1
Exhibit 4
INDENTURE
Among
BOYD GAMING CORPORATION,
Issuer,
CALIFORNIA HOTEL and CASINO,
BOYD TUNICA, INC.,
BOYD MISSISSIPPI, INC.,
BOYD KANSAS CITY, INC.,
BOYD KENNER, INC.,
MARE-BEAR, INC.,
SAM-WILL, INC.,
ELDORADO, INC., and
MSW, INC.,
the "Guarantors"
and
The Bank of New York,
Trustee
Dated as of September , 1996
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- -------
310 (a)(1) ......................................................... 7.10
(a)(2) ......................................................... 7.10
(a)(3) ......................................................... N.A.
(a)(4) ......................................................... N.A.
(a)(5) ......................................................... 7.10
(b) ............................................................ 7.08; 7.10
(c) ............................................................ N.A.
311 (a) ............................................................ 7.11
(b) ............................................................ 7.11
(c) ............................................................ N.A.
312 (a) ............................................................ 2.05
(b) ............................................................ 11.03
(c) ............................................................ 11.03
313 (a) ............................................................ 7.06
(b)(1) ......................................................... N.A.
(b)(2) ......................................................... 7.06
(c) ............................................................ 11.02
(d) ............................................................ 7.06
314 (a) ............................................................ 4.03; 4.08; 11.02
(b) ............................................................ N.A.
(c)(1) ......................................................... 11.04
(c)(2) ......................................................... 11.04
(c)(3) ......................................................... N.A.
(d) ............................................................ N.A.
(e) ............................................................ 11.05
(f) ............................................................ N.A.
315 (a) ............................................................ 7.01
(b) ............................................................ 7.05; 11.02
(c) ............................................................ 7.01
(d) ............................................................ 7.01
(e) ............................................................ 6.11
316 (a)(last sentence) ............................................. 2.08
(a)(1)(A) ...................................................... 6.05
(a)(1)(B) ...................................................... 6.04
(a)(2) ......................................................... N.A.
(b) ............................................................ 6.07
(c) ............................................................ 6.07
317 (a)(1) ......................................................... 6.08
(a)(2) ......................................................... 6.09
(b) ............................................................ 2.04
318 (a) ............................................................ 11.01
N.A. means Not Applicable.
- ----------------------------
Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
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TABLE OF CONTENTS
ARTICLE I Page
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Definitions and Incorporation by Reference
SECTION 1.01. Definitions ............................................. 1
SECTION 1.02. Other Definitions ....................................... 23
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act ....................................... 24
SECTION 1.04. Rules of Construction ................................... 24
ARTICLE II
The Securities
SECTION 2.01. Form and Dating ......................................... 25
SECTION 2.02. Execution and Authentication ............................ 25
SECTION 2.03. Registrar and Paying Agent .............................. 26
SECTION 2.04. Paying Agent To Hold Money in
Trust ............................................... 27
SECTION 2.05. Securityholder Lists .................................... 27
SECTION 2.06. Transfer and Exchange ................................... 28
SECTION 2.07. Replacement Securities .................................. 30
SECTION 2.08. Outstanding Securities .................................. 30
SECTION 2.09. Temporary Securities .................................... 31
SECTION 2.10. Cancelation ............................................. 31
SECTION 2.11. Defaulted Interest ...................................... 32
SECTION 2.12. Record Date ............................................. 33
SECTION 2.13. Computation of Interest ................................. 33
SECTION 2.14. CUSIP Numbers ........................................... 33
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee ...................................... 34
SECTION 3.02. Selection of Securities To Be
Redeemed ............................................ 34
SECTION 3.03. Notice of Redemption .................................... 35
SECTION 3.04. Effect of Notice of Redemption .......................... 35
SECTION 3.05. Deposit of Redemption Price ............................. 36
SECTION 3.06. Securities Redeemed in Part ............................. 36
SECTION 3.07. Redemption Pursuant to Gaming
Laws ................................................ 36
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Contents, p. 2
Page
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ARTICLE IV
Covenants
SECTION 4.01. Certain Suspended Covenants ............................. 37
SECTION 4.02. Payment of Securities ................................... 38
SECTION 4.03. SEC Reports ............................................. 38
SECTION 4.04. Limitation on Indebtedness .............................. 38
SECTION 4.05. Limitation on Restricted
Payments ............................................ 40
SECTION 4.06. Limitation on Transactions with
Affiliates .......................................... 42
SECTION 4.07. Change of Control ....................................... 43
SECTION 4.08. Compliance Certificate .................................. 45
SECTION 4.09. Further Instruments and Acts ............................ 46
SECTION 4.10. Limitation on Liens ..................................... 46
SECTION 4.11. Limitation on Dividend and Other
Payment Restrictions Affecting
Restricted Subsidiaries ............................. 47
SECTION 4.12. Limitation on Asset Sales; Event of
Loss ................................................ 47
SECTION 4.13. Guaranty by Par-A-Dice and EPM .......................... 51
SECTION 4.14. Maintenance of Properties and Other
Matters ............................................. 51
SECTION 4.15. Limitation on Activities of the
Company ............................................. 52
SECTION 4.16. Limitation on Status as an Investment
Company ............................................. 52
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer
Assets .............................................. 53
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default ....................................... 54
SECTION 6.02. Acceleration ............................................ 56
SECTION 6.03. Other Remedies .......................................... 57
SECTION 6.04. Waiver of Past Defaults ................................. 57
SECTION 6.05. Control by Majority ..................................... 57
SECTION 6.06. Limitation on Suits ..................................... 58
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Contents, p. 3
Page
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SECTION 6.07. Rights of Holders To Receive
Payment ............................................. 58
SECTION 6.08. Collection Suit by Trustee .............................. 58
SECTION 6.09. Trustee May File Proofs of
Claim ............................................... 59
SECTION 6.10. Priorities .............................................. 59
SECTION 6.11. Undertaking for Costs ................................... 60
SECTION 6.12. Waiver of Stay or Extension
Laws ................................................ 60
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee ....................................... 60
SECTION 7.02. Rights of Trustee ....................................... 61
SECTION 7.03. Individual Rights of Trustee ............................ 62
SECTION 7.04. Trustee's Disclaimer .................................... 62
SECTION 7.05. Notice of Defaults ...................................... 62
SECTION 7.06. Reports by Trustee to Holders ........................... 63
SECTION 7.07. Compensation and Indemnity .............................. 63
SECTION 7.08. Replacement of Trustee .................................. 64
SECTION 7.09. Successor Trustee by Merger ............................. 65
SECTION 7.10. Eligibility; Disqualification ........................... 65
SECTION 7.11. Preferential Collection of Claims
Against Company ..................................... 66
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance .......................................... 66
SECTION 8.02. Conditions to Defeasance ................................ 67
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Contents, p. 4
Page
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SECTION 8.03. Application of Trust Money .............................. 69
SECTION 8.04. Repayment to Company .................................... 69
SECTION 8.05. Indemnity for Government Obligations .................... 69
SECTION 8.06. Reinstatement ........................................... 69
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders .............................. 70
SECTION 9.02. With Consent of Holders ................................. 71
SECTION 9.03. Compliance with Trust Indenture
Act ................................................. 72
SECTION 9.04. Revocation and Effect of Consents and
Waivers ............................................. 72
SECTION 9.05. Notation on or Exchange of
Securities .......................................... 73
SECTION 9.06. Trustee To Sign Amendments .............................. 73
SECTION 9.07. Payment for Consent ..................................... 74
ARTICLE X
Subsidiary Guaranties
SECTION 10.01. Guaranties .............................................. 74
SECTION 10.02. Successors and Assigns .................................. 76
SECTION 10.03. No Waiver ............................................... 76
SECTION 10.04. Modification ............................................ 77
SECTION 10.05. Release of Guarantors ................................... 77
SECTION 10.06. Indemnity and Subrogation ............................... 77
SECTION 10.07. Contribution and Subrogation ............................ 77
SECTION 10.08. Subordination ........................................... 78
SECTION 10.09. Termination ............................................. 78
SECTION 10.10. No Waiver; Amendment .................................... 78
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls ............................ 79
SECTION 11.02. Notices ................................................. 79
SECTION 11.03. Communication by Holders with Other
Holders ............................................. 80
SECTION 11.04. Certificate and Opinion as to
Conditions Precedent ................................ 80
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Contents, p. 5
Page
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SECTION 11.05. Statements Required in Certificate or
Opinion ............................................. 80
SECTION 11.06. Rules by Trustee, Paying Agent and
Registrar ........................................... 81
SECTION 11.07. Legal Holidays .......................................... 81
SECTION 11.08. Governing Law ........................................... 81
SECTION 11.09. No Recourse Against Others .............................. 81
SECTION 11.10. Successors .............................................. 81
SECTION 11.11. Multiple Originals ...................................... 82
SECTION 11.12. Table of Contents; Headings ............................. 82
SECTION 11.13. Severability ............................................ 82
Exhibit A - Form of Security
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INDENTURE dated as of September, 1996,
between BOYD GAMING CORPORATION, a Nevada corporation
(the "Company"), CALIFORNIA HOTEL and CASINO, a
Nevada corporation, BOYD TUNICA, INC., a Mississippi
corporation, BOYD MISSISSIPPI, INC., a Nevada
corporation, BOYD KANSAS CITY, INC., a Missouri
corporation, BOYD KENNER, INC., a Louisiana
corporation, MARE-BEAR, INC., a Nevada corporation,
SAM-WILL, INC., a Nevada corporation, ELDORADO, INC.,
a Nevada corporation, and MSW, INC., a Nevada
corporation (the "Guarantors"),and The Bank of New
York, a New York banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's %
Senior Notes Due 2003 (the "Securities"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Additional Assets" means (i) any Property (other than cash,
cash equivalents or securities) to be owned by the Company or a Restricted
Subsidiary and used in a Related Business, (ii) the costs of improving,
restoring, replacing or developing any Property owned by the Company or a
Restricted Subsidiary which is used in a Related Business or (iii) Investments
in any other Person engaged primarily in a Related Business (including the
acquisition from third parties of Capital Stock of such Person) as a result of
which such other Person becomes a Restricted Subsidiary in compliance with the
procedure for designation of Restricted Subsidiaries set forth below in the
definition of "Restricted Subsidiary".
"Affiliate" means, with respect to any Person, a Person (i)
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such Person, (ii) which directly
or indirectly through one or more intermediaries beneficially owns or holds 10%
or more of any class of the Voting Stock
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of such Person (or a 10% or greater equity interest in a Person which is not a
corporation) or (iii) of which 10% or more of any class of the Voting Stock (or,
in the case of a Person which is not a corporation, 10% or more of the equity
interest) is beneficially owned or held directly or indirectly through one or
more intermediaries by such Person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Asset Sale" means the sale, conveyance, transfer, lease or
other disposition, whether in a single transaction or a series of related
transactions (including, without limitation, dispositions pursuant to
Sale/Leaseback Transactions or pursuant to the merger of the Company or any of
its Restricted Subsidiaries with or into any Person other than the Company or
one of its Restricted Subsidiaries, but not including any dispositions to the
Company or any of its Restricted Subsidiaries), by the Company or one of its
Restricted Subsidiaries to any Person other than the Company or one of its
Restricted Subsidiaries of (i) any of the Capital Stock or other ownership
interests of any Subsidiary of the Company or (ii) any other Property of the
Company or any Property of its Restricted Subsidiaries, in each case not in the
ordinary course of business of the Company or such Restricted Subsidiary.
"Attributable Indebtedness" means Indebtedness deemed to be
Incurred in respect of a Sale/Leaseback Transaction and shall be, at the date of
determination, the present value (discounted at the actual rate of interest
implicit in such transaction, compounded annually), of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease
has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
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"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors, to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Boyd Family" means William S. Boyd, any direct descendant or
spouse of such person, or any direct descendant of such spouse, and any trust or
other estate in which each person who has a beneficial interest, directly or
indirectly through one or more intermediaries, in Capital Stock of the Company
is one of the foregoing persons.
"Boyd Notes" means the Company's 10.75% Senior Subordinated
Notes Due 2003 issued pursuant to the Indenture dated as of September 3, 1993,
between the Company and State Street Bank and Trust, a Massachusetts banking
corporation.
"Business Day" means each day which is not a Legal
Holiday.
"CHFC Notes" means the 11% Senior Subordinated Notes Due 2002
issued pursuant to the Indenture dated October 15, 1992, among California Hotel
Finance Corporation, a Nevada corporation, California Hotel and Casino, a Nevada
corporation, and State Street Bank and Trust Company, a Massachusetts banking
corporation.
"Capital Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP. For purposes of Section 4.10, Capital Lease Obligations shall be
deemed secured by a Lien on the property being leased.
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of corporate stock, partnership
interests or any other participation, right, warrants, options or other interest
in the nature of an equity interest in such Person, but excluding any debt
security convertible or exchangeable into such equity interest.
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"Change of Control" means the occurrence of any of the
following events: (i) any "person" or "group" (within the meaning of Sections
13(d)(3) and 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 13d-5(b)(1) under
the Exchange Act), other than the Permitted Holders and other than a Restricted
Subsidiary, becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time) of 50%
or more of the total voting power of all classes of the Voting Stock of the
Company and/or warrants or options to acquire such Voting Stock, calculated on a
fully diluted basis; provided that for purposes of this clause (i), the members
of the Boyd Family shall be deemed to beneficially own any Voting Stock of a
corporation held by any other corporation (the "parent corporation") so long as
the members of the Boyd Family beneficially own (as so defined), directly or
indirectly through one or more intermediaries, in the aggregate 50% or more of
the total voting power of the Voting Stock of the parent corporation; (ii) the
sale, lease, conveyance or other transfer of all or substantially all of the
Property of the Company (other than to any Restricted Subsidiary); (iii) the
stockholders of the Company shall have approved any plan of liquidation or
dissolution of the Company; (iv) the Company consolidates with or merges into
another Person or any Person consolidates with or merges into the Company in any
such event pursuant to a transaction in which the outstanding Voting Stock of
the Company is reclassified into or exchanged for cash, securities or other
property, other than any such transaction where (a) the outstanding Voting Stock
of the Company is reclassified into or exchanged for Voting Stock of the
surviving corporation that is Capital Stock and (b) the holders of the Voting
Stock of the Company immediately prior to such transaction own, directly or
indirectly, not less than a majority of the Voting Stock of the surviving
corporation immediately after such transaction in substantially the same
proportion as before the transaction; or (v) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (together with any new directors whose election or
appointment by such board or whose nomination for election by the stockholders
of the Company was approved by a vote of either (A) 66 2/3% of the
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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 or (B) members of the Boyd Family who beneficially own (as defined for
purposes of clause (i) above), directly or indirectly through one or more
intermediaries, in the aggregate 50% or more of the total voting power of the
Voting Stock of the Company) cease for any reason to constitute a majority of
the Board of Directors then in office.
"Change of Control Time" means the earlier of the public
announcement of (x) a Change of Control or (y) (if applicable) the intention of
the Company to effect a Change of Control.
"Change of Control Triggering Event" means both a Change of
Control and a Rating Decline with respect to the Securities; provided, however,
that a Change of Control Triggering Event shall not be deemed to have occurred
if (i) at the Change of Control Time the Securities have Investment Grade Status
and (ii) the Company effects defeasance of the Securities pursuant to the
provisions of Article VIII prior to a Rating Decline.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Consolidated EBITDA" means, for any period, without
duplication, Consolidated Net Income, plus (i) Consolidated Fixed Charges, (ii)
provisions for taxes based on income to the extent such taxes were deducted in
determining Consolidated Net Income, (iii) consolidated depreciation expense,
(iv) consolidated amortization expense, and (v) other noncash items reducing
Consolidated Net Income, minus (vi) other noncash items increasing Consolidated
Net Income, all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means the ratio of
(i) Consolidated EBITDA during the Reference Period to (ii) the aggregate amount
of Consolidated Fixed Charges during the Reference Period.
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"Consolidated Fixed Charges" means, for any period, the total
interest expense of the Company and its consolidated Subsidiaries (other than
Unrestricted Subsidiaries), including (i) the interest component of Capital
Lease Obligations, (ii) one-third of the rental expense attributable to
operating leases, (iii) amortization of Indebtedness discount and commissions,
discounts and other similar fees and charges owed with respect to Indebtedness,
(iv) noncash interest payments, (v) commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, (vi) net costs pursuant to Interest Rate Agreements, (vii) dividends
on all Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Restricted Subsidiary, (viii) interest attributable to the
Indebtedness of any other Person for which the Company or any Restricted
Subsidiary is responsible or liable as obligor, guarantor or otherwise
(including Indebtedness Guaranteed pursuant to Investment Guarantees) and (viii)
any dividend or distribution, whether in cash, property or securities, on
Disqualified Stock of the Company.
"Consolidated Net Income" means for any period, the net income
(loss) of the Company and its Subsidiaries; provided, however, that there shall
not be included in such Consolidated Net Income (i) any net income (loss) of any
Person if such Person is not a Restricted Subsidiary, except that subject to the
limitations contained in (iv) below, (a) the Company's equity in the net income
of any such Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such Person
during such period to the Company or a Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other distribution to
a Restricted Subsidiary, to the limitations contained in clause (iii) below) and
(b) the Company's equity in a net loss of any such Person (other than an
Unrestricted Subsidiary) for such period shall be included in determining such
Consolidated Net Income, (ii) any net income (loss) of any Person acquired by
the Company or a Subsidiary in a pooling of interests transaction for any period
prior to the date of such acquisition, (iii) any net income (loss) of any
Restricted Subsidiary if such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions, directly
or indirectly, to the Company, except that (a) subject to the limitations
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contained in (iv) below, the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash that could have been distributed by
such Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend (subject, in the case of a dividend to
another Restricted Subsidiary, to the limitation contained in this clause) and
(b) the Company's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net Income, (iv)
any gain or loss realized upon the sale or other disposition of any Property of
the Company or its consolidated Subsidiaries (including pursuant to any
Sale/Leaseback Transaction) which is not sold or otherwise disposed of in the
ordinary course of business and any gain or loss realized upon the sale or other
disposition of any Capital Stock of any Person, (v) any extraordinary gain or
loss and (vi) the cumulative effect of a change in accounting principles.
"Consolidated Net Worth" means the total of the amounts shown
on the balance sheet of the Company and its Restricted Subsidiaries, determined
on a consolidated basis in accordance with GAAP, as of the end of the most
recent fiscal quarter of the Company ending at least 45 days prior to the taking
of any action for the purpose of which the determination is being made, as (i)
the par or stated value of all outstanding Capital Stock of the Company plus
(ii) paid-in capital or capital surplus relating to such Capital Stock plus
(iii) any retained earnings or earned surplus less (A) any accumulated deficit
and (B) any amounts attributable to Disqualified Stock.
"Credit Facility" means the revolving credit facility, as
amended from time to time, among the Company, certain Subsidiaries and a
syndicate of banks, and any extensions, revisions, refinancings or replacements
thereof by an institutional lender or syndicate of institutional lenders.
"Currency Exchange Protection Agreement" means, in respect of
a Person, any foreign exchange contract, currency swap agreement, currency
option or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
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"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Disqualified Stock" of a Person means any Capital Stock of
such Person: (i) that by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable) or otherwise (a) matures or
is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(b) is or may become redeemable or repurchaseable at the option of the holder
thereof, in whole or in part, or (c) is convertible or exchangeable or
exercisable for Indebtedness; and (ii) as to which the maturity, mandatory
redemption, conversion or exchange or redemption at the option of the holder
thereof occurs, or may occur, in the case of each of clauses (i) or (ii) on or
prior to the first anniversary of the Stated Maturity of the Securities;
provided, however, that such Capital Stock of the Company or any of its
Subsidiaries shall not constitute Disqualified Stock if it is redeemable prior
to the first anniversary of the Stated Maturity of the Securities only if: (A)
the holder or a beneficial owner of such Capital Stock is required to qualify
under the Gaming Laws and does not so qualify, or (B) the Board of Directors
determines in its reasonable, good faith judgment, as evidenced by a Board
Resolution, that as a result of a holder or beneficial owner owning such Capital
Stock, the Company or any of its Subsidiaries has lost or may lose any Gaming
License, which if lost or not reinstated, as the case may be, would have a
material adverse effect on the business of the Company and its Subsidiaries,
taken as a whole, or would restrict the ability of the Company or any of its
Subsidiaries to conduct business in any gaming jurisdiction.
"EPH" means East Peoria Hotel, Inc., an Illinois corporation,
or any successor thereof.
"Event of Loss" means, with respect to any Property, any (i)
loss, destruction or damage of such Property; or (ii) any condemnation, seizure
or taking, by exercise of the power of eminent domain or otherwise, of such
Property, or confiscation or requisition of the use of such Property.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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"Fair Market Value" means with respect to any Property, the
price which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair Market Value will
be determined, except as otherwise provided, (i) if such Property has a Fair
Market Value of less than $5 million, by any Officer or (ii) if such Property
has a Fair Market Value in excess of $5 million, by a majority of the Board of
Directors and evidenced by a Board Resolution, dated within 30 days of the
relevant transaction, delivered to the Trustee.
"GAAP" means generally accepted accounting principles in
effect on the date of this Indenture, including those 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. All
ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP consistently applied.
"Gaming Authority" means any of the Nevada Gaming Commission,
the Nevada Gaming Control Board, the Mississippi Gaming Commission, the
Mississippi State Tax Commission, the Missouri Gaming Commission, the National
Indian Gaming Commission, the Bureau of Indian Affairs, the Illinois Gaming
Board and any other agency (including, without limitation, any agency
established by a federally-recognized Indian tribe to regulate gaming on such
tribe's reservation) which has, or may at any time after the date of this
Indenture have, jurisdiction over the gaming activities of the Company or any of
its Subsidiaries or any successor to such authority.
"Gaming Facility" means any gaming establishment and other
property or assets directly ancillary thereto or used in connection therewith,
including any building, restaurant, hotel, theater, parking facilities, retail
shops, land, golf courses and other recreation and entertainment facilities,
vessel, barge, ship and equipment or 100% of the equity interest of a Person the
primary business of which is ownership and operation of any of the foregoing.
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"Gaming Laws" means the gaming laws of a jurisdiction or
jurisdictions to which the Company or any of its Subsidiaries is, or may at any
time after the date of this Indenture be, subject.
"Gaming License" means any license, permit, franchise or other
authorization from any Governmental Authority required on the date of this
Indenture or at any time thereafter to own, lease, operate or otherwise conduct
the gaming business of the Company and its Subsidiaries, including all licenses
granted under Gaming Laws and other Legal Requirements.
"Governmental Authority" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any nature
whatsoever of any governmental or quasi-governmental unit, whether Federal,
state, county, district, city or other political subdivision, foreign or
otherwise and whether now or hereafter in existence, or any officer or official
of any thereof, including any Gaming Authority.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such
first Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness of such other Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guaranties" means the guaranties of the
Guarantors given pursuant to Article X.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
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"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), extend, assume, Guarantee or become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or obligation on the consolidated balance
sheet of such Person including by merger or operation of law (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings correlative to the
foregoing). The accretion of principal of a noninterest bearing or other
discount security shall be deemed the Incurrence of Indebtedness.
"Indebtedness" means (without duplication), with respect to
any Person, any indebtedness, secured or unsecured, contingent or otherwise,
which is for borrowed money (whether or not the recourse of the lender is to the
whole of the Property of such Person or only to a portion thereof), or the
principal amount of such indebtedness evidenced by bonds, notes, debentures or
similar instruments or representing the balance deferred and unpaid of the
purchase price of any property (excluding any balances that constitute customer
advance payments and deposits, accounts payable or trade payables, and other
accrued liabilities arising in the ordinary course of business) if and to the
extent any of the foregoing indebtedness would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, and shall also
include, to the extent not otherwise included (i) any Capital Lease Obligations,
(ii) Indebtedness of other Persons secured by a Lien to which the Property owned
or held by such Person is subject, whether or not the obligation or obligations
secured thereby shall have been assumed (the amount of such Indebtedness being
deemed to be the lesser of the value of such Property or the amount of the
Indebtedness so secured), (iii) Guarantees of Indebtedness of other Persons,
(iv) any Disqualified Stock, (v) any Attributable Indebtedness, (vi) all
obligations of such Person in respect of letters of credit, bankers' acceptances
or other similar instruments or credit transactions issued for the account of
such Person (including reimbursement obligations with respect thereto), other
than obligations with respect to letters of credit securing obligations (other
than obligations described in this definition) entered into in the ordinary
course of business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third Business Day following receipt by such Person of a demand
for
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reimbursement following payment on the letter of credit, (vii) in the case of
the Company, Preferred Stock of its Restricted Subsidiaries and (viii)
obligations pursuant to any Interest Rate Agreement or Currency Rate Protection
Agreement. Notwithstanding the foregoing, Indebtedness shall not include any
interest or accrued interest until due and payable. For purposes of this
definition, the maximum fixed repurchase price of any Disqualified Stock or
Preferred Stock that does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Stock or Preferred Stock as if
such Disqualified Stock or Preferred Stock were repurchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture;
provided, however, that if such Disqualified Stock or Preferred Stock is not
then permitted to be repurchased, the repurchase price shall be the book value
of such Disqualified Stock or Preferred Stock. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability of any
other obligations described in clauses (i) through (viii) above in respect
thereof at such date.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the TIA that are deemed to be a part of and govern
this instrument, and any such supplemental indenture, respectively.
"Independent Advisor" means, an investment banking firm of
national standing with noninvestment-grade debt underwriting experience or any
third party appraiser of national standing; provided, however, that such firm or
appraiser is not an Affiliate of the Company.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement.
"Investment" by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution (by means of
transfers of cash or other Property to others or payments for Property or
services for the account or use of others, or otherwise) to, or
20
13
Incurrence of an Investment Guarantee or a Guarantee of any obligation of, or
purchase or acquisition of Capital Stock, bonds, notes, debentures or other
securities or evidence of Indebtedness issued by, any other Person, including
the redesignation by the Board of Directors of a Person to be an Unrestricted
Subsidiary pursuant to the definition of "Unrestricted Subsidiary". In
determining the amount of any Investment in respect of any Property other than
cash, such Property shall be valued at its Fair Market Value at the time of such
Investment.
"Investment Grade Rating" means a rating equal to or higher
than Baa3 (or the equivalent) by Moody's (or any successor to the rating agency
business thereof), BBB- (or the equivalent) by S&P (or any successor to the
rating agency business thereof) and BBB- (or the equivalent) by Duff & Phelps
Credit Rating Co. (or any successor to the rating agency business thereof).
"Investment Grade Status" means any time at which the ratings
of the Securities by two of three of Moody's (or any successor to the rating
agency business thereof), S&P (or any successor to the rating agency business
thereof) and Duff & Phelps Credit Rating Co. (or any successor to the rating
agency business thereof) are Investment Grade Ratings; provided, however, that
one of such two must be Moody's or S&P.
"Investment Guarantee" means any Guarantee by the Company or a
Restricted Subsidiary of Indebtedness of a Permitted Joint Venture; provided
such Guarantee complies with the requirements of clause (viii) of Section
4.05(b); provided further that only such Indebtedness of such Permitted Joint
Venture Guaranteed by the Company or a Restricted Subsidiary that matures by its
terms prior to the time (if any) that the ability of the Company or a Restricted
Subsidiary to control the day-to-day operations of such Permitted Joint Venture
(pursuant to a management contract or otherwise) is scheduled to expire may
constitute Indebtedness subject to an Investment Guarantee.
"Issue Date" means the date on which the
Securities are initially issued.
"Legal Requirements" means all laws, statutes and ordinances
and all rules, orders, rulings, regulations, directives, decrees, injunctions
and requirements of all Governmental Authorities, that are now or may hereafter
be
21
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in existence, and that may be applicable to the Company or any Subsidiary or
Affiliate thereof or the Trustee (including building codes, zoning and
environmental laws, regulations and ordinances and Gaming Laws), as modified by
any variances, special use permits, waivers, exceptions or other exemptions
which may form time to time be applicable.
"Lien" means with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing). Any
Sale/Leaseback Transaction shall be deemed to constitute a Lien on the Property
which is the subject of such Sale/Leaseback Transaction securing the
Attributable Indebtedness represented thereby.
"Mirage Joint Venture" means the joint venture pursuant to
that certain Joint Venture Agreement dated as of May 29, 1996, by and between
MAC, CORP., a New Jersey corporation which is a wholly-owned subsidiary of
Mirage Resorts, Incorporated, a Nevada corporation, and Grand K, Inc., a Nevada
corporation which is a wholly-owned subsidiary of the Company.
"Moody's" means Moody's Investors Service, Inc.
"Net Cash Proceeds" with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale, net of
attorney's fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Net Proceeds" from any Asset Sale or Event of Loss by any
Person or its Restricted Subsidiaries means cash and cash equivalents received
in respect of the Property sold or with respect to which an Event of Loss
occurred net of (i) all reasonable out-of-pocket expenses of such Person or such
Restricted Subsidiary Incurred in connection with an Asset Sale of such type,
including, without limitation, all
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15
legal, title and recording tax expenses, commissions and fee and expenses
incurred (but excluding any finder's fee or broker's fee payable to any
Affiliate of such Person) and all Federal, state, provincial, foreign and local
taxes arising in connection with such Asset Sale or Event of Loss that are paid
or required to be accrued as a liability under GAAP by such Person or its
Restricted Subsidiaries, (ii) all payments made by such Person or its Restricted
Subsidiaries on any Indebtedness which is secured by such Property in accordance
with the terms of any Lien upon or with respect to such Property or which must,
by the terms of such Lien, or in order to obtain a necessary consent to such
Asset Sale or by applicable law, be repaid out of the proceeds from such Asset
Sale or Event of Loss and (iii) all contractually required distributions and
other payments made to minority interest holders (but excluding distributions
and payments to Affiliates of such Person) in Restricted Subsidiaries of such
Person as a result of such Asset Sale; provided, however, that, in the event
that any consideration for an Asset Sale (which would otherwise constitute Net
Proceeds) is required to be held in escrow pending determination of whether a
purchase price adjustment will be made, such consideration (or any portion
thereof) shall become Net Proceeds only at such time as it is released to such
Person or its Restricted Subsidiaries from escrow; and provided further,
however, that any noncash consideration received in connection with an Asset
Sale or Event of Loss which is subsequently converted to cash shall be deemed to
be Net Proceeds at and from the time of such conversion.
"Non-Recourse Indebtedness" means Indebtedness of a Person to
the extent that under the terms thereof or pursuant to applicable law (i) no
personal recourse shall be had against such Person for the payment of the
principal of or interest or premium, if any, on such Indebtedness, and (ii)
enforcement of obligations on such Indebtedness is limited only to recourse
against interests in Property purchased with the proceeds of the Incurrence of
such Indebtedness and as to which neither the Company nor any of its Restricted
Subsidiaries provides any credit support or is liable.
"Officer" means the Chief Executive Officer,
President, the Treasurer, or any Executive Vice President or
Vice President of the Company.
"Officers' Certificate" means a certificate signed
by two Officers at least one of whom shall be the principal
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executive officer, principal accounting officer or principal financial officer
of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Par-A-Dice" means Par-A-Dice Gaming Corporation, an Illinois
corporation, or any successor thereof.
"Par-A Dice Acquisition" means the acquisition by the Company
of Par-A-Dice and EPH pursuant to a Stock Purchase Agreement dated April 26,
1996.
"Permitted FF&E Financing" means Indebtedness of the Company
or any of its Restricted Subsidiaries that is Incurred to finance the
acquisition or lease after the date of this Indenture of newly acquired or
leased furniture, fixtures or equipment ("FF&E") used directly in the operation
of a Gaming Facility owned or leased by the Company or its Restricted
Subsidiaries and secured by a Lien on such FF&E in an amount not to exceed 100%
of the cost of the FF&E so purchased or leased.
"Permitted Holders" means the Boyd Family and any group (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act) comprised
solely of members of the Boyd Family.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (i) a Restricted Subsidiary or a Person which will,
upon the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a Related
Business; (ii) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Related Business;
(iii) Temporary Cash Investments; (iv) receivables owing to the Company or any
Restricted Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances; (v) payroll, travel and
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similar advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made
in the ordinary course of business; (vi) loans or advances to employees made in
the ordinary course of business consistent with past practices of the Company or
such Restricted Subsidiary, as the case may be; (vii) stock, obligations or
securities received in settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in
satisfaction or judgments; and (viii) securities received pursuant to clause
(ii) of Section 4.12(a).
"Permitted Joint Venture" means a Person in which a Permitted
Joint Venture Investment has been made by the Company or any Restricted
Subsidiary.
"Permitted Joint Venture Investment" means any Investment in a
Person primarily engaged or preparing to engage in a Related Business if,
immediately after giving effect to such Investment, the Company 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 pursuant to a management contract or
otherwise.
"Permitted Liens" means (i) Liens for taxes, assessments or
governmental charges or levies on the Property of the Company or any Restricted
Subsidiary if the same shall not at the time be delinquent or thereafter can be
paid without penalty, or are being contested in good faith and by appropriate
proceedings; (ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens on the Property of the Company or any
Restricted Subsidiary which secure payment of obligations arising in the
ordinary course of business; (iii) Liens on the Property of the Company or any
Restricted Subsidiary in favor of issuers of performance bonds and surety bonds
obtained in the ordinary course of business; (iv) other Liens on the Property of
the Company or any Restricted Subsidiary incidental to the conduct of their
respective businesses or the ownership of their respective Properties which were
not created in connection with the Incurrence of Indebtedness or the obtaining
of advances or credit and which do not in the aggregate materially detract from
the value of their respective Properties or materially impair the use thereof in
the operation of their respective
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businesses; (v) pledges or deposits by the Company or any Restricted Subsidiary
under workmen's compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which the Company or
any Restricted Subsidiary is a party, or deposits to secure public or statutory
obligations of the Company or any Restricted Subsidiary, or deposits for the
payment of rent, in each case Incurred in the ordinary course of business; (vi)
utility easements, building restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to
properties of a similar character and do not materially detract from the value
of such Property; and (vii) Liens securing obligations to the Trustee pursuant
to the compensation and indemnity provisions of this Indenture.
"Permitted Refinancing Indebtedness" means any renewals,
extensions, substitutions, refinancings or replacements of any Indebtedness,
including any successive extensions, renewals, substitutions, refinancings or
replacements (and including refinancings by the Company of Indebtedness of a
Restricted Subsidiary) so long as (i) the aggregate amount of Indebtedness
represented thereby is not increased by such renewal, extension, substitution,
refinancing or replacement, (ii) the Average Life and Stated Maturity is not
shortened and (iii) the new Indebtedness shall not be senior in right of payment
to the Indebtedness that is being extended, renewed, substituted, refinanced or
replaced; provided, however, that Permitted Refinancing Indebtedness shall not
include (a) Indebtedness of a Subsidiary that refinances Indebtedness of the
Company or another Subsidiary or (b) Indebtedness of the Company that refinances
the Indebtedness of an Unrestricted Subsidiary.
"Person" means any individual, corporation, company (including
limited liability company), partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"principal" of a Security means the principal of
the Security plus the premium, if any, payable on the
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19
Security which is due or overdue or is to become due at the relevant time.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms hereof, a calculation in accordance
with Article XI of Regulation S-X promulgated under the Securities Act (to the
extent applicable), as interpreted in good faith by the Board of Directors after
consultation with the independent certified public accountants of the Company,
or otherwise a calculation made in good faith by the Board of Directors after
consultation with the independent certified public accountants of the Company,
as the case may be.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, including, without limitation, Capital Stock in any
other Person (but excluding Capital Stock or other securities issued by such
first Person).
"Rating Agencies" means S&P, Duff & Phelps Credit
Rating Co. and Moody's or any successor to the respective
rating agency businesses thereof.
"Rating Decline" shall have occurred if at any date within 90
calendar days after the date of public disclosure of the occurrence of a Change
of Control (which period will be extended for so long as the Company's debt
ratings are under publicly announced review for possible downgrading (or without
an indication of the direction of a possible ratings change) by either Moody's
or S&P or their respective successors) the Securities no longer have Investment
Grade Status.
"Reference Period" means the period of four consecutive fiscal
quarters ending with the last full fiscal quarter immediately preceding the date
of a proposed Incurrence, Restricted Payment or other transaction.
"Related Business" means the business conducted (or proposed
to be conducted) by the Company and its Subsidiaries in connection with any
Gaming Facility and any and all reasonably related businesses necessary for, in
support, furtherance or anticipation of and/or ancillary to or in preparation
for, such business including, without limitation, the development, expansion or
operation of any Gaming Facility (including any land-based, dockside,
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20
riverboat or other type of casino), owned, or to be owned, leased or managed by
the Company or one of its Subsidiaries.
"Related Person" means any legal or beneficial owner of 5% or
more of any class of Capital Stock of the Company or any of its Subsidiaries.
"Restricted Payment" means (i) any dividend or distribution
(whether made in cash, property or securities) declared or paid on or with
respect to any shares of Capital Stock of the Company or to the Company's
stockholders except for such dividends or distributions payable solely in
Capital Stock of the Company (other than Disqualified Stock of the Company);
(ii) a payment made by the Company or any Restricted Subsidiary (other than to
the Company or a Restricted Subsidiary) to purchase, redeem, acquire or retire
any Capital Stock of the Company or Capital Stock of any Affiliate of the
Company or any warrants, rights or options, to directly or indirectly purchase
or acquire any such Capital Stock or any securities exchangeable for or
convertible into any such Capital Stock; (iii) a payment made by the Company or
any Restricted Subsidiary to redeem, repurchase, defease or otherwise acquire or
retire for value, prior to any scheduled maturity, scheduled sinking fund or
mandatory redemption payment (other than the purchase, repurchase, or other
acquisition of any Indebtedness subordinate in right of payment to the
Securities purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the
date of acquisition), Indebtedness of the Company or any Guarantor which is
subordinate (whether pursuant to its terms or by operation of law) in right of
payment to the Securities or the Guaranties; or (iv) any Investment (other than
a Permitted Investment) in any Person.
"Restricted Subsidiary" means any Subsidiary of the Company
that (A) has not been designated by the Board of Directors as an Unrestricted
Subsidiary or (B) was an Unrestricted Subsidiary but has been redesignated by
the Board of Directors as a Restricted Subsidiary, in each case as provided
under the definition of Unrestricted Subsidiary; provided, however, that no
Subsidiary shall become a Restricted Subsidiary unless, immediately after giving
pro forma effect to such designation, the Company would be able to incur at
least $1.00 of additional Indebtedness pursuant to Section 4.04(a).
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21
"Sale/Leaseback Transaction" means, with respect to any
Person, any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a Restricted Subsidiary of such Person and is
thereafter leased back from the purchaser or transferee thereof by such Person
or one of its Restricted Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended.
"S&P" shall mean Standard & Poor's Ratings Group, a division
of the McGraw-Hill Companies, Inc.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which a payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i)
Investments in U.S. Government Obligations maturing within 90 days of the date
of acquisition thereof, (ii) Investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America or any state thereof having capital,
surplus and undivided profits aggregating in excess of $500,000,000 and whose
long-term debt is rated "A-3" or higher, "A-" or higher or "A-" or higher
according to Moody's, S&P or Duff & Phelps Credit Rating Co. (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)), respectively,
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22
(iii) repurchase obligations with a term of not more than 7 days for underlying
securities of the types described in clause (i) entered into with a bank meeting
the qualifications described in clause (ii) above, and (iv) Investments in
commercial paper, maturing not more than 90 days after the date of acquisition,
issued by a corporation (other than the Company or an Affiliate of the Company)
organized and in existence under the laws of the United States of America with a
rating at the time as of which any Investment therein is made of "P-1" (or
higher) according to Moody's, "A-1" (or higher) according to S&P or "A-1" (or
higher) according to Duff & Phelps Credit Rating Co. (or such similar equivalent
rating by at least one "nationally recognized statistical rating organization"
(as defined in Rule 436 under the Securities Act)).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of this Indenture;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "TIA" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939, as so amended.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company which at the time of determination shall be an Unrestricted Subsidiary
(as designated by the Board of Directors) and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary (unless such Subsidiary owns any Capital Stock of or
owns or holds any Lien on any Property of the Company or any other Subsidiary of
the Company which is not a Subsidiary of the Subsidiary to be so designated);
provided that either (A) the Subsidiary to be so designated has total assets of
$1,000 or less or (B) such designation is effective immediately upon such entity
becoming a Subsidiary of the Company. Subject to clause (ii) above, the Board of
Directors may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that immediately after giving pro forma effect to such
redesignation, the Company would be able to incur at least $1.00 of additional
Indebtedness pursuant to Section 4.04(a).
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Any such designation by the Board of Directors will be
evidenced to the Trustee by filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying (i) that such designation complies with the foregoing provisions and
(ii) giving the effective date of such designation, such filing with the Trustee
to occur within 75 days after the end of the fiscal quarter of the Company in
which such designation is made (or, in the case of a designation made during the
last fiscal quarter of the Company's fiscal year, within 120 days after the end
of such fiscal year).
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" means securities of any class or classes of a
Person, the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for corporate directors (or Persons performing equivalent
functions).
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Company or another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"........................................................................... 4.06(a)
"Bankruptcy Law".................................................................................. 6.01
"Change of Control Offer"......................................................................... 4.07(a)
"Change of Control Payment"....................................................................... 4.07(a)
"Change of Control Payment Date".................................................................. 4.07(b)
"Claiming Guarantor"............................................................................. 10.07
"Contributing Guarantor"......................................................................... 10.07
"Covenant defeasance option"..................................................................... 8.01(b)
"Custodian"....................................................................................... 6.01
"Defaulted Interest"............................................................................. 2.11
"Depositary"..................................................................................... 2.02
"Events of Default"............................................................................... 6.01
"Excess Proceeds"................................................................................ 4.12
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"Global Security"................................................................................. 2.02
"Incorporated provision.......................................................................... 11.01
"Legal defeasance option"........................................................................ 8.01(b)
"Legal Holiday".................................................................................. 11.07
"Obligations".................................................................................... 10.01
"Paying Agent"................................................................................... 2.03
"Prepayment Offer"................................................................................ 4.12
"Prepayment Offer Notice"......................................................................... 4.12
"Purchase Date"................................................................................... 4.12
"Registrar"....................................................................................... 2.03
"Successor"....................................................................................... 5.01
"Suspended Covenants"............................................................................. 4.01
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
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(4) "including" means including without limitation;
(5) words in the singular include the plural and words in
the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or
other discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer dated such
date prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be
the greater of (i) the maximum liquidation value of such Preferred
Stock or (ii) the maximum mandatory redemption or mandatory repurchase
price with respect to such Preferred Stock.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. The Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreements to which the Company is subject, if any,
or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). The Company shall furnish any such legend not
contained in Exhibit A to the Trustee in writing. Each Security shall be dated
the date of its authentication. The terms of the Securities set forth in Exhibit
A are part of the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers of the
Company and a duly authorized officer of each Guarantor shall sign the
Securities by manual or facsimile signature. The Company's seal shall be
impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
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If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by two Officers authenticate Securities for original issue up to the aggregate
principal amount stated in the Securities in the form of one or more Global
Securities (herein defined as the "Global Security" or "Global Securities"),
which (i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the outstanding Securities, (ii) shall be
registered in the name of the depositary (the "Depositary"), which shall
initially be The Depository Trust Company, for such Global Security or Global
Securities or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for the individual Securities represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
by a Depositary or any such nominee to a successor Depositary or a nominee of
successor Depositary." The aggregate principal amount of Securities outstanding
at any time may not exceed such amount except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent (as
defined in Section 2.03) or agent for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for
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exchange (the "Registrar") and an office or agency where Securities may be
presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Company may have one
or more coregistrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, coregistrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities and
shall notify the Trustee of any default by the Company in making any such
payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Securityholders. If the Trustee is
not the
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Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When Securities are presented to the
Registrar with a request to register their transfer or to exchange them for an
equal principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transaction are met, provided that a Security surrendered for
registration of transfer or exchange shall be duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Registrar duly
executed by, the Holder thereof or his attorney duly authorized in writing. To
permit registration of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's or coregistrar's
request. The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section.
Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent, the Registrar or any
coregistrar may deem and treat the person in whose name a Security is registered
as the absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent, the Registrar or any coregistrar shall be
affected by notice to the contrary.
A Global Security may be transferred, in whole but not in part
and in the manner provided in this Section, only to a nominee of the Depositary
for such Global Security, or to the Depositary, or a successor Depositary for
such Global Security selected or approved by the Company, or to a nominee of
such successor Depositary.
If at any time the Depositary for the Global Security or
Global Securities notifies the Company that it
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is unwilling or unable to continue as Depositary for such Global Security or
Global Securities or if at any time the Depositary for the Global Security or
Global Securities shall no longer be eligible or in good standing under the
Exchange Act, or other applicable statute or regulation, the Company shall
appoint a successor Depositary with respect to such Global Security or Global
Securities. If a successor Depositary for such Global Security or Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of a written order for the authentication
and delivery of individual Securities in exchange for such Global Security or
Global Securities, will authenticate and deliver individual Securities in
definitive form in an aggregate principal amount equal to the outstanding
principal amount of the Global Security or Global Securities in exchange for
such Global Security or Global Securities.
The Company may at any time and in its sole discretion
determine that the Securities shall no longer be represented by such Global
Security or Global Securities. Also, if an Event of Default has occurred and is
continuing, the Securities shall no longer be represented by such Global
Security or Global Securities. In any such event the Company will execute, and
the Trustee, upon receipt of a written order for the authentication and delivery
of individual Securities in exchange in whole or in part for such Global
Security or Global Securities, will authenticate and deliver individual
Securities in definitive form in an aggregate principal amount equal to the
outstanding principal amount of such Global Security or Global Securities in
exchange for such Global Security or Global Securities.
In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual Securities,
such Global Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
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deliver such Securities to the persons in whose names such Securities are so
registered.
None of the Company, the Trustee, any Paying Agent or the
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Depositary has advised the Company that, subject to the
above, it will take any action permitted to be taken by a Holder (including the
presentation of Securities for exchange as described above) only at the
direction of one or more participants to whose account interests in the Global
Security or Global Securities are credited and only in respect of such portion
of the aggregate principal amount of Securities as to which such participant or
participants has or have given such direction.
SECTION 2.07. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee or the Company. If required by
the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from
any loss which any of them may suffer if a Security is replaced. The Company and
the Trustee may charge the Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
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If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction or consent or any
amendment, modification or other change to this Indenture, Securities owned by
the Company or by an Affiliate of the Company shall be disregarded and treated
as if they were not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent or any amendment, modification or other change to this Indenture,
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Securities and that the pledgee is
not the Company or an Affiliate of the Company.
SECTION 2.09. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
SECTION 2.10. Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel
(subject to the record retention requirements
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of the Exchange Act) all Securities surrendered for registration of transfer,
exchange, payment or cancelation and deliver the canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it has
redeemed, paid or delivered to the Trustee for cancelation.
SECTION 2.11. Defaulted Interest. Any interest on any Security
which is payable, but is not punctually paid or duly provided for, on the dates
and in the manner provided in the Securities and this Indenture (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant record date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities are registered at
the close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall irrevocably
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be given to each Holder, not less than
10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor
having been so mailed, such Defaulted Interest shall be paid
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to the Persons in whose names the Securities are registered at the
close of business on such special record date.
(ii) The Company may make payment of any Defaulted Interest on
the Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.11, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.12. Record Date. The Company may set a record date
for purposes of determining the identity of Securityholders entitled to vote or
to consent to any action by vote of consent authorized or permitted by Sections
6.04 and 6.05. Unless this Indenture provides otherwise, such record date shall
be the later of 30 days prior to the first solicitation of such consent or the
date of the most recent list of Holders furnished to the Trustee pursuant to
Section 2.05 prior to such solicitation.
SECTION 2.13. Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months. For disclosure purposes under the Interest Act (Canada), whenever in
this Indenture or the Securities interest at a specified rate is to be
calculated on the basis of a period less than a calendar year, the yearly rate
of interest to which such rate is equivalent is such rate multiplied by the
actual number of days in the relevant calendar year and divided by the number of
days in such period.
SECTION 2.14. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers and, if it does so, the Trustee shall use the
CUSIP numbers in notices of redemption or exchange as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP
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numbers printed in the notice or on the Securities and that reliance may be
placed only on the other identification numbers printed on the Securities. The
Company will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. If fewer than all the
Securities are to be redeemed, the record date relating to such redemption shall
be selected by the Company and given to the Trustee, which record date shall be
not less than 15 days after the date of notice to the Trustee.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations equal to or larger than $1,000.
Securities and portions of them the Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company
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promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities, the Company shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(5) if fewer than all the outstanding Securities
are to be redeemed, the identification and principal
amounts of the particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment, interest on Securities (or portion thereof) called
for redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Securities pursuant to
which the Securities called for redemption are being
redeemed; and
(8) 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.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and
at the redemption price stated in the notice. Upon surrender
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to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest to the redemption date (subject to
the right of Holders of record on the relevant record date to receive interest
due on the related interest payment date). Failure to give notice or any defect
in the notice to any Holder shall not affect the validity of the notice to any
other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest (subject
to the right of Holders of record on the relevant record date to receive
interest due on the related interest payment date) on all Securities to be
redeemed on that date other than Securities or portions of Securities called for
redemption which have been delivered by the Company to the Trustee for
cancelation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.07. Redemption Pursuant to Gaming Laws. (a)
Notwithstanding the provisions of Sections 3.02 and 3.03 and any related
paragraphs of the Securities, if any Gaming Authority requires that a Holder or
beneficial owner of Securities must be licensed or found qualified or suitable
to hold or own the Securities, but that Person is not licensed or found
qualified or suitable within any time specified by such Gaming Authority, or
such Gaming Authority denies a license to or finds unqualified or unsuitable
such Person, the Company will have the right at its option to require such
Person to dispose of such Person's Securities within the time period prescribed
by the Company (or such other time period as may be prescribed by any Gaming
Authority, which time period shall be specified in a written notice from the
Company). If such Holder or beneficial owner, having been given the opportunity
by the Company to dispose of such Securities, fails to dispose of such
Securities within the prescribed time period, the Company shall have the right
to call for redemption such Securities by notice of redemption to such Person.
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(b) On any redemption of Securities pursuant to this Section
3.07, the redemption price (the "Redemption Price") shall be the lesser of (i)
the lowest closing sale price of the Securities on any trading day during the
120-day period ending on the date upon which the Company shall have received
notice from a Gaming Authority of such Holder's disqualification or (ii) the
price at which such Holder or beneficial owner acquired the Securities, unless a
different redemption price is required by such Gaming Authority, in which event
such required price shall be the Redemption Price. Each Holder and beneficial
owner, by accepting a Security, agrees to the provisions of this Section 3.07
and any related paragraphs of the Securities of such series and agrees to inform
the Issuer upon request of the price at which such Holder or beneficial owner
acquired such Holder's or beneficial owner's Securities.
(c) Any redemption notice given by the Company under this
Section 3.07 shall state (i) that the Securities are being called for redemption
as a result of the Holder's or beneficial owner's status under the relevant
Gaming Laws, (ii) the Redemption Date, (iii) the Redemption Price and (iv) the
place or places where such Securities are to be surrendered for payment of the
Redemption Price.
ARTICLE IV
Covenants
SECTION 4.01. Certain Suspended Covenants. During any period
of time that (i) the Securities have Investment Grade Status and (ii) no Default
or Event of Default has occurred and is continuing under this Indenture with
respect to the Securities, the Company and its Restricted Subsidiaries will not
be subject to the provisions of Sections 4.04, 4.05 and 4.12 (collectively, the
"Suspended Covenants"). In the event that the Company and its Restricted
Subsidiaries are not subject to the Suspended Covenants with respect to the
Securities for any period of time as a result of the preceding sentence and,
subsequently, at least two of the three Rating Agencies withdraw their ratings
or assign the Securities a rating below the required Investment Grade Ratings,
then the Company and its Restricted Subsidiaries will thereafter again be
subject to the Suspended Covenants for the benefit of the Securities and
compliance with the Suspended Covenants with respect to Restricted Payments made
after the
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time of such withdrawal or assignment will be calculated in accordance with
Section 4.05 as if such Section had been in effect during the entire period of
time from the Issue Date with respect to the Notes.
SECTION 4.02. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal and interest then due.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.03. SEC Reports. The Company shall file with the
Trustee and provide Securityholders, within 15 days after it files them with the
Commission, copies of its annual report and the information, documents and other
reports which the Company is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act. Notwithstanding that the Company may
not be required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company shall continue to file with the
Commission and provide the Trustee and Securityholders with the annual reports
and the information, documents and other reports which are specified in Sections
13 and 15(d) of the Exchange Act. The Company also shall comply with the other
provisions of TIA Section 314(a).
SECTION 4.04. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur any
Indebtedness unless no Event of Default has occurred and is continuing and
unless (after giving effect to (i) the Incurrence of such Indebtedness as if
such Indebtedness was Incurred at the beginning of the Reference Period and (if
applicable) the application of the net proceeds thereof to repay other
Indebtedness as if the application of such proceeds occurred at the beginning of
the Reference Period, (ii) the Incurrence and retirement of any other
Indebtedness since the first day of the Reference Period as if such Indebtedness
was Incurred or retired at the beginning of the Reference Period and (iii) the
acquisition or disposition of
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any company or business by the Company or any Restricted Subsidiary since the
first day of the Reference Period including any acquisition or disposition which
will be consummated contemporaneously with the Incurrence of such Indebtedness,
as if such acquisition or disposition occurred at the beginning of the Reference
Period), the Company's Consolidated Fixed Charge Coverage Ratio would exceed 2.0
to 1.
(b) Notwithstanding the foregoing limitation, the Company may
Incur the following Indebtedness: (i) Indebtedness evidenced by the Securities;
(ii) Indebtedness outstanding on the Issue Date; (iii) so long as no Event of
Default has occurred and is continuing, Indebtedness under the Credit Facility
in an aggregate amount outstanding at any time not to exceed $500 million, which
amount shall be permanently reduced by the amount of Net Proceeds used to repay
Indebtedness under the Credit Facility and not subsequently reinvested in
Additional Assets or used to purchase Securities; (iv) Indebtedness of the
Company or a Restricted Subsidiary owing to and held by a Restricted Subsidiary
or the Company; provided, however, that any subsequent issuance or transfer of
any Capital Stock or other event that results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of any such
Indebtedness except to the Company or a Restricted Subsidiary shall be deemed in
each case to constitute the Incurrence of such Indebtedness by the issuer
thereof; (v) Indebtedness under Interest Rate Agreements entered into for the
purpose of limiting interest rate risks, provided that the obligations under
such agreements are related to payment obligations on Indebtedness otherwise
permitted by the terms of this covenant; (vi) Indebtedness under Currency
Exchange Protection Agreements, provided that such Currency Exchange Protection
Agreements were entered into for the purpose of limiting exchange rate risks in
connection with transactions entered into in the ordinary course of business;
(vii) Indebtedness in connection with one or more standby letters of credit,
performance bonds or completion guarantees issued in the ordinary course of
business or pursuant to self-insurance obligations and not in connection with
the borrowing of money or the obtaining of advances or credit; (viii)
Indebtedness outstanding under Permitted FF&E Financings which are either (x)
Non-Recourse Indebtedness of the Company and its Restricted Subsidiaries or (y)
limited in amount for each Gaming Facility owned or leased by the Company or any
of its Restricted Subsidiaries to the lesser
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of (1) the amount of FF&E used in such Gaming Facility and financed by such
Permitted FF&E Financing or (2) $10 million; (ix) so long as no Event of Default
has occurred and is continuing, Indebtedness of the Company not otherwise
permitted to be Incurred pursuant to the provisions of paragraph (a) above or
this paragraph in an aggregate amount Incurred not to exceed $25 million; or (x)
Permitted Refinancing Indebtedness Incurred in respect of Indebtedness
outstanding pursuant to the provisions of Section 4.04(a) or clauses (i), (ii),
(iii), (viii) and this clause (x) of this Section 4.04(b).
SECTION 4.05. Limitation on Restricted Payments. (a) The
Company shall not make, and shall not permit any Restricted Subsidiary to make,
any Restricted Payment if at the time of, and after giving effect to, such
proposed Restricted Payment, (a) a Default or an Event of Default shall have
occurred and be continuing, (b) the Company could not Incur at least $1.00 of
additional Indebtedness pursuant to Section 4.04(a) or (c) the aggregate amount
of such Restricted Payment and all other Restricted Payments made from and after
the date of this Indenture (the amount of any Restricted Payment, if made other
than in cash, to be based upon Fair Market Value) would exceed an amount equal
to the sum of (i) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) from the end of the most recent fiscal
quarter ended immediately prior to the date of this Indenture to the end of the
most recent fiscal quarter ended immediately prior to the date of such
Restricted Payment (or, in the case such Consolidated Net Income shall be a
deficit, minus 100% of such deficit); (ii) the aggregate Net Cash Proceeds
received by the Company from the issue or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the end of the most recent fiscal quarter
ended immediately prior to the date of this Indenture (other than an issuance or
sale to a Subsidiary of the Company or an employee stock ownership plan or other
trust established by the Company or any of its Subsidiaries or pursuant to
clauses (iii) or (iv) of Section 4.05(b)); (iii) the amount by which
Indebtedness of the Company or any Guarantor is reduced on the Company's balance
sheet upon the conversion or exchange (other than an issuance or sale to a
Subsidiary of the Company or an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries) subsequent to the end of
the most recent fiscal quarter ended immediately prior to the date of this
Indenture, of any Indebtedness of the Company or any Guarantor convertible or
exchangeable for Capital Stock
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(other than Disqualified Stock) of the Company (less the amount of any cash or
other property distributed by the Company or any Restricted Subsidiary upon such
conversion or exchange); (iv) the amount equal to the net reduction in
Investments resulting from (A) payments of dividends, repayments of loans or
advances or other transfers of assets to the Company or any Guarantor or the
satisfaction or reduction (other than by means of payments by the Company or any
Restricted Subsidiary) of obligations of other Persons which have been
Guaranteed by the Company or any Guarantor or (B) the redesignation of
Unrestricted Subsidiaries as Restricted Subsidiaries which execute Guaranties,
in each case such net reduction in Investments being (x) valued as provided in
the definition of "Investment" set forth in Section 1.01, (y) in an amount not
to exceed the aggregate amount of Investments previously made by the Company or
any Guarantor which were treated as a Restricted Payment, and (z) included in
this clause (iv) only to the extent not included in Consolidated Net Income; (v)
payments of dividends, repayments of loans or advances or other transfers of
assets to the Company or any Guarantor from the Mirage Joint Venture to the
extent such dividends, repayments, advances or other transfers exceed $100
million; and (vi) $75 million.
(b) The provisions of the preceding paragraph shall not
prohibit: (i) the payment of any dividend within 60 days after the date of its
declaration if such dividend could have been paid on the date of its declaration
in compliance with such provisions; provided that at the time of payment of such
dividend no Default under any provision of this Indenture other than this
Section 4.05 shall have occurred and be continuing (or would result therefrom);
(ii) the redemption or repurchase of any Capital Stock or Indebtedness of the
Company (other than any Capital Stock or Indebtedness which is held or
beneficially owned by, or issued by, any member of the Boyd Family, the Company
or any Affiliate of the Company) (A) if the holder or beneficial owner of such
Capital Stock or Indebtedness is required to qualify under the Gaming Laws and
does not so qualify or (B) if necessary in the reasonable, good faith judgment
of the Board of Directors, as evidenced by a Board Resolution, to prevent the
loss or secure the reinstatement of any Gaming License which if lost or not
reinstated, as the case may be, would have a material adverse effect on the
business of the Company and its Subsidiaries, taken as a whole, or would
restrict the ability of the Company or any of its Subsidiaries to conduct
business in any gaming jurisdiction;
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(iii) any purchase, redemption or other acquisition or retirement of Capital
Stock of the Company made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock (other than Disqualified Stock)
of the Company; (iv) any purchase, redemption or other acquisition or retirement
of the Indebtedness of any Person made by exchange for, or out of the proceeds
of the substantially concurrent sale of, Capital Stock (other than Disqualified
Stock) of the Company; (v) any purchase, redemption, defeasance or other
acquisition or retirement for value of Indebtedness from the proceeds of
Permitted Refinancing Indebtedness; (vi) any purchase, redemption or other
retirement of the CHFC Notes and the Boyd Notes; (vii) Investments not to exceed
$100 million in the Mirage Joint Venture; (viii) Investment Guarantees to the
extent permitted by Section 4.04 that constitute Permitted Joint Venture
Investments and Guarantee (with full rights of subrogation) Indebtedness
Incurred by a Permitted Joint Venture to acquire or construct Gaming Facilities
provided that such Indebtedness (A) is not expressly subordinated in right of
payment or otherwise to any other Indebtedness of such Permitted Joint Venture
and (B) is secured by first priority security interests in such Gaming
Facilities, and (ix) payments pursuant to Investment Guarantees which were
entered into in compliance with clause (viii) of this Section 4.05(b).
(c) The full amount of any Restricted Payments pursuant to
clauses (i) and (ii) of Section 4.05(b) (but not pursuant to clauses (iii),
(iv), (v), (vi) and (vii) of Section 4.05(b)) shall be included in the
calculation of the aggregate amount of the Restricted Payments referred to in
Section 4.05(a). With respect to any Investment Guarantee, (x) if at any time
the Company or any Restricted Subsidiary ceases to control the day-to-day
operations of the Permitted Joint Venture the Indebtedness of which is
Guaranteed by the Investment Guarantee, the full amount of such Investment
Guarantee shall thereafter be included in the calculation of the aggregate
amount of Restricted Payments referred to in Section 4.05(a) and (y) if the
Company or a Restricted Subsidiary retains such control, any amount actually
paid pursuant to such Investment Guarantee shall be included in the calculation
of the aggregate amount of Restricted Payments referred to in the next preceding
paragraph.
SECTION 4.06. Limitation on Transactions with Affiliates. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly,
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conduct any business or enter into or suffer to exist any transaction or series
of transactions (including the purchase, sale, transfer, lease or exchange of
any Property, the making of any Investment, the giving of any Guarantee or the
rendering or receiving of any service) with, from or for the benefit of, (1) any
Affiliate, (2) any Related Person or (3) any officer or director of any
Affiliate or a Related Person (an "Affiliate Transaction") unless (i) the terms
of such Affiliate Transaction are (a) in writing, (b) in the best interest of
the Company or such Restricted Subsidiary, as the case may be, and (c) at least
as favorable to the Company or such Restricted Subsidiary, as the case may be,
as those that could be obtained at the time of such Affiliate Transaction in a
similar transaction in arm's-length dealings with a Person who is not such an
Affiliate, Related Person or officer or director of an Affiliate or Related
Person, (ii) with respect to each Affiliate Transaction involving aggregate
payments to either party in excess of $5 million, the Company delivers to the
Trustee an Officers' Certificate certifying that such Affiliate Transaction was
approved by a majority of the disinterested members of the Board of Directors
and that such Affiliate Transaction complies with clause (i), and (iii) with
respect to each Affiliate Transaction involving aggregate payments in excess of
$10 million, the Company delivers to the Trustee an opinion letter from an
Independent Advisor to the effect that such Affiliate Transaction is fair, from
a financial point of view.
(b) Notwithstanding the limitation of Section 4.06(a), the
Company may enter into or suffer to exist the following: (i) any transaction
pursuant to any contract in existence on the Issue Date; (ii) any Restricted
Payment permitted to be made pursuant to Section 4.05; (iii) any transaction or
series of transactions between the Company and one or more of its Restricted
Subsidiaries or between two or more of its Restricted Subsidiaries; and (iv) the
payment of compensation (including amounts paid pursuant to employee benefit
plans) for the personal services of officers, directors and employees of the
Company or any of its Restricted Subsidiaries, so long as the Board of Directors
in good faith shall have approved the terms thereof and deemed the services
theretofore or thereafter to be performed for such compensation or fees to be
fair consideration therefor.
SECTION 4.07. Change of Control. (a) Upon the occurrence of
(i) in the event at the Change of Control Time
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the Securities do not have Investment Grade Status, a Change of Control or, (ii)
in the event at the Change of Control Time the Securities have Investment Grade
Status, a Change of Control Triggering Event, each Holder shall have the right
to require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Securities pursuant to the offer
described below (the "Change of Control Offer") at a purchase price equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the purchase date (the "Change of Control Payment").
(b) Within 30 days following (i) any Change of Control or,
(ii) in the event the Securities at the earlier of the public announcement of
(x) a Change of Control or (y) (if applicable) the intention of the Company to
effect a Change of Control have Investment Grade Status, a Change of Control
Triggering Event, the Company shall mail a notice to the Trustee and each Holder
stating, among other things: (1) that a Change of Control or Change of Control
Triggering Event, as the case may be, has occurred and a Change of Control Offer
is being made pursuant to this Section 4.07 and that all Securities (or portions
thereof) timely tendered will be accepted for payment; (2) the purchase price
and the purchase date, which shall be, subject to any contrary requirements of
applicable law, no earlier than 30 days nor later than 60 days from the date
such notice is mailed (the "Change of Control Payment Date"); (3) that any Note
(or portion thereof) accepted for payment (and for which payment has been duly
provided on the Change of Control Payment Date) pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control Payment
Date; (4) that any Securities (or portions thereof) not tendered will continue
to accrue interest; (5) a description of the transaction or transactions
constituting the Change of Control or Change of Control Triggering Event, as the
case may be; and (6) the procedures that Holders must follow in order to tender
their Securities (or portions thereof) for payment and the procedures that
Holders must follow in order to withdraw an election to tender Securities (or
portions thereof) for payment.
(c) Not later than the date upon which written notice required
by Section 4.07(b) is delivered to the Trustee, the Company shall irrevocably
deposit with the Trustee or with a paying agent (or, if the Company is acting as
its own paying agent, segregate and hold in trust) in Temporary Cash Investments
an amount equal to the purchase
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price plus accrued and unpaid interest, if any, to the Holders entitled thereto,
to be held for payment in accordance with the provisions of this Section 4.07.
Holders electing to have a Security purchased will be required to surrender the
Security, with an appropriate form duly completed, to the Company at the address
specified in the notice at least five Business Days prior to the purchase date.
Holders will be entitled to withdraw their election if the Trustee or the
Company receives not later than three Business Days prior to the purchase date,
a telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was delivered for
purchase by the Holder, the certificate number of such Security and a statement
that such Holder is withdrawing his election to have such Security purchased.
(d) On the purchase date, the Company shall deliver to the
Trustee the Securities or portions thereof which have been properly tendered to
and are to be accepted by the Company. The Trustee shall, on the purchase date,
mail or deliver payment of the purchase price to each tendering Holder. In the
event that the aggregate purchase price of the Securities delivered by the
Company to the Trustee is less than the amount deposited with the Trustee, the
Trustee shall deliver the excess to the Company immediately after the end of the
payment date.
(e) The Company will comply, to the extent applicable, with
the requirements of Rule 14e-1 under the Exchange Act, and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the purchase of Securities in connection with a
Change of Control or Change of Control Triggering Event, as the case may be. To
the extent that the provisions of any securities laws or regulations conflict
with the provisions relating to the Change of Control Offer, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under Section 4.07 by virtue thereof.
SECTION 4.08. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default and whether or not the signers know of any Default
that occurred during
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such period. If they do, the certificate shall describe the Default, its status
and what action the Company is taking or proposes to take with respect thereto.
The Company also shall comply with TIA Section 314(a)(4).
SECTION 4.09. Further Instruments and Acts. Upon request of
the Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.10. Limitation on Liens. The Company shall not, and
shall not permit any Guarantor or Par-A-Dice or EPH to, directly or indirectly,
Incur or suffer to exist, any Lien upon any of its Property, whether now owned
or hereafter acquired, or any interest therein or any income or profits
therefrom, unless it has made or will make effective provision whereby the
Securities will be secured by such Lien equally and ratably with (or prior to)
all other Indebtedness of the Company or any Guarantor, Par-A-Dice or EPH
secured by such Lien except for: (i) Permitted Liens; (ii) Liens on assets
financed through Permitted FF&E Financings securing Indebtedness permitted under
clause (viii) of Section 4.04(b); (iii) Liens on the Property of the Company or
any Guarantor, Par-A-Dice or EPH existing on the date of this Indenture; (iv)
Liens securing Indebtedness Incurred pursuant to the Credit Facility; (v) Liens
in favor of the Company or a Guarantor; (vi) Liens on the Property of a Person
(except for Par-A-Dice and EPH) at the time such Person becomes a Guarantor;
provided, however, that any such Lien may not extend to any other Property of
the Company or any Guarantor or Par-A Dice or EPH; provided further, however,
that any such Lien was not Incurred in anticipation of or in connection with the
transaction or series of related transactions pursuant to which such Person
became a Guarantor; or (vii) Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements) as a whole or in part of any Indebtedness
secured by any Lien referred to in the foregoing clauses (ii), (iii), (vi) and
(vii); provided, however, that (x) such new Lien shall be limited to all or part
of the same Property subject to the original Lien (plus improvements on such
Property) and (y) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of (A) the outstanding principal
amount or, if greater, committed amount of the Indebtedness described under
clauses (ii), (iii), (vi) or (vii) and
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(B) an amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or replacement.
SECTION 4.11. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to (a)(i) pay dividends
or make any other distributions to the Company or any other Restricted
Subsidiary (A) on its Capital Stock or (B) with respect to any other interest or
participation in, or measured by, its profits, or (ii) pay any indebtedness owed
to the Company or any other Restricted Subsidiary or (b) make loans or advances
to the Company or any other Restricted Subsidiary or (c) transfer any of its
Property to the Company or any other Restricted Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (i) agreements in
effect on the Issue Date; (ii) applicable law; (iii) customary nonassignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices; (iv) Permitted Refinancing Indebtedness;
provided, however, that the restrictions contained in the agreements governing
such Permitted Refinancing Indebtedness are no more restrictive than those
contained in the agreements governing the Indebtedness being refinanced; or (v)
agreements in existence with respect to a Restricted Subsidiary at the time it
is so designated; provided, however, that such agreements are not entered into
in anticipation or contemplation of such designation. Nothing contained in this
covenant shall prevent the Company or any Restricted Subsidiary from granting
any Lien permitted by Section 4.10.
SECTION 4.12. Limitation on Asset Sales; Event of Loss. (a)
Other than upon an Event of Loss, the Company shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale
after the Issue Date, where the Property subject to such Asset Sale has an
aggregate Fair Market Value equal to or in excess of $10 million, unless: (i)
the Company 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 of the Property subject to such Asset Sale; (ii) at least 75% of such
consideration consists of cash or Temporary Cash Investments; provided, however,
that for purposes of this clause (ii), (x) the assumption of
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Indebtedness of the Company or a Restricted Subsidiary which is not subordinated
to the Securities or any Guarantee shall be deemed to be Temporary Cash
Investments if the Company, such Restricted Subsidiary, and all other Restricted
Subsidiaries of the Company, to the extent any of the foregoing are liable with
respect to such Indebtedness, are expressly released from all liability for such
Indebtedness by the holder thereof in connection with such Asset Sale, (y) any
securities or notes received by the Company or such Restricted Subsidiary from
such transferee that are converted by the Company or such Restricted Subsidiary
into cash or Temporary Cash Investments within 10 business days of the date of
such Asset Sale shall be deemed to be Temporary Cash Investments and (z) the
Company and its Restricted Subsidiaries may receive consideration in the form of
securities exceeding 25% of the consideration for one or more Asset Sales so
long as the Company and its Restricted Subsidiaries do not hold such securities
having an aggregate Fair Market Value in excess of $50 million at any time
outstanding; (iii) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect, on a pro forma
basis, to, such Asset Sale; and (iv) the Board of Directors determines in good
faith that such Asset Sale complies with clauses (i) and (ii).
(b) Upon an Event of Loss incurred by the Company or any of
its Restricted Subsidiaries, the Net Proceeds received from such Event of Loss
shall be applied in the same manner as proceeds from Asset Sales described in
Section 4.12(a) and pursuant to the procedures set forth in this Section 4.12.
(c) Within 270 days after the receipt of the Net Proceeds of
an Asset Sale or Event of Loss, an amount equal to 100% of the Net Proceeds from
such Asset Sale or Event of Loss may be applied by the Company or a Restricted
Subsidiary (A) to permanently repay, redeem or repurchase Indebtedness of the
Company or Indebtedness of any Restricted Subsidiary or (B) to reinvest in
Additional Assets (including by means of an Investment in Additional Assets by a
Restricted Subsidiary with Net Proceeds received by the Company or another
Restricted Subsidiary); provided, however, that if the Company or any Restricted
Subsidiary contractually commits within such 270-day period to apply such Net
Proceeds within 180 days of such contractual commitment in accordance with the
above clauses (A) or (B), and such Net Proceeds are subsequently applied as
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contemplated in such contractual commitment, then the requirement for
application of Net Proceeds set forth in this Section 4.12(c) shall be
considered satisfied.
(d) Any Net Proceeds from an Asset Sale or Event of Loss that
are not used in accordance with Section 4.12(c) shall constitute "Excess
Proceeds". When the aggregate amount of Excess Proceeds exceeds $20 million
(taking into account income earned on such Excess Proceeds), the Company shall
make an offer to purchase (the "Prepayment Offer"), on a pro rata basis, from
all Holders of the Securities, an aggregate principal amount of Securities equal
to the Excess Proceeds, at a price in cash at least equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, in accordance with
Section 4.12(e) summarized herein and set forth in this Indenture. To the extent
that any portion of the Excess Proceeds remains after compliance with the
preceding sentence and provided that all Holders have been given the opportunity
to tender the Securities for repurchase in accordance with Section 4.12(e), the
Company or such Restricted Subsidiary may use such remaining amount for general
corporate purposes and the amount of Excess Proceeds shall be reset to zero.
Pending application of Net Proceeds pursuant to clause (A) and (B) of Section
4.12(c), such Net Proceeds will be invested in Temporary Cash Investments.
(e) Within 10 Business Days after the amount of Excess
Proceeds exceeds $20 million, the Company shall send a written notice, by
first-class mail, to the Holders (the "Prepayment Offer Notice"), accompanied by
such information regarding the Company and its Subsidiaries as the Company in
good faith believes will enable such Holders to make an informed decision with
respect to the Prepayment Offer. The Prepayment Offer Notice will state, among
other things, (i) that the Company is offering to purchase Securities pursuant
to Section 4.12, (ii) that any Security (or any portion thereof) accepted for
payment (and for which payment has been duly provided on the Purchase Date)
pursuant to the Prepayment Offer shall cease to accrue interest after the
Purchase Date, (iii) the purchase price and purchase date, which shall be,
subject to any contrary requirements of applicable law, no less than 30 days nor
more than 60 days from the date the Prepayment Offer Notice is mailed (the
"Purchase Date"), (iv) the aggregate principal amount of Securities (or portions
thereof) to be purchased and (v) a description of the procedure which Holders
must follow in order to tender their Securities (or portions thereof) and
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the procedures that Holders must follow in order to withdraw an election to
tender their Securities (or portions thereof) for payment.
(f) Not later than the date upon which written notice required
by Section 4.12(e) is delivered to the Trustee, the Company shall irrevocably
deposit with the Trustee or with the Paying Agent (or, if the Company is acting
as its own paying agent, segregate and hold in trust) in Temporary Cash
Investments an amount equal to the purchase price plus accrued and unpaid
interest, if any, to the Holders entitled thereto, to be held for payment in
accordance with the provisions of this Section. Holders electing to have a
Security purchased will be required to surrender the Security, with an
appropriate form duly completed, to the Company at the address specified in the
notice at least five Business Days prior to the purchase date. Holders will be
entitled to withdraw their election if the Trustee or the Company receives not
later than three Business Days prior to the purchase date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security which was delivered for purchase by the Holder,
the certificate number of such Security and a statement that such Holder is
withdrawing his election to have such Security purchased.
(g) On the purchase date, the Company shall deliver to the
Trustee the Securities or portions thereof which have been properly tendered to
and are to be accepted by the Company. The Trustee (or Paying Agent) shall, on
the purchase date, mail or deliver payment of the purchase price to each
tendering Holder. In the event that the aggregate purchase price of the
Securities delivered by the Company to the Trustee is less than the amount
deposited with the Trustee (or Paying Agent), the Trustee (or Paying Agent)
shall deliver the excess to the Company immediately after the end of the payment
date.
(h) The Company will comply, to the extent applicable, with
the requirements of Rule 14e-1 under the Exchange Act, and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the purchase of Securities required by this
Section. To the extent that the provisions of any securities laws or regulations
conflict with the provisions relating to the Prepayment Offer, the Company will
comply with the applicable securities laws and
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regulations and will not be deemed to have breached its obligations under
Section 4.12 by virtue thereof.
SECTION 4.13. Guaranty by Par-A-Dice and EPH. The Company
shall use all reasonable efforts, and shall cause Par-A-Dice and EPH to use all
reasonable efforts, to obtain all necessary approvals of Gaming Authorities in
the State of Illinois for Par-A-Dice and EPH to execute a supplemental
indenture, in the form prescribed by this Indenture and containing its Guaranty,
in favor of the Holders at the consummation of the Par-A-Dice Acquisition or as
soon thereafter as possible. Regardless of whether such approval is obtained, at
all times following consummation of the Par-A-Dice Acquisition, Par-A-Dice and
EPH shall be designated as Restricted Subsidiaries and will be subject to all of
the covenants applicable to a Guarantor under this Indenture.
SECTION 4.14. Maintenance of Properties and Other Matters. (a)
The Company shall, and shall cause each of its Subsidiaries to, maintain its
Properties in good working order and condition and make all necessary repairs,
renewals and replacements; provided, however, that nothing in this provision
shall prevent the Company or any of its Subsidiaries from discontinuing the
operation and maintenance of any of its Properties, if such discontinuance is,
in the judgment of the Company, both desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and not disadvantageous in
any material respect to the Holders.
(b) The Company shall, and shall cause each of its
Subsidiaries to, insure and keep insured, with financially sound and reputable
insurers, so much of their respective Properties and in such amounts as is
usually and customarily insured by Persons engaged in a similar business with
respect to Properties of a similar character against loss by fire and the
extended coverage perils. None of the Company or any of its Subsidiaries shall
maintain a system of self-insurance in lieu of or in combination with the
foregoing insurance with respect to its Properties; provided that deductibles
under the insurance policy or policies of the Company and its Subsidiaries shall
not be considered to be self-insurance as long as such deductibles accord with
financially sound and approved practices of Persons owning or operating
Properties of a similar character and maintaining similar insurance coverage.
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(c) The Company shall, and shall cause each of its
Subsidiaries to, keep proper books and records of accounts in which full and
correct entries will be made of all its business transactions in accordance with
GAAP. The Company shall cause the books and records of accounts of the Company
and its Subsidiaries to be examined, either on a consolidated or on an
individual basis, by one or more firms of independent public accountants not
less frequently than annually. The Company shall, and shall cause each of its
Subsidiaries to, prepare its financial statements in accordance with GAAP.
(d) The Company shall, and shall cause each of its
Subsidiaries to, comply with all Legal Requirements and to obtain any licenses,
permits, franchises or other authorizations, including Gaming Licenses, from
Governmental Authorities necessary to the ownership or operation of its
Properties or to the conduct of its business.
(e) Notwithstanding the provisions of Section 4.14(a), (b),
(c) or (d), failure by the Company or any of its Subsidiaries to comply with
such provisions shall not be deemed to be a breach of such provisions to the
extent that such failure would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole.
SECTION 4.15. Limitation on Activities of the Company. The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
engage in (through acquisition or otherwise) any business other than a Related
Business.
SECTION 4.16. Limitation on Status as an Investment Company.
The Company shall not, and shall not permit any of its Subsidiaries to, become
an "investment company" (as that term is defined in the Investment Company Act
of 1940), to the extent such status would subject the Company or any such
Subsidiary to regulation under the Investment Company Act, except for
Subsidiaries established for the purpose of financing the operating businesses
of the Company and its Subsidiaries.
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ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets.
Neither the Company nor any Guarantor shall merge or consolidate with or into
any other entity (other than a merger or consolidation of a Guarantor with or
into the Company or another Guarantor, and other than a merger or consolidation
of a Guarantor where the surviving entity is not the Company or a Subsidiary of
the Company) or in one transaction or a series of related transactions sell,
convey, assign, transfer, lease or otherwise dispose of all or substantially all
of its Property unless: (i) the entity formed by or surviving any such
consolidation or merger (if the Company or such Guarantor is not the surviving
entity) or the Person to which such sale, assignment, transfer, lease or
conveyance is made (the "Successor") (a) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and such corporation expressly assumes, by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, the due and punctual payment of the principal, premium, if
any, and interest on all the Securities, according to their tenor, and the due
and punctual performance and observance of all the covenants and conditions of
this Indenture to be performed by the Company or such Guarantor, as the case may
be, and (b) the Successor shall have all Gaming Licenses required to operate all
Gaming Facilities to be owned by such Successor; (ii) in the case of a sale,
transfer, assignment, lease, conveyance or other disposition of all or
substantially all of the Company's Property or of such Guarantor's Property,
such Property shall have been transferred as an entirety or virtually as an
entirety to one Person; (iii) immediately before and after giving effect to such
transaction or series of transactions on a pro forma basis, no Default or Event
of Default shall have occurred and be continuing; (iv) immediately after giving
effect to such transaction or series of transactions on a pro forma basis
(including, without limitation, any Indebtedness Incurred or anticipated to be
Incurred in connection with such transaction or series of transactions), the
Company or the Successor, as the case may be, would be able to Incur at least
$1.00 of additional Indebtedness under Section 4.04(a); and (v) immediately
after giving effect to such transaction or series of transactions on a pro forma
basis including, without limitation, any Indebtedness
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Incurred or anticipated to be Incurred in connection with such transaction or
series of transactions), the Company or the Successor shall have a Consolidated
Net Worth equal to or greater than the Consolidated Net Worth of the Company
immediately prior to the transaction or series of transactions.
The Successor shall be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, but the predecessor Company in the case of a
conveyance, transfer or lease shall not be released from the obligation to pay
the principal of and interest on the Securities.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. The following events shall be
"Events of Default":
(i) default with respect to payment of interest on any of the
Securities when it becomes due and payable, and the continuance of such
default for a period of 30 days;
(ii) default with respect to payment of principal or premium,
if any, on any of the Securities when due at maturity, upon
acceleration, required purchase or otherwise;
(iii) failure by the Company or any Guarantor to observe,
perform or comply with Article V herein;
(iv) failure by the Company or the Guarantors to observe,
perform or comply with any of the other covenants and agreements in
this Indenture and such failure to observe, perform or comply continues
for a period of 30 days after receipt by the Company of a written
notice from the Trustee or Holders of not less than 25% of aggregate
principal amount of the Securities than outstanding;
(v) Indebtedness of the Company or any Restricted Subsidiary
is not paid when due within any applicable grace period or is
accelerated by the holders thereof
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and, in either case, the total amount of such unpaid or accelerated
Indebtedness exceeds $10 million;
(vi) the entry by a court of competent jurisdiction of one or
more judgments or orders against the Company or any Restricted
Subsidiary in an uninsured aggregate amount in excess of $10 million
and such judgment or order is not discharged, waived, stayed or
satisfied for a period of 60 consecutive days;
(vii) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of
it or for any substantial part of its property;
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Restricted Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or
any Restricted Subsidiary or for any substantial
part of its property; or
(C) orders the winding up or liquidation of
the Company or any Restricted Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(ix) any revocation, suspension or loss of any Gaming License
which results in the cessation of
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business for a period of more than 90 consecutive days of the business
of any Gaming Facility owned, leased or operated directly or indirectly
by the Company or any of its Subsidiaries (other than any voluntary
relinquishment of a Gaming License if such relinquishment is, in the
reasonable, good faith judgment of the Board of Directors, evidenced by
a Board Resolution, both desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and not
disadvantageous in any material respect to the Holders); or
(x) any Guaranty ceases to be in full force and effect (other
than pursuant to the terms of this Indenture) or is declared null and
void or any Guarantor denies that it has any further liability under
its Guaranty or gives notice to such effect.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is 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.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (iv), (v), (vi) or (ix) is not an Event
of Default until the Trustee or the Holders of at least 25% in principal amount
of the Securities notify the Company of the Default and the Company does not
cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default with
respect to the Securities (other than an Event
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of Default resulting from Section 6.01(vii) or (viii)) shall have occurred and
be continuing, the Trustee or the registered holders of not less than 25% in
aggregate principal amount of the Securities then outstanding may accelerate the
maturity of all the Securities in which event the Securities shall become
immediately due and payable; provided, however, that after such acceleration but
before a judgment or decree based on acceleration is obtained by the Trustee,
the registered holders of a majority in aggregate principal amount of the
Securities then outstanding, may, under certain circumstances, rescind and annul
such acceleration if all Events of Default, other than the nonpayment of
accelerated principal, have been cured or waived as provided in this Indenture.
In case an Event of Default resulting from Section 6.01(vii) or (viii) shall
occur, the Securities shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Securityholder affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding
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for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
SECTION 6.06. Limitation on Suits. No Holder will have any
right to institute any proceeding with respect to this Indenture or for any
remedy thereunder, unless: (i) such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default; (ii) Holders of at
least 25% in aggregate principal amount of the Securities then outstanding shall
have made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as a trustee; and (iii) the Trustee shall not have
received from the Holders of a majority in aggregate principal amount of the
Securities then outstanding a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. However, such
limitations do not apply to a suit instituted by a Holder for enforcement of
payment of the principal of and premium, if any, or interest on such Security on
or after the respective due dates expressed in such Security.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default in payment of interest or principal specified
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in Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest remaining unpaid (together with
interest on such unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.10. Priorities. If the Trustee collects any money
or property pursuant to this Article VI, it shall pay out the money or property
in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
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SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
(to the extent it may lawfully refrain from doing so) shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default: (1)
the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and (2) in the absence of
bad faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
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certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that: (1) this paragraph does not limit the effect of paragraph (b) of
this Section; (2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and (3) the Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on
any document or any other writing believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
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(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any
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Security (including payments pursuant to the mandatory redemption provisions of
such Security, if any), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each beginning with the following the date of this Indenture,
and in any event prior to in each year, the Trustee shall mail to each
Securityholder a brief report dated as of that complies with TIA Section 313(a).
The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the Commission and each stock exchange (if
any) on which the Securities are listed. The Company agrees to notify promptly
the Trustee whenever the Securities become listed on any stock exchange and of
any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time reasonable compensation for its services.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including attorneys' fees) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own wilful misconduct, negligence or bad faith.
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To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on Securities under Article VIII or otherwise.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(vii) or (viii) with
respect to the Company, the expenses are intended to constitute expenses of
administration under Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held
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by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 25% in principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation 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 to the Trustee; and in all such cases such certificates 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.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. No obligor upon the Securities
or Person directly controlling,
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controlled by, or under common control with such obligor shall serve as Trustee
upon the Securities. The Trustee shall comply with TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancelation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article III hereof, and the Company irrevocably deposits with the
Trustee funds sufficient to pay at maturity or upon redemption all outstanding
Securities, including interest thereon (other than Securities replaced pursuant
to Section 2.07), and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Sections 8.01(c)
and 8.06, cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company at
any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.01, 4.03 (to the extent that the failure to comply with such Section 4.03
shall not violate the TIA), 4.04, 4.05, 4.06, 4.07, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15 and Article V and the related operation of Section 6.01(iii)
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and (iv), and the operation of Sections 6.01 (v), (vi) (with respect to
Restricted Subsidiaries), (vii) (with respect to Restricted Subsidiaries),
(viii), (ix) or (x) ("covenant defeasance option"). The Company may exercise its
legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section
6.01(iii), (iv), (v), (vi), (vii) (with respect to Restricted Subsidiaries),
(viii) (with respect to Restricted Subsidiaries), (ix) or (x) (except to the
extent covenants or agreements referenced in such Sections remain applicable).
If the Company exercised its legal defeasance option or its covenant defeasance
option, each Guarantor shall be released from all its obligations under its
Guaranty.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal and
interest on the Securities to maturity or redemption, as the case may
be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will
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provide cash at such times and in such amounts as will be sufficient to
pay principal and interest when due on all the Securities to maturity
or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(vii) or (viii) with
respect to the Company occurs which is continuing at the end of the
period;
(4) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(7) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm
that, the Securityholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance
had not occurred;
(8) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Securityholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
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(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article VIII have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee
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or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company, the
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add additional Guarantees with respect to the
Securities, including Guaranties;
(5) to release a Guarantor from its Guaranty if such Guarantor
is sold in compliance with the provisions set forth in Section 10.05;
(6) to secure the Securities;
(7) to add to the covenants of the Company or any Guarantor
for the benefit of the Holders or to surrender any right or power
herein conferred upon the Company or any Guarantor;
(8) to comply with any requirements of the Commission in
connection with qualifying this Indenture under the TIA; or
(9) to make any change that does not adversely affect the
rights of any Securityholder.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a
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notice briefly describing such amendment. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company, the
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities. However, without the
consent of each Securityholder affected, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of
any Security;
(4) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article III;
(5) make any Security payable in money other than that stated
in the Security;
(6) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder's Notes;
(7) subordinate in right of payment, or otherwise subordinate,
the Notes to any other obligation of the Company or any Guarantor;
(8) release any security interest in favor of the Notes or
Guaranties;
(9) make any change in any Guaranty that would adversely
affect the Holders; or
(10) make any change in Section 6.04 or 6.07 or the second
sentence of this Section.
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It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
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notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such (i) amendment is authorized or permitted by this Indenture and
that all conditions precedent to the execution, delivery and performance of such
amendment have been satisfied; (ii) the Company has all necessary corporate
power and authority to execute and deliver the amendment and that the execution,
delivery and performance of such amendment has been duly authorized by all
necessary corporate action; (iii) the execution, delivery and performance of the
amendment do not conflict with, or result in the breach of or constitute a
default under any of the terms, conditions or provisions of (a) this Indenture,
(b) the Certificate of Incorporation or By-Laws of the Company, (c) any law or
regulation applicable to the Company, (d) any material order, writ, injunction
or decree of any court or governmental instrumentality applicable to the Company
or (e) any material agreement or instrument to which the Company is subject;
(iv) such amendment has been duly and validly executed and delivered by the
Company, and this Indenture together with such amendment constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles; and (v) this
Indenture together with such amendment complies with the TIA.
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
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for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Subsidiary Guaranties
SECTION 10.01. Guaranties. Each Guarantor hereby
unconditionally and irrevocably guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on the Securities when due,
whether at maturity, by acceleration, by redemption or otherwise, and all other
monetary obligations of the Company under this Indenture and the Securities and
(b) the full and punctual performance within applicable grace periods of all
other obligations of the Company under this Indenture and the Securities (all
the foregoing being hereinafter collectively called the "Obligations"). Each
Guarantor further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice or further assent from such Guarantor and that
such Guarantor will remain bound under this Article X notwithstanding any
extension or renewal of any Obligation.
Each Guarantor waives presentation to, demand of, payment from
and protest to the Company of any of the Obligations and also waives notice of
protest for nonpayment. Each Guarantor waives notice of any default under the
Securities or the Obligations. The obligations of each Guarantor hereunder shall
not be affected by (a) the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any right or remedy against the Company or any
other Person under this Indenture, the Securities or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations or any of them;
(e) the failure of any Holder or the Trustee to exercise any right or remedy
against any other guarantor of the Obligations; or (f) any change in the
ownership of such Guarantor.
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Each Guarantor further agrees that its Guaranty herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Obligations.
Except as expressly set forth in Sections 8.01(b), 11.02 and
11.06, the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Securities or
any other agreement, by any waiver or modification of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
such Guarantor or would otherwise operate as a discharge of such Guarantor as a
matter of law or equity.
Each Guarantor further agrees that its Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of or interest on any Obligation when and as the same shall become due, whether
at maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other Obligation, each Subsidiary Guarantor hereby promises to
and will, upon receipt of written demand by the Trustee, forthwith pay, or cause
to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(i) the unpaid
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amount of such Obligations, (ii) accrued and unpaid interest on such Obligations
(but only to the extent not prohibited by law) and (iii) all other monetary
Obligations of the Company to the Holders and the Trustee.
Each Guarantor agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations Guaranteed hereby may be accelerated as provided in Article VI for
the purposes of such Guarantor's Guaranty herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article VI, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Guarantor for the purposes of this Section.
Each and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights
under this Section.
SECTION 10.02. Successors and Assigns. This Article X shall be
binding upon each Subsidiary Guarantor and its successors and assigns and shall
enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.03. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article X shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article X at
law, in equity, by statute or otherwise.
SECTION 10.04. Modification. No modification, amendment or
waiver of any provision of this Article X, nor the consent to any departure by
any Guarantor therefrom,
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shall in any event be effective unless the same shall be in writing and signed
by the Trustee, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on
any Guarantor in any case shall entitle such Guarantor to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 10.05. Release of Guarantors. If all the Capital Stock
of a Guarantor is sold by the Company or any Subsidiary or upon the
consolidation or merger of a Guarantor with or into any other person other than
the Company or a Subsidiary where the surviving entity to such consolidation or
merger is not a Subsidiary of the Company, in circumstances where such sale,
consolidation or merger is not prohibited under Section 4.12, such Guarantor
shall be deemed automatically and unconditionally released and discharged from
all obligations under its Guaranty and this Article X without any further action
required on the part of the Trustee or any Holder.
SECTION 10.06. Indemnity and Subrogation. In addition to all
such rights of indemnity and subrogation as the Guarantors may have under
applicable law (but subject to Section 10.08 ), the Company agrees that (a) in
the event a payment shall be made by any Guarantor under any Guaranty, the
Company shall indemnify such Guarantor for the full amount of such payment and
such Guarantor shall be subrogated to the rights of the person to whom such
payment shall have been made to the extent of such payment.
SECTION 10.07. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 10.08) that, in the event a
payment shall be made by any other Guarantor under any Guaranty and such other
Guarantor (the "Claiming Guarantor") shall not have been fully indemnified by
the Company as provided in Section 10.06, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment multiplied by a fraction, the numerator of which shall be the net worth
of the Contributing Guarantor on the date hereof and the denominator of which
shall be the aggregate net worth of all the Guarantors on the date hereof (or,
in the case of any Guarantor becoming a party hereto pursuant to Section 9.01,
the date of the amendment hereto executed and delivered by such Guarantor). Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to
this Section 10.07 shall be subrogated to the
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rights of such Claiming Guarantor under Section 10.06 to the extent of such
payment.
SECTION 10.08. Subordination. Notwithstanding any provision of
this Agreement to the contrary, all rights of the Guarantors under Sections
10.06 and 10.07 and all other rights of indemnity, contribution or subrogation
under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full in cash of the payment obligations hereunder. No
failure on the part of the Company or any Guarantor to make the payments
required by Sections 10.06 and 10.07 (or any other payments required under
applicable law or otherwise) shall in any respect limit the obligations and
liabilities of any Guarantor with respect to any Guaranty, and each Guarantor
shall remain liable for the full amount of the obligations of such Guarantor
under each such Guaranty.
SECTION 10.09. Termination. Sections 10.06, 10.07, 10.08 and
10.09 shall survive and be in full force and effect so long as any payment
obligation hereunder is outstanding and has not been indefeasibly paid in full
in cash, and shall continue to be effective or be reinstated, as the case may
be, if at any time any payment obligation hereunder is rescinded or must
otherwise be restored by any Holder or any Guarantor upon the bankruptcy or
reorganization of the Company, any Guarantor or otherwise.
SECTION 10.10. No Waiver; Amendment. No failure on the part of
any Guarantor to exercise, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy by any Guarantor preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy. All remedies hereunder are cumulative and are not exclusive of any
other remedies provided by law. None of the Guarantors shall be deemed to have
waived any rights hereunder unless such waiver shall be in writing and signed by
such parties.
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by,
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or with another provision (an "incorporated provision") included in this
Indenture by operation of, Sections 310 to 318, inclusive, of the TIA, such
imposed duties or incorporated provision shall control.
SECTION 11.02. Notices. Any notice or communica- tion shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Boyd Gaming Corporation
2950 South Industrial Road
Las Vegas, Nevada 89109
Attention of Office of the Secretary
if to any Guarantor:
In care of Boyd Gaming Corporation
295 South Industrial Road
Las Vegas, Nevada 89109
Attention of Corporate Secretary
if to the Trustee:
The Bank of New York
Corporate Trust Office
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust
Trustee Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
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Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express
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an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 11.07. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION 11.08. GOVERNING LAW. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.09. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such lia- bility. The waiver and release shall be
part of the consideration for the issue of the Securities.
SECTION 11.10. Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
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SECTION 11.11. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 11.12. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
SECTION 11.13. Severability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
BOYD GAMING CORPORATION,
by
----------------------
Name:
Title:
CALIFORNIA HOTEL AND CASINO,
by
----------------------
Name:
Title:
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BOYD TUNICA, INC.,
by
----------------------
Name:
Title:
BOYD MISSISSIPPI, INC.,
by
----------------------
Name:
Title:
BOYD KANSAS CITY, INC.,
by
----------------------
Name:
Title:
BOYD KENNER, INC.,
by
----------------------
Name:
Title:
MARE-BEAR, INC.,
by
----------------------
Name:
Title:
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84
SAM-WILL, INC.,
by
----------------------
Name:
Title:
ELDORADO, INC.,
by
----------------------
Name:
Title:
MSW, INC.,
by
----------------------
Name:
Title:
THE BANK OF NEW YORK,
by
----------------------
Name:
Title:
92
EXHIBIT A
[FORM OF FACE OF SECURITY]
No. $
% Senior Note Due 2003
CUSIP No.
Boyd Gaming Corporation, a Nevada corporation, promises to pay to
, or registered assigns, the principal sum of Dollars on , 2003.
Interest Payment Dates: and .
Record Dates: and .
Additional provisions of this Security are set forth on the other side of
this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
BOYD GAMING CORPORATION,
by
----------------------
Name:
Title:
[CORPORATE SEAL] by:
----------------------
Name:
Title:
CALIFORNIA HOTEL AND CASINO,
by
----------------------
Name:
Title:
BOYD TUNICA, INC.,
by
----------------------
Name:
Title:
93
2
BOYD MISSISSIPPI, INC.,
by
----------------------
Name:
Title:
BOYD KANSAS CITY, INC.,
by
----------------------
Name:
Title:
BOYD KENNER, INC.,
by
----------------------
Name:
Title:
MARE-BEAR, INC.,
by
----------------------
Name:
Title:
SAM-WILL, INC.,
by
----------------------
Name:
Title:
94
3
ELDORADO, INC.,
by
----------------------
Name:
Title:
MSW, INC.,
by
----------------------
Name:
Title:
Attest:
By:_______________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:_____________________________
Authorized Signatory
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4
[FORM OF REVERSE SIDE OF SECURITY]
% Senior Note Due 2003
1. Interest
Boyd Gaming Corporation, a Nevada corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
will pay interest semiannually on [] and [] of each year. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from [], 1996. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. The Company shall pay
interest on overdue principal at the rate borne by the Securities plus 1% per
annum, and it shall pay interest on overdue installments of interest at the same
rate to the extent lawful.
2. Method of Payment
The Company 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 [] or [] next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal and
interest by check payable in such money. It may mail an interest check to a
Holder's registered address.
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3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of September [], 1996 (the "Indenture"), among the Company, the Guarantors 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 Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the
Indenture (the "TIA"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
The Securities are general unsecured obligations of the
Company limited to $200,000,000 aggregate principal amount (subject to Section
2.07 of the Indenture). The Indenture imposes certain limitations on the ability
of the Company and its Restricted Subsidiaries to, among other things, make
certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates, create or incur Liens and
make Asset Sales. The Indenture also imposes limitations on the ability of the
Company or the Guarantors to consolidate or merge with or into any other Person
or permit any other Person to merge with or into the Company, or sell, convey,
assign, transfer, lease or otherwise dispose of all or substantially all of the
Property of the Company.
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5. Optional Redemption
The Securities may not be redeemed prior to [], 200[]. On and
after that date, the Company may redeem the Securities in whole at any time or
in part from time to time at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date):
If redeemed during the 12-month period beginning [] of the
year indicated below:
Year Percentage
---- ----------
200[] []%
200[] []%
200[] []%
and thereafter, beginning [], 200[], at 100%.
6. Notice of Redemption
At least 30 calendar days but not more than 60 calendar days
before a Redemption Date, the Company will send a notice of redemption,
first-class mail, postage prepaid, to Holders of Securities to be redeemed at
the addresses of such Holders as they appear in the Security Register.
If less than all of the Securities are to be redeemed at any
time, the Securities to be redeemed will be chosen by the Trustee in accordance
with the Indenture. If any Security is redeemed subsequent to a Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid on such Interest
Payment Date to the Holder of the Security at the close of business on such
Record Date. If money in an amount sufficient to pay the Redemption Price of all
Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent on or before the applicable Redemption Date and
certain other conditions are satisfied, interest on the Securities to be
redeemed on the applicable Redemption Date will cease to accrue.
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The Securities are not subject to any sinking fund.
7. Repurchase of Securities at the Option of Holders upon
Change of Control
Upon the occurrence of (i) a Change of Control or, (ii) in the
event the Securities at the earlier of the public announcement of (x) Change of
Control or (y) (if applicable) the intention of the Company to effect a Change
of Control have Investment Grade Status, a Change of Control Triggering Event
with respect to the Securities, each Holder of Securities shall have the right
to require the Company to purchase such Holder's Securities, in whole, or in
part in a principal amount that is an integral multiple of $1,000, pursuant to a
Change of Control Offer, at a purchase price in cash equal to 101% of the
principal amount thereof on any Change of Control Payment Date plus accrued and
unpaid interest, if any, to the Change of Control Payment Date.
Within 30 calendar days following any Change of Control
Triggering Event, the Company shall send, or cause to be sent, by first-class
mail, postage prepaid, a notice regarding the Change of Control Offer to the
Trustee and each Holder of Securities. The Holder of this Security may elect to
have this Security or a portion hereof in an authorized denomination purchased
by completing the form entitled "Option of Holder to Elect Purchase" appearing
below and tendering this Security pursuant to the Change of Control Offer.
Unless the Company defaults in the payment of the Change of Control Purchase
Price with respect thereto, all Securities or portions thereof accepted for
payment pursuant to the Change of Control Offer will cease to accrue interest
from and after the Change of Control Payment Date.
8. Repurchase of Securities at the Option of Holders upon
Asset Sale or Event of Loss
If at any time the Company or any Restricted Subsidiary
engages in any Asset Sale and/or and Event of Loss, as a result of which the
aggregate amount of Excess Proceeds exceeds $20,000,000, the Company shall,
within 10 Business days of the date the amount of Excess Proceeds exceeds
$20,000,000, use the then-existing Excess Proceeds to make an offer to purchase
from all Holders, on a pro rata
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basis, Securities in an aggregate principal amount equal to the maximum
principal amount that may be purchased out of the then-existing Excess Proceeds,
at a purchase price in cash equal to 100% of the principal amount thereof on any
Purchase Date plus accrued and unpaid interest thereon, if any, to the Purchase
Date. Upon completion of a Prepayment Offer (including payment for accepted
Securities), any surplus Excess Proceeds that were the subject of such offer
shall cease to be Excess Proceeds, and the Company may then use such amounts for
general corporate purposes.
Within 10 Business days of the date the amount of Excess
Proceeds exceeds $20,000,000, the Company shall send, or cause to be sent, by
first-class mail, postage prepaid, a notice regarding the Prepayment Offer to
each Holder of Securities. The Holder of this Security may elect to have this
Security or a portion hereof in an authorized denomination purchased by
completing the form entitled "Option of Holder to Elect Purchase" appearing
below and tendering this Security pursuant to the Prepayment Offer. Unless the
Company defaults in the payment of the purchase price with respect thereto, all
Securities or portions thereof selected for payment pursuant to the Prepayment
Offer will cease to accrue interest from and after the Purchase Date.
9. Guaranties
To secure the due and punctual payment of the principal and
interest, if any, on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, each Guarantor has agreed to
guarantee the Obligations on a senior basis pursuant to the terms of the
Indenture.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture.
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11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the outstanding Securities and (ii) any past
Default and its consequences may be waived with the written consent of the
Holders of at least a majority in principal amount of the outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Company and the Trustee may amend
the Indenture or the Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article V of the Indenture; (iii) to provide
for uncertificated Securities in addition to or in place of certificated
Securities; (iv) to add additional Guarantees with respect to the Securities;
(v) to release a Guarantor if such Guarantor is sold in compliance with Section
10.06 of the Indenture; (vi) to secure the Securities; (vii) to
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add additional covenants or to surrender rights and powers conferred on the
Company; (vii) to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the TIA; or (ix) to
make any change that does not adversely affect the rights of any Securityholder
in any material respect.
15. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities, subject to
certain limitations, may declare all the Securities to be immediately due and
payable. Certain events of bankruptcy or insolvency are Events of Default and
shall result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the Trustee or
any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power under the Indenture. The Holders of a majority in principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind any declaration of acceleration and its consequences if the rescission
would not conflict with any judgment or decree, and if all Events of Default
have been cured or waived except nonpayment of principal and interest that has
become due solely because of the acceleration.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
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17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. Governing Law
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security. Requests may be made to:
Boyd Gaming Corporation
2950 South Industrial Road
Las Vegas, Nevada
Attention: General Counsel
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21. Ranking
The Securities will rank pari passu in right of payment with
all existing and future Senior Indebtedness of the Company and principal,
premium (if any) and interest with respect to the Securities will be senior in
right of payment with all future subordinated indebtedness of the Company.
22. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company 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 Securityholders. 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.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company. The
agent may substitute another to act for him.
___________________________________________________________
Date: ________________ Your Signature: _____________________
___________________________________________________________
Sign exactly as your name appears on the other side of this Security.
Signature Guarantee:________________________________
(Signature must be guaranteed)
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OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.07 OR 4.12 OF THE INDENTURE, CHECK THE BOX:
/ /
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS SECURITY
PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.07 OR 4.12 OF THE INDENTURE,
STATE THE AMOUNT:
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS
ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE:_______________________________________
(SIGNATURE MUST BE GUARANTEED)