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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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): May 22, 1996
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HARVEYS CASINO RESORTS
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(Exact name of registrant as specified in its charter)
Nevada 1-12802 88-0066882
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(State or other jurisdiction (Commission (I.R.S. Employer of
incorporation) File Number) Identification No.)
Highway 50 and State Line Avenue
P. O. Box 128
Lake Tahoe, Nevada 89449
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 702/588-2411
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N/A
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(Former name or former address, if changed since last report)
The Exhibit Index is located on Page 2.
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ITEM 5. OTHER EVENTS.
EXHIBITS
The following exhibit is filed as part of this report:
Exhibit Exhibit Sequential
Number Description Page Number
------- ----------- -----------
4.1 Indenture, dated as of May 15,
1996, between the Registrant and
IBJ Schroder Bank & Trust Company,
as trustee (including form of Note)
4.2 First Supplemental Indenture, dated
as of June 5, 1996, between the
Registrant and IBJ Schroder Bank &
Trust Company, as trustee
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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 thereunto duly authorized.
HARVEYS CASINO RESORTS
(Registrant)
By: /s/ John J. McLaughlin
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John J. McLaughlin
Senior Vice President,
Chief Financial Officer and
Treasurer
Date: June 13, 1996
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Exhibit 4.1
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HARVEYS CASINO RESORTS,
Issuer
HARVEYS C.C. MANAGEMENT COMPANY, INC.,
HARVEYS WAGON WHEEL CASINO LIMITED LIABILITY COMPANY,
HARVEYS IOWA MANAGEMENT COMPANY, INC.
and
HARVEYS L.V. MANAGEMENT COMPANY, INC.,
as Guarantors
and
IBJ SCHRODER BANK & TRUST COMPANY,
Trustee
Indenture
Dated as of May 15, 1996
__________
$150,000,000
10-5/8% SENIOR SUBORDINATED NOTES DUE 2006
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. . . . . . . . . . . . - 1 -
SECTION 1.2 OTHER DEFINITIONS. . . . . . . . . . . . . . - 17 -
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES
SECTION 2.1 AUTHENTICATION AND DELIVERY OF SECURITIES. . - 18 -
SECTION 2.2 EXECUTION OF SECURITIES. . . . . . . . . . . - 18 -
SECTION 2.3 CERTIFICATE OF AUTHENTICATION. . . . . . . . - 19 -
SECTION 2.4 FORM AND DENOMINATION. . . . . . . . . . . . - 19 -
SECTION 2.5 DATE OF SECURITIES; PAYMENTS OF INTEREST . . - 20 -
SECTION 2.6 REGISTRATION, TRANSFER AND EXCHANGE. . . . . - 21 -
SECTION 2.7 DEPOSITARY PROCEDURES. . . . . . . . . . . . - 22 -
SECTION 2.8 BOOK-ENTRY . . . . . . . . . . . . . . . . . - 22 -
SECTION 2.9 SAME-DAY SETTLEMENT AND PAYMENT. . . . . . . - 23 -
SECTION 2.10 MUTILATED, DEFACED, DESTROYED, LOST AND
STOLEN SECURITIES. . . . . . . . . . . . . . - 23 -
SECTION 2.11 CANCELLATION OF SECURITIES; DESTRUCTION
THEREOF. . . . . . . . . . . . . . . . . . . - 24 -
SECTION 2.12 TEMPORARY SECURITIES . . . . . . . . . . . . - 24 -
ARTICLE III
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. . . . . . - 25 -
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. . . . . . . . . . - 25 -
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. . . . . . . . . . . . . . . . . . . - 25 -
SECTION 3.4 PAYING AGENTS. . . . . . . . . . . . . . . . - 25 -
SECTION 3.5 CERTIFICATE TO TRUSTEE . . . . . . . . . . . - 26 -
SECTION 3.6 SECURITYHOLDERS LISTS. . . . . . . . . . . . - 27 -
SECTION 3.7 REPORTS BY THE ISSUER. . . . . . . . . . . . - 27 -
SECTION 3.8 TAXES. . . . . . . . . . . . . . . . . . . . - 27 -
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SECTION 3.9 STAY, EXTENSION AND USURY LAWS . . . . . . . - 27 -
SECTION 3.10 REPORTS BY THE TRUSTEE . . . . . . . . . . . - 28 -
SECTION 3.11 RESTRICTED PAYMENTS. . . . . . . . . . . . . - 28 -
SECTION 3.12 RESTRICTED INVESTMENTS . . . . . . . . . . . - 29 -
Section 3.13 INCURRENCE OF INDEBTEDNESS . . . . . . . . . - 31 -
SECTION 3.14 LIENS. . . . . . . . . . . . . . . . . . . . - 33 -
SECTION 3.15 DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES . . . . . . . . . . . - 33 -
SECTION 3.16 ADDITIONAL SUBSIDIARY GUARANTEES . . . . . . - 34 -
SECTION 3.17 LIMITATION ON ISSUANCE OF OTHER SUBOR-
DINATED DEBT SENIOR TO THE SECURITIES OR
THE SUBSIDIARY GUARANTEES. . . . . . . . . . - 34 -
SECTION 3.18 TRANSACTIONS WITH AFFILIATES . . . . . . . . - 34 -
SECTION 3.19 BUSINESS ACTIVITIES. . . . . . . . . . . . . - 36 -
SECTION 3.20 DESIGNATION OF AN UNRESTRICTED SUBSIDIARY
AS A RESTRICTED SUBSIDIARY . . . . . . . . . - 36 -
SECTION 3.21 DESIGNATION OF A SUBSIDIARY AS AN
UNRESTRICTED SUBSIDIARY. . . . . . . . . . . - 37 -
SECTION 3.22 PAYMENTS FOR CONSENT . . . . . . . . . . . . - 37 -
SECTION 3.23 ASSET SALES. . . . . . . . . . . . . . . . . - 38 -
SECTION 3.24 CHANGE OF CONTROL. . . . . . . . . . . . . . - 39 -
ARTICLE IV
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 EVENT OF DEFAULT DEFINED . . . . . . . . . . - 40 -
SECTION 4.2 ACCELERATION; WAIVER OF DEFAULT. . . . . . . - 42 -
SECTION 4.3 COLLECTION OF INDEBTEDNESS BY TRUSTEE;
TRUSTEE MAY PROVE DEBT . . . . . . . . . . . - 42 -
SECTION 4.4 APPLICATION OF PROCEEDS. . . . . . . . . . . - 45 -
SECTION 4.5 SUITS FOR ENFORCEMENT. . . . . . . . . . . . - 45 -
SECTION 4.6 RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. . . . . . . . . . . . . . . . . - 46 -
SECTION 4.7 LIMITATIONS ON SUITS BY SECURITYHOLDERS. . . - 46 -
SECTION 4.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR
OMISSION NOT WAIVER OF DEFAULT . . . . . . . - 47 -
SECTION 4.9 CONTROL BY SECURITYHOLDERS . . . . . . . . . - 47 -
SECTION 4.10 WAIVER OF PAST DEFAULTS. . . . . . . . . . . - 47 -
SECTION 4.11 NOTICE TO TRUSTEE. . . . . . . . . . . . . . - 48 -
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ARTICLE V
CONCERNING THE TRUSTEE
SECTION 5.1 DUTIES AND RESPONSIBILITIES OF THE TRUS-
TEE; DURING DEFAULT; PRIOR TO DEFAULT. . . . - 48 -
SECTION 5.2 CERTAIN RIGHTS OF THE TRUSTEE. . . . . . . . - 50 -
SECTION 5.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS,
DISPOSITION OF SECURITIES OR APPLICATION
OF PROCEEDS THEREOF. . . . . . . . . . . . . - 51 -
SECTION 5.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES;
COLLECTIONS, ETC.. . . . . . . . . . . . . . - 51 -
SECTION 5.5 MONEYS HELD BY TRUSTEE . . . . . . . . . . . - 51 -
SECTION 5.6 COMPENSATION AND INDEMNIFICATION OF TRUS-
TEE AND ITS PRIOR CLAIM. . . . . . . . . . . - 51 -
SECTION 5.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS'
CERTIFICATE, ETC.. . . . . . . . . . . . . . - 52 -
SECTION 5.8 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUS-
TEE. . . . . . . . . . . . . . . . . . . . . - 52 -
SECTION 5.9 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR TRUSTEE. . . . . . . . . . . . . . - 52 -
SECTION 5.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
TRUSTEE. . . . . . . . . . . . . . . . . . . - 54 -
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUC-
CESSION TO BUSINESS OF TRUSTEE . . . . . . . - 54 -
SECTION 5.12 APPOINTMENT OF CO-TRUSTEE. . . . . . . . . . - 55 -
ARTICLE VI
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 EVIDENCE OF ACTION TAKEN BY SECURITY-
HOLDERS. . . . . . . . . . . . . . . . . . . - 56 -
SECTION 6.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF
HOLDING OF SECURITIES; RECORD DATE . . . . . - 56 -
SECTION 6.3 HOLDERS TO BE TREATED AS OWNERS. . . . . . . - 56 -
SECTION 6.4 SECURITIES OWNED BY ISSUER DEEMED NOT
OUTSTANDING. . . . . . . . . . . . . . . . . - 57 -
SECTION 6.5 RIGHT OF REVOCATION OF ACTION TAKEN. . . . . - 57 -
ARTICLE VII
SUPPLEMENTAL INDENTURES
SECTION 7.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS . . . . . . . . . . . . . . . . . - 58 -
SECTION 7.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
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SECURITYHOLDERS. . . . . . . . . . . . . . . - 59 -
SECTION 7.3 COMPLIANCE WITH TIA. . . . . . . . . . . . . - 60 -
SECTION 7.4 REVOCATION AND EFFECT OF CONSENTS. . . . . . - 60 -
SECTION 7.5 TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . . - 60 -
SECTION 7.6 EFFECT OF SUPPLEMENTAL INDENTURE . . . . . . - 61 -
SECTION 7.7 DOCUMENTS TO BE GIVEN TO TRUSTEE . . . . . . - 61 -
SECTION 7.8 NOTATION ON SECURITIES IN RESPECT OF SUP-
PLEMENTAL INDENTURES . . . . . . . . . . . . - 61 -
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 MERGER, CONSOLIDATION OR SALE OF ASSETS. . . - 61 -
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. . . . . . - 62 -
SECTION 8.3 OPINION OF COUNSEL TO TRUSTEE. . . . . . . . - 63 -
ARTICLE IX
DISCHARGE OF INDENTURE
SECTION 9.1 DEFEASANCE WITHIN ONE YEAR OF PAYMENT. . . . - 63 -
SECTION 9.2 LEGAL DEFEASANCE . . . . . . . . . . . . . . - 64 -
SECTION 9.3 COVENANT DEFEASANCE. . . . . . . . . . . . . - 66 -
SECTION 9.4 APPLICATION BY TRUSTEE OF FUNDS
DEPOSITED FOR PAYMENT OF SECURITIES. . . . . - 66 -
SECTION 9.5 REPAYMENT OF MONEYS HELD BY PAYING AGENT . . - 67 -
SECTION 9.6 RETURN OF MONEYS HELD BY TRUSTEE AND
PAYING AGENT UNCLAIMED FOR THREE YEARS . . . - 67 -
ARTICLE X
REDEMPTION OR PURCHASE OF SECURITIES
SECTION 10.1 OPTIONAL REDEMPTION. . . . . . . . . . . . . - 67 -
SECTION 10.2 SELECTION OF SECURITIES TO BE PURCHASED
OR REDEEMED. . . . . . . . . . . . . . . . . - 68 -
SECTION 10.3 NOTICE OF REDEMPTION . . . . . . . . . . . . - 69 -
SECTION 10.4 EFFECT OF NOTICE OF REDEMPTION . . . . . . . - 70 -
SECTION 10.5 DEPOSIT OF REDEMPTION OR PURCHASE PRICE. . . - 70 -
SECTION 10.6 PAYMENT OF SECURITIES CALLED FOR
REDEMPTION . . . . . . . . . . . . . . . . . - 71 -
SECTION 10.7 EXCLUSION OF CERTAIN SECURITIES FROM
ELIGIBILITY FOR SELECTION FOR REDEMPTION . . - 71 -
SECTION 10.8 SECURITIES REDEEMED OR PURCHASED IN PART . . - 71 -
SECTION 10.9 OFFERS TO PURCHASE . . . . . . . . . . . . . - 71 -
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SECTION 10.10 NOTICE AND OFFICERS' CERTIFICATE TO
TRUSTEE. . . . . . . . . . . . . . . . . . . - 74 -
ARTICLE XI
SUBSIDIARY GUARANTEES
SECTION 11.1 SUBSIDIARY GUARANTEE . . . . . . . . . . . . - 74 -
ARTICLE XII
SUBORDINATION OF SECURITIES
SECTION 12.1 AGREEMENT TO SUBORDINATE . . . . . . . . . . - 77 -
SECTION 12.2 PAYMENT TO SECURITYHOLDERS . . . . . . . . . - 77 -
SECTION 12.3 SUBROGATION OF SECURITIES. . . . . . . . . . - 79 -
SECTION 12.4 AUTHORIZATION BY SECURITYHOLDERS . . . . . . - 81 -
SECTION 12.5 NOTICE TO TRUSTEE. . . . . . . . . . . . . . - 81 -
SECTION 12.6 TRUSTEE'S RELATION TO SENIOR DEBT HOLDERS. . - 82 -
SECTION 12.7 NO IMPAIRMENT OF SUBORDINATION . . . . . . . - 82 -
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS OF ISSUER EXEMPT FROM INDI-
VIDUAL LIABILITY . . . . . . . . . . . . . . - 83 -
SECTION 13.2 PROVISIONS OF INDENTURE FOR THE SOLE
BENEFIT OF PARTIES AND SECURITYHOLDERS . . . - 83 -
SECTION 13.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND
BY INDENTURE . . . . . . . . . . . . . . . . - 83 -
SECTION 13.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE
AND SECURITYHOLDERS. . . . . . . . . . . . . - 83 -
SECTION 13.5 OFFICERS' CERTIFICATES AND OPINIONS OF
COUNSEL; STATEMENTS TO BE CONTAINED
THEREIN. . . . . . . . . . . . . . . . . . . - 84 -
SECTION 13.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND
HOLIDAYS . . . . . . . . . . . . . . . . . . - 85 -
SECTION 13.7 CONFLICT OF ANY PROVISION OF INDENTURE
WITH TRUST INDENTURE ACT OF 1939 . . . . . . - 85 -
SECTION 13.8 NEW YORK LAW TO GOVERN . . . . . . . . . . . - 85 -
SECTION 13.9 COUNTERPARTS . . . . . . . . . . . . . . . . - 86 -
SECTION 13.10 EFFECT OF HEADINGS . . . . . . . . . . . . . - 86 -
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TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Exhibit A Form of Note . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B Form of Trustee's Certificate of Authentication. . . . B-1
Exhibit C Form of Assignment . . . . . . . . . . . . . . . . . . C-1
Exhibit D Option Election Form . . . . . . . . . . . . . . . . . D-1
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THIS INDENTURE, dated as of May 15, 1996 is entered into by
and among HARVEYS CASINOS RESORTS, a Nevada Corporation (the
"Issuer"), HARVEYS WAGON WHEEL CASINO LIMITED LIABILITY COMPANY, a
Colorado corporation, HARVEYS C.C. MANAGEMENT COMPANY, INC., a
Nevada corporation, HARVEYS IOWA MANAGEMENT COMPANY, INC., a Nevada
corporation, and HARVEYS L.V. MANAGEMENT COMPANY, INC., a Nevada
corporation (collectively, the "Guarantors"), and IBJ SCHRODER BANK
& TRUST COMPANY, a New York banking corporation (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance of
% Senior Subordinated Notes Due 2006 (the "Securities") and, to
provide, among other things, for the authentication, delivery and
administration thereof, the Issuer has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, the Securities and the Trustee's certificate of
authentication shall be substantially in the Form attached hereto
as Exhibits A and B; and
AND WHEREAS, all things necessary to make the Securities,
when executed by the Issuer and authenticated and delivered by the
Trustee as in this Indenture provided, the valid, binding and legal
obligations of the Issuer, and to constitute these present a valid
indenture and agreement according to its terms, have been done.
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer, the Guarantors and
the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective Holders from time to time
of the Securities as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this
Indenture which are defined in the TIA or the definitions of which
in the Securities Act of 1933, as amended, are referred to in the
TIA (except as herein otherwise expressly provided or unless the
context otherwise clearly requires), shall have the meanings
assigned to such terms in said TIA and in said Securities Act as in
force at the date of this Indenture. All accounting terms used
herein and not expressly defined shall have the meanings given to
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them in accordance with generally accepted accounting principles.
The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms
defined in this Article include the plural as well as the singular.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling, or controlled by, or under
direct or indirect common control with, such specified Person. For
purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under
common control with"), as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise; provided, however, that in all cases beneficial
ownership of 10% or more of the voting securities of a Person is
deemed to be control.
"AGENT" means any registrar, Paying Agent or co-registrar.
"ASSET SALE" means (a) the sale, lease, conveyance, transfer
or other disposition (whether in a single transaction or a series
of related transactions) of property or other assets (including by
way of merger, consolidation or sale-leaseback) of the Issuer or
any Restricted Subsidiary (each referred to in this definition as
a "disposition") or (b) the issuance or sale of Equity Interests of
any Restricted Subsidiary (whether in a single transaction or a
series of related transactions); provided that for purposes of this
definition, any Asset Sale shall not include: (i) dispositions of
inventory or gaming equipment in the ordinary course of business or
pursuant to an established program for the maintenance and
upgrading of such equipment; (ii) dispositions of all or
substantially all of the assets of the Issuer in a manner permitted
pursuant to Article VIII; (iii) any disposition that is a
Restricted Payment or that is a dividend or distribution permitted
under Section 3.11; (iv) any Investment that is not prohibited by
the provisions described above pursuant to Section 3.12; and (iv)
any single disposition, or related series of dispositions of assets
with an aggregate fair market value of less than $5.0 million.
"BANKRUPTCY LAW" means Title XI, U.S. Code or any similar
federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act
hereunder.
"BUSINESS DAY" means a day which in the city (or in any of
the cities, if more than one) where amounts are payable in respect
of the Securities, as specified on the face of the form set forth
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in Exhibit A, is neither a Legal Holiday nor a day on which banking
institutions are authorized by law or regulation to close.
"CAPITAL STOCK" of any Person means any and all shares,
interests, participations, rights or other equivalents (however
designated) in the ownership or profits of such Person.
"CHANGE OF CONTROL" means the occurrence of one or more of
the following events: (i) the sale, lease, transfer, conveyance or
other disposition, in one or a series of related transactions, of
all or substantially all of the assets of the Issuer and its
Subsidiaries, taken as a whole; (ii) the liquidation or dissolution
of the Issuer; (iii) the Issuer becomes aware (by way of a report
or any other filing pursuant to Section 13(d) of the Exchange Act,
proxy vote, written notice or otherwise) of the acquisition by any
"Person" or related group (within the meaning of Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act, or any successor provision
to either of the foregoing, including any "group" acting for the
purpose of acquiring, holding or disposing of securities within the
meaning of Rule 13d5(b)(1) under the Exchange Act), other than a
group consisting of the Issuer's Existing Management and any Person
or heirs of any Person that owned more than 1.3% of the Issuer's
Common Stock prior to the Issuer's initial public offering, in a
single transaction or in a related series of transactions, by way
of merger, consolidation or other business combination or purchase
of beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act, or any successor provision) of 40% or more of the
total voting power entitled to vote in the election of the Board of
Directors of the Issuer or such other Person surviving the
transaction; or (iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the
Issuer's Board of Directors (together with any new directors whose
election or appointment by such board or whose nomination for
election by the shareholders of the Issuer was approved by a vote
of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Issuer's Board of Directors
then in office.
"COMMISSION" means the Securities and Exchange Commission.
"CONSOLIDATED CASH FLOW" means for any period, Consolidated
Net Income for such period after deducting therefrom an amount
equal to any extraordinary gain (to the extent such gain was
included in computing Consolidated Net Income) and after adding
thereto (a) an amount equal to any extraordinary loss plus any net
loss realized in connection with a sale, lease, conveyance,
transfer or other disposition of property or other assets (other
than the disposition of inventory in the ordinary course of
business), to the extent such losses were deducted in computing
Consolidated Net Income, plus (b) provision for taxes based on
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income or profits to the extent such provision for taxes was
included in computing Consolidated Net Income, plus (c)
consolidated interest expense of the Issuer and its Restricted
Subsidiaries for such period, whether paid or accrued (including
amortization of original issue discount, non-cash interest
payments, amortization of, deferred financing charges and the
interest component of capital lease obligations), to the extent
such expense was deducted in computing Consolidated Net Income,
plus (d) depreciation, amortization (including amortization of
goodwill and other intangibles) and other non-cash charges
(excluding any such non-cash charge that requires an accrual of or
reserve for cash charges for any future period and excluding any
such non-cash charge that is included in consolidated interest
expense or consolidated tax expense) of the Issuer and its
Restricted Subsidiaries for such period to the extent such
depreciation, amortization and other non-cash charges were deducted
in computing Consolidated Net Income, plus, (e) any capitalized
preopening expenses incurred in connection with the Harveys
Kanesville Queen Riverboat Gaming Facility and related landbased
amenities which were reflected in the Issuer's Consolidated
Statement of Operations for any period ended on or before December
31, 1996 to the extent that any such expenses were deducted in
computing Consolidated Net Income, in each case, on a consolidated
basis, determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" means for any period, the Net
Income of the Issuer and its Restricted Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP;
provided that: (a) the Net Income of any Person that is not a
Subsidiary of the Issuer or that is accounted for by the equity
method of accounting or that is an Unrestricted Subsidiary is
permitted to be included only to the extent of the amount of
dividends or distributions paid to the Issuer or a wholly-owned
Restricted Subsidiary; (b) solely for the purpose of determining
the amount of Restricted Payments and Restricted Investments
permitted under Sections 3.11 and 3.12, the Net Income of any other
Person acquired by the Issuer or any Restricted Subsidiary in a
pooling of interests transaction for any period prior to the date
of such acquisition is required to be excluded (except to the
extent permitted to be included pursuant to clause (a)); and (c)
the cumulative effect of a change in accounting principles is
required to be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person,
the sum of (a) the consolidated equity of the common stockholders
reported on the most recent balance sheet of such Person and its
consolidated Subsidiaries plus (b) the respective amounts reported
on such balance sheet with respect to any series of preferred stock
(other than Disqualified Stock) that by its terms is not entitled
to the payment of dividends unless such dividends may be declared
and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock,
after deducting the sum of (i) all write-ups (other than write-ups
resulting from foreign currency translations and write-ups of
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tangible assets of a going concern business made within 12 months
after the acquisition of such business) subsequent to the date of
the Indenture in the book value of any asset owned by such Person
or a consolidated Subsidiary of such Person, (ii) all investments
in unconsolidated Subsidiaries and in Persons that are not
Subsidiaries (except, in each case, Permitted Investments), and (z)
all unamortized debt discount and expense and unamortized deferred
charges, all of the foregoing determined on a consolidated basis in
accordance with GAAP.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at
the date as of which this Indenture is dated, located at One State
Street, New York, New York.
"CREDIT FACILITY" means the Reducing Revolving Credit
Agreement dated as of August 14, 1995 among the Issuer and the
banks named therein, as amended or modified from time to time,
including any replacement credit agreement between the Issuer and
various commercial banks providing for a substantially similar or
equivalent facility.
"DEFAULT" means any event that constitutes, or with the
passage of time or the giving of notice or both would constitute,
an Event of Default.
"DESIGNATED SENIOR DEBT" means each issue of Senior Debt of
the Issuer 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 Credit Facility that all conditions precedent to any such
drawing could be satisfied) and (ii) has been designated as
Designated Senior Debt pursuant to an Officers' Certificate of the
Issuer received by the Trustee.
"DIRECTOR" means any Person who has been duly elected and
qualified as a member of the Board of Directors of the Issuer until
the expiration of such Person's term and until his successor has
been duly elected and qualified.
"DISQUALIFIED STOCK" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible
or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or redeemable at the option of the
holder thereof, in whole or in part, on or prior to the stated
maturity of the Securities for consideration other than Capital
Stock that does not itself so mature and is not itself so
redeemable.
"EQUITY INTERESTS" in any Person means Capital Stock of such
Person and any warrant, option or other right to acquire Capital
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Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
"EVENT OF DEFAULT" means any event or condition specified
as such in Section 4.1 which shall have continued for the period of
time, if any, therein designated.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"EXISTING GAMING FACILITY" means any Gaming Facility wholly
or partially owned, used or managed by the Issuer or a Restricted
Subsidiary on the date of the Indenture.
"EXISTING INDEBTEDNESS" means Indebtedness of the Issuer or
any Restricted Subsidiary (other than under the Credit Facility)
outstanding on the date hereof.
"EXISTING MANAGEMENT" means the executive officers of the
Issuer on the date hereof.
"FF&E" means furniture, fixtures and equipment, including
gaming equipment, used in connection with any Gaming Business.
"FF&E FINANCING" means the incurrence of Indebtedness, the
proceeds of which will be used to finance the acquisition by the
Issuer or a Restricted Subsidiary of FF&E used in connection with
any Gaming Facility whether or not secured by a Lien on such FF&E;
provided that such Indebtedness does not exceed the fair market
value of such FF&E at the time of its acquisition.
"FIXED CHARGES" means for any period, the sum of (a)
consolidated interest expense (including the interest component of
lease payments under capitalized leases) of the Issuer and its
Restricted Subsidiaries for such period, in either case whether
paid or accrued, to the extent such expense was deducted in
computing Consolidated Net Income (including amortization of
original issue discount, non-cash interest payments and the
interest component of capital leases but excluding amortization of
deferred financing fees and excluding capitalized interest) and (b)
the product of (i) all cash dividend payments on any series of
preferred stock of the Issuer, times (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of the
Issuer, expressed as a decimal, in each case, on a consolidated
basis, in accordance with GAAP.
"FIXED CHARGE COVERAGE RATIO" means for any period the ratio
of the Consolidated Cash Flow for such period to the Fixed Charges
for such period; PROVIDED that: (a) in the event that the Issuer
or any Restricted Subsidiary incurs, assumes, guarantees or redeems
any Indebtedness or issues preferred stock subsequent to the
commencement of the period for which the Fixed Charge Coverage
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Ratio is made, the Fixed Charge Coverage Ratio shall be calculated giving PRO
FORMA effect to such incurrence, assumption, guarantee or redemption of
Indebtedness, or such issuance or redemption of preferred stock, as if the
same had occurred at the beginning of the applicable period; (b) in making
such computation, the Fixed Charges attributable to interest on any
Indebtedness bearing a floating interest rate shall be computed on a PRO
FORMA basis as if the rate in effect on the date of computation had been the
applicable rate for the entire period; (c) in making such computation, the
Fixed Charges attributable to interest on any Indebtedness under a revolving
credit facility shall be computed on a PRO FORMA basis based upon the average
daily balance of such Indebtedness outstanding during the applicable period;
(d) in the event that the Issuer or any Restricted Subsidiary consummates
either (i) a Material Acquisition or (ii) a sale, lease, conveyance, transfer
or other disposition of property or other assets (other than the disposition
of inventory in the ordinary course of business) with a fair market value of
more than $5.0 million in any one year, in either case subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated, the Fixed Charge Coverage Ratio shall be calculated giving PRO
FORMA effect to such Material Acquisition or disposition (including the
incurrence of any Indebtedness in connection therewith), as if the same had
occurred at the beginning of the applicable period; (e) in the event that the
Issuer or any Restricted Subsidiary purchases any assets or property which
was previously leased by the Issuer or any Restricted Subsidiary subsequent
to the commencement of the period for which the calculation of the Fixed
Charge Coverage Ratio is being calculated but prior to the event for which
the calculation of the Fixed Charge Coverage Ratio is made, the Fixed Charge
Coverage Ratio shall be calculated giving PRO FORMA effect to such purchase
as if the same had occurred at the beginning of the applicable period; and
(f) in the event that the Issuer or any Restricted Subsidiary is responsible
or liable as obligor, guarantor or otherwise for the Indebtedness of any
other Person (other than the Issuer or a Restricted Subsidiary), the Fixed
Charge Coverage Ratio shall be calculated giving PRO FORMA effect to the
interest paid or payable on such Indebtedness during the applicable period as
if such Indebtedness had been outstanding at the beginning of the applicable
period.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession, which are in effect from time to time.
"GAMING AUTHORITY" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States federal or foreign
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government, any state, province or any city or other political subdivision or
otherwise, and whether now or hereafter in existence, or any officer or
official thereof, including the Nevada State Gaming Commission, the Nevada
State Gaming Control Board, the Colorado Gaming Commission, the Iowa Racing &
Gaming Commission and any other applicable gaming regulatory authority with
authority to regulate any gaming operation (or proposed gaming operation)
owned, managed or operated by the Issuer or any of its Subsidiaries.
"GAMING BUSINESS" means the gaming business and includes all
businesses necessary for, incident to, connected with or arising out of the
gaming business (including developing and operating lodging facilities,
sports or entertainment facilities, transportation services or other related
activities or enterprises and any additions or improvements thereto) to the
extent that they are operated in connection with a gaming business.
"GAMING FACILITY" means any tangible vessel, building, or other
structure used or expected to be used to enclose space in which a Gaming
Business is conducted and (a) wholly or partially owned, directly or
indirectly, by the Issuer or any Restricted Subsidiary or (b) any portion or
aspect of which is managed or used, or expected to be managed or used, by the
Issuer or a Restricted Subsidiary; provided that the term Gaming Facility
does not include any real property whether or not such vessel, building or
other structure is located thereon or adjacent thereto or any FF&E.
"GAMING LICENSE" means any license, permit, franchise or other
authorization from any Gaming Authority required on the date of the Indenture
or at any time thereafter to own, lease, operate or otherwise conduct the
Gaming Business of the Issuer and its Subsidiaries, including all licenses
granted under the gaming laws of a jurisdiction or jurisdictions to which the
Issuer or any of its Subsidiaries is, or may at any time after the date of
the Indenture, be subject.
"GUARANTOR" means each Restricted Subsidiary that executes this
Indenture and each Restricted Subsidiary that is required to issue a
Subsidiary Guarantee in accordance with Section 3.16 and Article XI,
including any successor and assign of such Restricted Subsidiary, until any
such Person is released from its obligations as a Guarantor.
"HOLDER", "holder of Securities", "Securityholder" or other similar
terms means the registered holder of any Security.
"INDEBTEDNESS" of any specified Person means, without
duplication: (a) the principal of and premium (if any) in respect
of (i) indebtedness of such Person for money borrowed and (ii)
indebtedness evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or
liable; (b) all capitalized (but not operating) lease obligations
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of such Person; (c) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business); (d) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction; (e) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified Stock; (f)
all obligations existing at the time under interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, foreign
currency swaps and other similar agreements and arrangements; (g) all
obligations of the types referred to in clauses (a) through (f) above of
other Persons and all dividends and distributions of other Persons for the
payment of which, in either case, such specified Person is responsible or
liable as obligor, guarantor or otherwise (including Investment Guarantees,
but not including completion bonds, performance guarantees or similar
suretyship arrangements ensuring the performance of obligations other than
obligations of the types referred to in clauses (a) through (f) above); and
(h) all obligations of the type referred to in clauses (a) through (f) above
of other Persons secured by any Lien on any property or asset of such
specified Person (whether or not such obligation is assumed by such specified
Person), the amount of any non-recourse obligation being deemed to be the
lesser of (i) the fair market value of such property or assets or (ii) the
amount of the obligation so secured.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented.
"INDEPENDENT", when used to describe a Person, means that neither such
Person nor any member of such Person's immediate family (a) has a material
direct or of any indirect financial interest in the Issuer or any other
obligor on the Securities or in any Affiliate of the Issuer or other obligor
on the Securities or (b) serves as an officer or employee of the Issuer or
any other obligor on the Securities or any such Affiliate; provided that for
the purpose of this definition (i) beneficial or record ownership of less
than 0.5% of the outstanding Capital Stock of any class of the Issuer or any
other obligor on the Securities or any such Affiliate will not be deemed to
constitute a material financial interest in the Issuer or such other obligor
on the Securities or such Affiliate and (ii) service on the board of
directors of the Issuer or any other obligor on the Securities or any such
Affiliate will not be deemed to constitute service as an officer or employee
thereof.
"INTEREST RATE PROTECTION AGREEMENTS" means, with respect
to any Person, interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and other agreements or
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arrangements, but only to the extent that such agreements or arrangements are
designed to protect such Person against fluctuations in interest rates.
"INVESTMENT" means any investment by the Issuer or a Restricted
Subsidiary in another Person (including an Affiliate of the Issuer or a
Restricted Subsidiary) in the form of a loan, Investment Guarantee, advance
(other than commission, travel and similar advances to officers and employees
of the Issuer or a Restricted Subsidiary made in the ordinary course of
business), capital contribution or purchase or other acquisition for
consideration of Indebtedness, an Equity Interest or other interest that is
or would be classified as an investment on the balance sheet of the Issuer or
a Restricted Subsidiary prepared in accordance with GAAP.
"INVESTMENT GUARANTEE" means any direct or indirect liability,
contingent or otherwise, of the Issuer or a Restricted Subsidiary with
respect to any Indebtedness of another Person, including (a) any Indebtedness
directly or indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business) or discounted or sold with
recourse by the Company or a Restricted Subsidiary, or in respect of which
the Company or a Restricted Subsidiary is otherwise directly or indirectly
liable, (b) any other obligation or contract under which the Issuer or a
Restricted Subsidiary is directly or indirectly liable for any Indebtedness
of another Person and which, in economic effect, is substantially equivalent
to a guarantee, (c) any Indebtedness of a partnership in which the Company or
a Restricted Subsidiary is a general partner or of a joint venture in which
the Company or a Restricted Subsidiary is a joint venturer, and (d) any
Indebtedness in effect guaranteed by the Company or a Restricted Subsidiary
through any agreement (contingent or otherwise) to purchase, repurchase or
otherwise acquire such Indebtedness or any security therefor, or to provide
funds for the payment or discharge of such Indebtedness (whether in the form
of loans, advances, stock purchases, capital contributions or otherwise), or
to maintain the solvency or any balance sheet or other financial condition of
the obligor of such Indebtedness, or to make payment for any products,
materials or supplies or for any transportation or services regardless of the
non-delivery or nonfurnishing thereof, in any such case if the purpose or
intent of such agreement is to provide assurance that such Indebtedness will
be paid or discharged, or that any agreements relating thereto will be
complied with, or that the holders of such Indebtedness will be protected
against loss in respect thereof.
"ISSUER" means (except as otherwise provided in Article V) Harveys
Casino Resorts, a Nevada Corporation, and, subject to Article VIII, its
successors and assigns.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of
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payment are authorized by law, regulation or executive order to remain
closed. 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.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance (other than an operating lease) of
any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale or
other title retention agreement, any lease in the nature thereof, any option
or other agreement to sell or give a security interest in and any filing of
or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).
"MARKETABLE SECURITIES" owned by any Person means: (a) U.S.
Government Obligations; (b) any certificate of deposit, maturing not more
than 270 days after the date of acquisition, issued by, or time deposit of, a
commercial banking institution that has combined capital and surplus of not
less than $500,000,000 or its equivalent in foreign currency, whose debt is
rated at the time as of which any investment is made, of "A" (or higher)
according to S&P or Moody's, or if none of S&P or Moody's shall then exist,
the equivalent of such rating by any other nationally recognized securities
rating agency, (c) commercial paper, maturing not more than 270 days after
the date of acquisition, issued by a corporation (other than an Affiliate or
Subsidiary of such Person) with a rating, at the time as of which any
investment therein is made, of "A-1" (indicating that the degree of timely
payment is strong) (or higher) according to S&P or "P-1" (having a superior
capacity for punctual repayment of short-term promissory obligations) (or
higher) according to Moody's, or if neither of S&P and Moody's shall then
exist, the equivalent of such rating by any other nationally recognized
securities ratings agency; (d) any bankers acceptances or any money market
deposit accounts, in each case, issued or offered by any commercial bank
having capital and surplus in excess of $500,000,000 or its equivalent in
foreign currency, whose debt is rated at the time as of which any investment
there is made of "A" (an upper medium grade bond obligation) (or higher)
according to S&P or Moody's, or if none of S&P or Moody's shall then exist,
the equivalent of such rating by any other nationally recognized securities
rating agency; and (e) any fund investing exclusively in investments of the
types described in clauses (a) through (d) above, and if such fund has at
least $500,000,000 under management, including investments in repurchase
obligations of the foregoing investments.
"MATERIAL ACQUISITION" means any acquisition of a business, including
the acquisition of operating commercial real estate, by the Issuer or a
Restricted Subsidiary that has a fair market value in excess of $5.0 million
and which the Issuer or a Restricted Subsidiary intends to operate.
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"MATERIAL GAMING FACILITY" on any date means any Existing Gaming
Facility (other than the Hard Rock Hotel in Las Vegas, Nevada) and any other
Gaming Facility either (a) which has contributed more than 20% of the
Consolidated Cash Flow of the Issuer during the Issuer's most recently
completed four full fiscal quarters for which internal financial statements
are available preceding such date (such contribution to be annualized if such
Gaming Facility has not been in full operation for all of such four fiscal
quarters) or (b) the book value of which on such date constitutes more than
10% of the total assets of the Issuer and its Restricted Subsidiaries as of
the end of the most recently completed fiscal quarter for which internal
financial statements are available.
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP, excluding, (a) any gain
or loss, together with any related provision for taxes on such gain or loss,
realized in connection with any sale, lease, conveyance, transfer or other
disposition of property or other assets of such Person (other than the
disposition of inventory in the ordinary course of business), including
dispositions pursuant to sale and leaseback transactions, and (b) any
extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.
"NET PROCEEDS" means the aggregate gross proceeds received by the
Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale
(including insurance proceeds), net of the direct costs relating to such
Asset Sale (including legal, accounting and investment banking fees, and
sales commissions) and any relocation expenses incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the asset or assets which are the subject of such Asset Sale and any
reserve for adjustment in respect of the sale price of such asset or assets.
"NON-RECOURSE DEBT" means Indebtedness (a) as to which none of the
Issuer, any Guarantor or any Restricted Subsidiary (i) provides credit
support (including any undertaking, agreement or instrument which would
constitute Indebtedness); (ii) is directly or indirectly liable; or (iii)
constitutes the lender; and (b) no default with respect to which (including
any rights which 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 the Issuer, any Guarantor or
any Restricted Subsidiary to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity.
"OBLIGATIONS" means any principal, premium, interest (including
post-petition interest), penalties, fees,
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indemnifications, reimbursements, damages and other monetary liabilities
payable under the documentation governing any Indebtedness.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board of Directors or the President or any Vice President (whether or not
designated by a number or numbers or a word or words added before or after
the title "Vice President") and by the Treasurer or the Secretary or any
Assistant Secretary of the Issuer and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the TIA and include the
statements provided for in Section 13.5.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer or
who may be other counsel satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the TIA and include the
statements provided for in Section 13.5, if and to the extent
required hereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (i) the date of such Security or (ii) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly)
on registration of transfer, exchange or substitution.
"OUTSTANDING", when used with reference to Securities,
shall, subject to Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this
Indenture, except
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have
been deposited in trust with the Trustee or with any Paying
Agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer (if the Issuer shall
act as its own paying agent), provided that if such Securities
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for
giving such notice; and
(iii) Securities in substitution for which other
Securities shall have been authenticated and delivered, or which
shall have been paid, pursuant to the terms of Section 2.10
(unless proof satisfactory to the Trustee is presented that any
of such Securities is held by a Person in whose hands such
Security is a legal, valid and binding obligation of the
Issuer).
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"PARTICIPANTS" means Persons for whom the Depositary holds
Securities.
"PERMITTED INVESTMENT" means: (a) any tangible asset or Marketable
Securities owned by the Issuer or a Restricted Subsidiary; (b) any Investment
in the Issuer or in a Restricted Subsidiary that is a Guarantor; and (c) any
Investment in any other Person, if immediately after the making of such
Investment (i) such Person becomes a wholly owned Restricted Subsidiary
engaged in the Gaming Business or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Issuer or a wholly owned Restricted
Subsidiary engaged in the Gaming Business.
"PERMITTED JOINT VENTURE INVESTMENT" means any Investment in (a) a
Person primarily engaged or preparing to engage in the Gaming Business if, at
the time of such Investment, the Issuer or a Restricted Subsidiary controls
the day-to-day operations of such Person, including the construction or other
acquisition of any buildings, vessels or other facilities and FF&E necessary
for, incident to or connected with such Person's Gaming Business, pursuant to
a management contract or otherwise; provided, that if such Permitted Joint
Venture Investment in such Person has been made partially or wholly by means
of an Investment Guarantee, (i) the amount of Indebtedness of such Person is
not permitted to exceed 200% of the amount invested in Capital Stock of such
Person prior to the earlier of (A) the date on which all amounts payable
under the Securities and the Indenture have been paid or duly provided for
and (B) the maturity of such loan or the termination of such Investment
Guarantee and (ii) any Indebtedness of such Person covered by such Investment
Guarantee matures by its terms prior to the time the Issuer or a Restricted
Subsidiary no longer controls the day-to-day operations of such Person
pursuant to a management contract or otherwise unless all amounts payable
under the Securities and the Indenture have been paid or duly provided for by
such time; or (b) a Person primarily engaged or preparing to engage in the
Gaming Business if, immediately after giving effect to such Investment, the
Issuer or a Restricted Subsidiary will own at least 50.0% of the shares of
Capital Stock (including at least 50.0% of the total voting power thereof) of
such Person, and will control the day-to-day operations of such Person,
including the construction or other acquisition of any buildings, vessels or
other facilities and FF&E necessary for, incident to or connected with such
Person's Gaming Business, pursuant to a management contract or otherwise,
unless such Person is managed solely by its executive officers; or (c) a
Person primarily engaged in the Gaming Business at the time of such
Investment in Lake Tahoe, Nevada.
"PERMITTED LIENS" means (a) Liens granted by Restricted
Subsidiaries in favor of the Issuer; (b) Liens granted by the
Issuer or a Restricted Subsidiary in favor of a Restricted
Subsidiary that is a Guarantor; (c) Liens on property of a Person
existing at the time such Person is merged into or consolidated
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with the Issuer or any Restricted Subsidiary; provided, that such Liens were
in existence prior to the contemplation of such merger or consolidation; (d)
Liens on property existing at the time of acquisition thereof by the Issuer
or any Restricted Subsidiary; provided, that such Liens were in existence
prior to the contempla-tion of such acquisition; (e) Liens to secure the
performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course
of business; (f) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith
by appropriate proceedings promptly instituted and diligently conducted;
provided, that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor; (g) ground
leases in respect of the real property on which facilities owned or leased by
the Issuer or any Subsidiary are located; (h) Liens arising from UCC
financing statements regarding property leased by the Issuer or any
Restricted Subsidiary; (i) easements, rights-of-way, navigational servitudes,
restrictions, minor defects or irregularities in title and other similar
charges or encumbrances which do not interfere in any material respect with
the ordinary conduct of business of the Issuer or any Restricted Subsidiary;
(j) Liens securing purchase money obligations incurred or assumed in
connection with the purchase of real or Personal property to be used in the
business of the Issuer or any Restricted Subsidiary within 180 days of such
incurrence or assumption; and (k) Liens on the Capital Stock of an
Unrestricted Subsidiary securing Investment Guarantees with respect to the
Indebtedness of such Unrestricted Subsidiary.
"PERSON" means any individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock
company, government or other entity.
"REGULAR QUARTERLY DIVIDEND" means the quarterly dividend determined
by the Board of Directors of the Issuer in its reasonable judgment to be its
regular and normal quarterly dividend and paid by the Issuer in accordance
with the Issuer's prior business practices in an amount not to exceed
$500,000 per fiscal quarter.
"REPRESENTATIVE" means, for the purposes of Article XII, the indenture
trustee or other trustee, agent or representative for any Senior Indebtedness
or, with respect to any Guarantor, for any Senior Indebtedness of such
Guarantor.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Issuer
that either (i) has never been designated as an Unrestricted
Subsidiary or (ii) (if such Subsidiary has been previously
designated as an Unrestricted Subsidiary) has thereafter been
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designated as a Restricted Subsidiary in accordance with the provision of
Section 3.20.
"SECURITY" or "SECURITIES" means any 10-5/8% Senior Subordinated Note
or Notes authenticated and delivered under this Indenture.
"SENIOR DEBT" means (a) with respect to the Issuer, (i) the
Obligations of the Issuer with respect to the Credit Facility and (ii) any
other Indebtedness permitted to be incurred by the Issuer under the terms of
the Indenture, unless the instrument under which such Indebtedness is
incurred expressly provides that it is pari passu with or subordinated in
right of payment to the Securities, and (b) with respect to any Guarantor,
(i) the Obligations of such Guarantor with respect to the Credit Facility,
(ii) any guarantee by such Guarantor of any Senior Debt of the Issuer and
(iii) any other Indebtedness permitted to be incurred by such Guarantor under
the terms of the Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is pari passu with or
subordinated in right of payment to the Subsidiary Guarantee of such
Guarantor. Notwithstanding anything to the contrary in the foregoing, Senior
Debt does not include (A) any obligation of the Issuer or any Guarantor to,
in respect of or imposed by any environmental, landfill, waste management or
other regulatory or governmental agency, statute, law or court order, (B) any
liability for federal, state, local or other taxes owed or owing by the
Issuer or any Guarantor, (C) any Indebtedness of the Issuer or any Guarantor
to any of the Issuer's Subsidiaries, (D) any trade payables or (E) any
Indebtedness that is incurred in violation of the Indenture.
"SUBSIDIARY" of any specified Person means any Person of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees (or Persons performing similar functions)
thereof is at the time owned or controlled, directly or indirectly, by any
such specified Person or one or more of the other Subsidiaries of such
specified Person or a combination thereof.
"SUBSIDIARY GUARANTEE" has the meaning specified in Section 11.1.
"TIA" (except as otherwise provided in Sections 7.1 and 7.2) means the
Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was originally executed.
"TRUSTEE" means the entity identified as "Trustee" in the
first paragraph hereof and, subject to Article V, shall also
include any successor trustee.
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"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Issuer
that has been designated as an Unrestricted Subsidiary in
accordance with the provisions of Section 3.21.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (a)
direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged or (b)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the
issuer thereof, and also includes a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt; provided that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to
any Indebtedness at any date, the number of years obtained by
dividing (a) the sum of the products obtained by multiplying (i)
the amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment
at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then
outstanding principal amount of such Indebtedness; PROVIDED,
however, that with respect to any revolving Indebtedness, the
foregoing calculation of Weighted Average Life to Maturity will be
determined based upon the total available commitments and the
required reductions of commitments in lieu of the outstanding
principal amount and the required payments of principal,
respectively.
SECTION 1.2 OTHER DEFINITIONS.
Term Section defined in
---- ------------------
Affiliate Transaction 3.18
Asset Sale Offer 3.23
Benefitted Party 11.1
Change of Control Payment Date 3.24
Change of Control Offer 3.24
Commencement Date 10.9
Covenant Defeasance 9.3
Excess Proceeds 3.23
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Term Section defined in
---- ------------------
Issuer Preamble
Legal Defeasance 9.2
Offer Period 10.9
Offer Amount 10.9
Other Asset Sale Offer Indebtedness 3.23
Paying Agent 2.8
Payment Default 4.1
Payment Blockage Notice 12.2
Purchase Offer 10.9
Purchase Date 10.9
Record Date 2.5
Refinancing Indebtedness 3.13
Restricted Payments 3.11
Securities Preamble
Trustee Preamble
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES
SECTION 2.1 AUTHENTICATION AND DELIVERY OF SECURITIES.
Upon the execution and delivery of this Indenture, or from time to
time thereafter, Securities in an aggregate principal amount not in
excess of the amount specified in the form of Security hereinabove
recited (except as otherwise provided in Section 2.10) may be
executed by the Issuer and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver said Securities upon the written order of the Issuer,
signed by both (i) its Chairman of the Board of Directors, or any
Vice Chairman of the Board of Directors, or its President or any
Vice President (whether or not designated by a number or numbers or
a word or words added before or after the title "Vice President")
and (ii) by its Treasurer or any Assistant Treasurer or its
Secretary or any Assistant Secretary without any further action by
the Issuer.
SECTION 2.2 EXECUTION OF SECURITIES. (a) The Securities
shall be signed on behalf of the Issuer by both (i) its Chairman of
the Board of Directors or any Vice Chairman of the Board of
Directors or its President or any Vice President (whether or not
designated by a number or numbers or a word or words added before
or after the title "Vice President") and (ii) by its Treasurer or
any Assistant Treasurer or its Secretary or any Assistant
Secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of
the Issuer may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any
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such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security which has been duly authenticated
and delivered by the Trustee.
(b) In case any officer of the Issuer who shall have signed
any of the Securities shall cease to be such officer before the
Security so signed shall be authenticated and delivered by the
Trustee or disposed of by the Issuer, such Security nevertheless
may be authenticated and delivered or disposed of as though the
person who signed such Security had not ceased to be such officer
of the Issuer; and any Security may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of
such Security, shall be the proper officers of the Issuer, although
at the date of the execution and delivery of this Indenture any
such person was not such officer.
SECTION 2.3 CERTIFICATE OF AUTHENTICATION. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form set forth in Exhibit B, executed by the
Trustee by manual signature of one of its authorized signatories,
shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits
of this Indenture.
SECTION 2.4 FORM AND DENOMINATION. (a) The Securities
will initially be issued in the form of one or more Global Notes
(the "Global Note"). The Global Note will be deposited on the date
of the closing of the sale of the Securities offered hereby (the
"Closing Date") with, or on behalf of, The Depository Trust Company
or its successors and assigns (the "Depositary") and registered in
the name of Cede & Co., as nominee of the Depositary (such nominee
being referred to herein the "Global Note Holder"). The Trustee is
hereby appointed as custodian of the Global Note.
(b) Notwithstanding Section 2.4(a), notes that are issued
in accordance with Section 2.4(c) will be issued in the form of
registered definitive certificates (the "Certificated Notes").
Such Certificated Notes may, unless the Global Note has previously
been exchanged for Certificated Notes, be exchanged for an interest
in the Global Note representing the principal amount of Securities
being transferred.
(c) Any Person owning a beneficial interest in the Global
Note may, upon request to the Trustee, exchange such beneficial
interest for Securities in the form of Certificated Notes. Upon
any such issuance, the Trustee is required to register such
Certificated Notes in the name of, and cause the same to be
delivered to, such Person or Persons (or the nominee of any
thereof). Upon issuance of any Certificated Note, the principal
amount of the Global Note shall be reduced in the amount of the
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principal amount of such Certificated Note. In addition, if: (i)
the Issuer notifies the Trustee in writing that the Depositary is
no longer willing or able to act as a depository and the Issuer is
unable to locate a qualified successor within 90 days; or (ii) the
Issuer, at its option, notifies the Trustee in writing that it
elects to cause the issuance of Securities in the form of Certifi-
cated Notes under the Indenture, then, upon surrender by the Global
Note Holder of its Global Note, Certificated Notes will be issued
to each Person that the Global Note Holder and the Depositary
identify as being the beneficial owner of the related Securities.
If the Issuer determines to replace the Depositary with another
qualified securities depository, the Issuer shall prepare or cause
to be prepared a new fully-registered Global Note, registered in
the name of such successor or substitute securities depository or
its nominee, or make such other arrangements as are acceptable to
the Issuer, the Trustee and the securities depository and not
inconsistent with the terms of this Indenture.
(d) Neither the Issuer nor the Trustee will be liable for
any delay by the Global Note Holder or the Depositary in
identifying the beneficial owners of the Securities, and the Issuer
and the Trustee may conclusively rely on, and will be protected in
relying on, instructions from the Global Note Holder or the
Depositary for all purposes.
(e) The Securities and the Trustee's certificates of
authentication shall be substantially in the form set forth in
Exhibits A and B hereto. The Securities shall be issuable as
registered securities without coupons and in denominations of
$1,000 and integral multiples thereof. The Securities shall be
numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plans as the officers of the Issuer executing
the same may determine with the approval of the Trustee.
(f) Any of the Securities may be issued with appropriate
insertions, omissions, substitutions and variations, and may have
imprinted or otherwise reproduced thereon such legend or legends,
not inconsistent herewith, as may be required to comply with any
law or with any rules or regulations pursuant thereto, or with the
rules of any securities market in which the Securities are admitted
to trading, or to conform to general usage.
SECTION 2.5 DATE OF SECURITIES; PAYMENTS OF INTEREST.
(a) Each Security shall be dated the date of its authentication,
shall bear interest from the date of issuance and shall be payable
on the dates specified on the face of the form of Security set
forth in Exhibit A.
(b) The Person in whose name any Security is registered at
the close of business on any Record Date with respect to any
interest payment date shall be entitled to receive the interest, if
any, payable on such interest payment date notwithstanding any
transfer or exchange of such Security subsequent to the Record Date
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and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due
on such interest payment date, in which case such defaulted
interest shall be paid to the Person in whose names outstanding
Securities are registered at the close of business on a subsequent
Record Date (which shall be not less than five business days prior
to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Issuer to the Holders
not less than 15 days preceding such subsequent Record Date. The
term "Record Date" as used with respect to any interest payment
date (except a date for payment of defaulted interest) shall mean
if such interest payment date is the fifteenth day of a calendar
month, the first day of such calendar month, whether or not such
Record Date is a Business Day.
SECTION 2.6 REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Issuer will keep at each office or agency to be maintained
for the purpose as provided in Section 3.2, a register or registers
in which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of,
Securities as in this Article provided. Such register shall be in
written form in the English language or in any other form capable
of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for
inspection by the Trustee.
(b) Upon due presentation for registration of transfer of
any Security at each such office or agency, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name
of the transferee a new Security or Securities in authorized
denominations for a like aggregate principal amount.
(c) Any Security or Securities may be exchanged for a
Security or Securities in other authorized denominations, in an
equal aggregate principal amount. Securities to be exchanged shall
be surrendered at each office or agency to be maintained by the
Issuer for the purpose as provided in Section 3.2, and the Issuer
shall execute and the Trustee shall authenticate and deliver in
exchange therefor the Security or Securities which the
Securityholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(d) All Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney
duly authorized in writing.
(e) The Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of
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Securities. No service charge shall be made for any such
transaction.
(f) The Issuer shall not be required to exchange or
register a transfer of (i) any Securities selected for redemption
or (ii) any Securities for a period of 15 days before a selection
of Securities to be redeemed except, in the case of any Security
where public notice has been given that such Security is to be
redeemed in part, the portion thereof not so to be redeemed.
(g) All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.
SECTION 2.7 DEPOSITARY PROCEDURES. (a) The following
procedures will be established: (i) upon deposit of the Global
Note, the Depositary will credit the accounts of Participants
designated by the Underwriters with portions of the principal
amount of the Global Note; and (ii) ownership of the Securities
evidenced by the Global Note will be shown on, and the transfer of
ownership thereof will be effected only through, records maintained
by the Depositary (with respect to the interests in the
Depositary's Participants), the Depositary's Participants and the
Depositary's indirect Participants.
(b) So long as the Global Note Holder is the registered
holder of the Global Note, the Global Note Holder will be
considered for all purposes under the Indenture as the sole and
absolute owner of the Securities evidenced by the Global Note.
Beneficial owners of Securities evidenced by the Global Note will
not be considered the owners or holders thereof under the Indenture
for any purpose. Without limiting the foregoing sentence, neither
the Issuer nor the Trustee will have any responsibility or
liability for (i) any aspect of the records of the Depositary, (ii)
for maintaining, supervising or reviewing any records of the
Depositary relating to the Securities, (iii) the selection by the
Depositary of beneficial interests in the Securities to be redeemed
in part or (iv) the payment to any beneficial owner or other
Person, other than the Depositary, of any amount with respect to
principal of, premium, if any, or interest with respect to the
Securities.
SECTION 2.8 BOOK-ENTRY. Payments in respect of the
principal of, premium, if any, and interest on, any Securities
registered in the name of the Global Note Holder on the applicable
record date will be payable by an office or agency established by
the Issuer under the Indenture for such purpose (a "Paying Agent")
to or at the direction of the Global Note Holder in its capacity as
the holder of the Global Note. The Issuer and the Trustee may
treat the Persons in whose names Securities, including the Global
Note, are registered as the owners thereof for the purpose of
receiving such payments. Consequently, neither the Issuer nor the
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Trustee has or will have any responsibility or liability for the
payment of such amounts to beneficial owners of Securities. Pay-
ments by the Participants to the beneficial owners of Securities
will be governed by standing instructions and customary practice
and will be the responsibility of the Depositary's Participants.
SECTION 2.9 SAME-DAY SETTLEMENT AND PAYMENT. Payments
in respect of the Securities represented by the Global Note
(including principal, premium, if any, and interest) shall be made
in immediately available funds. With respect to Certificated
Notes, the Issuer will make all payments of principal, premium, if
any, and interest in immediately available funds to the holders
thereof, either at the office or agency of a Paying Agent or by
mailing a check to each such holder's registered address. The
Securities represented by the Global Note are expected to trade in
the Depositary's Same-Day Funds Settlement System, and secondary
market trading activity in such Securities will, therefore, be
required by the Depositary to be settled in immediately available
funds.
SECTION 2.10 MUTILATED, DEFACED, DESTROYED, LOST AND
STOLEN SECURITIES. (a) In case any temporary or definitive
Security shall become mutilated, defaced or be apparently
destroyed, lost or stolen, the Issuer in its discretion may
execute, and upon the written request of any one of the authorized
signatories of the Issuer, the Trustee shall authenticate and
deliver, a new Security, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security
so apparently destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer and
to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as may be required by them to indemnify and
defend and to protect and save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction
of the apparent destruction, loss or theft of such Security and of
the ownership thereof.
(b) Upon the issuance of any substitute Security, the
Issuer may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. In case any Security which has
matured or is about to mature, or has been called for redemption in
full, shall become mutilated or defaced or be apparently destroyed,
lost or stolen, the Issuer may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced
Security), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to
save each of them harmless from all risks, however remote, and, in
every case of apparent destruction, loss or theft, the applicant
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shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Security and of the
ownership thereof.
(c) Every substitute Security issued by virtue of the fact
that any Security is apparently destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer,
whether or not the apparently destroyed, lost or stolen Security
shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of
rights set forth herein equally and proportionately with any and
all other Securities duly authenticated and delivered hereunder).
All Securities shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated,
defaced, or apparently destroyed, lost or stolen Securities and
shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.11 CANCELLATION OF SECURITIES; DESTRUCTION
THEREOF. All Securities surrendered for payment, redemption,
registration of transfer or exchange, if surrendered to the Issuer
or any agent of the Issuer or the Trustee, shall be delivered to
the Trustee for cancellation or, if surrendered to the Trustee,
shall be canceled by it (subject to the record retention
requirements of any applicable law); and no Securities shall be
issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall destroy canceled
Securities held by it and deliver a certificate of destruction to
the Issuer. If the Issuer shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.12 TEMPORARY SECURITIES. Pending the
preparation of definitive Securities, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities
(printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Trustee). Temporary
Securities shall be issuable as registered Securities without
coupons, of any authorized denomination, and substantially in the
form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such
reference to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same conditions
and in substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay the Issuer shall
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execute and shall furnish definitive Securities and thereupon
temporary Securities may be surrendered in exchange therefor with-
out charge at each office or agency to be maintained by the Issuer
for the purpose pursuant to Section 3.2, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities
a like aggregate principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securi-
ties shall be entitled to the same benefits under this Indenture as
definitive Securities.
ARTICLE III
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The
Issuer covenants and agrees that it will duly and punctually pay or
cause to be paid the principal of, premium, if any and interest on,
each of the Securities at the place or places, at the respective
times and in the manner provided in the Securities. Each
instalment of interest on the Securities represented by
Certificated Notes may be paid by mailing checks for such interest
payable to or upon the written order of the Holders entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any
of the Securities remain outstanding, the Issuer will maintain in
the Borough of Manhattan, The City and State of New York, the
following: (a) an office or agency where the Securities may be
presented for payment, (b) an office or agency where the Securities
may be presented for registration of transfer and for exchange as
in this Indenture provided (the "Registrar") and (c) an office or
agency where notices and demands to or upon the Issuer in respect
of the Securities or of this Indenture may be served. The Issuer
will give to the Trustee advance written notice of the location of
any such office or agency and of any change of location thereof.
The Issuer hereby initially designates the Corporate Trust Office
of the Trustee as the office or agency for each such purpose. In
case the Issuer shall fail to maintain any such office or agency or
shall fail to give such notice of the location or of any change in
the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office. The Paying
Agent or Registrar may resign at any time by giving 30 days' prior
written notice to the Trustee and the Issuer.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Issuer, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in
Section 5.9, a Trustee, so that there shall at all times be a
Trustee hereunder.
SECTION 3.4 PAYING AGENTS. (a) Whenever the Issuer
shall appoint a Paying Agent other than the Trustee, it will cause
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such Paying Agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to this Section,
(i) that it will hold all sums received by it as such
agent for the payment of the principal of, premium, if any, or
interest on the Securities (whether such sums have been paid to
it by the Issuer or by any other obligor on the Securities) in
trust for the benefit of the Holders or of the Trustee,
(ii) that it will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities) to
make any payment of the principal of, premium, if any, or
interest on the Securities when the same shall be due and
payable, and
(iii) pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during
the continuance of the failure referred to in Section 3.4(a)(ii)
above.
(b) The Issuer will, prior to each due date of the
principal of, premium, if any, or interest on the Securities, (i)
deposit with the Paying Agent a sum sufficient to pay such
principal, premium or interest, and (unless such Paying Agent is
the Trustee) promptly notify the Trustee of any failure to take
such action and, (ii) if the Issuer shall act as its own Paying
Agent, it shall set aside, segregate and hold in trust for the
benefit of the Holders a sum sufficient to pay such principal,
premium or interest so becoming due and promptly notify the Trustee
of any failure to take such action.
(c) Anything in this Section 3.4 to the contrary
notwithstanding, the Issuer may at any time, for the purpose of
obtaining Legal Defeasance, Covenant Defeasance or a satisfaction
and discharge of this Indenture or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the
Issuer or any Paying Agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided in
this Section are subject to Sections 9.5 and 9.6.
SECTION 3.5 CERTIFICATE TO TRUSTEE. The Issuer will
furnish to the Trustee on or before February 28 of each year
beginning with 1997 a certificate (which need not comply with
Section 13.5) from the principal executive, financial or accounting
officer of the Issuer certifying that to his or her knowledge that
the Issuer is in compliance with all conditions and covenants under
the Indenture (such compliance to be determined without regard to
any period of grace or requirement of notice provided under the
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Indenture) or if the Issuer is not in compliance, identifying
clearly the manner in which the Issuer is in breach of this
Indenture.
SECTION 3.6 SECURITYHOLDERS LISTS. If and so long as the
Trustee shall not be the Registrar, the Issuer will furnish or
cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the
Holders pursuant to Section 312 of the TIA (a) semiannually not
more than 15 days after each Record Date for the payment of
semiannual interest on the Securities, as hereinabove specified, as
of such Record Date, and (b) at such other times as the Trustee may
request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the
time such information is furnished.
SECTION 3.7 REPORTS BY THE ISSUER. Whether or not
required by the rules and regulations of the Commission, so long as
any Securities are outstanding, the Issuer shall (i) furnish to the
Trustee and to all Holders all quarterly and annual financial
information that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K if the Issuer were required
to file such forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and with
respect to the annual information only, a report thereon by the
Issuer's certified independent accountants, and (ii) file a copy of
all such information with the Commission for public availability
(unless the Commission will not accept such a filing) and file such
information with the Trustee and make such information available to
prospective investors and securities analysts who request in
writing. The Issuer shall at all times comply with TIA Section
314(a).
SECTION 3.8 TAXES. The Issuer shall pay, and shall cause
each of its Subsidiaries to pay, prior to delinquency, all material
taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where the
failure to effect such payment is not adverse in any material
respect to the Holders.
SECTION 3.9 STAY, EXTENSION AND USURY LAWS. Subject to
existing law, the Issuer will not, and will not permit any
Restricted Subsidiary to insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever created, now or at any time
hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Issuer shall and shall cause
each Restricted Subsidiary to (to the extent that it may lawfully
do so) waive all benefit or advantage of any such law, and covenant
it shall not, and shall not permit any Restricted Subsidiary to
resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and
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permit the execution of every such power though no such law has
been enacted.
SECTION 3.10 REPORTS BY THE TRUSTEE. Any Trustee's report
required under Section 313(a) of the TIA shall be transmitted on
or before the first date for the regular payment of semiannual
interest on the Securities next succeeding May 15 in each year, and
shall be dated as of a date convenient to the Trustee not more than
60 nor less than 45 days prior thereto (unless such May 15 is less
than 45 days prior to such interest payment date, in which case
such report shall be (a) so transmitted on or before the second
such interest payment date next succeeding such May 15 and (b) as
of a date determined as provided above).
SECTION 3.11 RESTRICTED PAYMENTS. (a) The Issuer will
not, and will not permit any Restricted Subsidiary to, directly or
indirectly:
(i) declare or pay any dividend on, or make any
distribution on account of the Issuer's or any Restricted
Subsidiary's Equity Interests other than dividends or
distributions payable in Equity Interests (other than
Disqualified Stock) of the Issuer or such Restricted Subsidiary
or dividends or distributions by a Restricted Subsidiary which,
to the extent that a portion of such dividend or distribution is
paid to a Holder other than the Issuer or a Restricted
Subsidiary do not exceed an amount equal to such Holder's PRO
RATA aggregate common Equity Interest in such Restricted
Subsidiary;
(ii) purchase, redeem or otherwise acquire or retire
for value any Equity Interests of the Issuer or any Subsidiary
of the Issuer (other than any such Equity Interests owned by the
Issuer or any Restricted Subsidiary); or
(iii) voluntarily purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is
subordinated to the Securities or any Indebtedness that is pari
passu with the Securities and that has a stated maturity that is
later than the stated maturity of the Securities or a Weighted
Average Life to Maturity that is longer than the Weighted
Average Life to Maturity of the Securities at such time, all
such payments and other actions set forth in clauses (i) through
(iii) above being collectively referred to as "Restricted
Payments"),
unless, at the time of such Restricted Payment:
(A) no Default shall have occurred and be continuing or
would occur as a consequence thereof;
(B) the Issuer would, after giving PRO FORMA effect to
such Restricted Payment as if such Restricted Payment had been
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made at the beginning of the Issuer's most recently completed
four full fiscal quarters for which internal financial state-
ments are available preceding the date of such Restricted
Payment, have been permitted to incur at least $1.00 of addi-
tional Indebtedness pursuant to Section 3.13(a); and
(C) such Restricted Payment, together with the aggregate
of all other Restricted Payments and all Restricted Investments
made by the Issuer and its Restricted Subsidiaries after the
date hereof including all Restricted Payments made in reliance
on Section 3.11(b), but excluding all Restricted Investments
made in reliance on Section 3.12(b) is less than the sum of (x)
50% of Consolidated Net Income for the period (taken as one
accounting period) from March 1, 1996 to the end of the Issuer's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment
(or, if Consolidated Net Income for such period is a deficit,
100% of such deficit) plus (y) 100% of the aggregate net cash
proceeds received by the Issuer from the issuance or sale of
Equity Interests of the Issuer (other than Equity Interests sold
to a Restricted Subsidiary and other than Disqualified Stock)
from and after the date hereof.
(b) Notwithstanding the provisions of subsection (a) of
this Section 3.11, the Issuer and the Restricted Subsidiaries may
make the following Restricted Payments:
(i) the payment of any Regular Quarterly Dividend;
(ii) the payment of any other dividend within 60 days
after the date of declaration thereof if, at the date of such
declaration, such payment would have been permitted pursuant to
Section 3.11(a); or
(iii) the redemption, repurchase, retirement or other
acquisition of any Equity Interests of the Issuer either (A) in
exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to a Subsidiary of the Issuer) of
other Equity Interests of the Issuer (other than Disqualified
Stock) or (B) to the extent required by a final order of a
Gaming Authority.
SECTION 3.12 RESTRICTED INVESTMENTS. (a) The Issuer will
not, and will not permit any Restricted Subsidiary to, directly or
indirectly make any Restricted Investment, unless, at the time of
such Restricted Investment:
(i) no Default shall have occurred and be continuing or
would occur as a consequence thereof;
(ii) the Issuer would, after giving PRO FORMA effect to
such Restricted Investment as if such Restricted Investment had
been made at the beginning of the Issuer's most recently
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completed four full fiscal quarters for which internal financial
statements are available preceding the date of such Restricted
Investment, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to Section 3.13(a); and
(iii) such Restricted Investment, together with the
aggregate of all other Restricted Investments and all Restricted
Payments including all Restricted Payments made in reliance on
Section 3.11(b), other than Restricted Investments made in
reliance on the provisions of subsection (b) of this Section
3.12, is less than the sum of (A) 50% of Consolidated Net Income
for the period (taken as one accounting period) from March 1,
1996 to the end of the Issuer's most recently ended fiscal
quarter for which internal financial statements are available at
the time of such Restricted Investment (or, if Consolidated Net
Income for such period is a deficit, 100% of such deficit) plus
(B) 100% of the aggregate net cash proceeds received by the
Issuer from the Issuance or sale of Equity Interests of the
Issuer (other than Equity Interests sold to a Subsidiary and
other than Disqualified Stock) from and after the date hereof.
(b) Notwithstanding the provisions of subsection (a) of
this Section 3.12, the Issuer may, and may permit Restricted
Subsidiaries to, make the following Restricted Investments:
(i) Restricted Investments not otherwise permitted by this
Section 3.12 in an amount not to exceed the sum of (A) $5.0
million in the aggregate (the amount of each such Restricted
Investment being measured as of the date such Restricted
Investment was made) in any one or more Persons, plus (B) any
dividends or other payments or transfers of cash, marketable
Securities or tangible assets (at the fair market value of such
tangible assets at the time of such transfer) made to the Issuer
or any Restricted Subsidiary by Persons in which such Restricted
Investments were made but not exceeding the aggregate amount so
invested in all such Persons;
(ii) Restricted Investments not otherwise permitted by
this Section 3.12 in an amount not to exceed the sum of (A)
$15.0 million in the aggregate (the amount of each such
Restricted Investment being measured as of the date such
Restricted Investment was made) in one or more Permitted Joint
Venture Investments, plus (B) any dividends or other payments or
transfers of cash, marketable Securities or tangible assets (at
the fair market value of such tangible assets at the time of
such transfer) made to the Issuer or any Restricted Subsidiary
by the Persons in which such Restricted Investments were made
but not exceeding the aggregate amount so invested in all such
Persons; and
(iii) Investment Guarantees to the extent permitted by
Section 3.13 that constitute Permitted Joint Venture Investments
and guarantee (with full rights of subrogation) Indebtedness
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incurred to acquire or construct Gaming Facilities (A) which is
not expressly subordinated in right of payment or otherwise to
any other Indebtedness of such Person and (B) which is secured
by first priority security interests in such Gaming Facilities;
PROVIDED that any payments required to be made by the Issuer or
a Restricted Subsidiary pursuant to such Investment Guarantee
will not be treated for the purposes of this subsection(b) as
being permitted by this clause (iii).
For the purposes of this subsection (b), if any Person is
designated as a Restricted Subsidiary in accordance herewith, such
designation shall be deemed to constitute a transfer of tangible
assets to the Issuer in an amount equal to the fair market value of
the net tangible assets of such Person on the date of such
designation as determined in good faith by the Board of Directors
of the Issuer.
(c) Any Investment in a Restricted Subsidiary that is
designated as an Unrestricted Subsidiary pursuant to Section 3.21
will be deemed to be a Restricted Investment made on the date that
such Restricted Subsidiary is designated as an Unrestricted
Subsidiary in an amount equal to the greater of (i) the book value
of the Investment in such Subsidiary on such date and (ii) the fair
market value of the Investment in such Subsidiary on such date as
determined (x) in good faith by the Board of Directors of the
Issuer if such fair market value is determined to be less than or
equal to $15.0 million and (y) by an investment banking firm of
national standing with high yield underwriting expertise if such
fair market value is determined to be in excess of $15.0 million.
(d) For the purposes of subsections (b) and (c) of this
Section 3.12, any Investment Guarantee with respect to the
Indebtedness of any Person will cease to be deemed an Investment
(and will be deemed not to have been made) to the extent that such
Investment Guarantee is released without payment by the Issuer or
a Restricted Subsidiary.
Section 3.13 INCURRENCE OF INDEBTEDNESS. (a) The Issuer
will not, and will not permit any Restricted Subsidiary, directly
or indirectly, to create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to or
become responsible for (collectively, "incur") any Indebtedness,
unless, at the time of the incurrence of such Indebtedness, (i) no
Default shall have occurred and be continuing or would occur as a
consequence thereof; and (ii) the Fixed Charge Coverage Ratio for
the Issuer for its most recently ended four full fiscal quarters
for which internal financial statements are available preceding the
date on which such additional Indebtedness is incurred is greater
than 2.00 to 1, determined on a PRO FORMA basis (including a PRO
FORMA application of the net proceeds therefrom) as if the
additional Indebtedness had been incurred at the beginning of such
four-quarter period.
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(b) Notwithstanding the provisions of subsection (a) of
this Section 3.13, the Issuer and the Restricted Subsidiaries may
incur the following Indebtedness:
(i) Non-Recourse Debt in an FF&E Financing to acquire
gaming equipment and secured only by a security interest in such
gaming equipment and the proceeds thereof;
(ii) Recourse Indebtedness in one or more FF&E Financings
for each Gaming Facility not to exceed $7.0 million in aggregate
principal amount outstanding at any one time incurred to finance
newly acquired FF&E to be used in such Gaming Facility;
(iii) Indebtedness under (x) the Credit Facility or (y) as
a Permitted Joint Venture Investment to the extent that the
aggregate principal amount of Indebtedness outstanding at any
one time under the Credit Facility or constituting Permitted
Joint Venture Investments does not exceed $115 million;
(iv) Indebtedness represented by the Securities;
(v) Subsidiary Guarantees;
(vi) Indebtedness incurred in connection with Interest
Rate Protection Agreements with respect to Indebtedness
otherwise permitted by the provisions of this Section 3.13;
(vii) Indebtedness incurred in exchange for, or the
proceeds of which are used to extend, refinance, renew, replace,
or refund any Existing Indebtedness ("Refinancing
Indebtedness"); PROVIDED, HOWEVER, that (A) the principal amount
of such Refinancing Indebtedness shall not exceed the principal
amount of Indebtedness so extended, refinanced, renewed,
replaced, substituted or refunded (plus the amount of reasonable
expenses incurred in connection therewith); (B) such Refinancing
Indebtedness shall have a Weighted Average Life to Maturity
equal to or greater than the remaining Weighted Average Life to
Maturity of the Indebtedness being extended, refinanced,
renewed, replaced or refunded; (C) if the Indebtedness being
extended, refinanced, renewed, replaced or refunded is
subordinated to the Securities, such Refinancing Indebtedness
shall be similarly subordinated on terms at least as favorable
to the Holders as those contained in the documentation governing
the Indebtedness being extended, refinanced, renewed, replaced
or refunded; and (D) no Default shall have occurred and be
continuing or would occur as a consequence thereof;
(viii) Indebtedness incurred by the Issuer or a Restricted
Subsidiary and owing to the Issuer or a Restricted Subsidiary;
and
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(ix) Indebtedness that is not otherwise permitted pursuant
to this Section 3.13 in an aggregate principal amount
outstanding at any one time not to exceed $10.0 million.
(c) The Issuer will not issue any Disqualified Stock and
will not permit a Restricted Subsidiary to issue any shares of
preferred stock;
(d) The Issuer will not permit any Unrestricted Subsidiary
to issue any Disqualified Stock or incur any Indebtedness other
than Non-Recourse Debt; PROVIDED, HOWEVER, that, if an Unrestricted
Subsidiary is designated as a Restricted Subsidiary pursuant to
Section 3.20, such designation will be deemed to constitute at such
time the incurrence by a Restricted Subsidiary of any such
previously incurred Non-Recourse Debt.
SECTION 3.14 LIENS. The Issuer will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or
suffer to exist, directly or indirectly, any Lien on any asset now
owned or hereafter acquired, or any income or profits therefrom or
assign or convey any right to receive income therefrom, except:
(i) Liens securing Obligations under Senior Debt permitted to be
incurred under Section 3.13 or (ii) Permitted Liens.
SECTION 3.15 DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES. (a) Subject to the provisions of
subsection (b) of this Section 3.15, the Issuer will not, and will
not permit any Restricted Subsidiary to, create or otherwise cause
or suffer to exist or become effective, directly or indirectly, any
encumbrance or restriction on the ability of a Restricted
Subsidiary to:
(i) pay dividends or make any other distributions to the
Issuer or another Restricted Subsidiary (x) on its Capital Stock
or (y) with respect to any other interest or participation in,
or measured by, its profits;
(ii) pay any Indebtedness owed to the Issuer or another
Restricted Subsidiary;
(iii) make loans or advances to the Issuer or another
Restricted Subsidiary; or
(iv) transfer any of its properties or assets to the Issuer
or another Restricted Subsidiary.
(b) The provisions of subsection (a) of this Section 3.15
shall not prohibit encumbrances or restrictions existing under (i)
documentation concerning Existing Indebtedness as in effect on the
date of this Indenture, (ii) provisions of the Credit Facility no
more restrictive than the provisions contained in the Credit
Facility as in effect on the date of this Indenture, (iii) this
Indenture and the Securities, (iv) applicable law, (v) any
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instrument governing Indebtedness or Capital Stock of a Person
acquired by the Issuer or a Restricted Subsidiary as in effect at
the time of such acquisition (except to the extent such
Indebtedness was incurred or such Capital Stock was issued in
contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or
assets of the Person, so acquired, provided, that the Consolidated
Cash Flow of such Person was not taken into account in determining
whether such acquisition was permitted pursuant to Section 3.13, or
3.21, (vi) customary non-assignment provisions in leases entered
into in the ordinary course of business and consistent with past
practices, (vii) Permitted Liens, (viii) permitted Refinancing
Indebtedness if the restrictions contained in the agreements
governing such Refinancing Indebtedness are not substantially more
restrictive taken as a whole than those contained in the agreements
governing the Indebtedness being refinanced or (ix) Non-Recourse
Debt incurred in accordance with Section 3.13.
SECTION 3.16 ADDITIONAL SUBSIDIARY GUARANTEES. If any
Restricted Subsidiary becomes the owner or lessee of assets,
businesses, divisions, real property or equipment having a book
value in excess of $5.0 million, then the Issuer shall cause such
Restricted Subsidiary (i) to execute an Indenture Supplemental
hereto in accordance with Section 7.1 providing for the issuance of
a Subsidiary Guarantee and (ii) to deliver an Opinion of Counsel to
the Trustee in accordance with Section 14.5 to the effect that such
Subsidiary Guarantee is a valid and binding obligation of such
Restricted Subsidiary enforceable in accordance with the terms
thereof, subject to the effect of applicable bankruptcy, insolvency
or similar laws affecting creditors, rights generally and equitable
principles of general applicability.
SECTION 3.17 LIMITATION ON ISSUANCE OF OTHER SUBORDINATED
DEBT SENIOR TO THE SECURITIES OR THE SUBSIDIARY GUARANTEES.
Neither the Issuer nor any Guarantor shall incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness
that is subordinate in right of payment to any Senior Debt of the
Issuer or such Guarantor, as the case may be, and senior in any
respect in right of payment to the Holders.
SECTION 3.18 TRANSACTIONS WITH AFFILIATES. (a) The
Issuer will not, and will not permit any Restricted Subsidiary to,
sell, lease, transfer or otherwise dispose of any of its properties
or assets, or purchase any property or assets from, or enter into
or maintain any contract, agreement, understanding, loan, advance
or guarantee with, or for the benefit of, any Affiliate (each of
the foregoing, an "Affiliate Transaction"), unless such Affiliate
Transaction is on terms no less favorable to the Issuer or such
Restricted Subsidiary, as the case may be, than those that could
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have been obtained in a comparable transaction by the Issuer or
such Restricted Subsidiary with an unrelated Person; and
(i) with respect to any Affiliate Transaction with an
Unrestricted Subsidiary which, either individually or when
combined with all other Affiliate Transactions with Unrestricted
Subsidiaries during the past year, involves aggregate payments
in excess of $1.0 million, a majority of the Board of Directors
approves each such transaction;
(ii) with respect to any Affiliate Transaction (other than
with an Unrestricted Subsidiary) involving aggregate payments in
excess of $1.0 million, or with respect to any Affiliate
Transaction with all Unrestricted Subsidiaries, which, either
individually or when combined with all other Affiliate
Transactions with Unrestricted Subsidiaries during the 365 days
preceding, involves aggregate payments in excess of $3.0
million, the Issuer delivers to the Trustee a resolution of the
Board of Directors set forth in an Officers' Certificate
certifying that any such Affiliate Transaction (x) is on terms
no less favorable to the Issuer or such Restricted Subsidiary,
as the case may be, than those that could have been obtained in
a comparable transaction by the Issuer or such Restricted
Subsidiary with an unrelated Person and (y) has been approved by
a majority of the Board of Directors and a unanimous vote of the
Independent Directors; and
(iii) with respect to any Affiliate Transaction involving
aggregate payments in excess of $15.0 million, the Issuer
delivers to the Trustee (A) a resolution of the Board of
Directors set forth in an Officers' Certificate certifying that
such Affiliate Transaction (x) is on terms no less favorable to
the Issuer or such Restricted Subsidiary, as the case may be,
than those that could have been obtained in a comparable
transaction by the Issuer or such Restricted Subsidiary with an
unrelated Person and (y) has been approved by a majority of the
Board of Directors and a unanimous vote of the Independent
Directors and (B) an opinion as to the fairness of such
Affiliate Transaction to the Issuer or such Restricted
Subsidiary from a financial point of view issued by an
investment banking firm of national standing with expertise in
high yield debt offerings and, in the case of a transaction
involving the sale or transfer of assets subject to valuation,
such as real estate, an appraisal by a nationally recognized
appraisal firm;
(b) Notwithstanding the provisions of subsection (a) of
this Section 3.18, the following transactions shall not be deemed
Affiliate Transactions: (i) any employment agreement entered into
by the Issuer or any Restricted Subsidiaries in the ordinary course
of business and consistent with the past practice of the Issuer or
such Restricted Subsidiary; (ii) transactions between or among the
Issuer and Restricted Subsidiaries; (iii) Restricted Payments made
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in accordance with Section 3.11; (iv) Restricted Investments made
in accordance with Section 3.12; and (v) payments by the Issuer
pursuant to any indemnification agreement with its directors and
officers with respect to any action taken or omitted to be taken by
such director or officer in such director's or officer's capacity
as a director or officer of the Issuer or a Restricted Subsidiary.
SECTION 3.19 BUSINESS ACTIVITIES. (a) The Issuer will
not, and will not permit any Restricted Subsidiary to, (i) engage,
directly or indirectly, in any business other than a Gaming
Business, and (ii) such other businesses as the Issuer or any
Restricted Subsidiary is engaged in on the date of this Indenture.
(b) The Issuer will not, and will not permit any of its
Subsidiaries to, conduct a Gaming Business in any gaming
jurisdiction in which the Issuer or such Subsidiary is not licensed
on the date of this Indenture if the Holders would be required to
be licensed as a result thereof; provided that this subsection (b)
shall not be deemed to prohibit the Issuer or any of its
Subsidiaries from conducting a Gaming Business in any jurisdiction
that does not require the licensing or qualification of all of the
Holders, but reserves the discretionary right to require the
licensing or qualification of any Holder.
SECTION 3.20 DESIGNATION OF AN UNRESTRICTED SUBSIDIARY AS
A RESTRICTED SUBSIDIARY. The Issuer shall not designate an
Unrestricted Subsidiary as a Restricted Subsidiary unless:
(i) Such Unrestricted Subsidiary has been designated as a
Restricted Subsidiary by the Board of Directors;
(ii) at the time of such designation after giving pro
forma effect thereto as if such designation had occurred, and
any Non-Recourse Debt previously incurred by such Unrestricted
Subsidiary had been incurred, at the beginning of the Issuer's
most recently completed four fiscal quarters for which internal
financial statements are available preceding the date of such
designation, the Issuer was permitted to incur $1.00 of
additional Indebtedness pursuant to the provisions of Section
3.13(a);
(iii) if such newly designated Restricted Subsidiary owned
or leased assets, businesses, divisions, real property or
equipment having a book value in excess of $5.0 million at the
time of such designation, such newly-designated Restricted
Subsidiary has executed and delivered a Subsidiary Guarantee and
an Opinion of Counsel to the Trustee in accordance with the
provisions of Section 3.16;
(iv) no Default had occurred and was continuing
immediately preceding such designation and after giving PRO
FORMA effect thereto; and
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(v) the Issuer has delivered to the Trustee an Officers'
Certificate to the effect that such designation complies with
the requirements of clauses (i) through (iv) of this Section
3.20.
SECTION 3.21 DESIGNATION OF A SUBSIDIARY AS AN
UNRESTRICTED SUBSIDIARY. (a) The Issuer shall not designate any
Subsidiary of the Issuer as an Unrestricted Subsidiary unless (i)
such Subsidiary has been designated as an Unrestricted Subsidiary
by the Board of Directors; (ii) such Subsidiary is being so
designated at the time of its formation, (iii) the total assets of
such Subsidiary at the time of such designation are less than
$1,000 and (iv) the Issuer has delivered to the Trustee an
Officers' Certificate to the effect that such designation complies
with the requirements of clauses (i) through (iii) of this
subsection (a).
(b) The Issuer shall not designate a Restricted Subsidiary
as an Unrestricted Subsidiary unless:
(i) such Restricted Subsidiary has been designated as an
Unrestricted Subsidiary by the Board of Directors;
(ii) at the time of such designation after giving PRO
FORMA effect thereto as if such designation had occurred at the
beginning of the Issuer's most recently completed four fiscal
quarters for which internal financial statements are available
preceding the date of such designation, (A) the Issuer was
permitted to incur $1.00 of additional Indebtedness pursuant to
the provisions of Section 3.13(a) and (B) the Issuer's Fixed
Charge Coverage Ratio was not less than 80% of the Issuer's
Fixed Charge Coverage Ratio for such period without giving PRO
FORMA effect to such designation;
(iii) such Restricted Subsidiary did not wholly or
partially own, operate or manage directly or indirectly, or
otherwise use in its business, any portion or aspect of Harveys
Resort Hotel/Casino in Lake Tahoe, Nevada;
(iv) no Default had occurred and was continuing
immediately preceding such designation and after giving PRO
FORMA effect thereto, including the requirement of Section
3.12(c) that any Investment in such Restricted Subsidiary be
deemed to be a Restricted Investment made on the date of such
designation; and
(v) the Issuer has delivered to the Trustee an Officers'
Certificate to the effect that such designation complies with
the requirements of clauses (i) through (iv) of this Section
3.21.
SECTION 3.22 PAYMENTS FOR CONSENT. The Issuer shall not,
and shall not permit any of its Subsidiaries to, directly or
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indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder for or as an
inducement to any consent, waiver or amendment of any of the terms
of this Indenture or of the Securities unless such consideration is
offered to be paid or agreed to be paid to all Securityholders that
consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or
agreement.
SECTION 3.23 ASSET SALES. (a) Subject to the provisions
of Article VIII, the Issuer will not make, and will not permit any
Restricted Subsidiary to make, any Asset Sale unless:
(i) no Default exists or is continuing immediately prior
to and after giving effect to such Asset Sale;
(ii) the Issuer or such Restricted Subsidiary, as the case
may be, receives consideration at the time of such Asset Sale at
least equal to the fair market value (as determined in good
faith and evidenced by a resolution of the Board of Directors
set forth in an Officers' Certificate delivered to the Trustee)
of the assets or Equity Interests sold or otherwise disposed of;
(iii) not less than 85% of the consideration received by
the Issuer or such Restricted Subsidiary, as the case may be, is
in the form of cash or one or more Permitted Investments;
PROVIDED, HOWEVER, that the amount of (A) any liabilities on the
Issuer's most recent internally available balance sheet (or the
notes thereto), as the case may be other than liabilities that
are by their terms subordinated to the Securities or any
Subsidiary Guarantee) that are assumed by the transferee of any
such assets or Equity Interests and (B) any notes or other
obligations received by the Issuer or any such Restricted
Subsidiary, as the case may be, from such transferee that is
immediately converted into cash, shall be deemed to be cash (to
the extent of the cash received) for purposes of this clause
(iii); and
(iv) within 180 days after such Asset Sale, the Issuer
shall either (A) apply or cause to be applied the Net Proceeds
from such Asset Sale to the payment of the principal of and
interest on any Senior Debt of the Issuer and, to the extent
that such Net Proceeds exceed the amount of the principal of
such Senior Debt outstanding and interest thereon, to the
payment of the principal of and interest on any Senior Debt of
a Guarantor or (B) have entered into a contract pursuant to
which such Net Proceeds will be reinvested within 270 days after
such Asset Sale in a Permitted Investment (other than Marketable
Securities); PROVIDED, that such condition shall be deemed not
to have been fulfilled if such Net Proceeds have not been so
applied pursuant to such contract.
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(b) To the extent that, after such Net Proceeds have been
applied in accordance with subsection (a) of this Section 3.23, any
such Net Proceeds remain ("Excess Proceeds"), the Issuer shall make
an offer (an "Asset Sale Offer") to all Securityholders and to all
holders of any other Indebtedness of the Issuer that is pari passu
with the Securities (if required to do so by the terms thereof)
("Other Asset Sale Offer Indebtedness") to purchase the maximum
principal amount of Securities and Other Asset Sale Offer
Indebtedness that may be purchased out of the Excess Proceeds at a
purchase price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date fixed for the
closing of such Asset Sale Offer in accordance with the respective
procedures set forth in (i) subsection (c) of this Section 3.23 and
in Section 10.9 and (ii) the documentation relating to such
Indebtedness; PROVIDED that the Issuer shall not be required to
make an Asset Sale Offer for Securities and Other Asset Sale Offer
Indebtedness by this Section 3.23 if the Excess Proceeds available
therefore are less than $25,000,000 (which lesser amounts not
applied to an Asset Sale Offer shall be carried forward and
cumulated for purposes of determining whether an Asset Sale Offer
is required with respect to any Excess Proceeds from any subsequent
Asset Sale). If the aggregate purchase price of Securities and
Other Asset Sale Offer Indebtedness tendered pursuant to the Asset
Sale Offer is less than the Excess Proceeds allotted to the
purchase of the Securities or Other Asset Sale Offer Indebtedness,
the Issuer may use the remaining Excess Proceeds for general
corporate purposes.
(c) Promptly, and in any event within 30 days after the date
on which Excess Proceeds that are required by subsection (b) of
this Section 3.23 to be applied to an Asset Sale Offer exceed
$25,000,000, the Issuer shall deliver to the Trustee and send by
first-class mail to each Holder a written notice complying with the
requirements of Section 10.9(d) and 10.9(e).
(d) Whenever Net Proceeds are received by the Issuer, and
prior to the allocation of such Net Proceeds pursuant to
subsections (a) and (b) of this Section 3.23, such Net Proceeds
shall be set aside by the Issuer, in a separate account pending
allocation.
SECTION 3.24 CHANGE OF CONTROL. (a) Upon a Change of
Control, each Holder shall have the right to require the Issuer to
repurchase all or any part of such Holder's Securities at a
purchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase, in
accordance with the procedures set forth in subsection (b) of this
Section 3.24 and in Section 10.9 (the "Change of Control Offer").
Prior to the mailing of the notice referred to in subsection (b) of
this Section 3.24, but in any event within 90 days following any
Change of Control, the Issuer shall either (i) repay all
outstanding Senior Debt or (ii) obtain requisite consents under all
agreements governing outstanding Senior Debt to permit the
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repurchase of Securities pursuant to this Section 3.24. The Issuer
shall first comply with the covenant in the preceding sentence
before it shall be required to repurchase Securities pursuant to
this Section 3.24.
(b) Within 45 days following a Change of Control, the Issuer
shall deliver to the Trustee and send by first-class mail to each
Holder a written notice complying with the requirements of Sections
10.9(d) and 10.9(f).
(c) The Issuer shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
ARTICLE IV
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 EVENT OF DEFAULT DEFINED. Each of the
following events (whatever the reason for such event and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental
body) shall be an Event of Default:
(a) default in the payment of any instalment of interest
upon any of the Securities as and when the same shall become due
and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of all or any part of the
principal on any of the Securities as and when the same shall
become due and payable either at maturity, upon any redemption,
by declaration or otherwise; or
(c) failure on the part of the Issuer to comply with any
of the provisions of Article VIII; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of
the Issuer in the Securities or in this Indenture contained for
a period of 30 days after the date on which written notice
specifying such failure, stating that such notice is a "Notice
of Default" hereunder and demanding that the Issuer remedy the
same, shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to
the Issuer and the Trustee by the holders of at least 25% in
aggregate principal amount of the Securities at the time
outstanding; or
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(e) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by
the Issuer or any Guarantor, or the payment of which is
guaranteed by the Issuer or any Guarantor, which default (i) is
caused by a failure to pay when due principal or interest on
such Indebtedness within the grace period PROVIDED in the
documentation relating to such Indebtedness (a "Payment
Default") or (ii) results in the acceleration of such
Indebtedness prior to its stated maturity and, in either case,
the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $10.0 million or more; or
(f) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction
against the Issuer or any Guarantor or any Restricted Subsidiary
and such judgments are not paid, discharged or stayed for a
period 60 days, PROVIDED that the aggregate of all such
undischarged judgments exceeds $5.0 million; or
(g) except as permitted pursuant to Section 11.1(f), any
Subsidiary Guarantee with respect to the Securities shall become
or be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and
effect or any Guarantor, its successors or assigns, or any
Person acting on behalf of any Guarantor, its successors or
assigns, shall deny or disaffirm its obligations or shall fail
to comply with any obligations under its Subsidiary Guarantee;
or
(h) any Gaming License relating to a Material Gaming
Facility 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 30 days of any material
portion or aspect of the Gaming Business of any Material Gaming
Facility; or
(i) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Issuer, any
of its Restricted Subsidiaries or any Guarantor in an
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Issuer, any Restricted Subsidiary
or Guarantor or for any substantial part of any of their
property or ordering the winding up or liquidation of its
affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(j) the Issuer, any of its Restricted Subsidiaries or any
Guarantor shall commence a voluntary case under any applicable
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bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official)
of the Issuer or for any substantial part of its property, or
make any general assignment for the benefit of creditors or
generally is not paying its debts as they become due.
SECTION 4.2 ACCELERATION; WAIVER OF DEFAULT. (a) If any
Event of Default with respect to the Issuer, any of its Restricted
Subsidiaries occurs and is continuing, then, and in each and every
such case, unless the principal of all of the Securities shall have
already become due and payable, either the Trustee or the holders
of not less than 25% in aggregate principal amount of the
Securities then outstanding hereunder, by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal of all the Securities and the interest
accrued thereon, to be due and payable immediately and upon any
such declaration the same shall become immediately due and payable.
(b) Notwithstanding Section 4.2(a), if, at any time after
the principal of the Securities shall have been so declared due and
payable, and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all
the Securities and the principal of any and all Securities which
shall have become due otherwise than by acceleration (with interest
upon such principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest
specified in the Securities, to the date of such payment or
deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under the Indenture,
other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein then and in every
such case, notwithstanding Section 4.10(a)(ii), the holders of a
majority in aggregate principal amount of the Securities then
outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults and rescind and annul such declaration and
its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
SECTION 4.3 COLLECTION OF INDEBTEDNESS BY TRUSTEE;
TRUSTEE MAY PROVE DEBT. (a) If an Event of Default specified in
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Sections 4.1(a) or (b) hereof occurs and is continuing, then upon
demand of the Trustee, the Issuer will pay to the Trustee for the
benefit of the Holders the whole amount that then shall have become
due and payable on all such Securities for principal, premium, if
any, or interest, as the case may be (with interest to the date of
such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on
overdue installments of interest at the same rate as the rate of
interest specified in the Securities); and in addition thereto,
such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents,
attorneys and counsel, and any expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or wilful misconduct. Until
such demand is made by the Trustee, the Issuer may pay the
principal of, premium, if any, and interest on the Securities to
the registered Securityholder, whether or not the Securities are
overdue.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered (but
not obligated) to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against
the Issuer or other obligor upon the Securities and collect in the
manner PROVIDED by law out of the property of the Issuer or other
obligor upon the Securities, wherever situated the moneys adjudged
or decreed to be payable.
(c) In case there shall be pending proceedings relative to
the Issuer or any other obligor upon the Securities under Title 11
of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to
the creditors or property of the Issuer or such other obligor, the
Trustee, irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to this Section, shall be
entitled and empowered (but not obligated), by intervention in such
proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of
the Securities, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
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Trustee (including any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of
negligence or wilful misconduct) and of the Securityholders
allowed in any judicial proceedings relative to the Issuer or
other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor,
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders in any election of a trustee or
a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or Person performing
similar functions in comparable proceedings, and
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any
trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any Securityholder any plan or reorganization,
arrangement, adjustment or composition affecting the Securities or
the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such
proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the
Trustee without the possession of any of the Securities or the
production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders.
(f) In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
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Indenture to which the Trustee shall be a party) the Trustee shall
be held to represent all the Holders, and it shall not be necessary
to make any Holders parties to any such proceedings.
SECTION 4.4 APPLICATION OF PROCEEDS. Any moneys
collected by the Trustee pursuant to this Article IV shall, subject
to the subordination provisions hereof, be applied in the following
order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest,
upon presentation of the several Securities and stamping (or
otherwise noting) thereon the payment, or issuing Securities in
reduced principal amounts in exchange for the presented Securities
if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses, including
reasonable compensation to the Trustee and each predecessor
Trustee and their respective agents and attorneys and of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of
negligence or wilful misconduct;
SECOND: In case the principal of the Securities shall not
have become and be then due and payable, to the payment of
interest in default in the order of the maturity of the
installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of
interest specified in the Securities, such payments to be made
ratably to the Persons entitled thereto, without discrimination
or preference;
THIRD: In case the principal of the Securities shall have
become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities for
principal and interest, with interest upon the overdue
principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest
at the same rate as the rate of interest specified in the
Securities; and in case such moneys shall be insufficient to pay
in full the whole amount so due and unpaid upon the Securities,
then to the payment of such principal and interest, without
preference or priority of principal over interest, or of
interest over principal, or of any instalment of interest over
any other instalment of interest, or of any Security over any
other Security, ratably to the aggregate of such principal and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other Person lawfully entitled thereto.
SECTION 4.5 SUITS FOR ENFORCEMENT. In case an Event of
Default has occurred, has not been waived and is continuing, the
Trustee may in its sole and absolute discretion proceed to protect
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and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any of such rights, either at law
or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
SECTION 4.6 RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall
continue as though no such proceedings had been taken.
SECTION 4.7 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No
Holder shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding
at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a
trustee, receiver, liquidator, custodian or other similar official
or for any other remedy hereunder, unless (a) such Holder
previously shall have given to the Trustee written Notice of
Default and of the continuance thereof, as hereinbefore provided,
and such Notice shall not have been rescinded, and (b) the holders
of not less than 25% in aggregate principal amount of the
Securities then outstanding shall have made written request upon
the Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as the Trustee may require against the costs,
expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and
offer of indemnity shall have failed to institute any such action
or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section
4.9; it being understood and intended, and being expressly
covenanted by the taker and holder of every Security with every
other taker and holder and the Trustee, that no one or more Holders
shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders, or to obtain or seek to
obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all
Holders. For the protection and enforcement of this Section, each
and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
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SECTION 4.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. (a) Except as provided in Section 2.10, no right or
remedy herein conferred upon or reserved to the Trustee or to the
Securityholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
(b) No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.7, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
SECTION 4.9 CONTROL BY SECURITYHOLDERS. The holders of a majority
in aggregate principal amount of the Securities at the time outstanding shall
have the right to 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 the Trustee by this Indenture; PROVIDED that such
direction shall not be otherwise than in accordance with law and the
provisions of this Indenture and; PROVIDED FURTHER that (subject to Section
5.1) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust
committee of directors or responsible officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in
financial or other liability or if the Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders not joining
in the giving of said direction, it being understood that (subject to Section
5.1) the Trustee shall have no duty to ascertain whether or not such actions
or forebearances are unduly prejudicial to such Holders. Nothing in this
Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by Securityholders.
SECTION 4.10 WAIVER OF PAST DEFAULTS. (a) Prior to the declaration
of the maturity of the Securities as provided in Section 4.1, the holders of
a majority in aggregate principal amount of the then outstanding Securities
(including consents obtained in connection with a tender offer or exchange
offer for
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the Securities), by written notice to the Trustee may on behalf of all
Holders waive any past default or Event of Default and compliance with any
provision of this Indenture or the Securities or any existing Default and
rescind any resulting acceleration and its consequences under this Indenture
and its consequences, except a default (i) in the payment of principal of,
premium, if any, or interest on any of the Securities, or (ii) subject to
Section 4.2(b), with respect to a covenant or provision hereof which cannot
be modified or amended without the consent of the holder of each Security
affected pursuant to Section 7.2(a). In the case of any such waiver, the
Issuer, the Trustee and the Holders shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
(b) Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have
occurred for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 4.11 NOTICE TO TRUSTEE. Immediately upon becoming aware of
any Default, the Issuer shall deliver to the Trustee a written statement
specifying such Default.
ARTICLE V
CONCERNING THE TRUSTEE
SECTION 5.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. (a) The Trustee, prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured or waived) 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 man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
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its own negligent failure to act or its own wilful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default which
may have occurred:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates,
opinions or other documents furnished to the Trustee and
conforming to the requirements of this Indenture; but in
the case of any such statements, certificates, opinions or
other documents which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements
of this Indenture;
(ii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in principal amount of the Securities at the time
outstanding relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under
this Indenture;
(iii) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur financial or other liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable ground for believing that
the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it; and
(iv) this Section 5.1 is in furtherance of and subject to
Sections 315 and 316 of the TIA.
(c) The Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer or responsible
officers of the Trustee.
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SECTION 5.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and
subject to the TIA, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties; however, the Trustee shall not be obligated to
investigate any fact or matter stated in any such document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit in order to carry out its duties under
this Indenture;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a
copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel given thereby shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the holders of not less than a majority in aggregate principal amount of the
Securities then outstanding; PROVIDED that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably
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assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable security or indemnity against
such expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Issuer or, if paid by
the Trustee or any predecessor trustee, shall be repaid by the Issuer upon
demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
SECTION 5.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application
by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS,
ETC. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or
such agent and may otherwise deal with the Issuer and receive, collect, hold
and retain collections from the Issuer with the same rights it would have if
it were not the Trustee or such agent.
SECTION 5.5 MONEYS HELD BY TRUSTEE. Subject to Section 9.6 hereof,
all moneys received by the Trustee shall, until used or applied as herein
PROVIDED, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer
or the Trustee shall be under any liability for interest on any moneys
received by it hereunder.
SECTION 5.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS
PRIOR CLAIM. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation
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and the expenses and disbursements of its counsel and of all agents and
other Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or wilful
misconduct. The Issuer also covenants to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or wilful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section
to compensate and indemnify the Trustee and each predecessor Trustee and to
pay or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive any Legal Defeasance, Covenant Defeasance or the
satisfaction and discharge of this Indenture. Such additional indebtedness
shall be a senior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities, and the Securities are
hereby subordinated to such senior claim.
SECTION 5.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE, ETC.
Subject to Sections 5.1 and 5.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of bad faith
on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
SECTION 5.8 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The
Trustee hereunder shall at all times be a corporation having a combined
capital and surplus of at least $5,000,000, and which is eligible in
accordance with the provisions of Section 310(a) of the TIA. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of a Federal, State or District of Columbia
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.
SECTION 5.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee may at any time resign by giving written notice of
resignation to the Issuer and by mailing notice thereof by first class mail
to Holders at their last addresses as they shall appear on the Security
register. Upon
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receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee by written instrument in duplicate, executed by authority
of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months may, on behalf of himself and
all others similarly situated, petition any such court for the appointment of
a successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 310(b) of the TIA, after written request therefor by
the Issuer or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with Section 5.8 and shall fail to resign after written request
therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to Section 315(e) of the TIA, any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount
of the Securities at the time outstanding may at any time remove
the Trustee and appoint a successor trustee by delivering to the
Trustee so removed, to the successor trustee so appointed and to
the Issuer the evidence provided for in Section 6.1 of the action
in that regard taken by the Securityholders.
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(d) Any resignation or removal of the Trustee and any appointment of
a successor trustee pursuant to any of the provisions of this Section 5.9
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 5.10.
SECTION 5.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. (a)
Any successor trustee appointed as provided in Section 5.9 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment
of its charges then unpaid, the trustee ceasing to act shall, subject to
Section 9.6, pay over to the successor trustee all moneys at the time held by
it hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to
Section 5.6.
(b) Upon acceptance of appointment by a successor trustee as provided
in this Section 5.10, the Issuer shall mail notice thereof by first class
mail to the Holders at their last addresses as they shall appear in the
Security register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 5.9.
If the Issuer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. (a) Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under Section 5.8, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
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(b) In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities
or in this Indenture provided that the certificate of the Trustee shall have;
provided, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 5.12 APPOINTMENT OF CO-TRUSTEE.
It is the purpose of this Indenture that there shall no violation of
any law of any jurisdiction, including particularly the law of Nevada,
denying or restricting the right of banking corporations or associations to
transact business as Trustee in such jurisdiction. It is recognized that in
case of litigation under this Indenture, and in particular in case of the
enforcement on default, or in case the Trustee deems that by reason of any
present or future law of any jurisdiction it may not exercise any of the
powers, rights or remedies herein granted to the Trustee or hold title to the
properties, in trust, as herein granted, or take any other action which may
be desirable or necessary in connection therewith, it may be necessary that
the Trustee appoint an additional individual or institution as a separate or
co-trustee. The following provisions of this Section are adopted to these
ends.
In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and
vested in such separate or co-trustee but only to the extent necessary to
enable such separate or co-trustee to exercise such powers, rights and
remedies, and every covenant and obligation necessary to the exercise thereof
by such separate or co-trustee shall run to and be enforceable by either of
them.
The appointment of a separate trustee or co-trustee pursuant to this
Section 5.12, and the identity of such co-trustee, shall be subject to the
prior written approval of the Issuer, which shall not be unreasonably
withheld or delayed. Should any instrument in writing be required by the
separate trustee or co-trustee so appointed by the Trustee for more fully and
certain vesting in and confirming to him or it such properties, rights,
powers, trusts,
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duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledge and delivered by the Issuer. In case any
separate trustee or co-trustee, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates, properties,
rights, powers, trusts, duties and obligation of such separate trustee or
co-trustee, so far as permitted by law, shall vest in and be exercised by the
Trustee until the appointment of a new trustee or successor to such separate
trustee or co-trustee.
ARTICLE VI
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Securityholders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in Person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 5.1 and 5.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article VI.
SECTION 6.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES; RECORD DATE. Subject to Sections 5.1 and 5.2, the execution of
any instrument by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a
certificate of the Registrar thereof. The Issuer or the Trustee may set a
Record Date for purposes of determining the identity of Holders entitled to
vote or consent to any action referred to in Section 6.1, which Record Date
may be set at any time or from time to time by advance written notice to the
Trustee, for any date or dates (in the case of any adjournment or
resolicitation) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any
other provisions hereof, only Holders of record on such Record Date shall be
entitled to so vote or give such consent or to withdraw such vote or consent.
SECTION 6.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and
treat the Person in whose name any Security shall be registered
upon the Security register as the absolute owner of such Security
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(whether or not such Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions
of this Indenture, interest on such Security and for all other purposes; and
neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee
shall be affected by any notice to the contrary. All such payments so made
to any such Person, or upon his order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 6.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the holders of the requisite aggregate principal amount
of Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Issuer or any other obligor
(including the Guarantors) on the Securities or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor (including the Guarantors) on
the Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction,
consent or waiver only Securities which the Trustee knows are so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Issuer or any other obligor (including the
Guarantors) upon the Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities. In case of a dispute as
to such right, the advice of counsel shall be full protection in respect of
any decision made by the Trustee in accordance with such advice. Upon request
of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the
Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 5.1 and 5.2, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not listed
therein are outstanding for the purpose of any such determination.
SECTION 6.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 6.1,
of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in connection
with such action, any holder of a Security the serial number of which is
shown by the evidence to be included among the serial numbers of the
Securities the holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of
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holding as provided in this Article, revoke such action so far as concerns
such Security. Except as aforesaid any such action taken by the holder of
any Security shall be conclusive and binding upon such holder and upon all
future holders and owners of such Security and of any Securities issued in
exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any action taken
by the holders of the percentage in aggregate principal amount of the
Securities specified in this Indenture in connection with such action shall
be conclusively binding upon the Issuer, the Trustee and the holders of all
the Securities.
ARTICLE VII
SUPPLEMENTAL INDENTURES
SECTION 7.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
The Issuer, when authorized by a resolution of its Board of Directors, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
(b) to evidence the succession of another corporation to
the Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and
obligations of the Issuer pursuant to Article Eight;
(c) to add the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board
of Directors and the Trustee shall consider to be for the
protection of the Holders, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default
or may limit the right of the holders of a majority in aggregate
principal amount of the Securities to waive such an Event of
Default; and
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision
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contained herein or in any supplemental indenture; or to make
such other provisions in regard to matters or questions arising
under this Indenture or under any supplemental indenture as the
Board of Directors may deem necessary or desirable and which
shall not adversely affect the interests of the holders of the
Securities.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. (a) With the consent (evidenced as provided in Article VI)
of the holders of not less than a majority in aggregate principal amount of
the Securities at the time outstanding, the Issuer, when authorized by a
resolution of its Board of Directors, and the Trustee may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Securities; provided, that (i) subject to Section 4.1, the Issuer and the
Trustee may not waive or modify the rights of the holders under Section 3.24
without the consent of the holders of at least 66 2/3% of the principal
amount of the Securities then outstanding and (ii) no such supplemental
indenture shall (A) reduce the principal amount of Securities whose Holders
must consent to an amendment, supplement or waiver; (B) reduce the principal
of, or change the stated maturity of any installment of principal of, any
Security or alter the provisions with respect to the redemption of the
Securities pursuant to Article X; (iii) reduce the rate of or change the time
for payment of interest on any Security; (iv) waive a Default in the payment
of principal of or premium, if any, or interest on the Securities; (v) change
the currency in which the Securities are payable; and (vi) make any change in
the provisions of this Indenture relating to waivers of Defaults or the
rights of Holders to receive payments of principal of, premium, if any, or
interest on, the Securities or make any changes to the foregoing subsection
(a) of this Section 7.2.
(b) Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the Secretary or an
Assistant Secretary of the Issuer authorizing the
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execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders and other documents, if
any, required by Section 6.1 the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such supplemental indenture.
(c) It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
(d) Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first-class mail to the holders at their
addresses as they shall appear on the registry books of the Issuer, setting
forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 7.3 COMPLIANCE WITH TIA. Every amendment or supplement to
this Indenture or the Securities shall be set forth in an amended or
supplemental Indenture that complies with the TIA as then in effect.
SECTION 7.4 REVOCATION AND EFFECT OF CONSENTS. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by such Holder and every subsequent Holder or portion of a
Security that evidences the same debt as the consenting Holder's Security,
even if notation of the consent is not made on any Security. However, any
such Securityholder or subsequent Securityholder may revoke the consent as to
its Security if the Trustee receives written notice of revocations before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
SECTION 7.5 TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall
sign any amended or supplemental indenture authorized pursuant to this
Article VII if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Issuer may not
sign an amendment or supplemental indenture until the Board of Directors of
the Issuer approves it. In executing any amendment or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section
7.1) shall be fully protected in relying upon, an Officers' Certificate
and/or an Opinion of Counsel stating that the execution
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of such amended or supplemental indenture is authorized or permitted by this
Indenture.
SECTION 7.6 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the
Holders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 7.7 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject
to Sections 5.1 and 5.2, may receive an Officers' Certificate and/or an
Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the applicable provisions of this Indenture.
SECTION 7.8 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may bear a notation in
form approved by the Trustee as to any matter provided for by such
supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities then outstanding.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 MERGER, CONSOLIDATION OR SALE OF ASSETS. (a) The
Issuer shall not consolidate with or merge with or into (whether or not the
Issuer is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, another Person unless:
(i) the Issuer is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if
other than the Issuer) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of
Columbia;
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(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Issuer) or the Person
to whom such sale, assignment, transfer, lease, conveyance or
other disposition will have been made shall expressly assume by
supplemental indenture complying with the requirements of
Article VII the due and punctual payment of the principal of,
premium, if any, and interest on all of the Securities, and the
due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by
the Issuer;
(iii) immediately after such transaction no Default exists;
(iv) the Issuer or any Person formed by or surviving any
such consolidation or merger, or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been
made (A) will have Consolidated Net Worth (immediately after the
transaction but prior to any purchase accounting adjustments
resulting from the transaction) equal to or greater than the
Consolidated Net Worth of the Issuer immediately preceding the
transaction and (B) will, at the time of such transaction and
after giving effect thereto on a PRO FORMA basis as if such
transaction had occurred at the beginning of the Company's most
recently completed four fiscal quarters for which internal
financial statements are available preceding the date of such
transaction be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the provisions of Section 3.13(a);
(v) any such transaction does not require any Holder to
obtain a Gaming License or be qualified under the laws of any
applicable gaming jurisdiction if such Holder would not have
been required to obtain a Gaming License or be qualified under
the laws of any applicable gaming jurisdiction in the absence of
such transaction; and
(vi) any such transaction does not result in the loss of
any qualification or any Gaming License of the Issuer or its
Subsidiaries necessary for any Gaming Business then operated by
the Issuer or its Subsidiary.
(b) A Guarantor shall not consolidate with or merge with
or into any Person other than the Issuer or another Guarantor, or
sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its properties or assets in one or more
related transactions to any Person other than the Issuer or another
Guarantor unless the surviving Person (if other than such
Guarantor) or the Person to whom such sale, assignment, transfer,
lease, conveyance or other disposition will have been made shall
expressly assume by supplemental indenture complying with the
requirements of Article VII, the due and punctual performance and
observance of all the covenants and conditions of Subsidiary
Guarantee to be performed by such Guarantor.
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SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. (a) In
the case of any consolidation, merger, sale, lease or conveyance in
accordance with Section 8.1, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein.
(b) Such successor corporation may cause to be signed, and
may issue either in its own name or in the name of the Issuer prior
to such succession any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Issuer, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which
previously shall have been signed and delivered by the officers of
the Issuer to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the
Securities so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as
though all of such Securities had been issued at the date of the
execution hereof.
(c) In case of any such consolidation, merger, sale, lease
or conveyance pursuant to Section 8.1(a), such changes in
phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(d) In the event of any such sale or conveyance (other than
a conveyance by way of lease) pursuant to Section 8.1(a), the
Issuer (or any successor Person which shall theretofore have become
such in the manner described in this Article VIII) or such
Guarantor shall be discharged from all obligations and covenants
under this Indenture and the Securities and may be liquidated and
dissolved.
SECTION 8.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee,
subject to Sections 5.1 and 5.2, may receive an Opinion of Counsel
as conclusive evidence that any consolidation, merger, sale, lease
or conveyance, any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this
Article VIII.
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ARTICLE IX
DISCHARGE OF INDENTURE
SECTION 9.1 DEFEASANCE WITHIN ONE YEAR OF PAYMENT.
(a) Except as otherwise provided in Section 9.1(b), the Issuers
obligations under this Indenture and Securities shall terminate if:
(i) the Issuer shall have delivered to the Trustee for
cancellation all Securities previously authenticated and
delivered (other than destroyed, lost or stolen Securities that
have been replaced or paid pursuant to Section 2.10 or
Securities for whose payment money or securities have
theretofore been deposited or aggregated in trust and thereafter
repaid to the Issuer as provided in Section 9.6) and the Issuer
has paid all sums payable by it hereunder; or
(ii) (A) all outstanding Securities mature within one year
or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice
of redemption, (B) the Issuer irrevocably deposits in trust with
the Trustee, as trust funds solely for the benefit of the
Holders of the Securities for payment of the principal of,
premium, if any, and accrued interest on the Securities money or
U.S. Government Obligations or a combination thereof sufficient
(unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee), without consideration of any reinvestment, to pay the
principal of, premium, if any, and accrued interest on all
outstanding Securities to such maturity or redemption, as the
case may be, and to pay all other sums payable by it hereunder,
(C) such deposit will not result in a breach or violation of or
constitute a default under this Indenture or a default under any
other agreement or instrument to which the Issuer is a party or
by which it or any material assets or property of the Issuer or
any of its Subsidiaries is bound and (D) the Issuer delivers to
the Trustee an Officers' Certificate and an Opinion of Counsel,
in each case stating that all conditions precedent provided for
herein relating to the satisfaction and discharge of this
Indenture with respect to the Securities have been complied
with.
(b) With respect to the foregoing clause (a)(i), only the
Issuer's obligations under Sections 5.6 and 9.6 in respect of the
Securities shall survive. With respect to the foregoing clause
(a)(ii), only the Issuer's obligations in Articles II and Article
V and Sections 3.2, 9.4 and 9.5(b) in respect of the Securities
shall survive until the Securities are no longer outstanding and
thereafter, only the Issuer's obligations in Sections 5.6 and
9.5(b) in respect of the Securities shall survive. After
satisfaction of the conditions described in such clause (a)(i) or
such clause (a)(ii) the Trustee, upon request, shall acknowledge in
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writing the discharge of the Issuer's obligations under the
Securities and this Indenture except for those surviving
obligations specified above.
SECTION 9.2 LEGAL DEFEASANCE. (a) Upon satisfaction of
the conditions set forth in this Section 9.2(a), the Issuer will be
deemed to have paid and will be discharged from any and all
obligations in respect of the Securities, the provisions of this
Indenture will no longer be in effect with respect to the
Securities, except as provided below, the Trustee, at the expense
of the Issuer, shall execute proper instruments acknowledging the
same, and the Securities will no longer be outstanding.
(i) The Issuer has irrevocably deposited in trust with
the Trustee as trust funds solely for the benefit of the Holders
of the Securities, for payment of the principal of, premium, if
any, and interest on the Securities, money or U.S. Government
Obligations or a combination thereof sufficient (unless such
funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee)
without consideration of any reinvestment and after payment of
all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay
and discharge the principal of, premium, if any, and accrued
interest on the outstanding Securities to maturity or earlier
redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Issuer is a party
or by which any material assets or property of the Issuer or any
of its Subsidiaries is bound;
(iii) the Issuer shall have delivered to the Trustee an
Opinion of Counsel acceptable to the Trustee confirming that (A)
(x) the Issuer has received from, or there has been published by
the Internal Revenue Service, a ruling or (y) there has been a
change in the applicable provisions of the Internal Revenue Code
of 1986, as amended, since the date of the Indenture, in each
case to the effect that the holders of such Securities will not
recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance, and will be subject to
federal income tax in the same amount, in the same manner and at
the same time as would have been the case if such Legal
Defeasance had not occurred and (B) the Holders of the
Securities have a valid security interest in the trust funds
subject to no prior liens under the Uniform Commercial Code, as
in effect in each applicable jurisdiction (the "UCC"); and
(iv) the Issuer has delivered to the Trustee an Officers'
Certificate stating that (A) such deposit was not made by the
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Issuer with the intent of preferring the holders of the
Securities over any other creditors of the Issuer or with the
intent of defeating, hindering, delaying or defrauding any other
creditors of the Issuer or others, and (B) all conditions
precedent in the Indenture and the Securities relating to the
Legal Defeasance have been complied with.
(b) Upon a Legal Defeasance pursuant to Section 9.2(a)
hereof, the Issuer's obligations in Article II, Article V, and
Sections 3.2, 9.4, 9.5, and 9.6 with respect to the Securities
shall survive until such Securities are no longer outstanding.
Thereafter, only the Issuer's obligations in Sections 5.6 and 9.5
shall survive.
SECTION 9.3 COVENANT DEFEASANCE. (a) The Issuer and the
Guarantors, if any, may omit to comply with any term, provision or
condition set forth in Sections 3.8 through 3.24 and 8.1(ii),
(iii), (iv) and (vi) (and any other specific covenant or condition
relating to such series provided for in a Board Resolution or which
may by its terms be defeased pursuant to this Section 9.3), and
such omission shall be deemed not to be an Event of Default under
clauses (c) or (d) of Section 4.1, (a "Covenant Defeasance") if:
(i) the Issuer shall have irrevocably deposited in trust
with the Trustee as trust funds solely for the benefit of the
Holders of the Securities for payment of the principal of,
premium, if any, and interest on the Securities, money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (unless such funds consist solely of money, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof
payable by the Trustee, to pay the principal of, premium, if
any, and interest on the outstanding Securities to maturity or
any earlier redemption irrevocably provided for under
arrangements satisfactory to the Trustee, as the case may be;
(ii) such deposit shall not have resulted in a breach or
violation of or constitute a default under this Indenture or any
other agreement or instrument to which the Issuer is a party or
by which it or any material assets or property of the Issuer or
any of its subsidiaries is bound;
(iii) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that (A) the Holders of the
Securities have a valid security interest in the trust funds
subject to no prior liens under the UCC and (B) such Holders
will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and Covenant Defeasance and
will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred; and
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(iv) the Issuer shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent in
the Indenture and the Securities relating to Covenant Defeasance
have been complied with.
SECTION 9.4 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF SECURITIES. Subject to Section 9.6 and to Article XII,
all moneys deposited with the Trustee pursuant to Sections 9.1, 9.2
and 9.3 shall be held in trust and applied by it to the payment,
either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent), to the holders of the particular
Securities for the payment or redemption of which such moneys shall
have been deposited with the Trustee, of all sums due and to become
due thereon for principal, premium, if any, and interest; but such
money need not be segregated from other funds except to the extent
required by law.
SECTION 9.5 REPAYMENT OF MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this
Indenture, a Legal Defeasance or a Covenant Defeasance, all moneys
then held by any Paying Agent pursuant hereto shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon
such Paying Agent shall be released from all further liability with
respect to such moneys.
SECTION 9.6 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING
AGENT UNCLAIMED FOR THREE YEARS. Any moneys deposited with or paid
to the Trustee or any Paying Agent for the payment of the
principal, premium, if any, or interest on any Security and not
applied but remaining unclaimed for three years after the date upon
which such principal premium or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee or such Paying Agent, and the holder of such Security
shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such
holder may be entitled to collect, and all liability of the Trustee
or any Paying Agent with respect to such moneys shall thereupon
cease.
ARTICLE X
REDEMPTION OR PURCHASE OF SECURITIES
SECTION 10.1 OPTIONAL REDEMPTION. (a) On or after
June 1, 2001, the Issuer, at its option, may redeem the Securities
pursuant to this Section 10.1 in whole or in part, at the
redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon, if any,
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to the applicable redemption date, if redeemed during the twelve
month period beginning on June 1, of the years indicated below:
YEAR PERCENTAGE
2001.............. 105.313%
2002.............. 102.656%
2003.............. 101.328%
2004 and thereafter 100.000%
(b) Notwithstanding any other provision hereof, if any
Gaming Authority requires that a Holder or beneficial owner of
Securities must be licensed, qualified or found suitable under any
applicable gaming law in order to maintain any gaming license or
franchise of the Issuer or any Restricted Subsidiary and such
Holder or beneficial owner fails to apply for a license,
qualification or a finding of suitability within 30 days after
being requested to do so by the Gaming Authority (or such lesser
period that may be required by such Gaming Authority), or if such
Holder or such beneficial owner is not so licensed, qualified or
found suitable, the Issuer shall have the right, at its option (i)
to require such Holder or beneficial owner to dispose of such
Holder's or beneficial owner's Securities within 30 days of receipt
of such notice of such finding by the applicable Gaming Authority
or such earlier date as may be ordered by such Gaming Authority or
(ii) to call for the redemption of the Securities of such Holder or
beneficial owner at the lesser of the principal amount thereof or
the price at which such Holder or beneficial owner acquired the
Securities, together with, in either case, accrued interest to the
earlier of the date of redemption or such earlier date as may be
required by such Gaming Authority or the date of the finding of
unsuitability by such Gaming Authority, which may be less than 30
days following the notice of redemption, if so ordered by such
Gaming Authority. The Issuer shall notify the Trustee in writing
of any such redemption as soon as practicable. The Holder of
Securities or beneficial owner applying for a license,
qualification or a finding of suitability shall pay all costs of
the licensure or investigation for such qualification or finding of
suitability. The Issuer shall not be required to pay or reimburse
any Holder of the Securities or beneficial owner who is required to
apply for such license, qualification or finding of suitability for
the costs of the licensure or investigation for such qualification
or finding of suitability. Such expense shall be the obligation of
such Holder or beneficial owner.
(c) Any redemption pursuant to this Section 10.1 shall be
made pursuant to the provisions of Sections 10.2 through 10.8 and
10.10.
SECTION 10.2 SELECTION OF SECURITIES TO BE PURCHASED OR
REDEEMED. (a) If less than all the Securities are to be purchased
pursuant to Section 3.23 or redeemed, the Trustee shall select, in
compliance with the requirements of the principal national
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securities exchange, if any, on which the Securities are listed,
or, if the Securities are not so listed, on a pro rata basis, by
lot or such other method as the Trustee deems fair and appropriate,
Securities to be redeemed in whole or in part. Securities may be
redeemed in part in multiples of $1,000 only. The Trustee shall
promptly notify the Issuer in writing of the Securities selected
for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.
(b) In the event the Issuer is required to purchase
Securities pursuant to Section 3.23 and the amount of Excess
Proceeds to be applied to such purchase would result in the
purchase of a principal amount of Securities which is not evenly
divisible by $1,000, the Trustee shall promptly refund to the
Issuer the portion of such Excess Proceeds that is not necessary to
purchase the immediately lesser principal amount of Securities that
is so divisible. Securities shall be deemed to have been accepted
for purchase at the time the Trustee, directly or through an agent,
mails or delivers payment therefor to the surrendering Holder.
SECTION 10.3 NOTICE OF REDEMPTION. (a) At least 30 days
but not more than 60 days before a redemption date, the Issuer
shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Securities are to be redeemed at
its registered address (with a copy to the Trustee).
The notice shall identify the Securities (including the
CUSIP numbers thereof) to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) the principal amount of the Securities to be redeemed;
(iv) if any Security is being redeemed in part, the portion
of the principal amount of such Security to be redeemed and
that, after the redemption date upon surrender of such Security,
a new Security or Securities in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the
original Security;
(v) the name and address of the Paying Agent;
(vi) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
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(vii) that, unless the Issuer defaults in making such
redemption payment, interest on Securities called for redemption
ceases to accrue on and after the redemption date;
(viii) the paragraph of the Securities and/or Section of this
Indenture pursuant to which the Securities called for redemption
are being redeemed; and
(ix) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice
or printed on the Securities.
(b) At the Issuer's request, the Trustee shall give the
notice of redemption in the Issuer's name and at its expense;
PROVIDED, HOWEVER, that the Issuer shall have delivered to the
Trustee, at least 45 days prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
SECTION 10.4 EFFECT OF NOTICE OF REDEMPTION. Once notice
of redemption is mailed in accordance with Section 10.3, Securities
called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption
may not be conditional.
SECTION 10.5 DEPOSIT OF REDEMPTION OR PURCHASE PRICE. (a)
At least one Business Day prior to any redemption date or Purchase
Date with respect to an offer to purchase the Securities required
hereunder, the Issuer shall deposit with the Trustee or with the
Paying Agent money sufficient to pay the redemption or purchase
price of, and accrued interest, on all Securities to be redeemed or
purchased on that date. The Trustee or the Paying Agent shall
promptly return to the Issuer any money deposited with the Trustee
of the Paying Agent by the Issuer in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued
interest on, all Securities to be redeemed or purchased.
(b) If the Issuer complies with Section 10.5(a), on and
after the redemption date or Purchase Date, as the case may be,
unless the Issuer shall default in the payment of such Securities
at the redemption price, together with interest accrued to said
date, interest on the Securities or portions of Securities to be
redeemed or purchased shall cease to accrue and, except as provided
in Sections 5.5 and 9.4, such Securities shall cease from and after
the date fixed for redemption to be entitled to any benefit under
this Indenture, and the holders thereof shall have no right in
respect of such Securities except the right to receive the
redemption price thereof and unpaid interest to the date fixed for
redemption. If a Security is redeemed or purchased 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 Security was registered at the close
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of business on such Record Date. If a redemption or Purchase Date
is a Legal Holiday, payment shall be made on the next succeeding
Business Day and no interest shall accrue for the period from such
redemption date or Purchase Date to such succeeding Business Day.
If any Security shall not be paid upon surrender for redemption or
tender for purchase because of the failure of the Issuer to comply
with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date or Purchase Date, as
applicable, until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each case at
the rate provided in the Securities and in Section 3.1.
SECTION 10.6 PAYMENT OF SECURITIES CALLED FOR REDEMPTION.
(a) If a notice of a redemption has been given as provided in
Section 10.3, the Securities or portions of Securities specified in
such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption.
On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest accrued thereon
to the date fixed for redemption; provided that any semi-annual
payment of interest become due on the date fixed for redemption
shall be payable to the holders of such Securities registered as
such on the relevant record date subject to their terms and
provisions of Section 2.4.
(b) If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall,
until paid or duly provided for, bear interest from the date fixed
for redemption at the rate borne by the Security.
SECTION 10.7 EXCLUSION OF CERTAIN SECURITIES FROM
ELIGIBILITY FOR SELECTION FOR REDEMPTION. Securities shall be
excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written
statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on
which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a)
the Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer.
SECTION 10.8 SECURITIES REDEEMED OR PURCHASED IN PART.
Upon surrender of a Security that is redeemed or purchased in part,
the Issuer shall issue and, upon the Issuer's written request, the
Trustee shall authenticate for the Holder at the expense of the
Issuer a new Security (accompanied by a notation of the Subsidiary
Guarantee duly endorsed by the Guarantors, if applicable) equal in
principal amount to the unredeemed or unpurchased portion of the
Security surrendered.
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SECTION 10.9 Offers to Purchase. (a) In the event that,
pursuant to Sections 3.23 or 3.24, the Issuer shall be required to
commence an offer to Holders to purchase some or all of the
Securities (each, a "Purchase Offer"), the Issuer shall follow the
procedures specified herein.
(b) The Purchase Offer shall commence on the date (the
"Commencement Date") specified in Section 3.23 or Section 3.24, as
the case may be, remain open for a period specified by the Issuer,
which shall be in accordance with Sections 3.23 or 3.24, as the
case may be, except to the extent that a longer period is required
by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the
"Purchase Date"), the Issuer shall purchase the principal amount of
Securities required to be purchased pursuant to Sections 3.23 or
3.24, (the "Offer Amount") or, if less than the Offer Amount has
been tendered, all Securities and Indebtedness tendered in response
to such Purchase Offer. Payment for any Securities and
Indebtedness so purchased shall be made in the same manner as
interest payments are made.
(c) Upon the commencement of a Purchase Offer, the Issuer
shall send or cause to be sent, by first class mail, a notice to
each of the Holders, with a copy to the Trustee. Such notice,
which shall govern the terms of the Purchase Offer, shall state:
(i) that the Purchase Offer is being made pursuant to
Section 3.23 or Section 3.24, as the case may be, the Offer
Period and the expiration date of the Offer Period;
(ii) the Offer Amount and the Purchase Date (which shall not
be less than 30 days or more than 60 days after the date such
notice is mailed;
(iii) that such Holder may elect to have his Securities
purchased by the Issuer either in whole or in part (subject, in
the case of a Purchase Offer pursuant to Section 3.23, to the
prorationing described in Section 3.23(d)) in multiples of
$1,000 principal amount at a purchase price equal to (A) in the
case of a Purchase Offer pursuant to Section 3.23, 100% or (B)
in the case of a Purchase Offer pursuant to Section 3.24, 101%
of the principal amount thereof plus accrued and unpaid
interest, if any, to the Purchase Date.
(iv) that any Security not tendered and accepted for payment
shall continue to accrue interest;
(v) that, unless the Issuer defaults in making such
payment, any Security accepted for payment pursuant to the
Purchase Offer shall cease to accrue interest after the Purchase
Date;
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(vi) that Holders electing to have a Security purchased
pursuant to a Purchase Offer shall be required to surrender the
Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the
Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day preceding Purchase
Date;
(vii) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close
of the Offer Period, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal
amount of the Security the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have
such Security purchased; and
(viii) all instructions and materials necessary to enable
each Holder to tender Securities pursuant to such Purchase
Offer, and information concerning the business of the Issuer
which the Issuer in good faith believes will enable such Holders
to make an informed decision which at a minimum shall include
(A) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the
Issuer, the most recent subsequently filed Quarterly Report on
Form 10-Q and any current Report on Form 8-K of the Issuer filed
subsequent to such Quarterly Report, other than Current Reports
describing other asset dispositions otherwise described in the
offering materials, (B) corresponding successor reports or
reports otherwise required pursuant to Section 3.7 if the Issuer
is no longer filing reports pursuant to the Exchange Act, (C) a
description of material developments in the Issuer's business
subsequent to the date of the most recent of such reports (D)
the material facts regarding such Change of Control or Asset
Sale, as the case may be, including but not limited to,
information with respect to PRO FORMA and historical financial
information after giving effect to such Asset Sale or Change of
Control, and in the case of a Change of Control, information
regarding the Person or Persons acquiring control.
(d) In the case of a Purchase Offer pursuant to Section
3.23, the notice required by subsection (d) of this Section 10.9
shall also state that, if the aggregate principal amount of
Securities and Other Asset Sale Offer Indebtedness surrendered in
connection with such Purchase Offer exceeds the Offer Amount, the
Securities to be purchased by the Issuer pursuant to such Purchase
Offer shall be selected in accordance with the provisions of
Section 10.2, and the Holders whose Securities were purchased only
in part shall be issued new Securities (accompanied by a notation
of the Subsidiary Guarantee duly endorsed by the Guarantors, if
applicable) equal in aggregate principal amount to the unpurchased
portion of the Securities surrendered.
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(e) In the case of a Purchase Offer pursuant to Section
3.24, the notice required in subsection (d) of this Section 10.9,
shall also state that all Securities tendered in connection with
such Purchase Offer will be accepted for payment.
(f) On or before the Purchase Date, the Issuer shall, to
the extent lawful, accept for payment, pursuant to the terms of
Section 10.6, the Offer Amount of Securities or Indebtedness or
portions thereof tendered pursuant to the Purchase Offer, or if
less than the Offer Amount has been tendered, all Securities and
Indebtedness tendered, and shall deliver to the Trustee an
Officers' Certificate stating that such Securities or portions
thereof were accepted for payment by the Issuer in accordance with
the terms of this Section 10.9. The Issuer, the Depositary or the
Paying Agent, as the case may be, shall promptly (but in any case
not later than five days after the Purchase Date) mail or deliver
to each tendering Holder an amount equal to the purchase price of
the Securities tendered by such Holder and accepted by the Issuer
for purchase, and the Issuer shall promptly issue a new Security,
and the Trustee, upon written request from the Issuer, shall
authenticate and mail or deliver such new Security (accompanied by
a notation of the Subsidiary Guarantee duly endorsed by the
Guarantors, if applicable) to such Holder, in a principal amount
equal to any unpaid unpurchased portion of the Security
surrendered. Any Security not so accepted shall be promptly mailed
or delivered by the Issuer to the Holder thereof. The Issuer shall
publicly announce the results of such Purchase Offer on the
Purchase Date.
Other than as specifically provided in this Section 10.9,
any purchase pursuant to this Section 10.9 shall be made pursuant
to the provisions of Sections 10.2, 10.5 and 10.8.
SECTION 10.10 NOTICE AND OFFICERS' CERTIFICATE TO TRUSTEE.
(a) If the Issuer elects to redeem Securities pursuant to Section
10.1, it shall furnish to the Trustee, at least 30 days but not
more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the Section of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Securities to be redeemed and
(iv) the redemption price.
(b) If the Issuer is required to make an offer to purchase
Securities pursuant to Section 3.23 or 3.24, in addition to the
notice requirements of Section 10.9(g), the Issuer shall furnish to
the Trustee, at least 30 days before the scheduled Purchase Date,
an Officers' Certificate setting forth (i) the Section of this
Indenture pursuant to which the offer to purchase shall occur, (ii)
the offer terms, (iii) the purchase price, (iv) the principal
amount of the Securities that may be purchased, (v) a statement to
the effect that (A) the Issuer or one of its Subsidiaries has made
an Asset Sale and there are Excess Proceeds aggregating more than
$25.0 million and the amount of such Excess Proceeds or (B) a
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Change of Control has occurred and (x) in the case of a Purchase
Offer pursuant to Section 3.23, the allocation of the Net Proceeds
as a result of which such Purchase Offer is required to be made and
(y) compliance of such allocation with the provisions of
subsections (a) and (b) of Section 3.23.
ARTICLE XI
SUBSIDIARY GUARANTEES
SECTION 11.1 SUBSIDIARY GUARANTEE. (a) Each Restricted
Subsidiary which has signed this Indenture or which, pursuant to
the provisions of Section 3.16, is required to execute and deliver
an Indenture supplemental hereto guaranteeing the Obligations of
the Issuer under the Securities (each, a "Guarantor") upon
execution of this Indenture or an Indenture supplemental hereto
pursuant to the provisions of Section 7.1, hereby jointly and
severally unconditionally guarantees (each such guarantee being a
"Subsidiary Guarantee") to each Holder authenticated and delivered
by the Trustee irrespective of the validity or enforceability of
this Indenture, the Securities or the Obligations of the Issuer
under this Indenture or the Securities, that: (i) the principal
of, premium, if any and interest on the Securities will be paid in
full when due, whether at the maturity or interest payment or
mandatory redemption date, by acceleration, call for redemption or
otherwise, and interest on the overdue principal of and interest,
if any, is lawful on the Securities and all other Obligations of
the Issuer to the Holders or the Trustee under this Indenture or
the Securities will be promptly paid in full or performed, all in
accordance with the terms of this Indenture and the Securities; and
(ii) in case of any extension of time of payment or renewal of any
Securities or any of such other Obligations, they will be paid in
full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration or
otherwise; PROVIDED, HOWEVER, the Obligations of each Guarantor
under its Subsidiary Guarantee will be limited to the maximum
amount which may be paid thereunder without resulting in any
payment thereunder being deemed to constitute a fraudulent
conveyance. Failing payment when due (including any applicable
grace periods) of any amount so guaranteed for whatever reason,
each Guarantor will be obligated to pay the same pursuant to the
preceding sentence whether or not such failure to pay has become an
Event of Default which could cause acceleration pursuant to Section
4.1. Each Guarantor agrees that this is a guarantee of payment and
not a guarantee of collection.
(b) Each Guarantor's Obligations with regard to this
Subsidiary Guarantee shall be (i) joint and several, unconditional,
irrespective of the validity or enforceability of the Securities or
the Obligations of the Issuer under this Indenture, the absence of
any action to enforce the same, the recovery of any judgment
against the Issuer or any other obligor with respect to this
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Indenture, the Securities or the Obligations of the Issuer under
this Indenture or the Securities, any action to enforce the same or
any other circumstances (other than complete performance) which
might otherwise constitute a legal or equitable discharge or
defense of a Guarantor and (ii) subordinated to the prior payment
in full of all Obligations with respect to the Senior Debt of such
Guarantor (whether outstanding on the date of this Indenture or
thereafter incurred) in accordance with the provisions of
Article XII.
(c) Each Guarantor, to the extent permitted by law, hereby
waives and relinquishes all claims, rights and remedies accorded by
applicable law to guarantors and to agree not to assert or take
advantage of any such claims, rights or remedies, including but not
limited to: (i) any right to require the Trustee, the Holders or
the Issuer (each, a "Benefitted Party") to proceed against the
Issuer or any other Person or to proceed against or exhaust any
security held by a Benefitted Party at any time or to pursue any
other remedy in any Benefitted Party's power before proceeding
against such Guarantor; (ii) any defense that may arise by reason
of the incapacity, lack of authority, death or disability of any
other Person or the failure of a Benefitted Party to file or
enforce a claim against the estate (in administration, bankruptcy
or any other proceeding) of any other Person; (iii) demand, protest
and notice of any kind including but not limited to notice of the
existence, creation or incurring of any new or additional
Indebtedness or Obligation or of any action or non-action on the
part of such Guarantor, the Issuer, any Benefitted Party, any
creditor of such Guarantor, the Issuer or on the part of any other
Person whomsoever in connection with any Indebtedness or
Obligations hereby guaranteed; (iv) any defense based upon an
election of remedies by a Benefitted Party, including but not
limited to an election to proceed against such Guarantor for
reimbursement; (v) any defense based upon any statute or rule or
law which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of
the principal; (vi) any defense arising because of a Benefitted
Party's election, in any proceeding instituted under the U.S.C.
Section 101 et seq. of the application of Section 1111(b)(2) of the
11. U.S.C. 101 et seq.; or (vii) any defense based on any
borrowing or grant of a security interest under U.S.C. 364.
Except as provided in paragraph (f) of this Section 11.1, a
Subsidiary Guarantee will not be discharged except by discharge of
this Indenture pursuant to Article IX hereof or by complete
performance of the Obligations contained in its Subsidiary
Guarantee and this Indenture.
(d) If any Holder or the Trustee is required by any court
or otherwise to return to either the Issuer or any Guarantor, or
any custodian acting in relation to either the Issuer or such
Guarantor, any amount paid by the Issuer or such Guarantor to the
Trustee or such Holder, the applicable Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force
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and effect. No Guarantor shall be entitled to any right of
subrogation in relation to the Holders in respect of any obli-
gations guaranteed until payment in full of all Obligations
guaranteed pursuant to such Subsidiary Guarantee.
(e) As between each Guarantor, on the one hand, and the
Holders and the Trustee, on the other, (i) the maturity of the
Obligations guaranteed pursuant to a Subsidiary Guarantee may be
accelerated pursuant to Section 4.1, notwithstanding any stay,
injunction or other prohibition preventing such acceleration as to
the Issuer or any other obligor on the Securities of the
obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of those Obligations as provided in
Section 4.1, those Obligations (whether or not due and payable)
will forthwith become due and payable by such Guarantor for the
purpose of the Subsidiary Guarantee.
(f) The Trustee shall release any Subsidiary Guarantee, and
such Subsidiary Guarantee shall cease to be valid and to have any
force and effect if, (i) the Issuer and all other Restricted
Subsidiaries cease to own any Equity Interests in such Restricted
Subsidiary in a transaction not prohibited by the provisions of
this Indenture or (ii) such Restricted Subsidiary is designated as
an Unrestricted Subsidiary in accordance with Section 3.21. In
such event, each of the Issuer, the Trustee and the remaining
Guarantors shall, in accordance with the provisions of Section 7.1
hereof, execute an Indenture Supplemental hereto that reflects the
release of such Subsidiary Guarantee.
ARTICLE XII
SUBORDINATION OF SECURITIES
SECTION 12.1 AGREEMENT TO SUBORDINATE. The Issuer, each
Guarantor and the Trustee agree, and each Holder by his acceptance
thereof likewise acknowledges and agrees, that all Securities and
Subsidiary Guarantees shall be issued subject to this Article XII;
and each Person holding any Security and Subsidiary Guarantee,
whether upon original issue or upon transfer, assignment or
exchange thereof accepts and agrees that the payment of principal
of, premium, if any, and interest on the Securities will be
subordinated to the prior payment in full of all Obligations with
respect to Senior Debt of the Issuer and any Guarantor (whether
outstanding on the date of this Indenture or thereafter incurred).
SECTION 12.2 PAYMENT TO SECURITYHOLDERS. (a) Neither the
Issuer nor any Guarantor may make any payment upon or in respect of
the Securities (except in securities that are subordinated at least
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to the same extent as the Securities to such Senior Debt and any
securities issued in exchange for such Senior Debt) if:
(i) a default in the payment of the principal of or
interest on Designated Senior Debt occurs and is continuing
beyond any applicable grace period; or
(ii) any other default occurs and is continuing with
respect to Designated Senior Debt that permits holders of the
Designated Senior Debt as to which such default relates to
accelerate its maturity and the Trustee receives a notice of
such default under this Section 12.2 (a "Payment Blockage
Notice") from the Issuer or the holders of any Designated Senior
Debt.
(b) The Issuer or any Guarantor shall resume payments on
and distributions in respect of the Securities, and all Obligations
with respect thereto, and may acquire them:
(i) in the case of a payment default, when such payment
default is cured or waived, and
(ii) in case of a nonpayment default, the earlier of the
date on which such nonpayment default is cured or waived or 179
days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of any Designated Senior
Debt has been accelerated.
(c) No new period of payment blockage may be commenced
within 360 days after the receipt by the Trustee of any prior
Payment Blockage Notice. No nonpayment default that existed or was
continuing on the date of delivery of any Payment Blockage Notice
to the Trustee will be, or be made, the basis for a subsequent
Payment Blockage Notice (unless such nonpayment default shall have
been cured or waived for a period of not less than 181 days).
(d) If payment of the Securities is accelerated because of
a Default, the Issuer shall promptly notify each Representative of
holders of Designated Senior Debt.
(e) Upon (i) any acceleration of the principal amount due
on the Securities or (ii) any payment or distribution of assets of
the Issuer of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding up or
total or partial liquidation or arrangement or reorganization of
the Issuer, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or
to become due upon all Senior Debt shall first be paid in full, or
payment thereof provided for in accordance with its terms, before
any payment is made on account of the principal of or premium, if
any, or interest on the indebtedness evidenced by the Securities,
and upon any such dissolution or winding up or liquidation,
arrangement or reorganization any payment or distribution of assets
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of the Issuer of any kind or character, whether in cash, property
or securities, to which the Holders or the Trustee under this
Indenture would be entitled, except for the provisions hereof,
shall be paid by the Issuer or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them or it, directly to the holders
of Senior Debt (pro rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their
respective representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such
Senior Debt may have been issued, as their respective interests may
appear to the extent necessary to pay all Senior Debt in full,
after giving effect to any concurrent payment or distribution to or
for the holders of Senior Debt, before any payment or distribution
is made to the holders of the indebtedness evidenced by the
Securities or to the Trustee under this Indenture.
(f) In the event that, notwithstanding the provisions of
subsection (a) or (e) of this Section 12.2, any payment or
distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee under this Indenture or
the Holders before all Senior Debt is paid in full or provision is
made for such payment in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Debt or their
respective Representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such
Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all Senior Debt remaining
unpaid until all such Senior Debt shall have been paid in full in
accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Debt.
(g) For purposes of this Article XII, the words, "cash,
property or securities" shall not be deemed to include shares of
stock of the Issuer as reorganized or readjusted, or securities of
the Issuer or any other corporation provided for by a plan of
arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article
XII with respect to the Securities) to the payment of all Senior
Debt which may at the time be outstanding; provided, that (i) the
Senior Debt is assumed by the new corporation, if any, resulting
from any such arrangement, reorganization or readjustment, and (ii)
the rights of the holders of the Senior Debt are not, without the
consent of such holders, altered by such arrangement,
reorganization or readjustment. The consolidation of the Issuer
with, or the merger of the Issuer into, another corporation or the
liquidation or dissolution of the Issuer following the conveyance
or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions
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provided in Article VIII shall not be deemed a dissolution, winding
up, liquidation or reorganization for the purposes of this Section
12.2 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article VIII. Nothing in this Section shall
apply to claims of, or payments to, the Trustee under or pursuant
to Article VII, except as provided therein. This Section shall be
subject to the further provisions of Section 12.5.
SECTION 12.3 SUBROGATION OF SECURITIES. (a) Subject to
the payment in full of all Senior Debt, Holders shall be subrogated
to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Issuer or any
Guarantor applicable to the Senior Debt until the principal of and
interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the
holders of such Senior Debt of any cash, property or securities to
which the Holders or any Guarantor or the Trustee on their behalf
would be entitled except for the provisions of this Article XII,
and no payment over pursuant to the provisions of this Article XII
to the holders of such Senior Debt by Holders or the Trustee on
their behalf shall, as between the Issuer or any Guarantor, as the
case may be, its creditors other than holders of Senior Debt and
the Holders, be deemed to be a payment by the Issuer or such
Guarantor to or on account of such Senior Debt; and no payments or
distributions of cash, property or securities to or for the benefit
of the Securityholders pursuant to the subrogation provision of
this Article XII, which would otherwise have been paid to the
holders of Senior Debt shall be deemed to be a payment by the
Issuer or any Guarantor to or for the account of the Securities.
It is understood that the provisions of this Article XII are and
are intended solely for the purpose of defining the relative rights
of the Holders, on the one hand, and the holders of the Senior
Debt, on the other hand.
(b) Nothing contained in this Article XII or elsewhere in
this Indenture or in the Securities is intended to or shall impair,
as between the Issuer or a Guarantor, on the one hand, and their
creditors (other than the holders of Senior Debt), and the Holders,
the obligation of the Issuer or such Guarantors, which is absolute
and unconditional, on the other, to pay to the Holders the
principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and
creditors of the Issuer or such Guarantors, as the case may be,
other than the holders of the Senior Debt, nor shall anything
herein or therein prevent a Holder or the Trustee on his behalf
from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article XII of the holders of Senior Debt in respect of
cash, property or securities of the Issuer or any Guarantor
received upon the exercise of any such remedy.
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(c) Upon any payment or distribution of assets of the
Issuer or any Guarantor referred to in this Article XII, the
Trustee, subject to Sections 5.1 and 5.2, and the Holders shall be
entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such bankruptcy, dissolution,
winding up, liquidation, arrangement or reorganization proceedings
are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Debt
and other indebtedness of the Issuer or any Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article XII.
SECTION 12.4 AUTHORIZATION BY SECURITYHOLDERS. Each
Holder by his acceptance thereof authorizes the Trustee in his
behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article XII and
appoints the Trustee his attorney in fact for any and all such
purposes.
SECTION 12.5 NOTICE TO TRUSTEE. (a) The Issuer and each
Guarantor, as the case may be, shall give prompt written notice to
the Trustee and to any Paying Agent of any fact known to the Issuer
or such Guarantor which would prohibit the making of any payment of
moneys to or by the Trustee or any Paying Agent in respect of the
Securities pursuant to the provisions of this Article XII.
Regardless of anything to the contrary contained in this Article
XII or elsewhere in this Indenture, the Trustee shall not be
charged with knowledge of the existence of any Senior Debt or of
any default or event of default with respect to any Senior Debt or
of any other facts which would prohibit the making of any payment
of moneys to or by the Trustee, unless and until the Trustee shall
have received notice in writing at its principal Corporate Trust
Office to that effect signed by an officer of the Issuer or
Guarantor, as the case may be, or by a holder or agent of a holder
of Senior Debt who shall have been certified by the Issuer or such
Guarantor, or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or agent, or by the trustee under
any indenture pursuant to which such Senior Debt shall be
outstanding, and, prior to the receipt of any such written notice,
the Trustee shall, subject to Sections 5.1 and 5.2, be entitled to
assume that no such facts exist; provided that if on a date at
least three business days prior to the date upon which by the terms
hereof any such moneys shall become payable for any purpose
(including, without limitation, the payment of the principal of, or
interest on any Security) the Trustee shall not have received with
respect to such moneys the notice provided for in this Section,
then, regardless of anything herein to the contrary, the Trustee
shall have full power and authority to receive such moneys and to
apply the same to the purpose for which they were received, and
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shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
(b) Notwithstanding anything to the contrary herein,
nothing shall prevent (a) any payment by the Issuer or any
Guarantor or the Trustee to the Securityholders of amounts in
connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article X prior to the
receipt by the Trustee of written notice as aforesaid, and (ii)
such notice of redemption is given not earlier than 60 days before
the redemption date, or (b) any payment by the Trustee to the
Securityholders of amounts deposited with it pursuant to Section
9.1.
(c) 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 Debt (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior
Debt or a trustee on behalf of any such holder. 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 Debt to participate in any payment or distribution pursuant
to this Article XII, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under
this Article XII, and, if such evidence is not furnished the
Trustee, may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 12.6 TRUSTEE'S RELATION TO SENIOR DEBT HOLDERS.
(a) The Trustee, any agent of the Issuer, a Guarantor or the
Trustee shall be entitled to all the rights set forth in this
Article XII with respect to any Senior Debt which may at any time
be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Debt and nothing in this
Indenture shall deprive the Trustee or any such agent, of any of
its rights as such holder. Nothing in this Article XII shall apply
to claims of, or payments to, the Trustee under or pursuant to
Section 5.6.
(b) With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XII, and
no implied covenants or obligations with respect to the holders of
Senior Debt of the Issuer or any Guarantor 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 Debt and the
Trustee shall not be liable to any holder of Senior Debt if it
shall pay over or deliver to Holders, the Issuer, any Guarantor any
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other Person moneys or assets to which any holder of Senior Debt
shall be entitled by virtue of this Article XII or otherwise.
SECTION 12.7 NO IMPAIRMENT OF SUBORDINATION. No right of
any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of
the Issuer or any Guarantor or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the
Issuer or such Guarantor with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse
under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such
or against any past, present or future stockholder, officer or
director, as such, of the Issuer or of any successor, either
directly or through the Issuer or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the holders thereof and as
part of the consideration for the issue of the Securities.
SECTION 13.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT
OF PARTIES AND SECURITYHOLDERS. Nothing in this Indenture or in
the Securities, expressed or implied, shall give or be construed to
give to any Person other than the parties hereto and their
successors and the holders of Senior Debt and the holders of the
Securities, any legal or equitable right, remedy or claim under
this Indenture or under any covenant or provision herein contained,
all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and the holders of Senior Debt
and of the holders of the Securities.
SECTION 13.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY
INDENTURE. All the covenants, stipulations, promises and
agreements in this Indenture contained by or in behalf of the
Issuer shall bind its successors and assigns, whether so expressed
or not.
SECTION 13.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND
SECURITYHOLDERS. (a) Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by
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the Trustee or by the Holders of Securities to or on the Issuer may
be given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with
the Trustee) to Harveys Casinos Resorts, Highway 50 & Stateline
Avenue, Lake Tahoe, NV 89449. Any notice, direction, request or
demand by the Issuer or any Securityholder to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office.
(b) Where this Indenture provides for notice to Holders,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each holder entitled thereto, at his last address as it
appears in the Security register. In any case where notice to
holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular holder
shall affect the sufficiency of such notice with respect to other
holders. Any notice which is provided in the manner set forth in
this Indenture shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Where this
Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
(c) In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable
to mail notice to the Issuer and Securityholders when such notice
is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice.
SECTION 13.5 OFFICERS' CERTIFICATES AND OPINIONS OF
COUNSEL; STATEMENTS TO BE CONTAINED THEREIN. (a) Upon any
application or demand by the Issuer to the Trustee to take any
action under any of the provisions of this Indenture, the Issuer
shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing
of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion PROVIDED for in this
Indenture and delivered to the Trustee with respect to compliance
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with a condition or covenant provided for in this Indenture shall
include (a) a statement that the person making such certificate or
opinion has read such covenant or condition, (b) 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, (c) 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 (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
(c) Any certificate, statement or opinion of an officer of
the Issuer may be based, insofar as it relates to legal matters,
upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters
information with respect to which is in the possession of the
Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
(d) Any certificate, statement or opinion of an officer of
the Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are
erroneous.
(e) Any certificate or opinion of any independent firm of
public accountants filed with the Trustee shall contain a statement
that such firm is independent.
SECTION 13.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND
HOLIDAYS. If the date of maturity of interest on or principal of
the Securities or the date fixed for redemption of any Security
shall not be a Business Day, then payment of interest or principal
need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
-85-
<PAGE>
SECTION 13.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH
TRUST INDENTURE ACT OF 1939. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture by operation of
Sections 310 to 317, inclusive, of the TIA (an "incorporated
provision"), such incorporated provision shall control.
SECTION 13.8 NEW YORK LAW TO GOVERN. This Indenture and
each Security and Guarantee shall be deemed to be a contract under
the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State, except as may
otherwise be required by mandatory provisions of law.
SECTION 13.9 COUNTERPARTS. This Indenture may be executed
in any number of counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the
same instrument.
SECTION 13.10 EFFECT OF HEADINGS. The Article and Section
headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
- 86 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of May 15, 1996.
HARVEYS CASINO RESORTS
By /s/ Charles W. Scharer
-----------------------------------
Name: Charles W. Scharer
Title: President and Chief
Chief Executive
Officer
[CORPORATE SEAL]
Attest:
By /s/ John J. McLaughlin
--------------------------------
IBJ SCHRODER BANK & TRUST
COMPANY, as Trustee
By /s/ Nancy Besse
-----------------------------------
Name: Nancy Besse
Title: Vice President
[CORPORATE SEAL]
Attest:
By /s/ Randi Gelfand
--------------------------------
HARVEYS C.C. MANAGEMENT
COMPANY, INC.
By /s/ Charles W. Scharer
-----------------------------------
Name: Charles W. Scharer
Title: Chief Financial
Officer
Attest:
By /s/ John J. McLaughlin
--------------------------------
- 87 -
<PAGE>
HARVEYS WAGON WHEEL CASINO
LIMITED LIABILITY COMPANY
By /s/ Charles W. Scharer
-----------------------------------
Name: Charles W. Scharer
Title: Chief Financial
Officer
Attest:
By /s/ John J. McLaughlin
--------------------------------
HARVEYS IOWA MANAGEMENT
COMPANY, INC.
By /s/ Charles W. Scharer
-----------------------------------
Name: Charles W. Scharer
Title: Chief Financial
Officer
Attest:
By /s/ John J. McLaughlin
--------------------------------
HARVEYS L.V. MANAGEMENT
COMPANY, INC.
By /s/ Charles W. Scharer
-----------------------------------
Name: Charles W. Scharer
Title: Chief Financial
Officer
Attest:
By /s/ John J. McLaughlin
--------------------------------
- 88 -
<PAGE>
Exhibit A
[FORM OF FACE OF SECURITY]
No. [$___________]
CUSIP No. 417826 AA 2
HARVEYS CASINO RESORTS
10-5/8% SENIOR SUBORDINATED NOTES DUE 2006
Harveys Casino Resorts, a Nevada corporation (the
"Issuer"), for value received hereby promises to pay to ___________
or registered assigns the principal sum of _____________ Dollars at
the Issuer's office or agency for said purpose, within the Borough
of Manhattan, The City and State of New York at such office (or, at
the option of the Issuer in the case of Certificated Notes, as
defined in the Indenture, by check mailed to the holders of the
Securities at their respective addresses set forth in the register
of holders of Securities), on June 1, 2006, in such coin or cur-
rency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts,
and to pay interest at such office (or, at the option of the
Issuer, in the case of Certificated Notes, as defined in the Inden-
ture, by check mailed to the holders of the Securities at their
respective addresses set forth in the register of holders of
Securities), semiannually on June 1 and December 1 of each year
(commencing on December 1, 1996), on said principal sum in like
coin or currency at the rate per annum set forth above at said
office or agency from the June 1 or December 1, as the case may be,
next preceding the date of this Security to which interest on the
Securities has been paid or duly provided for, unless the date
hereof is a date to which interest on the Securities has been paid
or duly provided for, in which case from the date of this Security,
or unless no interest has been paid or duly provided for on the
Securities, in which case from May 22, 1996 until payment of said
principal sum has been made or duly provided for. Notwithstanding
the foregoing, if the date hereof is after May 15 or November 15,
as the case may be, and before the following June 1 or December 1,
this Security shall bear interest from such June 1 or December 1;
provided, that if the Issuer shall default in the payment of
interest due on such June 1 or December 1, then this Security shall
bear interest from the next preceding June 1 or December 1 to which
interest on the Securities has been paid or duly provided for, or,
if no interest has been paid or duly provided for on the Securities
since the Original Issue Date of this Security, from June 1, 1996.
The interest so payable on any June 1 or December 1 will, except as
otherwise provided in the Indenture referred to on the reverse
hereof, be paid to the Person in whose name this Security is
registered at the close of business on the May 15 or November 15
preceding such June 1 or December 1, whether or not such day is a
business day; provided that interest may be paid, at the option of
the Issuer, by mailing a check therefor payable to the registered
A-1
<PAGE>
holder entitled thereto at his last address as it appears on the
Security register.
This Security is guaranteed by each Guarantor as set
forth in the Indenture.
Reference is made to the further provisions set forth
on the reverse hereof, including without limitation provisions
subordinating the payment of principal of, premium, if any, and
interest on the Securities to the payment in full of all Senior
Debt as defined in said Indenture.
Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Security shall not be valid or obligatory until
the certificate of authentication hereon shall have been duly
signed by the Trustee acting under the Indenture.
A-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this
instrument to be duly executed under its corporate seal.
Dated: HARVEYS CASINO RESORTS
[Seal]
By:________________________________
Title:
A-3
<PAGE>
In accordance with the provisions of Section 11.1 of
the Indenture, each of the undersigned hereby jointly and severally
guarantees the obligations of the Issuer under this Security and
the Indenture.
HARVEYS C. C. MANAGEMENT COMPANY,
INC.
__________________________________ By:________________________________
Title:
HARVEYS WAGON WHEEL CASINO
LIMITED LIABILITY COMPANY
__________________________________ By:________________________________
Title:
HARVEYS IOWA MANAGEMENT COMPANY,
INC.
__________________________________ By:________________________________
Title:
HARVEYS L.V. MANAGEMENT COMPANY,
INC.
__________________________________ By:________________________________
Title:
A-4
<PAGE>
[Form of Reverse of Security]
10-5/8% SENIOR SUBORDINATED NOTE
DUE 2006
Capitalized terms used herein have the meanings
assigned to them in the Indenture (as defined below) unless
otherwise indicated.
1. INTEREST. Harveys Casino Resorts, a Nevada
corporation (or any successor thereto as provided in the Indenture,
the "Issuer"), promises to pay interest on the principal amount of
this Security at the rate and in the manner specified below.
The Issuer shall pay interest on the principal amount
of this Security at the rate per annum of 10-5/8%. The Issuer will
pay interest semi-annually on June 1 and December 1 of each year,
or if any such day is not a Business Day (as defined in the
Indenture), on the next succeeding Business Day (each an "Interest
Payment Date").
Interest will be computed on the basis of a 360-day
year consisting of twelve 30-day months. Interest shall accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of the original issuance of
the Securities. To the extent lawful, the Issuer shall pay
interest on overdue principal (including post-petition interest in
any proceeding under any Bankruptcy Law) at the rate of 1% per
annum in excess of the then applicable interest rate on the
Securities; it shall pay interest, (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace
periods) at the same rate to the extent lawful.
2. METHODS OF PAYMENT. The Issuer will pay interest
on the Securities (except defaulted interest) to the Persons who
are registered Holders of Securities at the close of business on
the Record Date next preceding the Interest Payment Date, even if
such Securities are canceled after such Record Date and on or
before such Interest Payment Date. The Holder hereof must
surrender this Security to a Paying Agent to collect principal
payments. The Issuer will pay principal and interest in money of
the United States that at the time of payment is legal tender for
payment of public and private debts. The Issuer, however, may in
the case of Certificated Notes pay principal, premium, if any, and
interest by check payable in such money. It may mail an interest
check to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, the
Trustee will act as Paying Agent and Registrar. The Issuer may
change any Paying Agent, Registrar or co-Registrar without notice
A-5
<PAGE>
to any Holder. The Paying Agent or Registrar may resign at any
time by giving 30 days' prior written notice to the Trustee and the
Issuer. The Issuer or any Guarantor may act in any such capacity.
4. INDENTURE. The Issuer issued the Securities under
an Indenture dated as of May 15, 1996 (as it may be amended from
time to time, the "Indenture") between the Issuer and the Trustee.
The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the TIA (15
U.S. Code (Section)(S) 77aaa-77bbb) as in effect on the date of the
Indenture. The Securities are subject to all such terms, and
Holders are referred to the Indenture and such act for a statement
of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Securities. The
Securities are unsecured general obligations of the Issuer limited
to $150,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION. Except as set forth below,
the Issuer shall not have the option to redeem the Securities
pursuant to Section 10.1 of the Indenture prior to June 1, 2001.
Thereafter, the Issuer shall have the option to redeem the
Securities in whole or in part, at the redemption prices (expressed
as percentages of the principal amount) set forth below, plus
accrued and unpaid interest thereon to the applicable redemption
date, if redeemed during the 12 month period beginning on June 1 of
the years indicated below.
<TABLE>
<CAPTION>
YEAR PERCENTAGE
<S> <C>
2001 105.313%
2002 102.656%
2003 101.328%
2004 and thereafter 100.000%
</TABLE>
6. REPURCHASE AT OPTION OF HOLDER. Under certain
circumstances, as provided in the Indenture, the Issuer may be
required to make an offer to purchase all or a portion of the
Securities. Holders of Securities that are subject to an offer to
purchase will receive an offer to purchase from the Issuer prior to
any related purchase date, and may elect to have such Securities
purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing in Exhibit D of the Indenture.
7. NOTICE OF REDEMPTION. Notice of redemption shall
be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder to be redeemed at its registered
address. Securities may be redeemed in part but only in whole
multiples of $1,000. On and after the redemption date, interest
ceases to accrue on Securities or portions of Securities called for
redemption.
8. SUBORDINATION. The Securities are subordinated
to Senior Debt (as defined in the Indenture) (whether outstanding
A-6
<PAGE>
on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed) and all Obligations (as defined in the
Indenture) with respect thereto. To the extent provided in the
Indenture, Senior Debt must be paid before the Securities may be
paid. The Issuer agrees, and each Holder by accepting a Security
agrees, to the subordination and authorizes the Trustee to give it
effect.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities
are in registered form without coupons in denominations of $1,000
and integral multiples of $1,000. The transfer of Securities may
be registered and Securities may be exchanged as provided in the
Indenture. The Registrar and the Trustee 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 Security or portion of a Security
selected for redemption. Also, it need not exchange or register
the transfer of any Securities for a period of 15 days before a
selection of Securities to be redeemed or during the period between
a Record Date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. Prior to due presentment
to the Trustee for registration of the transfer of this Security,
the Trustee, any agent, the Issuer and the Guarantors, if any, may
deem and treat the Person in whose name this Security is registered
as its absolute owner for the purpose of receiving payment of
principal of and interest on this Security and for all other
purposes whatsoever, whether or not this Security is overdue, and
neither the Trustee, any Agent, the Issuer nor any Guarantor shall
be affected by notice to the contrary. The registered holder of a
Security shall be treated as its owner for all purposes.
11. AMENDMENTS AND WAIVERS. Subject to certain
exceptions, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority
in principal amount of the then outstanding Securities (including
consents obtained in connection with a tender offer or exchange
offer for Securities). Any Default and compliance with any
provision of the Indenture or the Securities (other than a
continuing Default in the payment of the principal of, premium, if
any, or interest on, the Securities), may be waived with the
consent of the Holders of a majority in principal amount of the
then outstanding Securities (including consents obtained in
connection with a tender offer or exchange offer for Securities);
however, without the consent of each Holder affected thereby, an
amendment or waiver of any provision of the Securities or Indenture
may not:
(a) reduce the principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver;
A-7
<PAGE>
(b) reduce the principal of or change the stated
maturity of any installment of principal of any Security or
alter or waive any of the provisions with respect to the
redemption of the Securities;
(c) reduce the rate of or change the time for payment
of interest on any Security;
(d) waive a Default in the payment of principal of or
premium, if any, or interest on the Securities;
(e) change the currency in which the Securities are
payable; and
(f) make any change in the provisions of the
Indenture relating to waivers of Defaults or the rights of
Holders of Securities to receive payments of principal of
or premium, if any, or interest on the Securities.
The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture (and
the obligations of the Issuer to obtain any such consent otherwise
required from such Holder) may be subject to the requirements that
such Holder shall have been the Holder of record of any Securities
with respect to which such consent is required to be sought as of
a date identified by the Trustee in a notice furnished to Holders
in accordance with the terms of the Indenture. Without the consent
of any Holder, the Indenture or the Securities may be amended to
cure any ambiguity, defect or inconsistency in the Indenture or the
Securities, to provide for the assumption of the Issuer's or any
Guarantor's obligations to Holders in the case of a merger,
consolidation or disposition of assets in accordance with the
provisions of the Indenture, to make any change that would provide
additional rights or benefits to the Holders, or to comply with the
requirements of the Commission in order to maintain the
qualification of the Indenture under the TIA, in each case in a
manner which does not materially and adversely affect the rights
under the Indenture or the Securities of any Holder.
12. EVENTS OF DEFAULT AND REMEDIES. Events of Default
include (as more fully described, and subject to, the terms and
conditions of the Indenture):
(a) default in payment when due of principal on the
Securities;
(b) default for 30 days in the payment when due of
interest on the Securities;
(c) failure by the Issuer to comply with Article VIII
of the Indenture;
A-8
<PAGE>
(d) failure by the Issuer for 30 days after notice to
comply with any other covenants or agreements in the Indenture or
the Securities;
(e) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the
Issuer or any Guarantor, or the payment of which is guaranteed by
the Issuer or any Guarantor, which default (i) is caused by a
failure to pay when due principal or interest on such Indebtedness
within the grace period provided in the documentation relating to
such Indebtedness (a "Payment Default") or (ii) results in the
acceleration of such Indebtedness prior to its stated maturity and,
in either case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $10.0 million or more,
(f) failure by the Issuer or any Guarantor or any
Restricted Subsidiary to pay any final judgments aggregating in
excess of $5.0 million which judgments are not stayed within 60
days after their entry;
(g) except as permitted by the Indenture, any
Subsidiary Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full
force and effect or any Guarantor, or any Person acting on behalf
of any Guarantor, denies or disaffirms its obligations under its
Subsidiary Guarantee;
(h) any Gaming License relating to a Material Gaming
Facility 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 30 days of any material portion or aspect
of the Gaming Business of any Material Gaming Facility; and
(i) certain events of bankruptcy or insolvency with
respect to the Issuer or any Restricted Subsidiary.
If any Event of Default occurs and is continuing, the
Trustee or the holders of at least 25% in principal amount of the
then outstanding Securities may declare all the Securities to be
due and payable immediately; provided that in the case of an Event
of Default arising from certain events of bankruptcy or insolvency,
with respect to the Issuer or any Restricted Subsidiary, all
outstanding Securities will become due and payable without any
action or notice. Holders of the Securities will only be permitted
to enforce the Indenture or the Securities in accordance with the
provisions of the Indenture. Subject to certain limitations,
holders of a majority in aggregate principal amount of the
Securities then outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from holders of
the Securities notice of any continuing Default (except a Default
A-9
<PAGE>
relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Issuer must
furnish an annual compliance certificate to the Trustee.
13. TRUSTEE DEALINGS WITH ISSUER. The Trustee under
the Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Issuer, any Guarantor or their respective Affiliates, and may
otherwise deal with the Issuer, any Guarantor of their respective
Affiliates, as if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or
future director, officer, employee, incorporator or stockholder, as
such, of the Issuer, any Guarantor, as such, shall have any
liability for any obligations of the Issuer or any Guarantor under
the Securities, the Subsidiary Guarantees or the Indenture or for
any claim based on, in respect of or by reason of such obligations
or their creation. Each Holder by accepting a Security and the
Subsidiary Guarantees, if any, waives and releases all such
liability. The waiver and release are part of the consideration
for the issuance of the Securities.
15. AUTHENTICATION. This Security shall not be valid
until authenticated by the manual signature of the Trustee or an
authenticating agent.
16. CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Issuer has caused CUSIP numbers to be printed on
the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as
printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other
identification numbers placed thereon.
17. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE
SECURITIES AND THE SUBSIDIARY GUARANTEES, IF ANY.
The Issuer will furnish to any Holder upon written
request and without charge a copy of the Indenture. Request may be
made to:
Harveys Casino Resorts
Highway 50 & Stateline Avenue
P.O. Box 128
Lake Tahoe, NV 89449
Attention: Chief Financial Officer
A-10
<PAGE>
Exhibit B
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the guaranteed Securities described in
the within-mentioned Indenture.
IBJ SCHRODER BANK & TRUST
COMPANY, as Trustee
--------------------------------------
Authorized Signatory
B-1
<PAGE>
Exhibit C
Assignment Form
To assign this Security fill in the form below: (I) or (we) assign
and transfer this Security to:
[Insert assignee's soc. sec. or tax I.D. no.]
- -------------------------------------------------------------------
- -------------------------------------------------------------------
- -------------------------------------------------------------------
- -------------------------------------------------------------------
[Print or type assignee's name, address and zip code]
and irrevocably appoint
to transfer this Security on the books of the Issuer. The agent
may substitute another to act for him.
- -------------------------------------------------------------------
Date:
Your signature:
(sign exactly as your name appears on the face of this Security.)
Signature Guarantee.
C-1
<PAGE>
Exhibit D
Option of Holder to Elect Purchase
If you want to elect to have this Security purchased
by the Issuer pursuant to Section 3.23 of the Indenture, check the
box below:
[_] Section 3.23 [_] Section 3.24
If you want to elect to have only part of the Security
purchased by the Issuer pursuant to Section 3.23 or Section 3.24 of
the Indenture, state the amount you elect to have purchased $
Date: Your Signature:
(Sign exactly as your name appears on the Security)
Tax Identification No:
Signature Guarantee.
D-1
<PAGE>
Exhibit 4.2
<PAGE>
========================================================
HARVEYS CASINO RESORTS,
Issuer
HARVEYS C.C. MANAGEMENT COMPANY, INC.,
HARVEYS WAGON WHEEL CASINO LIMITED LIABILITY COMPANY,
HARVEYS IOWA MANAGEMENT COMPANY, INC.
and
HARVEYS L.V. MANAGEMENT COMPANY, INC.,
as Guarantors
and
IBJ SCHRODER BANK & TRUST COMPANY,
Trustee
First Supplemental Indenture
Dated as of June 5, 1996
__________
$150,000,000
10-5/8% SENIOR SUBORDINATED NOTES DUE 2006
Supplementing the Indenture Dated as of May 15, 1996 among
Harveys Casino Resorts, Issuer, Harveys C.C. Management Company,
Inc., Harveys Wagon Wheel Casino Limited Liability Company,
Harveys Iowa Management Company, Inc. and Harveys L.V. Management
Company, Inc., as Guarantors and IBJ Schroder Bank & Trust
Company, Trustee
========================================================
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE (the "First
Supplemental Indenture"), dated as of June 5, 1996 among
HARVEYS CASINOS RESORTS, a Nevada Corporation (the
"Issuer"), HARVEYS WAGON WHEEL CASINO LIMITED LIABILITY
COMPANY, a Colorado corporation, HARVEYS C.C. MANAGEMENT
COMPANY, INC., a Nevada corporation, HARVEYS IOWA MANAGEMENT
COMPANY, INC., a Nevada corporation and HARVEYS L.V.
MANAGEMENT COMPANY, INC., a Nevada corporation (the
"Guarantors"), and IBJ SCHRODER BANK & TRUST COMPANY, a New
York banking corporation (the "Trustee"), under the
Indenture dated as of May 15, 1996 (hereinafter referred to
as the "Indenture")
W I T N E S S E T H :
WHEREAS, the Issuer has issued its 10-5/8 % Senior
Subordinated Notes Due 2006 (the "Securities") pursuant to the
Indenture; and
WHEREAS, the Issuer and the Guarantors wish to amend
the Indenture pursuant to Section 7.1(d) thereof;
NOW, THEREFORE:
ARTICLE ONE
SECTION 1.01. Section 10.1(a) of the Indenture is
deleted in its entirety and replaced with the following:
"(a) On or after June 1, 2001, the Issuer at its option
may redeem the Securities pursuant to this Section 10.1
in whole or in part, at the redemption prices
(expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest thereon,
if any, to the applicable redemption date, if redeemed
during the twelve month period beginning on June 1 of
the years indicated below:
YEAR PERCENTAGE
2001.............. 105.313%
2002.............. 103.542%
2003.............. 101.771%
2004 and thereafter 100.000%"
-2-
<PAGE>
SECTION 1.02. The fifth paragraph of the form of reverse of
Security, set forth as Exhibit A of the Indenture, is deleted in
its entirety and replaced with the following:
5. "Optional Redemption. Except as set
forth below, the Issuer shall not have the option to
redeem the Securities pursuant to Section 10.1 of the
Indenture prior to June 1, 2001. Thereafter, the
Issuer shall have the option to redeem the Securities
in whole or in part, at the redemption prices
(expressed as percentages of the principal amount) set
forth below, plus accrued and unpaid interest thereon
to the applicable redemption date, if redeemed during
the 12 month period beginning on June 1 of the years
indicated below.
YEAR PERCENTAGE
2001 105.313%
2002 103.542%
2003 101.771%
2004 and thereafter 100.000%"
ARTICLE TWO
SECTION 2.01. Except as amended hereby, all of the
terms of the Indenture shall remain and continue in full force
and effect and are hereby confirmed in all respects.
SECTION 2.02. This First Supplemental Indenture and
each and every provision hereof shall be deemed to be a contract
made under the laws of the State of New York and for all purposes
shall be construed in accordance with the laws of such State.
SECTION 2.03. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an
original; but such counterparts shall constitute but one and the
same instrument.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the date hereof.
HARVEYS CASINO RESORTS
[CORPORATE SEAL] By /s/ Charles W. Scharer
----------------------------
Name: Charles W. Scharer
Title: President and Chief
Executive Officer
By /s/ William B. Ledbetter
--------------------------
IBJ SCHRODER BANK & TRUST
COMPANY, as Trustee
[CORPORATE SEAL] By /s/ Thomas J. Bogert
----------------------------
Name: Thomas J. Bogert
Title: Assistant Vice
President
By /s/ Randi S. Gelfand
--------------------------
HARVEYS C.C. MANAGEMENT
COMPANY, INC.
By /s/ Thomas M. Yturbide
----------------------------
Name: Thomas M. Yturbide
Title: President
By /s/ William B. Ledbetter
--------------------------
HARVEYS WAGON WHEEL CASINO
LIMITED LIABILITY COMPANY
By /s/ Thomas M. Yturbide
----------------------------
Name: Thomas M. Yturbide
Title: Manager
By /s/ William B. Ledbetter
--------------------------
HARVEYS IOWA MANAGEMENT
COMPANY, INC.
By /s/ Thomas M. Yturbide
---------------------------
Name: Thomas M. Yturbide
Title: President
By /s/ William B. Ledbetter
--------------------------
HARVEYS L.V. MANAGEMENT
COMPANY, INC.
By /s/ Thomas M. Yturbide
----------------------------
Name: Thomas M. Yturbide
Title: President
By /s/ William B. Ledbetter
--------------------------
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the
date hereof.
HARVEYS CASINO RESORTS
[CORPORATE SEAL] By /s/ Charles W. Scharer
----------------------------
Name: Charles W. Scharer
Title: President and Chief
Executive Officer
By /s/ William B. Ledbetter
--------------------------
IBJ SCHRODER BANK & TRUST
COMPANY, as Trustee
[CORPORATE SEAL] By /s/ Thomas J. Bogert
----------------------------
Name: Thomas J. Bogert
Title: Assistant Vice
President
By /s/ Randi S. Gelfand
--------------------------
HARVEYS C.C. MANAGEMENT
COMPANY, INC.
By /s/ Thomas M. Yturbide
----------------------------
Name: Thomas M. Yturbide
Title: President
By /s/ William B. Ledbetter
--------------------------
HARVEYS WAGON WHEEL CASINO
LIMITED LIABILITY COMPANY
By /s/ Thomas M. Yturbide
----------------------------
Name: Thomas M. Yturbide
Title: Manager
By /s/ William B. Ledbetter
--------------------------
HARVEYS IOWA MANAGEMENT
COMPANY, INC.
By /s/ Thomas M. Yturbide
---------------------------
Name: Thomas M. Yturbide
Title: President
By /s/ William B. Ledbetter
--------------------------
HARVEYS L.V. MANAGEMENT
COMPANY, INC.
By /s/ Thomas M. Yturbide
----------------------------
Name: Thomas M. Yturbide
Title: President
By /s/ William B. Ledbetter
--------------------------
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