrestricted Subsidiary, but only to
the extent and so long as such Subsidiary (and any Subsidiary of such
Subsidiary): (a) has no Indebtedness other than Qualified Non-Recourse Debt; (b)
is a person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (x) to subscribe for
additional equity interests or (y) to maintain or preserve such person's
financial condition or to cause such person to achieve any specified levels of
operating results; and (c) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries; PROVIDED, HOWEVER, that either (a) the Subsidiary
to be so designated has total assets of $1,000 or less or (b) if such Subsidiary
has assets greater than $1,000, that such designation would be permitted under
Section 4.05; provided, further, however, that the Company or any of its
Restricted Subsidiaries may execute a Completion Guarantee and Keep-Well
Agreement for an Unrestricted Subsidiary whose sole purpose is to develop,
construct and operate a new gaming facility, and the execution and performance
(if such performance is permitted under Section 4.05 and Section 4.06) of such
Completion Guarantee and Keep-Well Agreement shall not prevent a Subsidiary from
becoming or remaining an Unrestricted Subsidiary. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing with the Trustee
a certified copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions and was permitted by Section 4.05. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be incurred as of such
date under Section 4.06, the Company shall be in Default of such section). The
Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
Section 4.06, and (ii) no Default or Event of Default would be in existence
following such designation.
"VOTING STOCK" means any class of Capital Stock of any person then
outstanding normally entitled (without regard to the occurrence of any
contingency) to vote in the elections of directors, managers, managing partners
or trustees.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Accredited Investor" 2.01
"Bankruptcy Law" 6.01
"Custodian" 6.01
"DTC" 2.03
"Event of Default" 6.01
"Legal Holiday" 11.07
"Paying Agent" 2.03
"Payment Blockage Period" 10.03
"QIB" 2.01
"Registrar" 2.03
"Repurchase Date" 4.12
"Repurchase Offer" 4.12
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"Repurchase Price" 4.12
"Restricted Investment" 4.05
"Restricted Payment" 4.05
"U.S. Government Obligations" 8.01
SECTION 1.03. 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:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee;
"OBLIGOR" on the Notes means the Company and any other obligor
upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04.RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(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 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-1, which is part of this Indenture. The
Notes may have notations, legends or endorsements
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required by law, stock exchange rule or usage which do not amend or conflict
with the terms of the Notes. Each Note shall be dated the date of its
authentication. The Notes will be unsecured general obligations of the Company.
The aggregate principal amount of the Series A Notes shall be no greater than
$150,000,000; if the Series B Notes are issued, the aggregate principal amount
of the Series A Notes then outstanding shall be reduced by the aggregate
principal amount of the Series B Notes so issued. The Notes shall be issued in
registered form, without coupons, in denominations of $1,000 and integral
multiples thereof. The Company shall deliver to the Trustee a printed form of
Note.
The terms and provisions contained in the Notes 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.
(a) RULE 144A GLOBAL NOTES. Notes offered and sold within the
United States to qualified institutional buyers as defined in Rule 144A ("QIBs")
in reliance on Rule 144A shall be issued initially in the form of Rule 144A
Global Notes, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Depository at its New York office, and registered
in the name of the Depository or a nominee of the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Rule 144A Global Notes may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depository or its nominee as hereinafter provided.
(b) REGULATION S GLOBAL NOTES. Notes offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Temporary Global Note, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee, at its New York office, as
custodian for the Depository, and registered in the name of the Depository or
the nominee of the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The "40-day restricted period" (as defined
in Regulation S) shall be terminated upon the receipt by the Trustee of (i) a
written certificate from the Depository certifying that it has received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Note (except to the extent
of any beneficial owners thereof who acquired an interest therein pursuant to
another exemption from registration under the Securities Act and who will take
delivery of a beneficial ownership interest in a Rule 144A Global Note, all as
contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate
from the Company. Following the termination of the 40-day restricted period,
beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in Regulation S Permanent Global Notes
pursuant to the Applicable Procedures. Simultaneously with the authentication
of Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation
S Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.
(c) GLOBAL NOTES IN GENERAL. Each Global Note shall represent
such of the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or the Note
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
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Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depository
or to a successor of the Depository or its nominee.
(d) BOOK-ENTRY PROVISIONS. This Section 2.01(d) shall apply
only to Rule 144A Global Notes and the Regulation S Permanent Global Notes
deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(d) and Section 2.02, authenticate and deliver the Global Notes
that (i) shall be registered in the name of the Depository or the nominee of the
Depository and (ii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instructions or held by the Trustee as custodian
for the Depository.
Agent Members shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depository or by the Note
Custodian or under such Global Note, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Note Custodian as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Note Custodian from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of
an owner of a beneficial interest in any Global Note.
(e) CERTIFICATED NOTES. Notes issued to accredited investors as
defined in Rule 501(a)(1), (2), (3), (4) or (7) under the Securities Act
("Accredited Investors") who are not QIBs and other Notes not issued as
interests in the Global Notes will be issued in certificated form substantially
in the form of Exhibit A-1 attached hereto (but without including the text
referred to in footnotes 1 and 2 thereto).
SECTION 2.02.EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Notes.
If an Officer whose signature is on a Note no longer holds that
office at the time the Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall authenticate the Notes for original issue up to
the aggregate principal amount stated in paragraph 4 of the Notes upon a written
order of the Company signed by two Officers. The aggregate principal amount of
Notes outstanding at any time may not exceed that amount except as provided in
Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
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SECTION 2.03.REGISTRAR; PAYING AGENT; DEPOSITORY; NOTE CUSTODIAN.
The Company shall maintain in the county where the principal
corporate office of the Trustee is located and in such other locations as it
shall determine (i) an office or agency where Notes may be presented for
registration of transfer or for exchange ("Registrar") and (ii) an office or
agency where Notes may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent, Registrar or co-registrar upon thirty (30)
days' notice to the Trustee. The Company shall notify the Trustee of the name
and address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent, Registrar or co-registrar.
The Company shall, if the Notes are listed on the New York Stock
Exchange, designate as authenticating agent, co-registrar and Paying Agent with
respect to the Notes a bank or trust company in good standing, organized under
the laws of the United States of America or any State, doing business in or
having a correspondent relationship with a bank or trust company doing business
in the Borough of Manhattan, City of New York, State of New York, and having a
capital and surplus (including subordinated capital notes and earned surplus)
aggregating at least $10,000,000 (except with respect to Article 8, in which
case the Paying Agent (if other than the Trustee) shall have a capital and
surplus (including subordinated capital notes and earned surplus) aggregating at
least $100,000,000). Whenever, pursuant to this Indenture, the Trustee is
obligated, empowered or authorized to perform any act with respect to the
authentication and issuance of the Notes, or their transfer, other than the
authentication and issuance of Notes upon original issue or in cases of Notes
mutilated, destroyed, lost or stolen, such act may be performed by the
authenticating agent and co-registrar, notwithstanding anything in this
Indenture to the contrary. Whenever, pursuant to this Indenture, the Trustee is
obligated, empowered or authorized to perform any act with respect to payment of
the principal of (and premium, if any) or interest on the Notes, such acts may
be performed by the Paying Agent, notwithstanding anything in this Indenture to
the contrary.
The Company covenants that whenever necessary to avoid or fill a
vacancy in the office of authenticating agent, co-registrar and Paying Agent,
the Company will appoint a successor authenticating agent, co-registrar and
Paying Agent so that there shall, at all times that the Notes are listed for
trading on the New York Stock Exchange, be one or more offices or agencies in
the Borough of Manhattan, City of New York, State of New York, acceptable to the
New York Stock Exchange, where Notes may be presented or surrendered for payment
and where Notes may be surrendered for registration of transfer or exchange.
In case, at the time of the appointment of a successor to the
authenticating agent, any of the Notes shall have been authenticated but not
delivered, any such successor may adopt the certificate of authentication of the
original authenticating agent or of any successor to it as authenticating agent
hereunder, and deliver such Notes so authenticated; and in case at any time any
of the Notes shall not have been authenticated, any successor to the
authenticating agent by merger or consolidation may authenticate such securities
either in the name of its predecessor hereunder or in the name of the successor
authenticating agent; and in all such cases such certificate shall have the full
force which it is anywhere in the Notes or in this Indenture provided that the
certificate of authentication shall have.
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The Company initially appoints The Depository Trust Company ("DTC")
to act as Depository with respect to the Global Notes. The Company initially
appoints the Trustee to act as the Registrar and Paying Agent and to act as Note
Custodian with respect to the Global Notes. The Company initially appoints the
Trustee to act as the Registrar and Paying Agent with respect to the
Certificated Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal, interest or Liquidated Damages, if any, on the Notes (whether such
money has been paid to it by the Company or any other obligor on the Notes), and
will notify the Trustee of any default by the Company (or any other obligor on
the Notes) in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a subsidiary) shall have no further liability for the money.
If the Company or a subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Noteholders all money held by it
as Paying Agent.
SECTION 2.05. NOTEHOLDER 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
Noteholders. If the Trustee is not the Registrar, the Company and any other
obligor shall furnish to the Trustee on or before each interest payment date and
at such other times as the Trustee may request in writing, but in any event at
least semi-annually, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Noteholders.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture and the procedures of
the Depository therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Beneficial interests in a Global Note may be transferred to persons who take
delivery thereof in the form of a beneficial interest in the same type of Global
Note in accordance with the transfer restrictions set forth in the legend in
subsection (g) of this Section 2.06. Transfers of beneficial interests in the
Global Notes to persons required to take delivery thereof in the form of an
interest in another type of Global Note shall be permitted as follows:
(i) RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE.
If, at any time, an owner of a beneficial interest in a Rule 144A Global
Note deposited with the Depository (or the Note Custodian) wishes to
transfer its interest in such Rule 144A Global Note to a person who is
required or permitted to take delivery thereof in the form of an interest
in a Regulation S Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Regulation S Global Note as provided
in this Section 2.06(a)(i). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Trustee to credit or cause to be credited a
beneficial interest in the Regulation S Global Note in an amount equal
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to the beneficial interest in the Rule 144A Global Note to be exchanged,
(2) a written order given in accordance with the Applicable Procedures
containing information regarding the participant account of the Depository
to be credited with such increase and (3) a certificate in the form of
Exhibit B-1 hereto given by the owner of such beneficial interest stating
that the transfer of such interest has been made in compliance with the
transfer restrictions applicable to the Global Notes and pursuant to and
in accordance with Rule 903 or Rule 904 of Regulation S, then the Trustee,
as Registrar, shall instruct the Depository to reduce or cause to be
reduced the aggregate principal amount at maturity of the applicable Rule
144A Global Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Regulation S Global Note by
the principal amount at maturity of the beneficial interest in the Rule
144A Global Note to be exchanged, to credit or cause to be credited to the
account of the person specified in such instructions a beneficial interest
in the Regulation S Global Note equal to the reduction in the aggregate
principal amount at maturity of the Rule 144A Global Note, and to debit,
or cause to be debited, from the account of the person making such
exchange or transfer the beneficial interest in the Rule 144A Global Note
that is being exchanged or transferred.
(ii) REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE.
If, at any time, an owner of a beneficial interest in a Regulation S
Global Note deposited with the Depository (or the Note Custodian) wishes
to transfer its interest in such Regulation S Global Note to a person who
is required or permitted to take delivery thereof in the form of an
interest in a Rule 144A Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such interest for
an equivalent beneficial interest in a Rule 144A Global Note as provided
in this Section 2.06(a)(ii). Upon receipt by the Trustee of (1) written
instructions from the Depository, directing the Trustee, as Registrar, to
credit or cause to be credited a beneficial interest in the Rule 144A
Global Note equal to the beneficial interest in the Regulation S Global
Note to be exchanged, such instructions to contain information regarding
the participant account with the Depository to be credited with such
increase, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depository and (3) a certificate in the form of Exhibit B-2 attached
hereto given by the owner of such beneficial interest stating (a) if the
transfer is pursuant to Rule 144A, that the person transferring such
interest in a Regulation S Global Note reasonably believes that the person
acquiring such interest in a Rule 144A Global Note is a QIB and is
obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable blue sky or securities laws
of any state of the United States, (b) that the transfer complies with the
requirements of Rule 144 under the Securities Act and any applicable blue
sky or securities laws of any state of the United States or (c) if the
transfer is pursuant to any other exemption from the registration
requirements of the Securities Act, that the transfer of such interest has
been made in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the requirements of
the exemption claimed, such statement to be supported by an Opinion of
Counsel from the transferee or the transferor in form reasonably
acceptable to the Company and to the Registrar, then the Trustee, as
Registrar, shall instruct the Depository to reduce or cause to be reduced
the aggregate principal amount at maturity of such Regulation S Global
Note and to increase or cause to be increased the aggregate principal
amount at maturity of the applicable Rule 144A Global Note by the
principal amount at maturity of the beneficial interest in the Regulation
S Global Note to be exchanged, and the Trustee, as Registrar, shall
instruct the Depository, concurrently with such reduction, to credit or
cause to be credited to the account of the person specified in such
instructions a beneficial interest in the applicable Rule 144A Global Note
equal to the reduction in the aggregate principal amount at maturity of
such Regulation S Global Note and to debit or cause to be debited from the
account of the person
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making such transfer the beneficial interest in the Regulation S Global
Note that is being transferred.
(b) TRANSFER AND EXCHANGE OF CERTIFICATED NOTES. When
Certificated Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Certificated Notes; or
(y) to exchange such Certificated Notes for an equal
principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested;
PROVIDED, HOWEVER, that the Certificated Notes presented or surrendered for
register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by such Holder's attorney, duly authorized in
writing; and
(ii) in the case of a Certificated Note that is a Transfer
Restricted Security, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the name
of such Holder, without transfer, or such Transfer Restricted
Security is being transferred to the Company, a certification to
that effect from such Holder (in substantially the form of Exhibit
B-3 hereto);
(B) if such Transfer Restricted Security is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in substantially the
form of Exhibit B-3 hereto); or
(C) if such Transfer Restricted Security is being
transferred in reliance on any other exemption from the registration
requirements of the Securities Act (including Rule 904 thereunder),
a certification to that effect from such Holder (in substantially
the form of Exhibit B-3 hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to the Company and to
the Registrar to the effect that such transfer is in compliance with
the Securities Act.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A RULE 144A GLOBAL NOTE OR
Regulation S Permanent Global Note for a Certificated Note.
(i) Any person having a beneficial interest in a Rule 144A
Global Note or Regulation S Permanent Global Note may upon request,
subject to the Applicable Procedures, exchange such beneficial interest
for a Certificated Note. Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary for the
Depository, from the Depository or its nominee on behalf of any person
having a beneficial interest in a Rule 144A Global Note or Regulation S
Permanent Global Note, and, in the case of a beneficial interest in
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a Transfer Restricted Security only, the following additional information
and documents (all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred
to the person designated by the Depository as being the beneficial
owner, a certification to that effect from such person (in
substantially the form of Exhibit B-4 hereto);
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with Rule
144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act, a certification to
that effect from the transferor (in substantially the form of
Exhibit B-4 hereto); or
(C) if such beneficial interest is being transferred
in reliance on any other exemption from the registration
requirements of the Securities Act (including Rule 904 thereunder),
a certification to that effect from the transferor (in substantially
the form of Exhibit B-4 hereto) and an Opinion of Counsel from the
transferee or the transferor reasonably acceptable to the Company
and to the Registrar to the effect that such transfer is in
compliance with the Securities Act,
in which case the Trustee or the Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions and procedures
existing between the Depository and the Note Custodian, cause the aggregate
principal amount of Rule 144A Global Notes or Regulation S Permanent Global
Notes, as applicable, to be reduced accordingly and, following such reduction,
the Company shall execute and the Trustee shall authenticate and deliver to the
transferee a Certificated Note in the appropriate principal amount.
(ii) Certificated Notes issued in exchange for a beneficial
interest in a Rule 144A Global Note or Regulation S Permanent Global Note,
as applicable, pursuant to this Section 2.06(c) shall be registered in
such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Certificated Notes to the persons in whose names such Notes are so
registered. Following any such issuance of Certificated Notes, the
Trustee, as Registrar, shall instruct the Depository to reduce or cause to
be reduced the aggregate principal amount at maturity of the applicable
Global Note to reflect the transfer.
(d) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository,
or by a nominee of the Depository to the Depository or another nominee of the
Depository, or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository.
(e) TRANSFER AND EXCHANGE OF A CERTIFICATED NOTE FOR A BENEFICIAL
Interest in a Global Note. Holders of Certificated Notes may offer, resell,
pledge or otherwise transfer such Notes only pursuant to an effective
registration statement under the Securities Act, inside the United States to a
QIB in a transaction meeting the requirements of Rule 144A, in a transaction
meeting the requirements of Rule 144 under the Securities Act, outside the
United States in a transaction meeting the requirements of Rule 904 under the
Securities Act or to the Company, in each case in compliance with any applicable
securities laws of any State of the United States or any other applicable
jurisdiction.
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When Certificated Notes are presented by a Holder to the Registrar
with a request (x) to register the transfer of the Certificated Notes or (y) to
exchange such Certificated Notes for an equal principal amount of Certificated
Notes of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met; PROVIDED, HOWEVER, that the Certificated Notes presented
or surrendered for register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing,
which instructions, if applicable, shall direct the Trustee (a) to cancel
any Certificated Note being exchanged for another Certificated Note or a
beneficial interest in a Global Note in accordance with Section 2.11
hereof, and (b) to make, or to direct the Registrar to make, an
endorsement on the appropriate Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by such Global Note;
and
(ii) such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Certificated Note is being delivered to
the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification to that effect from such
Holder (in substantially the form of Exhibit B-5 hereto); or
(B) if such Certificated Note is being transferred to
a QIB in accordance with Rule 144A, pursuant to Rule 144 under the
Securities Act or pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in substantially the
form of Exhibit B-5 hereto).
(f) AUTHENTICATION OF CERTIFICATED NOTES IN ABSENCE OF
Depository. If at any time:
(i) the Depository for the Notes notifies the Company that
the Depository is unwilling or unable to continue as Depository for the
Global Notes and a successor Depository for the Global Notes is not
appointed by the Company within 90 days after delivery of such notice; or
(ii) the Company delivers to the Trustee an Officers'
Certificate or an order signed by two Officers of the Company notifying
the Trustee that it elects to cause the issuance of Certificated Notes
under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, authenticate and
deliver, Certificated Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) LEGENDS.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Note certificate evidencing Global Notes and
Certificated Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following
form (each a "Transfer Restricted Security"):
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"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (a)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1)(A)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (b) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY
OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or pursuant to
an effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Certificated Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Certificated Note that does not bear the legend set forth in (i)
above and rescind any restriction on the transfer of such Transfer
Restricted Security upon receipt of a certification from the
transferring Holder substantially in the form of Exhibit B-4 hereto;
and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted Security
shall not be required to bear the legend set forth in (i) above, but
shall continue to be subject to the provisions of Section 2.06(a)
and (b) hereof; PROVIDED, HOWEVER, that with respect to any
request for an exchange of a Transfer Restricted Security that is
represented by a Global Note for a Certificated Note that does not
bear the legend set forth in (i) above, which request is made in
reliance upon Rule 144, the Holder thereof shall certify in writing
to the Registrar that such request is being made pursuant to Rule
144 (such certification to be substantially in the form of Exhibit
B-4 hereto).
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(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) in reliance on any exemption from the registration
requirements of the Securities Act (other than exemptions pursuant to Rule
144A or Rule 144 under the Securities Act) in which the Holder or the
transferee provides an Opinion of Counsel to the Company and the Registrar
in form and substance reasonably acceptable to the Company and the
Registrar (which Opinion of Counsel shall also state that the transfer
restrictions contained in the legend are no longer applicable):
(A) in the case of any Transfer Restricted Security
that is a Certificated Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Certificated Note that does not bear the legend set forth in (i)
above and rescind any restriction on the transfer of such Transfer
Restricted Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted Security
shall not be required to bear the legend set forth in (i) above, but
shall continue to be subject to the provisions of Section 2.06(a)
and (b) hereof.
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer in accordance with the Registration Rights Agreement, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate Series
B Notes in exchange for Series A Notes accepted for exchange in the
Exchange Offer, which Series B Notes shall not bear the legend set forth
in (i) above, and the Registrar shall rescind any restriction on the
transfer of such Series B Notes, in each case unless the Holder of such
Series A Notes is either (A) a broker-dealer who purchased such Transfer
Restricted Security directly from the Company to resell pursuant to Rule
144A or any other available exemption under the Securities Act, (B) a
person participating in the distribution (within the meaning of the
Securities Act) of the Series A Notes or (C) a person who is an affiliate
(as defined in Rule 144 of the Securities Act) of the Company.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in Global Notes have been exchanged for
Certificated Notes, redeemed, repurchased or cancelled, all Global Notes shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for an interest in another Global Note or
for Certificated Notes, redeemed, repurchased or cancelled, the principal amount
of Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note, by the Trustee or the Note
Custodian, at the direction of the Trustee, to reflect such reduction.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Certificated
Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 3.06, 4.12 and 9.05 hereof).
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(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Certificated Notes and Global Notes issued upon any
registration of transfer or exchange of Certificated Notes or Global Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the
Certificated Notes or Global Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of or to
exchange Notes during a period beginning at the opening of business
15 days before the day of any selection of Notes for redemption
under Section 3.02 hereof and ending at the close of business on the
day of selection; or
(B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and
treat the person in whose name any Note is registered as the absolute
owner of such Note for the purpose of receiving payment of principal of
and interest and Liquidated Damages, if any, on such Notes, and for all
other purposes whatsoever, and neither the Trustee, any Agent nor the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Certificated Notes and
Global Notes in accordance with the provisions of Section 2.02 hereof.
The Registrar may rely on information set forth in a certificate
substantially in the form of Exhibit B-1, B-2, B-3, B-4 or B-5 hereto, and other
certificates and opinions received pursuant to this Section 2.06 and, in the
absence of receipt of such a certificate or opinion, shall not be deemed to have
knowledge of a transfer of an interest in a Global Security absent actual
knowledge of such transfer.
SECTION 2.07. REPLACEMENT NOTES.
If the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be provided which
is sufficient in the judgment of both to protect the Company, the Trustee, any
Agent or any authenticating agent from any loss which any of them may suffer if
a Note is replaced. The Company may charge for its expenses in replacing a
Note.
Every replacement Note is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
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SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If Notes are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
Subject to Section 2.09, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any other obligor or an Affiliate of the Company or any other obligor
shall be considered as though they are not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which the Trustee knows are so
owned shall be so disregarded. Notwithstanding the foregoing, Notes that are to
be acquired by the Company or an Affiliate of the Company pursuant to an
exchange offer, tender offer or other agreement shall not be deemed to be owned
by the Company or an Affiliate of the Company until legal title to such Notes
passes to the Company or Affiliate, as the case may be.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes without charge to the
Noteholders.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall dispose of cancelled
Notes as the Company directs. The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation. All cancelled Notes held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company, unless by a written
order, signed by two Officers of the Company, the Company shall direct that
cancelled Notes be returned to it.
SECTION 2.12. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on the Notes, it
shall pay such defaulted interest plus any interest payable on the defaulted
interest, if any, in any lawful manner. It may
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pay such defaulted interest, plus any such interest payable on it, to the
persons who are Noteholders on a subsequent special record date. The Company
shall fix any such record date and payment date. At least 15 days before any
such record date, the Company shall mail to Noteholders a notice that states the
record date, payment date and amount of such interest to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number and if so
the Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders, PROVIDED that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14. EXCHANGE REGISTRATION.
In the event that the Company delivers to the Trustee a copy of an
order of effectiveness or a certification of the Company with respect to such
effectiveness with respect to the Exchange Offer, the Trustee shall, at the
Company's expense, notify the Holders of the receipt of such order of
effectiveness or certification and upon the request of any Holder shall exchange
such Holder's Series A Notes for Series B Notes upon the terms set forth in the
Exchange Offer.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem the Notes pursuant to the optional
redemption provisions of paragraph 5 of the Notes, it shall notify the Trustee
in writing of the redemption date and the principal amount of the Notes to be
redeemed.
The Company shall give each notice provided for in this Section at
least 60 days before the redemption date (unless a shorter notice period shall
be satisfactory to the Trustee); PROVIDED, HOWEVER, that the Trustee shall
have no liability to any Holder if it deems such shorter notice period
satisfactory to it.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
Except as provided below, if less than all of the Notes are to be
redeemed, the Trustee shall select the Notes or portions thereof to be redeemed
on a pro rata basis or by lot among the Holders of the Notes in accordance with
a method the Trustee considers fair and appropriate (in such manner as complies
with applicable legal and stock exchange requirements, if any).
The amount of Notes shall be calculated as the aggregate principal
amount of Notes originally issued hereunder less the aggregate principal amount
of any Notes previously redeemed. The Trustee shall make the selection not more
than 60 days and not less than 30 days before the redemption date from
outstanding Notes not previously called for redemption.
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The Trustee shall promptly notify the Company of the Notes or
portions of Notes to be called for redemption. The Trustee may select for
redemption portions of the principal of Notes that have denominations larger
than $1,000. Notes and portions of them it selects shall be in amounts of
$1,000 or integral multiples of $1,000. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail by first class mail, postage prepaid a notice of
redemption to each Holder whose Notes are to be redeemed at its address of
record.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price plus accrued interest;
(6) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date, and that if a Note is redeemed on
or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the
person in whose name such Note was registered at the close of business on
such record date; and
(7) the paragraph of the Notes pursuant to which the Notes
called for redemption are being redeemed.
At the Company's written request, the Trustee shall give the notice
of redemption in the Company's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Notes called for redemption
become due and payable on the redemption date at the price set forth in the
Note. Unless the Company defaults in making the redemption payment, on and
after the redemption date, interest ceases to accrue on the Notes or the
portions of Notes called for redemption. If a Note is redeemed on or after an
interest record date but on or prior to the related interest payment date, then
any accrued and unpaid interest shall be paid to the person in whose name such
Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the redemption date at the rate borne by the Note.
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SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
No later than 10:00 a.m. Eastern Time on the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent immediately
available funds sufficient to pay the redemption price of and accrued interest
and Liquidated Damages, if any, on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money not
required for that purpose.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note 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 Note equal in principal amount to the unredeemed portion of the
Note surrendered.
SECTION 3.07. MANDATORY DISPOSITION PURSUANT TO GAMING LAWS.
Notwithstanding any other provision of this Article 3, if a record
or beneficial owner of a Note is required by any Gaming Authority to be found
suitable, such owner shall apply for a finding of suitability within 30 days
after request of such Gaming Authority. The applicant for a finding of
suitability must pay all costs of the investigation for such finding of
suitability. If a record or beneficial owner is required to be found suitable
and is not found suitable by such Gaming Authority, (i) such owner shall, upon
request of the Company, dispose of such owner's Notes within 30 days or within
that time prescribed by such Gaming Authority, whichever is earlier, or (ii) the
Company may, at its option, redeem such owner's Notes at the lesser of (x) the
principal amount thereof or (y) the price at which the Notes were acquired by
such owner, together with, in either case, accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of the finding of unsuitability
by such Gaming Authority.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of and interest on the Notes on
the dates and in the manner provided in the Notes. Principal and interest shall
be considered paid on the date due if the Paying Agent (other than the Company
or any Subsidiary or Affiliate of the Company) holds on that date money in
immediately available funds designated for and sufficient to pay all principal
and interest then due. The Company shall pay all Liquidated Damages, if any, in
the same manner on the dates and in the amounts set forth in the Registration
Rights Agreement.
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on (i)
overdue principal at the rate borne by the Notes compounded semiannually; and
(ii) overdue installments of interest and Liquidated Damages (without regard to
any applicable grace period) at the same rate, compounded semiannually.
SECTION 4.02. SEC REPORTS, FINANCIAL REPORTS.
The Company shall file with the Trustee and shall provide Holders
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 files with the SEC pursuant to Sections 13(a) and
13(c) or
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15(d) of the Exchange Act. The Company will continue to file with the SEC and
the Trustee, and to provide to Holders, on the same timely basis such reports,
information and other documents as the Company would be required to file with
the SEC as if the Company were subject to the requirements of such Sections
13(a) and 13(c) or 15(d) of the Exchange Act, notwithstanding that the Company
may no longer be subject to Section 13(a) and 13(c) or 15(d) of the Exchange Act
and that the Company would be entitled not to file such reports, information and
other documents with the SEC. In addition, if the Company has any Unrestricted
Subsidiaries at such time, it shall also file with the Trustee, and provide to
the Holders, on the same timely basis, all quarterly and annual financial
statements (which statements may be unaudited) that would be required by Forms
10-Q and 10-K if the Company did not have such Unrestricted Subsidiaries.
The Company also shall comply with the provisions of TIA Section
314(a). The Company shall timely comply with its reporting and filing
obligations under applicable federal securities law. For so long as any
Transfer Restricted Securities remain outstanding, the Company shall furnish
to the Holders and to prospective purchasers of the Notes designated by the
Holders of Transfer Restricted Securities, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
SECTION 4.03. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company (which currently is March 31),
an Officers' Certificate stating that a review of the activities of the Company
and its subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he may
have knowledge) and that to the best of his knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Notes are prohibited, or if such event has occurred,
a description of the event.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants or to a written policy
adopted by the Company's independent public accountants which has been
previously applied (a copy of which shall be delivered to the Trustee), the
audited financial statements delivered pursuant to Section 4.02 shall be
accompanied by a written statement of the Company's independent public
accountants (which shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of Article 4 or 5 of this Indenture or, if
any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any person for any failure to obtain knowledge of any such
violation.
(c) The Company will, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon becoming aware of (i) any Default or
Event of Default in the performance of any covenant, agreement or condition
contained in this Indenture or (ii) any event of default under any other
mortgage, indenture or instrument governing other Indebtedness of the Company
aggregating in excess of $5,000,000, an Officers' Certificate specifying such
Default, Event of Default or default.
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SECTION 4.04. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law, 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
has been enacted.
SECTION 4.05. RESTRICTED PAYMENTS AND RESTRICTED INVESTMENTS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution
in respect of, or purchase, redeem or retire for value, any Capital Stock
of the Company or of any Restricted Subsidiary, other than, in the case of
the Company, through the issuance (as a dividend or stock split thereon or
in exchange therefor) solely of the Company's own Capital Stock (excluding
Exchangeable Stock or Redeemable Stock) and, in the case of a Restricted
Subsidiary, with respect to shares of its Capital Stock that are owned
solely by the Company or a wholly-owned Restricted Subsidiary;
(ii) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value, prior to scheduled
principal payment or maturity, Subordinated Indebtedness; or
(iii) incur, create, assume or suffer to exist any guarantee
of Indebtedness of, or make any loan or advancement to, or other
investment in, any Affiliate or Related Person of the Company or a
Restricted Subsidiary, other than the Company or a Restricted Subsidiary;
(such payments or any other actions described in clauses (i) and (ii), a
"Restricted Payment," and in clause (iii), a "Restricted Investment"), unless:
(a) at the time of and after giving effect to the proposed
Restricted Payment or Restricted Investment, no Event of Default (and no
event that, after notice or lapse of time, or both, would become an Event
of Default) shall have occurred and be continuing; and
(b) at the time of and after giving effect to the proposed
Restricted Payment or Restricted Investment (the value of which, if in a
form other than cash, shall be determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a
board resolution), the aggregate amount of all Restricted Payments and
Restricted Investments declared or made after June 2, 1993, shall not
exceed the sum of, without duplication,
(I) 50% of the cumulative Consolidated Net Income of
the Company (or if such cumulative Consolidated Net Income shall be
a loss, 100% of such loss) accrued after June 2, 1993, less any
negative extraordinary charges not reflected in Consolidated Net
Income;
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(II) an amount equal to the Net Proceeds received by
the Company from the issuance and sale (other than to a Subsidiary)
after June 2, 1993 of Capital Stock (excluding Exchangeable Stock,
Redeemable Stock and Capital Stock issued in exchange for previously
outstanding shares of Capital Stock if such exchange did not
constitute a Restricted Payment);
(III) $15,000,000; and
(IV) an amount equal to 50% of any dividends received
by and 100% of any Restricted Investments which are returned or
repaid to (in each case, to the extent not included in Consolidated
Net Income of the Company) the Company or a wholly-owned Restricted
Subsidiary after the date of the Indenture from an Unrestricted
Subsidiary of the Company;
PROVIDED, HOWEVER, that Net Proceeds received from the sale of the stock of
PSHC, BSI, TSI, SSI, KCSC, SCRSI, SGSI or SWSI, or any successor or assignee
thereof, by the Company shall not be included in clause (ii) above.
For purposes of any calculation pursuant to the preceding sentence which is
required to be made within 60 days after the declaration of a dividend by the
Company or any Subsidiary, such dividend shall be deemed to be paid at the date
of declaration, and the subsequent payment of such dividend during such 60-day
period shall not be treated as an additional Restricted Payment.
Notwithstanding the foregoing, the provisions of this Section 4.05
will not prevent the following Restricted Payments or Restricted Investments:
(a) payment of any dividend within 60 days after the date of its declaration if
at the date of declaration such payment would be permitted by this Section; and
(b) Restricted Investments, which together with all other Restricted Investments
since June 2, 1993, do not exceed $20,000,000 in the aggregate, provided that
after giving effect to each such Restricted Investment (as if it had occurred on
the first day of such period) the pro forma Consolidated Coverage Ratio of the
Company, calculated cumulatively for the four most recent consecutive fiscal
quarters of the Company and ending prior to the date of the latest Restricted
Investment, shall be greater than 2.00 to 1.00.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default;
PROVIDED that in no event shall the business currently operated by PSHC, BSI,
SCRSI, TSI, SGSI or SWSI, or the business to be operated by KCSC (or its
Affiliates) at the Station Casino Kansas City property located in Kansas City,
Missouri, be transferred to or held by an Unrestricted Subsidiary. For purposes
of making such determination, all outstanding investments by the Company and its
Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary
so designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments under
this Section 4.05. All such outstanding investments will be deemed to constitute
investments in an amount equal to the fair market value of such investments at
the date of such designation. Such designation will only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
Prior to making any Restricted Payment or Restricted Investment, the
Company will deliver to the Trustee an Officers' Certificate (dated the date of
such proposed payment or investment) stating (i) that such proposed payment or
investment will be in compliance with this Section 4.05 and (ii)
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no Default or Event of Default under this Indenture has occurred or will occur
as a result of such proposed payment or investment.
SECTION 4.06. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee or suffer to
exist, or otherwise in any manner become or remain liable, directly or
indirectly, with respect to any Indebtedness, except, without duplication, for
(i) the incurrence by the Company's Unrestricted Subsidiaries of Qualified
Non-Recourse Debt, PROVIDED, HOWEVER, that if any such Indebtedness ceases to
be Qualified Non-Recourse Debt of an Unrestricted Subsidiary, such event shall
be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary
of the Company; (ii) FF&E Financing incurred by the Company or its Restricted
Subsidiaries, (iii) the Notes, (iv) the Existing Senior Subordinated Notes and
all Existing Indebtedness, (v) provided no Event of Default shall have occurred
and be continuing, other Indebtedness of the Company and its Restricted
Subsidiaries in an amount not to exceed $15,000,000 in aggregate principal
amount, (vi) additional Indebtedness of the Company and its Restricted
Subsidiaries, if at the time of the incurrence of such Indebtedness, the pro
forma Consolidated Coverage Ratio of the Company, calculated cumulatively for
the four most recent consecutive fiscal quarters of the Company and ending prior
to the date of incurrence (the "Reference Period"), is not less than 2.00 to
1.00, after giving effect to (A) the incurrence of such Indebtedness as if such
Indebtedness was incurred at the beginning of the Reference Period and (if
applicable) the application of the net proceeds thereof to refinance other
Indebtedness as if the application of such proceeds occurred at the beginning of
the Reference Period and, (B) the acquisition or disposition of any company or
business acquired or disposed of by the Company or any Restricted Subsidiary
since the first day of the Reference Period, including any acquisition or
disposition which will be consummated contemporaneously with the incurrence of
such Indebtedness, as if such acquisition or disposition occurred at the
beginning of the Reference Period, (vii) Permitted Refinancing Indebtedness,
(viii) Indebtedness incurred under the Bank Facility not to exceed the greater
of (A) $200 million or (B) 1.5 times Operating Cash Flow calculated cumulatively
for the four most recent consecutive fiscal quarters of the Company immediately
preceding the date on which such Indebtedness is incurred, provided that the
exception in this clause (viii) shall not be applicable to any Indebtedness
incurred in refinancing the Bank Facility if the managing agent for the lenders
of such refinancing Indebtedness is a person other than a banking institution
with over $500 million in assets and subject to supervision and examination by
federal or state banking authorities, (ix) Interest Rate Protection Agreements
of the Company or any Restricted Subsidiary covering solely Indebtedness of the
Company or any Restricted Subsidiary which is otherwise permitted to be incurred
pursuant to this paragraph, (x) Indebtedness to the Company or a wholly-owned
Restricted Subsidiary, or (xi) to the extent that such incurrence does not
result in the incurrence by the Company or any Restricted Subsidiary of any
obligation for the payment of borrowed money of others, Indebtedness incurred
solely as a result of the execution by the Company or its Restricted
Subsidiaries of a Completion Guarantee and Keep-Well Agreement; provided,
however, that the foregoing exception shall not be applicable to Indebtedness
incurred in connection with the performance by the Company or its Restricted
Subsidiaries of a Completion Guarantee and Keep-Well Agreement.
SECTION 4.07. LIMITATION ON CAPITAL STOCK OF RESTRICTED SUBSIDIARIES
The Company will not permit any Restricted Subsidiary to issue any
Capital Stock to any person (other than to the Company or any wholly-owned
Restricted Subsidiary) that shall entitle the holder of such Capital Stock to a
preference in right of payment in the event of liquidation, dissolution or
winding-up of such Restricted Subsidiary or with respect to dividends of such
Restricted Subsidiary.
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SECTION 4.08. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Subsidiary,
if any, 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 any such right, license or franchise, or the
corporate, partnership or other existence of any Subsidiary, if the Board of
Directors of the Company shall determine in good faith, which determination
shall be evidenced by a board resolution, that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.09. TAXES.
The Company shall, and shall cause each of its subsidiaries to, pay
prior to delinquency all taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings or where the failure to
pay would not have a material adverse effect on the Company and its Subsidiaries
taken as a whole.
SECTION 4.10. INVESTMENT COMPANY ACT.
The Company shall not become an investment company subject to
registration under the Investment Company Act of 1940, as amended.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, conduct any business or enter into any transaction
or series of related transactions (including the purchase, sale, lease or
exchange of any property or the rendering of any service), pursuant to which the
Company or any Restricted Subsidiary shall receive or render value exceeding
$1,000,000, with any Affiliate or Related Person of the Company or of the
Existing Equity Holders (other than the Company or a wholly-owned Restricted
Subsidiary of the Company), unless (i) the terms of such business, transaction
or series of related transactions are (A) set forth in writing and (B) fair and
reasonable to the Company or such Restricted Subsidiary, and no less favorable
to the Company or such Restricted Subsidiary, as the case may be, as terms that
would be obtainable at the time for a comparable transaction or series of
related transactions with an unrelated third person and (ii) the disinterested
directors of the Board of Directors of the Company have, by resolution,
determined in good faith that such business or transaction or series of related
transactions meets the criteria set forth in (i) (B) above, which determination
shall be conclusive and (iii) with respect to any transaction or series of
related transactions otherwise permitted under this paragraph pursuant to which
the Company or any Restricted Subsidiary shall receive or render value exceeding
$15,000,000, such transaction or series of related transactions shall not be
permitted unless, prior to consummation thereof, the Company shall have received
an opinion, from an independent nationally recognized firm experienced in the
appraisal or similar review of similar types of transactions, that such
transaction or series of related transactions is on terms which are fair, from a
financial point of view, to the Company or such Restricted Subsidiary.
Notwithstanding the foregoing, the Company or any of its Restricted Subsidiaries
shall be entitled to provide management services to an Unrestricted Subsidiary
whose sole purpose is to develop, construct and operate a new gaming facility,
provided that the Company or such Restricted Subsidiary, as the case may be, is
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reimbursed by the Unrestricted Subsidiary for all costs and expenses (including
without limitation payroll) it incurs in providing such services.
SECTION 4.12. CHANGE OF CONTROL AND RATING DECLINE.
Upon the occurrence of a Change of Control Triggering Event, each
Holder shall have the right to require that the Company repurchase all or any
part of such Holder's Notes at a repurchase price in cash (the "Repurchase
Price") equal to 101% of the principal amount thereof, plus Liquidated Damages,
if any, and accrued interest to the date of repurchase.
Within 30 days following the date of a Change of Control Triggering
Event, the Company shall mail a notice to each Holder at its last registered
address, with a copy to the Trustee, of the Company's offer to repurchase (the
"Repurchase Offer") Notes pursuant to this Section 4.12. The Repurchase Offer
shall remain open from the time of mailing of such notice until the repurchase
date (which shall be no earlier than 30 days nor later than 60 days from the
date of such mailing) (the date on which the Repurchase Offer closes being the
"Repurchase Date"). The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Repurchase
Offer. The notice, which shall govern the terms of the Repurchase Offer, shall
state:
(1) that a Change of Control Triggering Event has occurred
and that such Holder has the right to require the Company to repurchase
all or any part of such Holder's Notes at a repurchase price in cash equal
to 101% of the principal amount, plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of repurchase thereof;
(2) the circumstances and relevant facts regarding such
Change of Control Triggering Event (including information with respect to
pro forma historical income, cash flow and capitalization after giving
effect to such Change of Control Triggering Event);
(3) the Repurchase Date;
(4) that any Note not tendered will continue to accrue
interest;
(5) that, unless the Company defaults in paying the
Repurchase Price, any Note accepted for payment pursuant to the Repurchase
Offer shall cease to accrue interest from and after the Repurchase Date;
(6) that Holders electing to have a Note purchased pursuant
to the Repurchase Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Repurchase" on the reverse of the
Note duly completed, to the Company at the address specified in the notice
at least three Business Days prior to the Repurchase Date;
(7) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than three Business Days prior to
the Repurchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes the
Holder delivered for repurchase and a statement that such Holder is
withdrawing such Holder's election to have such Notes repurchased; and
(8) that Holders whose Notes are purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered.
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If any consent under the Bank Facility is necessary to permit the
Company to effect the Repurchase Offer, the Company will (i) repay in full or
offer to repay in full all Indebtedness under the Bank Facility or (ii) obtain
the requisite consent under the Bank Facility; PROVIDED, HOWEVER, that the
failure to repay such Indebtedness or obtain such consent will not in any event
excuse any failure by the Company to perform its obligations under this Section
4.12.
On the Repurchase Date, the Company shall, to the extent lawful, (i)
accept for payment Notes or portions thereof tendered pursuant to the Repurchase
Offer and (ii) deliver to the Trustee Notes so tendered together with an
Officers' Certificate stating the Notes or portions thereof accepted for payment
by the Company. The Paying Agent shall promptly mail or deliver to Holders of
Notes so accepted payment in an amount equal to the Repurchase Price. The
Trustee shall promptly authenticate and mail or deliver to each Holder who
tendered a Note a new Note or Notes equal in principal amount to any untendered
portion of the Note surrendered. The Paying Agent shall invest funds deposited
with it pursuant to this Section 4.12 for the benefit of, and at the written
direction of, the Company to the Repurchase Date.
SECTION 4.13. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to: (i) pay dividends or make any other distribution on its Capital
Stock or any other interest or participation in, or measured by, its profits, or
pay any interest or principal due on Indebtedness owed to the Company or any of
its Restricted Subsidiaries; (ii) make loans or advances to the Company or any
of its Restricted Subsidiaries; or (iii) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries, other than (a) any
such encumbrance or restriction imposed by any Gaming Authority, (b) any
encumbrance or restriction existing on the date of this Indenture contained in
any Existing Indebtedness, (c) any encumbrance or restriction existing on the
date of this Indenture contained in the Bank Facility relating to Indebtedness
that does not exceed the greater of (1) $200 million or (2) 1.5 times Operating
Cash Flow calculated cumulatively for the four most recent consecutive fiscal
quarters of the Company immediately preceding the date on which such
Indebtedness is incurred, (d) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any Indebtedness
(other than Indebtedness incurred in anticipation of, as consideration in, or to
provide all or any portion of the funds utilized to consummate, the transaction
or series of related transactions pursuant to which such Restricted Subsidiary
became a Subsidiary of the Company) incurred by such Restricted Subsidiary on or
prior to the date on which such Restricted Subsidiary became a Restricted
Subsidiary of the Company and outstanding on such date; (e) any pledge by the
Company or a Restricted Subsidiary of the stock of an Unrestricted Subsidiary if
such pledge is made in connection with the incurrence of Qualified Non-Recourse
Debt by such Unrestricted Subsidiary; and (f) any encumbrance or restriction
pursuant to an agreement relating to Indebtedness issued to repay or amend
Indebtedness referred to in clause (b), (c), (d) or (f) of this paragraph,
PROVIDED, HOWEVER, that any such encumbrance or restriction is no less
favorable to the Noteholders than encumbrances and restrictions contained in
agreements relating to the Indebtedness so repaid or amended, and PROVIDED
further, that in the event that Indebtedness is issued to repay or amend the
Bank Facility, the aggregate principal amount of such Indebtedness shall not
exceed the greater of (a) $200 million or (b) 1.5 times Operating Cash Flow
calculated cumulatively for the four most recent consecutive fiscal quarters of
the Company immediately preceding the date on which such Indebtedness is issued.
SECTION 4.14. RESTRICTION ON LAYERING DEBT.
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The Company shall not incur any Indebtedness that is subordinate or
junior in right of payment to Senior Indebtedness and senior in any respect in
right of payment to the Notes.
ARTICLE 5
SUCCESSORS
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge with or into any
other entity (other than with a wholly-owned Restricted Subsidiary, provided the
Company is the continuing corporation) or sell, convey, assign, transfer, lease
or otherwise dispose of all or substantially all of its properties and assets
(determined on a consolidated basis for the Company and its Restricted
Subsidiaries taken as a whole) to any entity, unless:
(1) either (a) the Company shall be the continuing
corporation or (b) the entity (if other than the Company) formed by such
consolidation or into which the Company is merged or the entity that
acquires, by sale, conveyance, assignment, transfer, lease or disposition,
all or substantially all of the properties and assets of the Company shall
be a corporation, partnership or trust organized and validly existing
under the laws of the United States or any state thereof or the District
of Columbia, and shall expressly assume by a supplemental indenture the
due and punctual payment of the principal of and premium, if any, and
interest on all the Notes and the performance and observance of every
covenant of the Indenture on the part of the Company to be performed or
observed;
(2) immediately thereafter, no Event of Default (and no
event that, after notice or lapse of time, or both, would become an Event
of Default) shall have occurred and be continuing;
(3) immediately after giving effect to any such transaction
involving the incurrence by the Company or any Restricted Subsidiary,
directly or indirectly, of additional Indebtedness (and treating any
Indebtedness not previously an obligation of the Company or any of its
Restricted Subsidiaries incurred in connection with or as a result of such
transaction as having been incurred at the time of such transaction), the
Company (if it is the continuing corporation) or such other entity could
incur at least $1.00 of additional Indebtedness pursuant to Section
4.06(vi); and
(4) immediately thereafter, the Company (if it is the
continuing corporation) or such other entity shall have a Consolidated Net
Worth equal to or greater than the Consolidated Net Worth of the Company
immediately prior to such transaction.
The Company shall deliver to the Trustee prior to the consummation
of the proposed transaction an Officers' Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may
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exercise every right and power of, the Company under this Indenture with the
same effect as if such successor person had been named as the Company herein.
When a successor corporation assumes all of the obligations of the Company
hereunder and under the Notes and agrees to be bound hereby and thereby, the
predecessor shall be released from such obligations.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any Note
when the same becomes due and payable and such Default continues for a period of
30 days after the date due and payable, whether or not such payment is
prohibited by Article 10;
(2) the Company defaults in the payment of the principal of any
Note when the same becomes due and payable at maturity, upon optional redemption
of the Notes by the Company, upon exercise by the Holder of the Repurchase Offer
upon a Change of Control Triggering Event, upon declaration or otherwise,
whether or not such payment is prohibited by Article 10;
(3) the Company fails to observe, perform or comply with
Article 5;
(4) the Company fails to observe, perform or comply with any of
its other agreements or covenants in, or provisions of, the Notes or this
Indenture and such failure to observe, perform or comply continues for a period
of 60 days after receipt by the Company of notice of Default from the Trustee or
the Holders of at least 25% in principal amount of the Notes;
(5) the Company fails, after any applicable grace period, to make
any payment of principal of, premium in respect of, or interest on, any
Indebtedness when due, or any Indebtedness of the Company or any of its
Restricted Subsidiaries is accelerated because of a default and the aggregate
principal amount of such Indebtedness with respect to which any such failure to
pay or acceleration has occurred exceeds $10,000,000 or its foreign currency
equivalent;
(6) any encumbrance or restriction of the type described in
Section 4.13 becomes applicable to any Restricted Subsidiary;
(7) the Company or any Restricted Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
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(E) admits in writing its inability generally to pay its
debts as the same become due;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Restricted
Subsidiary or for all or substantially all of the property of the Company
or any Restricted Subsidiary, or
(C) orders the liquidation of the Company or any Restricted
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days;
(9) one or more judgments, orders or decrees are rendered against
the Company or any of its Restricted Subsidiaries in an aggregate amount in
excess of $10,000,000 (to the extent not covered by insurance) and are not
discharged for a period of 60 days during which a stay of enforcement of such
judgments, orders or decrees, by reason of a pending appeal or otherwise, is not
in effect; or
(10) any Gaming License of the Company or any of its Restricted
Subsidiaries is revoked, terminated or suspended or otherwise ceases to be
effective, resulting in the cessation or suspension of operation for a period of
more than 90 days of the casino business of any casino-hotel owned, leased or
operated directly or indirectly by the Company or any of its Restricted
Subsidiaries (other than any voluntary relinquishment of a Gaming License if
such relinquishment is, in the reasonable, good faith judgment of the Board of
Directors of the Company, evidenced by a resolution of such Board, both
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries, taken as a whole, and not disadvantageous in any material respect
to the Holders).
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.
In the case of any Event of Default pursuant to the provisions of
this Section 6.01 occurring by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium which the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to paragraph 5 of the Notes, an
equivalent premium (or, in the event that the Company would not be permitted to
redeem the Notes pursuant to paragraph 5 of the Notes, the premium payable on
the first date thereafter on which such redemption would be permissible) shall
also become and be immediately due and payable to the extent permitted by law,
anything in this Indenture or in the Notes contained to the contrary
notwithstanding.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in
clause (7) or (8) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of the
then outstanding Notes by notice to the Company and the Trustee, may declare the
unpaid principal of and all accrued and unpaid interest, Liquidated Damages, if
any, and premium, if any, on the Notes to be immediately due and payable. Upon
such declaration, the principal,
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interest, Liquidated Damages, if any, and premium, if any, shall be due and
payable immediately. If an Event of Default specified in clause (7) or (8) of
Section 6.01 occurs, such an amount shall IPSO FACTO become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the then
outstanding Notes, by notice to the Trustee, may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived, except
non-payment of principal or interest that has become due solely because of the
acceleration.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal or interest on
the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder 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. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the then
outstanding Notes, by notice to the Trustee, may waive an existing Default or
Event of Default and its consequences, except a continuing Default or Event of
Default in the payment of the principal of any Note.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then
outstanding Notes 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. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that is unduly prejudicial to the
rights of other Noteholders, or would involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Noteholder may pursue a remedy with respect to this Indenture or
the Notes only if:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the
then outstanding Notes 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
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(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of, Liquidated Damages, if
any, and interest on the Note, on or after the respective due dates expressed in
the Note, 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 specified in Section 6.01(1) or (2) occurs
and is continuing, the Trustee may recover judgment as permitted under
applicable law in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount of principal of,
Liquidated Damages, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and interest and such further amount as shall be
sufficient to cover the costs and, to the extent lawful, expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
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 Noteholders allowed in any judicial proceedings relative to the
Company or any other obligor or their respective creditors or property. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding.
SECTION 6.10. PRIORITIES.
Subject to Article 10 hereof, if the Trustee collects any money
pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Noteholders for amounts due and unpaid on the Notes for
principal, interest and Liquidated Damages, if any, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, interest
and Liquidated Damages, if any, respectively; and
Third: to the Company or any other obligors on the Notes, as their
interests may appear, or as a court of competent
jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment
to Noteholders.
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SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 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 then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, 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
his or her 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 and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
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(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) None of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if the Trustee reasonably believes that the repayment of
such funds or adequate indemnity against such risks or liability is not
reasonably assured to it.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on, and shall be protected in acting or
refraining from acting upon, any document believed by it to be genuine and to
have been signed or presented by the proper person. 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 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 further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. 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 agents 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 powers.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or an
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to 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 Notes, it shall not be accountable for the Company's
use of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in the Indenture or any statement in the Notes other
than its authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it
is actually known to the Trustee, the Trustee shall mail to Note holders a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment on any Note, the
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Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after the reporting date stated in Section 11.10, the
Trustee shall, to the extent required, mail to Noteholders a brief report dated
Section 314(a). as of such reporting date that complies with TIA Section 313(a).
The Trustee also shall comply with TIA Section 313(b). The Trustee shall also
reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Noteholders shall be filed
with the SEC and each stock exchange on which the Notes are listed of which the
Company has notified the Trustee in writing. The Company shall notify the
Trustee when the Notes are listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time upon demand
by the Trustee reasonable compensation established by the Trustee for its
services hereunder. The Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses incurred by
it. Such expenses shall include the reasonable compensation and out-of-pocket
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or
liability incurred by it except as set forth in the next paragraph. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel, and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through gross negligence or willful
misconduct.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(7) or (8) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of
a majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company. The Company may remove the
Trustee by notice to the Trustee if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes otherwise incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company and any other obligor shall
promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company or the Holders of at least 10% in principal amount of
the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon 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. The successor Trustee shall mail a notice of its
succession to Noteholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring trustee with respect to
expenses and liabilities incurred by it prior to such replacement.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a combined
transmit by mail all capital and surplus as stated in Section 11.10. The
Trustee is subject to TIA Section 310(b), including the optional provision
permitted by the proviso in the second sentence of TIA Section 310(b).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
Trustee is subject to TIA Section relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect (except that the
Company's obligations under Sections 7.07 and 8.03, and application of funds to
the payment of Notes, shall survive) when all outstanding Notes theretofore
authenticated and issued have been delivered to the Trustee for cancellation,
and the Company has paid all sums payable hereunder. In addition, the Company
may terminate all of its obligations under this Indenture (except the Company's
obligations under Sections 7.07 and 8.03) if:
(1) the Company irrevocably deposits in trust with the
Trustee money or non-callable U.S. Government Obligations maturing as to
principal and interest in such amounts and at such times as are
sufficient, as certified by an Officers' Certificate, to pay principal of,
Liquidated Damages, if any, and interest on the Notes to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder; and
(2) the Company delivers to the Trustee an Opinion of
Counsel satisfactory to the Trustee that the Holders of the Notes should
not recognize income, gain or loss for federal income tax purposes as a
result of the Company's exercise of its option under this Section 8.01 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 option
had not been exercised.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
4.01, 7.07, 8.03 and 8.04 shall survive until the Notes are no longer
outstanding. Thereafter, only the Company's obligations in Sections 7.07 and
8.03 shall survive.
After a deposit made pursuant to this Section 8.01, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under this Indenture, except for those surviving obligations specified above.
"U.S. Government Obligations" means direct obligations of the United
States of America, or obligations unconditionally guaranteed by the United
States of America, for the payment of which the full faith and credit of the
United States of America is pledged. In order to have money available on a
payment date to pay principal of or interest on the Notes, the U.S. Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest and
Liquidated Damages, if any, on the Notes.
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SECTION 8.03. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal of, Liquidated
Damages, if any, or interest on any Note that remains unclaimed for two years
after the date upon which such payment shall have become due; PROVIDED,
HOWEVER, that the Company shall have first caused notice of such payment to the
Company to be mailed to each Noteholder entitled thereto no less than 30 days
prior to such payment. After payment to the Company, Noteholders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
SECTION 8.04. REINSTATEMENT.
If (i) the Trustee or Paying Agent is unable to apply any money in
accordance with Section 8.02 by reason of any order or judgment of any court or
governmental authority (other than any order of the Nevada Gaming Commission
restricting the payment of such money to any particular Holder) enjoining,
restraining or otherwise prohibiting such application and (ii) the Holders of at
least a majority in principal amount of the then outstanding Notes so request by
written notice to the Trustee, the Company's obligations under this Indenture
and the Notes 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 in accordance with Section 8.02; PROVIDED,
HOWEVER, that if the Company makes any payment of principal of, Liquidated
Damages, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the right of the Holders of such
Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture or the Notes
without the consent of any Noteholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to comply with any requirements of the SEC in connection
with the qualification or requalification of this Indenture under the TIA;
(4) to provide for uncertificated Notes in addition to
certificated Notes; or
(5) to make any change that does not adversely affect the
rights hereunder of any Noteholder.
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SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Trustee may amend this
Indenture or the Notes with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Notes. Subject to Sections
6.04 and 6.07, the Holders of a majority in principal amount of the Notes then
outstanding may also waive compliance in a particular instance by the Company
with any provision of this Indenture or the Notes.
However, without the consent of each Noteholder affected, an
amendment or waiver under this Section may not:
(1) reduce the amount of Notes whose Holders must consent to
an amendment or waiver;
(2) reduce the rate of or change the time for payment of
interest or Liquidated Damages, if any, on any Note;
(3) reduce the principal of or change the fixed maturity of
any Note or alter the redemption provisions with respect thereto;
(4) make any Note payable in money other than that stated in
the Note;
(5) make any change in Section 6.04, 6.07 or 9.02 (this
sentence only); or
(6) waive a default in the payment of the principal of, or
Liquidated Damages, if any, or interest on, any Note.
To secure a consent of the Holders under this Section it shall not
be necessary for the Holders 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 Noteholders a notice briefly describing the amendment
or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Notes shall be set forth in
a supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same Indebtedness as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as
to his Note or portion of a Note if the Trustee receives notice of revocation
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Notes have
consented to the amendment or waiver (or before such later date as may be
required by law or stock exchange rule).
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The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment
or waiver. If a record date is fixed, then notwithstanding the provisions of
the immediately preceding paragraph, those persons who were Holders at such
record date (or their duly designated proxies), and only those persons, shall be
entitled to consent to such amendment or waiver or to revoke any consent
previously given, whether or not such persons continue to be 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 Notes
required hereunder for such amendment or waiver to be effective shall have also
been given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Noteholder, unless it is of the type described in any of clauses (1) through (6)
of Section 9.02. In such case, the amendment or waiver shall bind each Holder
of a Note who has consented to it and every subsequent Holder of a Note that
evidences the same Indebtedness as the consenting Holder's Note.
SECTION 9.05.NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment or
waiver on any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall authenticate new Notes that reflect the
amendment or waiver.
SECTION 9.06.TRUSTEE PROTECTED.
The Trustee shall sign all supplemental indentures, except that the
Trustee need not sign any supplemental indenture that adversely affects its
rights. As a condition to executing or accepting any supplemental indenture,
the Trustee may request and rely on an Opinion of Counsel and an Officers'
Certificate stating that such supplemental indenture is permitted hereunder and
all conditions precedent have been complied with, in the form set forth in
Sections 11.04 and 11.05.
ARTICLE 10
SUBORDINATION
SECTION 10.01. NOTES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company agrees, and each Holder by accepting a Note agrees, that
the Indebtedness evidenced by the Notes, including for all purposes of this
Article 10, all repurchase and redemption obligations with respect to the Notes,
is subordinated in right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment in full of all existing and future Senior
Indebtedness and that the subordination is for the benefit of and enforceable by
the holders of Senior Indebtedness, and authorizes and directs the Trustee to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
Only Indebtedness of the Company which is Senior Indebtedness shall
rank senior to the Notes in accordance with the provisions set forth herein.
This Article 10 shall remain in full force and effect as long as any Senior
Indebtedness is outstanding or any commitment to advance Senior Indebtedness
exists, assuming in the case of the Bank Facility that all conditions precedent
to any such advance could be satisfied.
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SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution, whether of cash, securities or
other property, to creditors of the Company in a liquidation (total or partial),
reorganization or dissolution of the Company, whether voluntary or involuntary,
or in a bankruptcy, reorganization, insolvency, receivership, assignment for the
benefit of creditors, marshalling of assets or similar proceeding relating to
the Company or its property:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full, in cash or cash equivalents, of such Senior
Indebtedness before Holders shall be entitled to receive any payment of
principal of, or interest or Liquidated Damages, if any, on, or any other
distribution with respect to, the Notes; and
(2) until the Senior Indebtedness is paid in full as provided
in clause (1) above, any distribution to which Holders would be entitled
but for this Article 10 shall be made to the holders of Senior
Indebtedness as their interests may appear;
in each case except that Holders may receive shares of stock and debt securities
that are subordinated to Senior Indebtedness to at least the same extent and
pursuant to the same or more stringent terms as are the Notes.
Upon any distribution of assets of the Company referred to in this
Section 10.02, the Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in which such bankruptcy,
reorganization, insolvency, receivership, assignment for the benefit of
creditors, marshalling of assets or similar proceedings are pending, or a
certificate of the liquidating trustee or agent or other such person making any
distribution to the Trustee or to the Holders, for the purpose of ascertaining
the persons entitled to participate in such distribution, the holders of Senior
Indebtedness, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Section
10.02. The Trustee shall be entitled to rely on the delivery to it of a written
notice by a person representing himself to be a holder of Senior Indebtedness or
a Representative, as the case may be, to establish that such notice has been
given by a holder of Senior Indebtedness or a Representative, as the case may
be. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person, as a holder of
Senior Indebtedness, to participate in any payment or distribution pursuant to
this Section 10.02, the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such person, as to the extent to which such person is
entitled to participation in such payment or distribution and as to other facts
pertinent to the rights of such person under this Section 10.02, and, if such
evidence is not furnished, the Trustee may defer any payment to such person (or
to the Noteholder) pending judicial determination as to the right of such person
to receive such payment.
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS.
No direct or indirect payment by or on behalf of the Company under
the Notes shall be made if (i) any Designated Senior Indebtedness is not paid
when due or (ii) any other default on Designated Senior Indebtedness occurs and
in the case of this clause (ii) the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms, unless, in either
case, (x) the default has been cured or waived and any such acceleration has
been rescinded or (y) such Designated Senior Indebtedness has been paid in full;
PROVIDED, HOWEVER, that the Company may make any such direct or indirect
payment under the Notes without regard to the foregoing if the Company and the
Trustee receive
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written notice approving such payment from the Representative of such Designated
Senior Indebtedness. In addition, during the continuance of any other event of
default with respect to Designated Senior Indebtedness pursuant to which the
maturity of such Designated Senior Indebtedness may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, upon the
occurrence of (a) receipt by the Trustee of written notice from the
Representative with respect to, or the holders of at least a majority in
aggregate principal amount of, such Designated Senior Indebtedness then
outstanding or (b) if such event of default results from the acceleration of the
Notes, the date of such acceleration, no direct or indirect payment may be made
by the Company upon or in respect of the Notes for a period (a "Payment Blockage
Period") commencing on the earlier of the date of receipt of such notice by the
Trustee or the date of such acceleration and ending 180 days thereafter (unless
such Payment Blockage Period shall be terminated by written notice to the
Trustee from such Representative or such holders). Not more than one Payment
Blockage Period in the aggregate may be commenced with respect to the Notes
during any period of 360 consecutive days, irrespective of the number of
defaults with respect to Senior Indebtedness during such period. In no event
will a Payment Blockage Period extend beyond 179 days from the date such payment
upon or in respect of the Notes was due, and there must be 180 days in any
360-day period in which no Payment Blockage Period is in effect as to the
Company. For all purposes of this Section 10.03, no default or event of default
which existed or was continuing on the date of the commencement of the Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall be, or be made, the basis for the
commencement of a subsequent Payment Blockage Period by the Representative or
requisite holders of such Designated Senior Indebtedness whether or not within a
period of 360 consecutive days unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
SECTION 10.04. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Company shall make any payment to the Trustee
pursuant to the Notes at a time when such payment is prohibited by Section 10.02
or 10.03, such payment shall be held by the Trustee, in trust for the benefit
of, and shall be paid forthwith over and delivered to, the holders of Senior
Indebtedness (PRO RATA as to each of such holders on the basis of the
respective amounts of Senior Indebtedness held by them) or their
Representatives, as their respective interests may appear, for application to
the payment of all Senior Indebtedness remaining unpaid to the extent necessary
to pay all Senior Indebtedness in full in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
If a distribution is made to Holders that because of this Article 10
should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness and pay it over to
them as their interests may appear.
SECTION 10.05. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and any Paying Agent
by an appropriate Officers' Certificate of the Company delivered to a Trust
Officer and the Paying Agent of any facts known to the Company that would cause
a payment under the Notes of principal of or interest or Liquidated Damages, if
any, on the Notes to violate this Article 10, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Indebtedness
provided in this Article 10.
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SECTION 10.06. SUBROGATION.
After all Senior Indebtedness is paid in full and all commitments to
advance Senior Indebtedness have been terminated, and until the Notes are paid
in full pursuant to the Notes and this Indenture or otherwise, Holders shall be
subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that distributions
otherwise payable to Holders have been applied to payment of Senior
Indebtedness. A distribution made under this Article 10 to holders of Senior
Indebtedness which otherwise would have been made to Holders is not, as between
the Company and the Holders, a payment by the Company on Senior Indebtedness.
SECTION 10.07. RELATIVE RIGHTS.
This Article 10 defines the relative rights of Holders and holders
of Senior Indebtedness. Nothing in this Indenture (but subject to the
provisions of paragraph 5 of the Notes) shall:
(1) impair, as between the Company and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of
the Company other than such creditors as are holders of Senior
Indebtedness;
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior Indebtedness to receive distributions
otherwise payable to Holders; or
(4) create or imply the existence of any commitment on the
part of the holders of Senior Indebtedness to extend credit to the
Company, other than as set forth in the terms governing such Senior
Indebtedness.
SECTION 10.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any present or future holder of Senior Indebtedness to
enforce the subordination of the Indebtedness evidenced by the Notes and this
Article 10 shall be impaired by any act or failure to act by the Company or
anyone in custody of its assets or property or by its failure to comply with
this Indenture.
SECTION 10.09. DISTRIBUTION OR NOTICE TO REPRESENTATIVES.
Whenever a distribution is to be made or a notice given to holders
of Senior Indebtedness, the distribution may be made and the notice given to
their Representatives, if any.
SECTION 10.10. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 10.02 or 10.03, the Trustee or any Paying
Agent may continue to make payments of principal of or interest on the Notes
unless, in the case of the Trustee, a Trust Officer or, in the case of a Paying
Agent other than the Trustee, an officer of such Paying Agent, shall have
received, at least three Business Days prior to the date such payments are due
and payable, written notice of the occurrence of an event under Section 10.02 or
10.03 and that any payment under the Notes would violate this Article 10. Only
the Company or a Representative with respect to or holders of a least
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a majority in principal amount of an issue of Designated Senior Indebtedness may
give such notice. Nothing contained in this Section 10.10 shall limit the right
of any holder of Senior Indebtedness to recover payments as contemplated by
Section 10.04.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. The Trustee shall be entitled to all
the rights set forth in this Article 10 with respect to Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness; and nothing in Article 7 shall deprive the Trustee of any
of its rights as such holder, except as otherwise provided by the TIA.
SECTION 10.11.TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE
OF NOTICE.
Notwithstanding any of the provisions of this Article 10 or any
other provision of this Indenture, unless a Trust Officer has received a written
notice pursuant to Section 10.10, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment to or by the Trustee, and in the absence of such written notice the
Trustee may make such payment without liability or obligation to the Senior
Indebtedness.
SECTION 10.12. APPLICATION BY TRUSTEE OF MONIES DEPOSITED WITH IT.
Nothing contained in this Article 10 or elsewhere in this Indenture,
or in the Notes, shall (i) affect the obligation of the Company to make, or
prevent the Company from making, at any time except as specified in Section
10.02 or 10.03 to the extent provided therein, payments at any time pursuant to
the Notes, (ii) prevent the application by the Trustee or any Paying Agent of
any monies or the proceeds of any U.S. Government Obligations received from the
Company and held by the Trustee or such Paying Agent in trust for the benefit of
the Holders of Notes as to which notice of redemption shall have been given, to
the payment of or on account of the principal of or interest or Liquidated
Damages, if any, on the Notes if, at the time such notice was given, a payment
by the Company under the Notes would not have been prohibited by the foregoing
provisions of this Article 10 or (iii) prevent the application by the Trustee or
any Paying Agent of any monies or the proceeds of any U.S. Government
Obligations deposited with it by the Company under Article 8 hereof to the
payment of or on account of the principal of or interest or Liquidated Damages,
if any, on the Notes if, at the time of such deposit, a payment by the Company
under the Notes would not have been prohibited by the foregoing provisions of
this Article 10.
SECTION 10.13. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article 10 shall apply to claims of, or payments to,
the Trustee pursuant to Section 7.07.
SECTION 10.14. OFFICERS' CERTIFICATE.
If there occurs any event referred to in Section 10.02, the Company
shall promptly give to the Trustee an Officers' Certificate (on which the
Trustee may conclusively rely) identifying all holders of Senior Indebtedness
and the principal amount of Senior Indebtedness then outstanding held by each
such holder and stating the reasons why such Officers' Certificate is being
delivered to the Trustee.
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SECTION 10.15. CERTAIN PAYMENTS.
Nothing in this Article 10 shall prevent or delay (i) the Company
from or in redeeming any Notes pursuant to paragraph 5 of the Notes or otherwise
purchasing any Notes pursuant to any legal requirement relating to the gaming
business of the Company and its Subsidiaries or (ii) the receipt by the Holders
of payments of principal of and interest and Liquidated Damages, if any, on the
Notes as provided in Section 8.02.
SECTION 10.16. NAMES OF REPRESENTATIVES.
The Company shall from time to time, upon request of the Trustee,
provide to the Trustee an Officers' Certificate setting forth the name and
address of each Representative of all outstanding Senior Indebtedness.
SECTION 10.17. ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT TO
ACCELERATE.
The failure to make a payment pursuant to the Notes by reason of any
provision in this Article 10 shall not be construed as preventing the occurrence
of a Default. Nothing in this Article 10 shall have any effect on the right of
the Holders or the Trustee to accelerate the maturity of the Notes.
SECTION 10.18. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS.
Each Holder by accepting a Note acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Indebtedness, whether such
Senior Indebtedness was created or acquired before or after the issuance of the
Notes, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness. No provision in any
supplemental indenture which modifies this Article 10 in any manner adverse to
the holders of Senior Indebtedness shall be effective against the holders of
Senior Indebtedness who have not consented thereto in accordance with the
provisions of the documents governing such Senior Indebtedness.
SECTION 10.19. PROOF OF CLAIM.
In the event that the Company is subject to any proceeding under any
Bankruptcy Law and the Holders and the Trustee fail to file any proof of claim
permitted to be filed in such proceeding with respect to the Notes, then any
Representative of Designated Senior Indebtedness may file such proof of claim no
earlier than the later of (i) the expiration of 15 days after such
Representative notifies the Trustee of its intention to do so and (ii) 30 days
preceding the last day permitted to file such claim.
SECTION 10.20. NO FIDUCIARY DUTY CREATED TO HOLDERS OF SENIOR INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and, subject to the
provisions of Article 7, the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall mistakenly pay over or deliver to Holders, the Company
or any other person, monies or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article 10 or otherwise.
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ARTICLE 11
MISCELLANEOUS
SECTION 11.01. 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, the required provision shall control.
SECTION 11.02. NOTICES.
Any notice or communication by the Company or the Trustee to any of
the others is duly given if in writing and delivered in person or mailed by
overnight delivery service to the others' addresses stated in Section 11.10.
The Company or the Trustee by notice to the others may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Noteholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any defect in it
shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given when mailed, whether or not the
addressee receives it.
If the Company mails a notice or communication to Noteholders, it
shall mail a copy to the Trustee and each Agent at the same time.
If any notice is mailed to the Company in the manner provided above,
a copy of such notice shall be mailed, in the manner provided above, to Milbank,
Tweed, Hadley & McCloy, 601 South Figueroa Street, Los Angeles, California
90017, Attention: Eric H. Schunk, Esq.
All other notices or communications shall be in writing.
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any other obligor
to the Trustee to take any action under this Indenture, the Company or any other
obligor, as the case may be, shall furnish to the Trustee:
(a) 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
(b) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
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SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion 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 certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him 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.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Noteholders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the State of Nevada, New York or California 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 11.08. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company 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 Noteholder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
SECTION 11.09. COUNTERPARTS.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
SECTION 11.10. VARIABLE PROVISIONS.
The Company initially appoints the Trustee as Paying Agent,
Registrar and authenticating agent.
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<PAGE>
The first certificate pursuant to Section 4.03 shall be for the
fiscal year ending on the first March 31 to occur after the date of this
Indenture.
The reporting date for Section 7.06 is June 1 of each year. The
first reporting date is June 1, 1997.
The Trustee shall always have a combined capital and surplus
(including subordinated capital notes) of at least $50,000,000 as set forth in
its most recent published annual report of condition.
The Company's address is:
STATION CASINOS, INC.
2411 West Sahara Avenue
Las Vegas, Nevada 89102
The Trustee's address is:
FIRST UNION NATIONAL BANK
123 South Broad Street
Philadelphia, PA 19109
Attention: Corporate Trust Administrator
SECTION 11.11. GOVERNING LAW.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
INDENTURE AND THE NOTES, WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS
THEREOF.
SECTION 11.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.13. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 11.14. SEVERABILITY.
In case any provision in this Indenture or in the Notes 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 11.15. QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA and shall pay
all costs and expenses (including attorneys' fees for the Company, the Trustee
and the Holders of the Notes) incurred in connection therewith, including, but
not limited to, costs and expenses of qualification of the Indenture
56
<PAGE>
and the Notes and printing this Indenture and the Notes. In connection with any
such qualification of this Indenture under the TIA, the Trustee shall be
entitled to receive from the Company any such Officers' Certificates, Opinions
of Counsel or other documentation as it may reasonably request.
SECTION 11.16.TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
[SIGNATURE PAGES FOLLOW]
57
<PAGE>
SIGNATURES
Dated: as of ________, 1997 STATION CASINOS, INC.
By ___________________________
Attest:
______________________________
(SEAL)
Dated: as of ________, 1997 FIRST UNION NATIONAL BANK
By ___________________________
Attest:
______________________________
(SEAL)
S-1
<PAGE>
Exhibit A-1
(Face of Note)
9 3/4% [Series A] [Series B] Senior Subordinated Notes due 2007
CUSIP No. ___________
No. $___________
STATION CASINOS, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars on April 15, 2007.
Interest Payment Dates: April 15 and October 15, commencing October 15,
1997
Record Dates: April 1 and October 1 (whether or not a Business Day)
Dated:
STATION CASINOS, INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
This is one of the Global Notes referred
to in the within-mentioned Indenture (SEAL)
FIRST UNION NATIONAL BANK,
as Trustee
By:
--------------------------------
(Authorized Signatory)
A-1-1
<PAGE>
(Back of Note)
9 3/4% [Series A] [Series B] Senior Subordinated Notes due 2007
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the 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 Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the issuer 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 may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity as may be 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.]1
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR
THE BENEFIT OF THE COMPANY THAT (a) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (b) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (a) ABOVE.
________________________
1. THIS PARAGRAPH SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL
FORM.
A-1-2
<PAGE>
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. STATION CASINOS, INC., a Nevada corporation (the
"Company," which term includes any successor corporation under the Indenture
referred to herein), promises to pay interest on the principal amount of this
Note at the rate per annum shown above and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights Agreement referred
to below. The Company will pay interest semi-annually on April 15 and October
15 of each year, commencing October 15, 1997. Interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance of the Notes. 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) and Liquidated Damages, if any, to the persons
who are registered Holders of the Notes at the close of business on the record
date for the next interest payment date even though the Notes are cancelled
after the record date and on or before the interest payment date. Holders must
surrender the Notes to a Paying Agent to collect principal payments. The
Company will pay principal and interest and Liquidated Damages, if any, in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. The Company, however, may pay principal and interest
and Liquidated Damages, if any, by check payable in such money, which shall be
mailed to a Holder's registered address; provided that payment by wire transfer
of immediately available funds will be required with respect to principal of and
interest, premium and Liquidated Damages, if any, on, all Global Notes and all
other Certificated Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent.
3. PAYING AGENT AND REGISTRAR. The Trustee will initially act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-registrar without prior notice to any Noteholder. The Company
or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of April 3, 1997 (the "Indenture") by and between the Company and the
Trustee. 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
Trustee who has resigned or been removed U.S. Code Sections 77aaa-77bbbb) as in
are subject to, and qualified by, all such terms, certain of which are
summarized herein, and Noteholders are referred to the Indenture and such Act
for a statement of such terms. The Notes are unsecured general obligations of
the Company limited to $150,000,000 in aggregate principal amount. The
Indenture imposes certain limitations on, among other things, the incurrence of
indebtedness by the Company or any of its Restricted Subsidiaries and the making
of Restricted Payments and Restricted Investments by the Company or any of its
Restricted Subsidiaries. In addition, the Indenture imposes certain limitations
on transactions by the Company or any of its Restricted Subsidiaries with
Affiliates and Related Persons and on the ability of the Company or any of its
Restricted Subsidiaries to restrict distributions and dividends from
Subsidiaries. The limitations are subject to a number of important
qualifications and exceptions.
5. OPTIONAL REDEMPTION. The Company may redeem the Notes in
whole or in part, at redemption prices (expressed in percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any, and
Liquidated Damages, if any, to the redemption date, if redeemed during the
12-month period beginning April 15 of the years indicated below. The Notes may
not be so redeemed before April 15, 2002.
A-1-3
<PAGE>
YEAR REDEMPTION PRICES
2002.................... 103.79%
2003.................... 102.53%
2004.................... 101.26%
2005 and thereafter..... 100.00%
Notwithstanding the foregoing, each Holder by accepting a Note
agrees that if a record or beneficial owner of a Note is required by any Gaming
Authority to be found suitable, such owner shall apply for a finding of
suitability within 30 days after request of such Gaming Authority. The applicant
for a finding of suitability must pay all costs of the investigation for such
finding of suitability. If a record or beneficial owner is required to be found
suitable and is not found suitable by such Gaming Authority, (a) such owner
shall, upon request of the Company, dispose of such owner's Notes within 30 days
or within that time prescribed by such Gaming Authority, whichever is earlier,
or (b) the Company may, at its option, redeem such owner's Notes at the lesser
of (i) the principal amount thereof or (ii) the price at which the Notes were
acquired by such owner, together with, in either case, Liquidated Damages, if
any, and accrued interest to the date of the finding of unsuitability by such
Gaming Authority, all as more fully provided in the Indenture.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder of Notes to be redeemed at his registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. In the event of a redemption of less than all of the
Notes, the Notes will be chosen for redemption by the Trustee in accordance with
the Indenture. On and after the redemption date, interest ceases to accrue on
Notes or portions of them called for redemption.
If this Note is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the person in whose name
this Note is registered at the close of business on such record date.
7. SUBORDINATION. The Notes are subordinated to Senior
Indebtedness, as defined in the Indenture. To the extent provided in the
Indenture, Senior Indebtedness must be paid before payments in respect of the
Notes may be made under the Notes and the Indenture. The Company agrees, and
each Noteholder by accepting a Note agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in-fact for such purpose.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes shall be registered, and Notes may
only be exchanged, as provided in 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. The Registrar need not exchange or register the transfer of any
Notes or portion of a Note selected for redemption. Also, the Registrar need
not exchange or register the transfer of any Note for a period of 15 days before
a selection of Note to be redeemed.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes, except as provided in paragraph 5
hereof.
A-1-4
<PAGE>
10. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes, and certain
existing defaults may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes. Without the consent of any
Noteholder, the Indenture or the Notes may be amended, among other things, to
cure any ambiguity, defect or inconsistency, to provide for assumption of the
Company's obligations to Noteholders in the case of mergers and consolidations
of the Company or to make any change that does not adversely affect the rights
of any Noteholder.
11. DEFAULTS AND REMEDIES. An Event of Default is: default in
payment of interest on the Notes for a period of 30 days; default in payment of
principal on the Notes; failure by the Company for 60 days after notice to it to
comply with any of its other agreements in the Indenture or the Notes or, in the
case of the failure to comply with certain specified covenants or agreements,
without such notice or passage of time; certain defaults under and acceleration
prior to maturity of certain other indebtedness of the Company; certain final
judgments which remain undischarged; certain events of bankruptcy or insolvency;
or a revocation, suspension, termination or involuntary loss of a Gaming License
which results in the cessation of operation of the Company's casino business for
more than 90 consecutive days. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately,
except that in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Notes become due and payable
immediately without further action or notice. Noteholders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require 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 then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Noteholders notice of any
continuing default (except a default in payment of principal or interest) if it
determines that withholding notice is in their interests. The Company must
furnish an annual compliance certificate to the Trustee.
12. TRUSTEE DEALINGS WITH COMPANY. First Union National Bank,
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
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not Trustee.
13. CHANGE OF CONTROL. Upon the occurrence of a Change of
Control Triggering Event (as such term is defined in the Indenture), the Holders
shall have the right to require that the Company repurchase, and the Company
shall commence an offer to repurchase, all of the outstanding Notes at a
Repurchase Price in cash equal to 101% of the principal amount of such Notes
plus Liquidated Damages, if any, and accrued interest to the repurchase date,
upon the terms set forth in the Indenture.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee
or stockholder, as such, of the Company 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 Noteholder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
A-1-5
<PAGE>
16. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED
Securities. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transferred Restricted Securities shall have all the
rights set forth in the Registration Rights Agreement dated as of the date of
the Indenture, between the Company and the party named on the signature pages
thereof (the "Registration Rights Agreement").
17. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Noteholder 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).
Company will furnish to any Noteholder upon written request and
without charge a copy of the Indenture, which has in it the text of this Note in
larger type. Request may be made to:
STATION CASINOS, INC.
2411 West Sahara Avenue
Las Vegas, Nevada 89102
Attn: Chief Financial Officer
A-1-6
<PAGE>
Assignment Form
To assign this Note, fill in the form below: (i) or (we) assign and
transfer this Note to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:_______________________
Your Signature:_________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.**
___________________
** Signature(s) must be guranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with membership
in an approved signature guarantee medallion program) pursuant to Securities
and Exchange Commission Rule 17 AD-15
A-1-7
<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Note repurchased by the Company
pursuant to Section 4.12 of the Indenture, check the box: / /
If you want to elect to have only part of this Note repurchased by
the Company pursuant to Section 4.12 of the Indenture, state the amount (which
must be $1,000 or an integral multiple of $1,000): $_______________
Date:________________________
Your Signature:_________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:_________________________
Signature Guarantee.*
** Signature(s) must be guranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with membership
in an approved signature guarantee medallion program) pursuant to Securities
and Exchange Commission Rule 17 AD-15
A-1-7
<PAGE>
SCHEDULE OF EXCHANGES FOR CERTIFICATED NOTES2
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
<TABLE>
<CAPTION>
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
- ---------------- --------------------- --------------------- ------------------------- ----------------------
<S> <C> <C> <C> <C>
</TABLE>
________________________
2. To be included only if the Note is issued in global form.
A-1-9
<PAGE>
Exhibit A-2
(Face of Regulation S Temporary Global Security)
9 3/4% Series A Senior Subordinated Notes due 2007
CUSIP No. ___________
No. $___________
STATION CASINOS, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars on April 15, 2007.
Interest Payment Dates: April 15 and October 15, commencing October 15,
1997
Record Dates: April 1 and October 1 (whether or not a Business Day)
Dated:
STATION CASINOS, INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
This is one of the Global Notes referred
to in the within-mentioned Indenture (SEAL)
FIRST UNION NATIONAL BANK,
as Trustee
By:
--------------------------------
(Authorized Signatory)
A-2-1
<PAGE>
(Back of Note)
9 3/4% Series A Senior Subordinated Notes due 2007
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the 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 Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the issuer 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 may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity as may be 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.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR
THE BENEFIT OF THE COMPANY THAT (a) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (b) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (a) ABOVE.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
A-2-2
<PAGE>
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST THEREON.
A-2-3
<PAGE>
This Regulation S Temporary Global Note is issued in respect of an issue
of 9 3/4% Senior Subordinated Notes due 2007 (the "Notes") of the Company.
Until this Regulation S Temporary Global Note is exchanged for Regulation
S Permanent Global Notes, the Holder hereof shall not be entitled to receive
payments of interest hereon; until so exchanged in full, this Regulation S
Temporary Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or in
part for one or more Regulation S Permanent Global Notes or Rule 144A Global
Notes only (i) on or after the termination of the 40-day restricted period (as
defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture.
Upon exchange of all interest in this Regulation S Temporary Global Note for one
or more Regulation S Permanent Global Notes or Rule 144A Global Notes, the
Trustee shall cancel this Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This
Regulation S Temporary Global Note shall be governed by and construed in
accordance with the laws of the State of the New York. All references to "$,"
"Dollars," "dollars" or "U.S. $" are to such coin or currency of the United
States of America as at the time shall be legal tender for the payment of public
and private debts therein.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. STATION CASINOS, INC., a Nevada corporation (the
"Company," which term includes any successor corporation under the Indenture
referred to herein), promises to pay interest on the principal amount of this
Note at the rate per annum shown above and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights Agreement referred
to below. The Company will pay interest semi-annually on April 15 and October
15 of each year, commencing October 15, 1997. Interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance of the Notes. 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) and Liquidated Damages, if any, to the persons
who are registered Holders of the Notes at the close of business on the record
date for the next interest payment date even though the Notes are cancelled
after the record date and on or before the interest payment date. Holders must
surrender the Notes to a Paying Agent to collect principal payments. The
Company will pay principal and interest and Liquidated Damages, if any, in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. The Company, however, may pay principal and interest
and Liquidated Damages, if any, by check payable in such money, which shall be
mailed to a Holder's registered address; provided that payment by wire transfer
of immediately available funds will be required with respect to principal of and
interest, premium and Liquidated Damages, if any, on, all Global Notes and all
other Certificated Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent.
A-2-4
<PAGE>
3. PAYING AGENT AND REGISTRAR. The Trustee will initially act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-registrar without prior notice to any Noteholder. The Company
or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of April 3, 1997 (the "Indenture") by and between the Company and the
Trustee. 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 Sections 77aaa-77bbbb) as in effect on the date of the Indenture.
The Notes are subject to, and qualified by, all such terms, certain of which
are summarized herein, and Noteholders are referred to the Indenture and such
Act for a statement of such terms. The Notes are unsecured general
obligations of the Company limited to $150,000,000 in aggregate principal
amount. The Indenture imposes certain limitations on, among other things,
the incurrence of indebtedness by the Company or any of its Restricted
Subsidiaries and the making of Restricted Payments and Restricted Investments
by the Company or any of its Restricted Subsidiaries. In addition, the
Indenture imposes certain limitations on transactions by the Company or any
of its Restricted Subsidiaries with Affiliates and Related Persons and on the
ability of the Company or any of its Restricted Subsidiaries to restrict
distributions and dividends from Subsidiaries. The limitations are subject
to a number of important qualifications and exceptions.
5. OPTIONAL REDEMPTION. The Company may redeem the Notes in
whole or in part, at redemption prices (expressed in percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any, and
Liquidated Damages, if any, to the redemption date, if redeemed during the
12-month period beginning April 15 of the years indicated below. The Notes may
not be so redeemed before April 15, 2002.
Year Redemption Prices
---- -----------------
2002.................... 103.79%
2003.................... 102.53%
2004.................... 101.26%
2005 and thereafter..... 100.00%
Notwithstanding the foregoing, each Holder by accepting a Note
agrees that if a record or beneficial owner of a Note is required by any Gaming
Authority to be found suitable, such owner shall apply for a finding of
suitability within 30 days after request of such Gaming Authority. The applicant
for a finding of suitability must pay all costs of the investigation for such
finding of suitability. If a record or beneficial owner is required to be found
suitable and is not found suitable by such Gaming Authority, (a) such owner
shall, upon request of the Company, dispose of such owner's Notes within 30 days
or within that time prescribed by such Gaming Authority, whichever is earlier,
or (b) the Company may, at its option, redeem such owner's Notes at the lesser
of (i) the principal amount thereof or (ii) the price at which the Notes were
acquired by such owner, together with, in either case, Liquidated Damages, if
any, and accrued interest to the date of the finding of unsuitability by such
Gaming Authority, all as more fully provided in the Indenture.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder of Notes to be redeemed at his registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. In the event of a redemption of less than all of the
Notes, the Notes will
A-2-5
<PAGE>
be chosen for redemption by the Trustee in accordance with the Indenture. On
and after the redemption date, interest ceases to accrue on Notes or portions of
them called for redemption.
If this Note is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the person in whose name
this Note is registered at the close of business on such record date.
7. SUBORDINATION. The Notes are subordinated to Senior
Indebtedness, as defined in the Indenture. To the extent provided in the
Indenture, Senior Indebtedness must be paid before payments in respect of the
Notes may be made under the Notes and the Indenture. The Company agrees, and
each Noteholder by accepting a Note agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in-fact for such purpose.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes shall be registered, and Notes may
only be exchanged, as provided in 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. The Registrar need not exchange or register the transfer of any
Notes or portion of a Note selected for redemption. Also, the Registrar need
not exchange or register the transfer of any Note for a period of 15 days before
a selection of Note to be redeemed.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes, except as provided in paragraph 5
hereof.
10. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes, and certain
existing defaults may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes. Without the consent of any
Noteholder, the Indenture or the Notes may be amended, among other things, to
cure any ambiguity, defect or inconsistency, to provide for assumption of the
Company's obligations to Noteholders in the case of mergers and consolidations
of the Company or to make any change that does not adversely affect the rights
of any Noteholder.
11. DEFAULTS AND REMEDIES. An Event of Default is: default in
payment of interest on the Notes for a period of 30 days; default in payment of
principal on the Notes; failure by the Company for 60 days after notice to it to
comply with any of its other agreements in the Indenture or the Notes or, in the
case of the failure to comply with certain specified covenants or agreements,
without such notice or passage of time; certain defaults under and acceleration
prior to maturity of certain other indebtedness of the Company; certain final
judgments which remain undischarged; certain events of bankruptcy or insolvency;
or a revocation, suspension, termination or involuntary loss of a Gaming License
which results in the cessation of operation of the Company's casino business for
more than 90 consecutive days. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately,
except that in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Notes become due and payable
immediately without further action or notice. Noteholders may not enforce the
Indenture or the Notes
A-2-6
<PAGE>
except as provided in the Indenture. The Trustee may require 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 then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Noteholders notice of any continuing default
(except a default in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
12. TRUSTEE DEALINGS WITH COMPANY. First Union National Bank,
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
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not Trustee.
13. CHANGE OF CONTROL. Upon the occurrence of a Change of
Control Triggering Event (as such term is defined in the Indenture), the Holders
shall have the right to require that the Company repurchase, and the Company
shall commence an offer to repurchase, all of the outstanding Notes at a
Repurchase Price in cash equal to 101% of the principal amount of such Notes
plus Liquidated Damages, if any, and accrued interest to the repurchase date,
upon the terms set forth in the Indenture.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee
or stockholder, as such, of the Company 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 Noteholder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED
Securities. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transferred Restricted Securities shall have all the
rights set forth in the Registration Rights Agreement dated as of the date of
the Indenture, between the Company and the party named on the signature pages
thereof (the "Registration Rights Agreement").
17. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Noteholder 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).
Company will furnish to any Noteholder upon written request and
without charge a copy of the Indenture, which has in it the text of this Note in
larger type. Request may be made to:
STATION CASINOS, INC.
2411 West Sahara Avenue
Las Vegas, Nevada 89102
Attn: Chief Financial Officer
A-2-7
<PAGE>
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Temporary
Global Note for other Global Notes have been made:
<TABLE>
<CAPTION>
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
- ---------------- --------------------- --------------------- ------------------------- ----------------------
<S> <C> <C> <C> <C>
</TABLE>
A-2-8
<PAGE>
Exhibit B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the Indenture)
FIRST UNION NATIONAL BANK
123 South Broad Street
Philadelphia, PA 19109
Attention: Corporate Trust Administrator
Re: 9 3/4% Senior Subordinated Notes due 2007 of Station
Casinos, Inc.
authorized officer of
Reference is hereby made to the Indenture, dated as of April 3, 1997
(the "Indenture"), among Station Casinos, Inc., as issuer (the "Company") and
First Union National Bank, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by one or more Rule 144A Global Notes (CUSIP No._________) and held
with the Depository in the name of ____________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a person who will take delivery thereof in the form of
an equal principal amount of Notes evidenced by one or more Regulation S Global
Notes (CUSIP No. __________), which amount, immediately after such transfer, is
to be held with the Depository.
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
hereby further certifies 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 order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
B-1-1
<PAGE>
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depository.
Upon giving effect to this request to exchange a beneficial interest
in a Rule 144A Global Note for a beneficial interest in a Regulation S Global
Note, the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Notes, the additional
restrictions applicable to transfers of interest in the Regulation S Temporary
Global Note.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and BancAmerica Securities, Inc.,
the initial purchaser of such Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
__________________________
[Insert Name of Transferor]
By: ______________________
Name:
Title:
Dated:_______________, _____
cc: Station Casinos, Inc.
B-1-2
<PAGE>
Exhibit B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
FIRST UNION NATIONAL BANK
123 South Broad Street
Philadelphia, PA 19109
Attention: Corporate Trust Administrator
Re: 9 3/4% Senior Subordinated Notes due 2007 of Station Casinos, Inc.
Reference is hereby made to the Indenture, dated as of April 3, 1997
(the "Indenture"), among Station Casinos, Inc., as issuer (the "Company") and
First Union National Bank, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by one or more Regulation S Global Notes (CUSIP No. __________) and
held with the Depository in the name of ____________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a person who will take delivery thereof in the form of
an equal principal amount of Notes evidenced by one or more Rule 144A Global
Notes (CUSIP No. _________), to be held with the Depository.
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that:
[CHECK ONE]
/ / such transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Notes are being transferred to a person
that the Transferor reasonably believes is purchasing the Notes for
its own account, or for one or more accounts with respect to which
such person exercises sole investment discretion, and such person
and each such account is a "qualified institutional buyer" within
the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A;
or
/ / such transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
/ / such transfer is being effected pursuant to an effective
registration statement under the Securities Act;
B-2-1
<PAGE>
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with
the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or
the transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to
the Registrar, to the effect that such transfer is in compliance
with the Securities Act;
and such Notes are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest
in Regulation S Global Notes for a beneficial interest in Rule 144A Global
Notes, the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Rule 144A Global Notes pursuant to the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and BancAmerica Securities, Inc.,
the initial purchaser of such Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
__________________________
[Insert Name of Transferor]
By:
-----------------------
Name:
Title:
Dated: _____________, _____
cc: Station Casinos, Inc.
B-2-2
<PAGE>
Exhibit B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF CERTIFICATED NOTES
(Pursuant to Section 2.06(b) of the Indenture)
FIRST UNION NATIONAL BANK
123 South Broad Street
Philadelphia, PA 19109
Attention: Corporate Trust Administrator
Re: 9 3/4% Senior Subordinated Notes due 2007 of Station
Casinos, Inc.
Reference is hereby made to the Indenture, dated as of April 3, 1997
(the "Indenture"), among Station Casinos, Inc., as issuer (the "Company") and
First Union National Bank, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with such request and in respect of the Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
/ / the Surrendered Notes are being acquired for the Transferor's own
account, without transfer;
or
/ / the Surrendered Notes are being transferred to the Company;
or
/ / the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes are
being transferred to a person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account, or
for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is
a "qualified institutional buyer" within the meaning of Rule 144A,
in each case in a transaction meeting the requirements of Rule 144A;
or
/ / the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
B-3-1
<PAGE>
/ / the Surrendered Notes are being transferred pursuant to an effective
registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with
the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or
the transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to
the Registrar, to the effect that such transfer is in compliance
with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and BancAmerica Securities, Inc.,
the initial purchaser of such Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
__________________________
[Insert Name of Transferor]
By:
-----------------------
Name:
Title:
Dated: _____________, _____
cc: Station Casinos, Inc.
B-3-2
<PAGE>
Exhibit B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE
TO CERTIFICATED NOTE
(Pursuant to Section 2.06(c) of the Indenture)
FIRST UNION NATIONAL BANK
123 South Broad Street
Philadelphia, PA 19109
Attention: Corporate Trust Administrator
Re: 9 3/4% Senior Subordinated Notes due 2007 of Station
Casinos, Inc.
Reference is hereby made to the Indenture, dated as of April 3, 1997
(the "Indenture"), among Station Casinos, Inc., as issuer (the "Company") and
First Union National Bank, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by one or more Rule 144A Global Notes (CUSIP No.__________) or
Regulation S Permanent Global Note (CUSIP No. __________) and held with the
Depository in the name of ____________________________ (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the Notes to
a person who will take delivery thereof in the form of an equal principal amount
of Notes evidenced by one or more Certificated Notes (CUSIP No. __________),
which amount, immediately after such transfer, is to be held with the
Depository.
In connection with such request and in respect of the Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
/ / the Surrendered Notes are being transferred to the beneficial owner
of such Notes;
or
/ / the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes are
being transferred to a person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account, or
for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is
a "qualified institutional buyer" within the meaning of Rule 144A,
in each case in a transaction meeting the requirements of Rule 144A;
or
B-4-1
<PAGE>
/ / the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
/ / the Surrendered Notes are being transferred pursuant to an effective
registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with
the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or
the transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to
the Registrar, to the effect that such transfer is in compliance
with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and BancAmerica Securities, Inc.,
the initial purchaser of such Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
__________________________
[Insert Name of Transferor]
By:
-----------------------
Name:
Title:
Dated: _____________, _____
cc: Station Casinos, Inc.
B-4-2
<PAGE>
Exhibit B-5
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM CERTIFICATED NOTE TO RULE 144A GLOBAL NOTE OR
REGULATION S PERMANENT GLOBAL NOTE
(Pursuant to Section 2.06(e) of the Indenture)
FIRST UNION NATIONAL BANK
123 South Broad Street
Philadelphia, PA 19109
Attention: Corporate Trust Administrator
Re: 9 3/4% Senior Subordinated Notes due 2007 of Station
Casinos, Inc.
Reference is hereby made to the Indenture, dated as of April 3, 1997
(the "Indenture"), among Station Casinos, Inc., as issuer (the "Company") and
First Union National Bank, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with such request and in respect of the Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
/ / the Surrendered Notes are being transferred to the beneficial owner
of such Notes;
or
/ / the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes are
being transferred to a person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account, or
for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is
a "qualified institutional buyer" within the meaning of Rule 144A,
in each case in a transaction meeting the requirements of Rule 144A;
or
/ / the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
/ / the Surrendered Notes are being transferred in a transaction
permitted by Rule 904 under the Securities Act;
B-5-1
<PAGE>
or
/ / the Surrendered Notes are being transferred pursuant to an effective
registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with
the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or
the transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to
the Registrar, to the effect that such transfer is in compliance
with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and BancAmerica Securities, Inc.,
the initial purchaser of such Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
__________________________
[Insert Name of Transferor]
By:
-----------------------
Name:
Title:
Dated: _____________, _____
cc: Station Casinos, Inc.
B-5-2
<PAGE>
- -------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of April 3, 1997
by and between
STATION CASINOS, INC.
and
BANCAMERICA SECURITIES, INC.
- -------------------------------------------------------------------------------
<PAGE>
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of April 3, 1997 by and between Station Casinos, Inc., a Nevada
corporation (the "COMPANY") and BancAmerica Securities, Inc. (the "PURCHASER"),
who has agreed to purchase the Company's 9 3/4% Series A Senior Subordinated
Notes due 2007 (the "SERIES A NOTES") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated March
26, 1997 (the "PURCHASE AGREEMENT"), by and between the Company and the
Purchaser. In order to induce the Purchaser to purchase the Series A Notes, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Purchaser set forth in Section 7(l) of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
CLOSING DATE: The date of this Agreement.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
DAMAGES PAYMENT DATE: With respect to the Series A Notes, each
Interest Payment Date.
EFFECTIVENESS TARGET DATE: As defined in Section 5.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The registration by the Company under the Act of the
Series B Notes pursuant to a Registration Statement pursuant to which the
Company offers the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
<PAGE>
EXEMPT RESALES: The transactions in which the Purchaser proposes to
sell the Series A Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act, to a limited number of institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3) and
(7) of Regulation D under the Act ("ACCREDITED INSTITUTIONS") and outside the
United States to certain persons in offshore transactions in reliance on
Regulation S under the Act.
HOLDERS: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDENTURE: The Indenture, dated as of April 3, 1997, between the
Company and First Union National Bank, as trustee (the "TRUSTEE"), pursuant to
which the Notes are to be issued, as such Indenture is amended or supplemented
from time to time in accordance with the terms thereof.
INTEREST PAYMENT DATE: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
NOTES: The Series A Notes and the Series B Notes.
PERSON: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
PROSPECTUS: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
PURCHASER: As defined in the preamble hereto.
RECORD HOLDER: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
relating to (a) an offering of Series B Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
SERIES B NOTES: The Company's 9 3/4% Series B Senior Subordinated
Notes due 2007 to be issued pursuant to the Indenture in the Exchange Offer.
SHELF FILING DEADLINE: As defined in Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Series A Note, until the
earliest to occur of (a) the date on which such Series A Note has been exchanged
by a person other than a Broker-Dealer for a Series B Note in the Exchange
Offer, (b) following the exchange by a Broker-Dealer in the Exchange Offer of a
Series A Note for a Series B Note, the date on which such Series B Note is sold
to a purchaser who receives from such Broker-Dealer on or prior to the date of
such sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, (c) the date on which such Series A Note has been effectively
registered under the Act and disposed of in accordance with the Shelf
Registration Statement or (d) the date on which such Series A Note may be
distributed to the public pursuant to Rule 144 or another applicable resale
exemption under the Act.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "HOLDER") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company shall (i) cause to be filed
with the Commission as soon as practicable after the Closing Date, but in no
event later than 60 days after the Closing Date, a Registration Statement under
the Act relating to the Series B Notes and the Exchange Offer, (ii) use its best
efforts to cause such Registration Statement to become effective at the earliest
possible time, but in no event later than 120 days after the Closing Date, (iii)
in connection with the foregoing, file (A) all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such Registration
Statement to become effective, (B) if applicable, a post-effective amendment to
such Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings in connection with the registration and qualification of
the Series B Notes to be made under the Blue Sky laws of such jurisdictions as
are necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration of the
Series B Notes to be offered in exchange for the Transfer Restricted Securities
and to permit resales of Notes held by Broker-Dealers as contemplated by Section
3(c) below.
(b) The Company shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; PROVIDED, HOWEVER, that in no
event shall such period be less than 20 business days. The Company shall cause
the
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Exchange Offer to comply with all applicable federal and state securities laws.
No securities other than the Notes shall be included in the Exchange Offer
Registration Statement. The Company shall use its best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 business days thereafter (or a longer period if required by
applicable law).
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Series A Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Series A Notes pursuant to the Exchange Offer; however, such Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the Series B Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Notes acquired by Broker-Dealers for
their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of one year from the date on which the
Exchange Offer Registration Statement is declared effective.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
one-year period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company is not permitted to
consummate the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with) or (ii) if any Holder of Transfer Restricted
Securities shall notify the Company no later than 20 business days after the
Consummation of the Exchange Offer (A) that such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or
(B) that such Holder may not resell the Series B Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) that such
Holder is a Broker-Dealer and holds Series A Notes acquired directly from the
Company or one of its affiliates, then the Company shall:
(x) use its best efforts to cause to be filed a shelf
registration statement pursuant to Rule 415 under the Act, which may
be an amendment to the Exchange Offer Registration
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Statement (in either event, the "SHELF REGISTRATION STATEMENT") on or prior
to the earliest to occur of (1) the 60th day after the date on which the
Company determines that it is not permitted to consummate the Exchange
Offer, (2) the 60th day after the date on which the Company receives notice
from a Holder of Transfer Restricted Securities as contemplated by clause
(ii) above, and (3) the 150th day after the Closing Date (such earliest
date being the "SHELF FILING DEADLINE"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities the Holders
of which shall have provided the information required pursuant to Section
4(b) hereof; and
(y) use its best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission as soon as
practicable after the Shelf Filing Deadline (and in any event within
150 days after the Closing Date, PROVIDED that such 150-day period
shall be extended if necessary to provide the Company with 30 days
notice of its filing obligation).
The Company shall use its best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Notes by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years following the Closing Date.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement
is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "EFFECTIVENESS TARGET DATE"), (iii) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) the Shelf Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective or fail
to be usable in connection with resales of Transfer Restricted Securities
without being succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself immediately
declared effective (each such event referred to in clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company agrees to pay liquidated damages to each
Holder of Transfer Restricted Securities with respect to the first 90-day period
immediately following the occurrence of such Registration Default, in an
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amount equal to $.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages of $.15 per week per $1,000 principal amount of Transfer
Restricted Securities. All accrued liquidated damages shall be paid to Record
Holders by the Company by wire transfer of immediately available funds or by
federal funds check on each Damages Payment Date, as provided in the Indenture.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of liquidated damages with respect
to such Transfer Restricted Securities shall cease.
All obligations of the Company to pay liquidated damages set forth in
the preceding paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations to pay liquidated
damages with respect to such Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company shall comply with all of the provisions of Section
6(c) below, shall use its best efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and shall comply with all of
the following provisions:
(i) If in the reasonable opinion of counsel to the Company there
is a question as to whether the Exchange Offer is permitted by applicable
law, the Company hereby agrees to seek a no-action letter or other
favorable decision from the Commission allowing the Company to Consummate
an Exchange Offer for such Series A Notes. The Company hereby agrees to
pursue the issuance of such a decision to the Commission staff level but
shall not be required to take commercially unreasonable action to effect a
change of Commission policy. The Company hereby agrees, however, to (A)
participate in telephonic conferences with the Commission, (B) deliver to
the Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded that
such an Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission staff of such
submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of
the Company, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any person to participate in,
a distribution of the Series B Notes to be issued in the Exchange Offer and
(C) it is acquiring the Series B Notes in its ordinary course of business.
In addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange Offer.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and any
such Holder using the Exchange Offer to participate in a distribution of
the securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement
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rely on the position of the Commission enunciated in MORGAN STANLEY AND
CO., INC. (available June 5, 1991) and EXXON CAPITAL HOLDINGS CORPORATION
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained pursuant to clause (i) above), and
(2) must comply with the registration and prospectus delivery requirements
of the Act in connection with a secondary resale transaction and that such
a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the
resales are of Series B Notes obtained by such Holder in exchange for
Series A Notes acquired by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the Exchange Offer
in reliance on the position of the Commission enunciated in EXXON CAPITAL
HOLDINGS CORPORATION (available May 13, 1988), MORGAN STANLEY AND CO., INC.
(available June 5, 1991) and, if applicable, any no-action letter obtained
pursuant to clause (i) above and (B) including a representation that the
Company has not entered into any arrangement or understanding with any
Person to distribute the Series B Notes to be received in the Exchange
Offer and that, to the best of the Company's information and belief, each
Holder participating in the Exchange Offer is acquiring the Series B Notes
in its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Series B Notes
received in the Exchange Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto the Company will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes by Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable;
upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B), use
its best efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for its
intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter period as
will
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terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Company shall use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) if a Shelf Registration Statement is filed or if a
Prospectus contained in an Exchange Offer Registration Statement is
required to be delivered in connection with the Exchange Offer, upon
request by any of the selling Holders or underwriter(s), if any, furnish to
such Holders or underwriter(s) before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus
(including copies of all documents to be incorporated by reference therein
and all exhibits thereto), which documents will be subject to the review of
such Holders and underwriter(s), if any, for a period of at least five
business days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which a selling Holder of Transfer Restricted
Securities covered by such Registration Statement or the underwriter(s), if
any, shall reasonably object within five business days after the receipt
thereof. A selling Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) if a Shelf Registration Statement is filed or if a Prospectus
contained in an Exchange Offer Registration Statement is required to be
delivered in connection with the Exchange Offer, upon request by any of the
selling Holders or underwriter(s), if any, (x) provide copies of any
documents that are incorporated by reference into a Registration Statement
or Prospectus, if any, after the initial
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filing of such Registration Statement or Prospectus, to such Holder or
underwriter(s) as promptly as practicable after the filing of such document
with the Commission, (y) make the Company's representatives available for
discussion of such document and other customary due diligence matters
(subject to the limitations on disclosure of Company Information and
Records as provided in Section 6(c)(vi)), and (z) consider in good faith
and include such information by an amendment or supplement to such document
as such selling Holders or underwriter(s), if any, reasonably may request;
(vi) if a Shelf Registration Statement is filed or if a
Prospectus contained in an Exchange Offer Registration Statement is
required to be delivered in connection with the Exchange Offer, make
available at reasonable times to the selling Holders, any underwriter
participating in any disposition pursuant to such Registration Statement,
and any attorney or accountant retained by such selling Holders or any of
the underwriter(s) (collectively, the "Inspectors") the following: (a) the
Company's representatives for discussion of customary due diligence matters
(any information provided during such discussions being referred to as
"Company Information"), and (b) for inspection by the Inspectors, all
financial and other records, pertinent corporate documents and properties
of the Company (the "Records") and causes the Company's officers, directors
and employees to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement subsequent to the
filing thereof and prior to its effectiveness. Any Company Information and
Records which the Company determines, in good faith, to be confidential and
for which the Company notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (A) based upon the advice of counsel the
disclosure of such Company Information or Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (B) the
release of such Company Information or Records is ordered pursuant to a
subpoena or other order from a court or other governmental authority of
competent jurisdiction or (C) such Company Information or the information
in such Records has been made generally available to the public other than
as a result of disclosure or failure to safeguard by such Inspector. Each
selling Holder of such Transfer Restricted Securities or any underwriter
participating in any disposition pursuant to such Registration Statement
will be required to agree that such information obtained by it as a result
of such inspections and discussions shall be deemed confidential and shall
not be used by it as the basis for any market transactions in the
securities of the Company unless and until such information is made
generally available to the public. Each selling Holder of such Transfer
Restricted Securities or any underwriter participating in any disposition
pursuant to such Registration Statement will be required to further agree
that it will, upon learning that disclosure of such Company Information or
Records is sought in a court or other governmental authority of competent
jurisdiction, give notice to the Company and allow the Company to undertake
appropriate action, at the Company's sole cost and expense, to prevent
disclosure of such Company Information or Records deemed confidential;
(vii) if requested by any selling Holders or the underwriter(s),
if any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, information with respect to the principal amount of
Transfer Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering of
the Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
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(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested in writing by the Holders of a majority in aggregate principal
amount of Notes covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company hereby
consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such extent
as may be requested by any Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, the Company shall:
(A) furnish to each Purchaser, each selling Holder and each
underwriter, if any, in such substance and scope as they may request
and as are customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of the Consummation of the
Exchange Offer and, if applicable, the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (y) the
President or any Vice President and (z) a principal financial or
accounting officer of the Company, confirming, as of the date
thereof, the matters set forth in Section 7(d) of the Purchase
Agreement and such other matters as such parties may reasonably
request;
(2) opinions, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company, covering the matters set forth in Section 7(b) of the
Purchase Agreement and such other matter as such parties may
reasonably request, and in any event including a statement to the
effect that such counsel has participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants for the
Company, the Purchaser's representatives and the Purchaser's
counsel in connection with the preparation of such Registration
Statement and the related Prospectus and have considered the
matters required to be stated therein and the statements
contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of
the foregoing (relying as to materiality to a large extent upon
facts provided to such counsel by officers
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and other representatives of the Company and without independent
check or verification), no facts came to such counsel's attention
that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement
or any post-effective amendment thereto became effective, and, in
the case of the Exchange Offer Registration Statement, as of the
date of Consummation, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Registration
Statement as of its date and, in the case of the opinion dated
the date of Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in any
Registration Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated as of the date of
Consummation of the Exchange Offer or the date of effectiveness
of the Shelf Registration Statement, as the case may be, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters by underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 7(e) of the Purchase
Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company
contemplated in clause (A)(1) above cease to be true and correct, the
Company shall so advise the Purchaser and the underwriter(s), if any, and
each selling Holder promptly and, if requested by such Persons, shall
confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with, and the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be required to (A)
register or qualify as a foreign corporation where it is not now so
registered or qualified or (B) to take any action that would subject it to
the service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
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(xiii) shall issue, upon the request of any Holder of Series A
Notes covered by the Shelf Registration Statement, Series B Notes, having
an aggregate principal amount equal to the aggregate principal amount of
Series A Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Series B Notes to be registered
in the name of such Holder or in the name of the purchaser(s) of such
Notes, as the case may be; in return, the Series A Notes held by such
Holder shall be surrendered to the Company for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to any
sale of Transfer Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (viii) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration Statement
and provide the Trustee under the Indenture with printed certificates for
the Transfer Restricted Securities which are in a form eligible for deposit
with the Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use its reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or (B) if not
sold to underwriters in such an offering, beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of
the Registration Statement;
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(xx) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement, and, in connection therewith cooperate with the Trustee and
the Holders of Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms
of the TIA; and execute and use its best efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by
the Holders of a majority in aggregate principal amount of Series A Notes
or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon written request
each document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the "ADVICE") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made by the Purchaser or Holder with the NASD (and, subject to Section 7(b), if
applicable, the fees and expenses of any "qualified independent underwriter" and
its counsel that may be required by the rules and regulations of the NASD));
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Series B Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and, subject to Section
7(b), for the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing Notes on a national securities exchange
or automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company
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(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Purchaser and the Holders of Transfer Restricted Securities being tendered in
the Exchange Offer and/or resold pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or registered pursuant to
the Shelf Registration Statement, as applicable, for (i) the reasonable fees and
disbursements of not more than one counsel, as such counsel may be chosen by the
Holders of a majority in principal amount of the Transfer Restricted Securities
for whose benefit such Registration Statement is being prepared and (ii) the
fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and regulations of the NASD; PROVIDED,
HOWEVER, that the aggregate amount payable by the Company under this Section
7(b) shall not exceed $150,000.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each Holder
and (ii) each person, if any, who controls (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"INDEMNIFIED HOLDER"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, including
the reasonable fees and expenses of counsel to any Indemnified Holder) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (or any
amendment or supplement thereto), or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders expressly for use
therein.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Company (PROVIDED, that the
failure to give such notice shall not relieve the Company of its obligations
pursuant to this Agreement unless and to the extent it did not otherwise learn
of such action or proceeding and such failure results in the forfeiture by the
Company of substantial rights and defenses). The Company shall be entitled to
appoint counsel (satisfactory to such Indemnified Holder or Indemnified Holders)
to represent the Indemnified
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Holder or Indemnified Holders in any action or proceeding for which
indemnification is sought (in which case the fees and expenses of such counsel
shall be paid, as incurred, by the Company except as set forth below).
Notwithstanding the Company's election to appoint counsel to represent an
Indemnified Holder in an action or proceeding, the Indemnified Holder shall have
the right to employ separate counsel, and the Company shall bear the reasonable
fees, costs and expenses of such separate counsel, if (i) the use of counsel
chosen by the Company to represent the Indemnified Holder would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action or proceeding include both the Indemnified Holder
and the Company and the Indemnified Holder shall have reasonably concluded that
there may be legal defenses available to it and/or other Indemnified Holders
which are different from or additional to those available to the Company, (iii)
the Company shall not have employed counsel satisfactory to the Indemnified
Holder to represent the Indemnified Holder within a reasonable time after notice
of the institution of such action or proceeding or (iv) the Company shall
authorize the Indemnified Holder in writing to employ separate counsel at the
expense of the Company. The Company shall be liable for any settlement of any
such action or proceeding effected with the Company's prior written consent,
which consent shall not be withheld unreasonably, and the Company agrees to
indemnify and hold harmless any Indemnified Holder from and against any loss,
claim, damage, liability or expense by reason of any settlement of any action
effected with the written consent of the Company. The Company shall not,
without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to terminate
any pending or threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
any Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company, and its respective
directors, officers, and any person controlling (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company, and the respective
officers, directors, partners, employees, representatives and agents of each
such person, to the same extent as the foregoing indemnity from the Company to
each of the Indemnified Holders, but only with respect to claims and actions
based on information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company or its directors or officers or
any such controlling person in respect of which indemnity may be sought against
a Holder of Transfer Restricted Securities, such Holder shall have the rights
and duties given the Company and the Company or its directors or officers or
such controlling person shall have the rights and duties given to each Holder by
the preceding paragraph. In no event shall the liability of the Purchaser (and
its related Indemnified Holders) hereunder, be greater than the dollar amount of
the total discount received by the Purchaser upon its purchase of the Transfer
Restricted Securities. In no event shall the liability of any other selling
Holder (and its related Indemnified Holders) hereunder be greater than the
dollar amount of the proceeds received by such Holder upon the sale of the
Transfer Restricted Securities giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand
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and the Holders on the other hand from their sale of Transfer Restricted
Securities or if such allocation is not permitted by applicable law, the
relative fault of the Company on the one hand and of the Indemnified Holder on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of the Indemnified Holder on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
8(c) were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, (x) the
Purchaser (and its related Indemnified Holders) shall not be required to
contribute, in the aggregate, any amount in excess of the dollar amount of the
total discount received by the Purchaser upon the purchase of the Transfer
Restricted Securities and (y) any other Holder (and its related Indemnified
Holders) shall not be required to contribute, in the aggregate, any amount in
excess of the dollar amount of the proceeds received by such Holder upon the
sale of the Transfer Restricted Securities giving rise to such indemnification
obligation. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Series A Notes held by each of
the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
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and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED, that such investment bankers and managers must be
reasonably satisfactory to the Company. The Company shall pay all fees and
expenses of such banker(s) and manager(s) only to the extent specifically
provided in Section 7. In no event, however, shall the Company be responsible
for paying any underwriting discounts or commissions in connection with any such
underwritten offering.
SECTION 12. MISCELLANEOUS
(a) REMEDIES. The Company agrees that monetary damages (including
the liquidated damages contemplated hereby) would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company will not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
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(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company, at the address set forth in the Purchase
Agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; PROVIDED,
HOWEVER, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
STATION CASINOS, INC.
By:
------------------------
Name:
Title:
BANCAMERICA SECURITIES, INC.
By:
----------------------
Name:
Title:
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[Station Casinos Logo]
CONTACT: GLENN C. CHRISTENSON, (800) 544-2411
EXECUTIVE VICE PRESIDENT/CHIEF FINANCIAL OFFICER
STATION CASINOS, INC.
JACK TAYLOR, (702) 221-6900
VICE PRESIDENT OF PUBLIC RELATIONS
MCNABB/MCNABB/DESOTO/SALTER & COMPANY
FOR IMMEDIATE RELEASE: APRIL 3, 1997
STATION CASINOS, INC. COMPLETES ISSUANCE OF $150 MILLION
SENIOR SUBORDINATED NOTES DUE 2007
LAS VEGAS - Station Casinos, Inc. (NYSE:STN) announced today the completion
of its sale of $150 million of Senior Subordinated Notes to BancAmerica
Securities, Inc. Proceeds from the sale of the notes were used to reduce
amounts outstanding under the Company's $372 million bank facility. The
availability under the bank facility, cash flows from operations, and
equipment financings will be used to pay the remaining construction costs for
the next phase of the Station Casino St. Charles master plan of approximately
$132 million (excluding construction period interest and preopening expenses)
as of December 31, 1996, to provide additional equity contributions of
approximately $35 million for the completion of Sunset Station, for payment
of construction payables of approximately $85 million as of December 31,
1996, and for general corporate purposes.
<PAGE>
Station Casinos, Inc. is a multi-jurisdictional gaming company that owns
and operates the Palace Station Hotel & Casino, the Boulder Station Hotel &
Casino, and the Texas Station Gambling Hall & Hotel in Las Vegas, Nev., as
well as slot machine route management services in Southern Nevada and
Louisiana. Station Casinos, Inc. also owns and operates Station Casino St.
Charles, a gaming and entertainment facility in St. Charles, Mo. and Station
Casino Kansas City, a gaming and entertainment facility in Kansas City, Mo.
The Company is developing Sunset Station Hotel & Casino in Las Vegas, Nev.,
and anticipates an opening in July 1997.
This press release may be deemed to contain forward-looking statements
with respect to the financial condition, results of operations and expansion
projects of STN and its subsidiaries which involve risks and uncertainties
including, but not limited to, competition from other gaming operations,
construction risks, and licensing and other regulatory risks. Further
information on potential factors which could affect the financial condition,
results of operations and expansion projects of STN and its subsidiaries are
included in the filings of STN with the Securities and Exchange Commission,
including, but not limited to STN's Annual Report and Form 10-K for the
fiscal year ended March 31, 1996 and Registration Statement on Form S-3 File
No. 333-1102.
