COLORADO GAMING & ENTERTAINMENT CO., as Issuer,
and
BWBH, INC.,
BWCC, INC.,
MILLSITE 27, INC. and
SILVER HAWK CASINO, INC.,
as Guarantors,
and
IBJ SCHRODER BANK & TRUST CO.,
as Trustee
Indenture
Dated as of [ ], 1996
up to [$ ]
12% Senior Secured Pay-In-Kind Notes
Due 2003
Colorado Gaming & Entertainment Co.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of [ ], 1996
Trust Indenture
Act Section Indenture
Section
Section 310 (a) (1) 508
(a) (5) 508
(b) 505, 508, 509(d)
(b)(1) 508
Section 311 505
(a) 512
Section 312 (b) 601
Section 313 (a), (b) 604
(c) 604, 605(c)
Section 314 1110(a)
Section 314(a) 605(c), 909(a)
(a) (4) 908(a)
(c) 301(d)
(d) 1105(b)
Section 315(b) 501
(e) 509(d)
Note:This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
INDENTURE, dated as of [ ], 1996, among Colorado
Gaming & Entertainment Co., formerly known as Hemmeter
Enterprises, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the
"Company"), as Issuer, having its principal office at One Norwest
Center, 1700 Lincoln, Denver, Colorado 80203, BWBH, Inc., a
corporation duly organized and existing under the laws of the
State of Delaware, BWCC, Inc., a corporation duly organized and
existing under the laws of the State of Delaware, Millsite 27,
Inc., a corporation duly organized and existing under the laws of
the State of Delaware, and Silver Hawk Casino, Inc., a
corporation duly organized and existing under the laws of the
State of Delaware, as Guarantors (each, a "Guarantor" and
collectively, together with any additional guarantor pursuant to
Sections 806 or 1318, the "Guarantors"), and IBJ Schroder Bank &
Trust Co., a [], as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 12%
Senior Secured Pay-In-Kind Notes Due 2003 (herein called the
"Notes"), of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
It is a condition precedent to the effectiveness of the First
Amended Joint Plan of Reorganization of Hemmeter Enterprises,
Inc., BWBH, Inc., BWCC, Inc. and Millsite 27, Inc., dated
February 14, 1996, as the same may have been or may be amended
from time to time, that, among other things, the Company and the
Guarantors shall have executed this Indenture, the Company shall
have issued the Notes and the Company and the Guarantors shall
have granted and conveyed security interests in the Collateral
pursuant to the Security Documents.
All things necessary have been done to make the Notes, when
executed by the Company and authenticated and delivered hereunder
and duly issued by the Company, the valid obligations of the
Company and to make this Indenture a valid and binding agreement
of the Company, in accordance with their and its terms.
RECITALS OF THE GUARANTORS
Each of the Guarantors has duly authorized its guarantee of the
Notes and certain other obligations of the Company as set forth
in Article Thirteen hereof and endorsed on the Notes (together
with any amendment to the Guarantee of the Notes to be executed
by any Guarantor, the "Guarantee"), and to provide therefor, each
Guarantor has duly authorized the execution and delivery of this
Indenture.
All things necessary have been done to make the Guarantee, when
executed by the Guarantors and endorsed on Notes that will be
authenticated and delivered hereunder and duly issued by the
Company, the valid and binding obligations of the Guarantors and
to make this Indenture a valid and binding agreement of the
Guarantors in accordance with their and its terms.
NOW, THEREFORE, each party hereto agrees as follows for the
benefit of the other parties hereto and for the ratable benefit
of the Holders of the Notes:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101.Definitions.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Deed of Trust" has the meaning specified in Section
922.
"Affiliate" of any specified Person means any other Person that,
directly or indirectly, controls, is controlled by or is under
direct or indirect common control with, such specified Person and
with respect to any natural Person, any other Person having a
relationship by blood, marriage or adoption, not more remote than
first cousins with such natural Person. For the purposes of this
definition, "control" when used with respect to any Person means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of Voting
Stock or other equity interests, by contract or otherwise, and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing; provided that, in any event, any
Person that owns directly or indirectly 15% or more of the
securities having ordinary voting power for the election of
directors or other governing body of corporation or 15% or more
of the partnership or other ownership interests of any other
Person (other than as a limited partner of such other Person)
will be deemed to control such corporation, partnership or other
Person.
"Affiliate Transaction" has the meaning specified in Section 920.
"Agent" means any Note Registrar, Paying Agent, co-note
registrar, co-paying agent or other agent appointed pursuant to
Section 902.
"Amortization Expense" means, for any period, the amount of the
amortization expense, including bond discount or premium, that is
reflected on the financial statements of the Company and any
Company Subsidiaries consolidated in such financial statements
for such period in accordance with GAAP.
"Asset Acquisition" means (a) any capital contribution
(including, without limitation, transfers of cash or other
property to others or payments for property or services for the
account or use of others, or otherwise), or purchase or
acquisition of Capital Stock or other similar ownership or profit
interest, by the Company or any of the Company Subsidiaries in
any other Person, in either case, pursuant to which such other
Person shall become a Company Subsidiary or any of the Company
Subsidiaries or shall be merged with or into the Company or any
of the Company Subsidiaries or (b) any acquisition by the Company
or any of the Company Subsidiaries of the assets of any Person
which constitute substantially all of an operating unit, division
or business of such Person.
"Average Life" means, as of the date of determination, with
respect to any debt security, the quotient obtained by dividing
(i) the sum of the product of the numbers of years from the date
of determination to the dates of each successive scheduled
principal payment of such debt security multiplied by the amount
of such principal payment by (ii) the sum of all such principal
payments.
"Bank Facility" means any revolving credit or term loan facility,
any facility providing purchase money financing for the
acquisition of equipment and any facility providing for the
creation of Capitalized Lease Obligations entered into between
the Company and/or any Company Subsidiary and one or more
financial institutions, institutional lenders, finance companies,
equipment lessors or equipment manufacturers or vendors, that, in
each case, are not Affiliates of the Company or any Company
Subsidiary, providing financing for working capital or other
corporate purposes on a secured or unsecured basis , whether now
existing or hereinafter created.
"Bank Indebtedness" means, at any date, any outstanding
Indebtedness of the Company and the Company Subsidiaries under
any Bank Facility and any guarantee of such Indebtedness executed
by any of the Company Subsidiaries.
"Bank Indebtedness Amount" means $17,500,000, less the aggregate
payments made on account of, and required pursuant to the terms
of, any Bank Indebtedness by reason of any transaction or event
(other than an Unrestricted Asset Sale) involving all or any
portion of the Collateral (including, without limitation, a
Restricted Asset Sale, an Event of Loss or another transaction or
event relating to the release of all or a portion of the
Collateral); provided, however, that if the Bank Indebtedness
Amount is reduced pursuant to the foregoing sentence and,
thereafter, the Company or any Company Subsidiary (i) makes a
Permitted Related Investment, and (ii) the Collateral Agent
receives a valid and perfected first priority security interest
(subject to Permitted Liens) in the assets comprising such
Permitted Related Investment, the Bank Indebtedness Amount shall
be increased, but not above $17,500,000, by the amount of such
Permitted Related Investment (but only to the extent that such
Permitted Related Investment was not made with funds withdrawn
for such purpose from the Collateral Account).
"Bankruptcy Cases" means Bankruptcy Case Nos. 96-10001A, 96-
10018A, 96-10019A and 96-10020A pending in the United States
Bankruptcy Court for the Eastern District of Louisiana.
"Bankruptcy Law" means any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, including,
without limitation, the Federal Bankruptcy Code or any similar
federal or state law for the relief of debtors.
"Black Hawk Casino" means the casino located in Black Hawk,
Colorado owned by BWBH on the date of this Indenture.
"Black Hawk Casino Event" means (i) a sale, assignment, lease,
transfer, conveyance or other disposition, directly or
indirectly, of the Black Hawk Casino or all or a significant
portion of BWBH's assets or properties, whether in a single
transaction or a series of related transactions, to any Person,
(ii) the failure of the Company to own, directly or indirectly,
100% of all classes of issued and outstanding Capital Stock of
BWBH, (iii) the occurrence of a Restricted Asset Sale involving
any assets owned by BWBH or used by BWBH in the operation of the
Black Hawk Casino, or (iv) the occurrence of an Event of Loss
with respect to BWBH or the Black Hawk Casino ; provided,
however, that, with respect to an Event of Loss involving any
property or asset that has a Fair Market Value of less than $3
million, a Black Hawk Casino Event shall be deemed to have
occurred under clause (iv) above only if the loss, destruction or
material damage to the property or asset giving rise to such
Event of Loss has not been repaired, replaced or otherwise
remedied, and the efficient operation of BWBH and the Black Hawk
Casino has not otherwise resumed, within a period of seven
Business Days after the occurrence of such Event of Loss.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the board of directors of such Person.
"Business Day" means any day other than a Saturday, a Sunday or
any other day on which banking institutions or trust companies in
the State of New York, City of New York are not required to be
open.
"BWBH" means BWBH, Inc., a Delaware corporation.
"Capital Expenditure" means for any period, the sum of the
aggregate of all expenditures (whether paid in cash or accrued as
a liability) by the Company and the Company Subsidiaries during
that period which, in accordance with GAAP, are or should be
included in "additions to property, plant or equipment" or
similar items reflected in the consolidated statement of cash
flows of the Company. [For purposes of this definition, the
purchase price of equipment which is purchased simultaneously
with the trade-in of existing equipment owned by the Company or
any Company Subsidiary or with insurance proceeds (as permitted
hereunder) shall be included in Capital Expenditures only to the
extent of the gross amount of such purchase price less any credit
granted by the seller of such equipment for the equipment being
traded in at such time or the amount of such proceeds, as the
case may be.] For purposes of determining the Consolidated Fixed
Charges Coverage Ratio, "Capital Expenditures" shall exclude all
expenditures in respect of the construction of [Phase II of the
600-space parking garage that the Company currently intends to
construct adjacent to the Black Hawk Casino].
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, or other equivalents or
similar ownership or profit interest (however designated) of such
Person, including, without limitation, each class of common stock
and preferred stock of such Person or each class of partnership
interests of such Person.
"Capitalized Lease Obligation" means, with respect to any Person,
any obligation of a Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) any
property (whether real, personal or mixed) that is required to be
classified and accounted for as a capital lease obligation under
GAAP, and, for the purpose of this Indenture, the amount of such
obligation at any date of determination shall be the capitalized
amount thereof at such date, determined in accordance with GAAP.
"Cash Equivalents" means (a) readily marketable U.S. Government
Obligations maturing one year or less from the date of purchase,
(b) commercial paper having the highest rating obtainable from
either Moody's Investor Service, Inc. or Standard & Poor's
Corporation, Inc., (c) any certificate of deposit maturing one
year or less from the date of purchase issued by, bankers'
acceptances and deposit accounts of, and time deposits with, a
commercial bank chartered in the United States of America or
Canada with capital, surplus and undivided profits aggregating in
excess of $100,000,000, (d) any demand or fully insured time
deposit used in the ordinary course of the Company's business
with a commercial bank insured by the Federal Deposit Insurance
Corporation, and (e) any share of any money market fund that
invests solely in Cash Equivalents of the kind described in
clauses (a) through (d), above.
"Central City Casino" means the casino located in Central City,
Colorado owned by BWCC, Inc. on the date of this Indenture.
"Change of Control" has the meaning specified in Section 1011.
"Change of Control Purchase Offer" has the meaning specified in
Section 1011.
"Change of Control Purchase Price" has the meaning specified in
Section 1011.
"Collateral" means all "Collateral" referred to in any of the
Security Documents and all other property or assets that become
subject to a Lien in favor of the Trustee or the Holders.
"Collateral Account" means a deposit account in the name of the
Company, but under the sole dominion and control of the
Collateral Agent or the Trustee, in which the Company and the
Guarantors shall deposit or shall cause to be deposited all
Collateral Proceeds on the business day on which such Collateral
Proceeds are received in accordance with Section 1105.
"Collateral Agent" means IBJ Schroder Bank & Trust Co., as
collateral agent for the Holders under the Security Documents.
"Collateral Proceeds" means (a) any Net Cash Proceeds received
or receivable by the Company or any Guarantor as a result of an
Event of Loss or a Restricted Asset Sale that involves all or any
portion of the Collateral and (b) all interest or other earnings
on amounts on deposit in the Collateral Account.
"Collateral Proceeds Release Date" has the meaning specified in
Section 1106.
"Collateral Release Date" has the meaning specified in Section
1106.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participation and other equivalents (however
designated, whether voting or non-voting) of such Person's common
stock, whether now outstanding or issued after the date of this
Indenture, and includes, without limitation, all series and
classes of such common stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman, its
President, any Vice President, its Treasurer or an Assistant
Treasurer, and delivered to the Trustee.
"Company Subsidiary" means any corporation, partnership, limited
liability company, joint venture, trust, estate or other entity
of which (or in which) 50% or more of (a) any class of the issued
and outstanding Capital Stock or other equity or ownership
interest, (b) the interest in the capital or profits of such
partnership or joint venture or (c) the beneficial interest in
such trust or estate, is at the time directly or indirectly owned
or controlled by the Company, by the Company and one or more of
the Company Subsidiaries or by one or more of the Company
Subsidiaries.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Cash Flow" means, for any fiscal quarter in 1995,
$, and, for any period thereafter, the sum of:
(a)the Consolidated Net Income of the Company and the Company
Subsidiaries for such period, plus;
(b)the sum of the following items (to the extent deducted in
determining Consolidated Net Income and without duplication):
(i) all Consolidated Fixed Charges; (ii) all Amortization
Expense; (iii) all Depreciation Expense; (iv) all Consolidated
Income Tax Expense; (v) all professional fees and other
extraordinary expenses incurred in connection with the Bankruptcy
Cases or the restructuring contemplated by the Plan of
Reorganization; (vi) all reductions or charges to Consolidated
Net Income resulting from the consummation of the Plan of
Reorganization (including, without limitation, as a result of the
use by the Company and the Company Subsidiaries of "fresh start"
accounting); and (vii) all charges to Consolidated Net Income
resulting from the write down or the sale or other disposition of
the investment of the Company or BWCC, Inc. in the Central City
Casino.
"Consolidated Coverage Ratio" means the ratio of (a) Consolidated
Cash Flow of the Company and the Company Subsidiaries for the
four full fiscal quarters for which financial statements are
available that immediately precede the date of the transaction or
other circumstances giving rise to the need to calculate the
Consolidated Coverage Ratio (the "Transaction Date") to (b) the
Consolidated Fixed Charges for the fiscal quarter in which the
Transaction Date occurs and to be accrued during the three fiscal
quarters immediately following such fiscal quarter (based upon
the pro forma amount of Indebtedness of the Company and the
Company Subsidiaries outstanding on the Transaction Date and
after giving effect to the transaction in question). For
purposes of this definition, Consolidated Cash Flow and the items
referred to in the preceding clause (b) shall be calculated after
giving effect on a pro forma basis for the period of such
calculation to (i) the incurrence or retirement of any
Indebtedness of the Company and the Company Subsidiaries
(including the Notes) at any time during the Reference Period but
on or after the Issue Date or subsequent to the Reference Period
and on or prior to the Transaction Date, including, without
limitation, the incurrence of the Indebtedness giving rise to the
need to make such calculation, as if such Indebtedness were
incurred on the first day of the Reference Period; provided that
if the Company or any of the Company Subsidiaries directly or
indirectly guarantees Indebtedness of a third person, the above
clause shall give effect to the incurrence of such guaranteed
Indebtedness as if the Company or such Company Subsidiary had
directly incurred such guaranteed Indebtedness and (ii) any
Restricted Asset Sale, Event of Loss or Asset Acquisition
(including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of the Company
or any of the Company Subsidiaries (including any Person who
becomes a Company Subsidiary as result of the Asset Acquisition)
incurring Acquired Indebtedness) occurring during the Reference
Period and any retirement of Indebtedness in connection with such
Asset Acquisition, as if such Restricted Asset Sale, Event of
Loss or Asset Acquisition and/or retirement occurred on the first
day of the Reference Period. Furthermore, in calculating the
denominator (but not the numerator) of this "Consolidated
Coverage Ratio," interest on Indebtedness determined on a
fluctuating basis that cannot be determined in advance shall be
deemed to accrue at the rate in effect on the Transaction Date
for such entire period.
"Consolidated EBITDA" means, for any period, the sum of:
(a)the Consolidated Net Income of the Company and the Company
Subsidiaries for such period, plus;
(b)the sum of the following items (to the extent deducted in
determining Consolidated Net Income and without duplication):
(i) all Consolidated Fixed Charges; (ii) all Amortization
Expense; (iii) all Depreciation Expense; and (iv) all
Consolidated Income Tax Expense.
"Consolidated Fixed Charges" means as applied for any period (a)
the sum of the following items (without duplication): (i) the
aggregate amount of interest recognized by the Company and the
Company Subsidiaries in respect of their Consolidated
Indebtedness (including, without limitation, all interest
capitalized by the Company and the Company Subsidiaries during
such period, any amortization of deferred finance cost and debt
discount or premium and all commissions, discounts and other
similar fees and charges owed by the Company or any of the
Company Subsidiaries for letters of credit and bankers'
acceptance financing and the net costs associated with interest
rate protection agreements of the Company and the Company
Subsidiaries); (ii) the aggregate amount of the interest
component of rentals in respect of Capitalized Lease Obligations
recognized by the Company and the Company Subsidiaries; (iii) to
the extent any Indebtedness of any other Person is guaranteed by
the Company or any of the Company Subsidiaries, the aggregate
amount of interest paid or accrued by such other Person during
such period attributable to any such guaranteed Indebtedness;
(iv) dividends on Preferred Stock of any Company Subsidiary that
is held by a Person other than the Company or a Company
Subsidiary; (v) the interest portion of any deferred payment
obligation; and (vi) one-third of the rental expense attributable
to operating leases; and less (b) to the extent included in
clause (a) above, Amortization Expense or write-off of deferred
financing costs of the Company and the Company Subsidiaries and
any charge related to any premium or penalty paid in connection
with redeeming or retiring any Indebtedness before its stated
maturity, with the foregoing amounts in the case of both clauses
(a) and (b) above, as determined in accordance with GAAP.
"Consolidated Fixed Charges Coverage Ratio" means, with respect
to any four fiscal quarter period, the ratio of (a) Consolidated
EBITDA for such four fiscal quarter period less Capital
Expenditures for such four fiscal quarter period to
(b) Consolidated Fixed Charges for such four fiscal quarter
period.
"Consolidated Income Tax Expense" means, for any period, federal,
state, local and foreign income taxes of the Company and the
Company Subsidiaries for such period, determined in accordance
with GAAP; provided that, for purposes hereof, "income taxes"
shall specifically exclude any taxes paid to or imposed by a
Gaming Authority or a Liquor Authority.
"Consolidated Net Income" means, for any period, the aggregate of
the consolidated Net Income (or net loss) of the Company and the
Company Subsidiaries (determined in accordance with GAAP); less
(to the extent included in such consolidated Net Income) (a) the
Net Income (or net loss) of any Person (the "other Person")
(i) other than a Company Subsidiary or (ii) in which the Company
or any of the Company Subsidiaries has a joint interest with a
third party (which interest does not cause the Net Income (or net
loss) of such other Person to be consolidated into the Net Income
(or net loss) of the Company and the Company Subsidiaries in
accordance with GAAP), except in each such case such Net Income
shall be included to the extent of (A) in the case of the Company
or a wholly owned Company Subsidiary, the amount of cash
dividends or other cash distributions in respect of Capital Stock
or other interest owned actually paid (out of funds legally
available therefrom) to and received by the Company or such
Company Subsidiary and (B) in the case of a less than wholly
owned Company Subsidiary, the Company's proportionate share (to
the extent of the Company's direct or indirect interest in such
Company Subsidiary) of cash dividends or other cash distributions
in respect of Capital Stock or other interest owned actually paid
(out of funds legally available therefrom) to and received by
such Company Subsidiary; (b) items classified as extraordinary;
(c) the income (or loss) of any other Person (except to the
extent includible in clause (a) above) accrued or attributable to
any period before the date on which it becomes a Company
Subsidiary or is merged into or consolidated with the Company or
any of the Company Subsidiaries or such other Person's property
or Capital Stock (or a portion thereof) is acquired by the
Company or any of the Company Subsidiaries; (d) the net income of
any Company Subsidiary to the extent that the declaration of
dividends of similar distributions by such Company Subsidiary of
that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, law, rule or
governmental regulations applicable to that Company Subsidiary or
its stockholders; (e) any net gain or loss resulting from a
Restricted Asset Sale, Unrestricted Asset Sale or Event of Loss
or reserves relating thereto by the Company or any of the Company
Subsidiaries; (f) any gain (but not loss), net of taxes, realized
upon the termination of any employee pension benefit plan; and
(g) all income taxes of the Company and the Company Subsidiaries
paid or accrued according to GAAP for such period attributable to
extraordinary gains or losses.
["Consolidated Net Worth" means, at any date of determination,
the sum of: (i) the consolidated equity of the common
stockholders of the Company and the Company Subsidiaries on such
date, plus (ii) the respective amounts reported on the Company's
most recent balance sheet with respect to any series of preferred
stock (other than Disqualified Stock) that by its terms is not
entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year
of such declaration and payment, but only to the extent of any
cash received by the Company upon issuance of such preferred
stock, less (w) all write-ups (other than write-ups resulting
from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after
the acquisition of such business) subsequent to the date of this
Indenture in the book value of any asset owned by the Company or
a Company Subsidiary, (x) goodwill and other intangible assets,
(y) all investments in the Company that are not Company
Subsidiaries, and (z) all unamortized debt discount and expense
and unamortized deferred charges, all of the foregoing determined
in accordance with GAAP.]
"Contingent Obligation" means, as to any Person, any obligation
of such Person guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not
contingent (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b)
to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation
or (d) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or
determinable amount (based on the maximum reasonably anticipated
net liability in respect thereof as determined by the Company in
good faith) of the primary obligation or portion thereof in
respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated net
liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by the Company in good faith.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its
corporate trust business shall be administered, which office at
the date of execution of this Indenture is located at [], except
that with respect to presentation of Notes for payment or for
registration of transfer or exchange, such term shall mean the
office or agency of the Trustee located at [].
"Corporation" includes corporations, associations, companies and
business trusts.
"Covenant Defeasance" has the meaning specified in Section 1203.
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Default" means any Event of Default, or an event that would
constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
"Defaulted Interest" has the meaning specified in Section 208.
"Default Premium Amount" means (i) for the period following the
Issue Date through the fourth anniversary thereof, an amount
equal to 4% of the unpaid principal amount of all Outstanding
Notes, (ii) for the twelve-month period following the fourth
anniversary of the Issue Date, an amount equal to 3% of the
unpaid principal amount of all Outstanding Notes, and (iii) for
the period subsequent to the fifth anniversary of the Issue Date,
an amount equal to 2% of the unpaid principal amount of all
Outstanding Notes.
"Depreciation Expense" means, for any period, the provision for
depreciation that is reflected on the financial statements of the
Company and the Company Subsidiaries in accordance with GAAP.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock that, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or
upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise,
or is exchangeable for Indebtedness, or is redeemable at the
option of the holder thereof, in whole or in part, on or before
the Maturity Date of the Notes.
"Event of Default" has the meaning specified in Section 401.
"Event of Loss" means, with respect to any property or asset
(tangible or intangible, real or personal) that either is (A)
material to the efficient operation of any Gaming Facility or (B)
has a Fair Market Value of $3 million or more, any of the
following: (i) any loss, destruction or material damage of such
property or asset; (ii) any institution of any proceedings for
the condemnation or seizure of such property or asset or for the
exercise of any right of eminent domain or navigational
servitude; or (iii) any actual condemnation, seizure or taking,
by exercise of the power of eminent domain or otherwise, of such
property or asset, or confiscation of such property or asset or
the requisition of the use of such property or asset.
"Event of Loss Offer" has the meaning specified in Section 918.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" or "fair value" means, with respect to any
asset or 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. Unless
otherwise specified by the Indenture, Fair Market Value of
property having a value in excess of $500,000 shall be determined
by the Board of Directors of the Company acting in good faith and
shall be evidenced by a Board Resolution delivered to the
Trustee.
"Federal Bankruptcy Code" means Title 11 of the United States
Code, as amended from time to time.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants
and statements and pronouncements of the financial Accounting
Standards Board that are applicable as of the Issue Date.
"Gaming Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature
whatsoever of the United States federal or foreign government,
any state, province or any city or other political subdivision or
otherwise and whether now or hereafter in existence, or any
officer or official thereof, with authority to regulate any
gaming operation (or proposed gaming operation) owned, managed,
or operated by the Company or any of the Company Subsidiaries.
"Gaming Facilities" means any land-based, riverboat, dockside or
other casino gaming business of a Person or any business that is
related to, ancillary or supportive of, connected with or arising
out of the gaming business of such Person (including, without
limitation, developing and operating lodging, dining, child care,
amusement, sports or entertainment facilities, transportation
services or other related activities or enterprises and any
additions or improvements thereto) [involving the use of or
relating to, ancillary or supportive of, connected with or
arising out of any Collateral].
"Gaming Laws" means each gaming law of any Gaming Authority,
including, without limitation, the State of Colorado, and its
political subdivisions, as amended from time to time, and the
regulations promulgated and rulings issued thereunder applicable
to the Company or any of the Company Subsidiaries or
shareholders.
"Governmental Authority" means any government (federal, state or
local), any governmental agency, bureau or board or any
governmental office, officer or official (including
environmental) having jurisdiction over the Company or any of the
Company Subsidiaries.
"Guarantee" has the meaning stated in the recital of the
Guarantors in this Indenture.
"guarantee" by any Person means any obligations, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person: (i) to purchase or pay
(or advance or supply funds for the purchase of payment of) such
Indebtedness of such other Person (whether arising by virtue of
participation arrangements, by agreement to keep well, to
purchase assets, goods, securities or services, to take-or-pay or
to maintain a financial statement conditions or otherwise); or
(ii) entered into for the purpose of assuring the obligee of such
Indebtedness in any other manner of the payment thereof, or to
protect such obligee of such Indebtedness in any other manner of
the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term
"guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business.
"Guarantor" and "Guarantors" means the Persons named as
Guarantors pursuant to the first paragraph of this instrument.
"Holder" means a Person in whose name a Note is registered in the
Note Register.
"Indebtedness" of any Person means (a) any liability, contingent
or otherwise, of such Person (i) for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of
such Person or only to a portion thereof), (ii) evidenced by a
note, bond, debenture or similar instrument, letters of credit,
acceptances or other similar facilities (other than accounts
payable to trade creditors created or assumed by such Person in
the ordinary course of business), (iii) for any Capitalized Lease
Obligation or (iv) any obligation relating to the balance
deferred and unpaid of the purchase price of property or
services, including, without limitation, a purchase money
obligation (other than accounts payable to trade creditors
created or assumed by such Person in the ordinary course of
business); (b) any reimbursement obligations relating to letters
of credit issued for the account of such Person; (c) any
obligation secured by a Lien to which the property or assets
(including, without limitation, leasehold interests and any other
tangible or intangible property rights) of such Person are
subject, whether or not the obligations secured thereby shall
have been assumed by or shall otherwise be such Person's legal
liability; (d) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect
of any Capital Stock of or other ownership or profit interest in
such Person or any of its Affiliates or any warrants, rights or
options to acquire such Capital Stock, valued, in the case of
Disqualified Stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid
dividends; (e) all indebtedness incurred by such Person in the
acquisition (whether by way of purchase, merger, consolidation or
otherwise) of any business, real property or other assets (except
assets, other than capital assets, acquired in the ordinary
course of the conduct of the acquiror's business); (f) all
Interest Rate and Currency Protection Obligations; (g) any
guarantee by such Person of any indebtedness, obligation or
liability of any other Person of the kind described in any of the
preceding clauses; and (h) any and all deferrals, renewals,
extensions and refundings of, or amendments, restructurings,
modifications or supplements to, any indebtedness, obligation,
guarantee or liability of the kind described in any of the
preceding clauses.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended in accordance
with the terms hereof.
"Indenture Obligations" has the meaning specified in
Section 1301.
"Independent", when used with respect to any Person, means such
other Person who (a) is in fact independent, (b) does not have
any direct financial interest or any material indirect financial
interest in the Company or in any Affiliate of the Company and
(c) is not an officer, employee, promoter, underwriter, trustee,
partner or person performing similar functions for the Company or
a spouse, family member or other relative of any such Person.
Whenever it is provided in the Indenture that any Independent
Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be appointed by the Company and
approved by the Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read
this definition and that the signer is Independent within the
meaning hereof.
"Interest and Currency Rate Protection Obligations" means the
obligations of any Person pursuant to any direct or indirect
interest rate swap, cap or collar agreement, interest rate future
or option contract, currency swap agreement, currency future or
option contract and other similar agreement or arrangement
designed to hedge against fluctuations in interest rates or
foreign exchange rates.
"Interest Payment Date" means [, 1996] and each [] and []
thereafter.
"Investment", in any Person, means any direct or indirect loan,
advance, guarantee or other extension of credit or capital
contribution to (including, without limitation, transfers of cash
or other property to others or payments for property or services
for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, warrants, rights, options, bonds,
notes, debentures or other securities or evidences of
Indebtedness issued by any other Person or Indebtedness of any
other Person secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien (including, without limitation, accounts
and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness. The amount of any Investment shall be the original
cost of such Investment, plus the cost of all additions thereto,
and minus the amount of any portion of such Investment repaid to
the Person making such Investment in cash as a repayment of
principal or a return of capital, as the case may be, but without
any other adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such
Investment. In determining the amount of any Investment
involving a transfer of any property other than cash, such
property shall be valued at its fair value at the time of such
transfer, as determined in good faith by the Board of Directors
of the person making such transfer, whose determination will be
conclusive absent manifest error.
"Issue Date" means [ ] , 1996.
"Legal Defeasance" has the meaning specified in Section 1202.
"Lien" means any mortgage, pledge, lien (statutory or other),
encumbrance, assignment for security, deposit arrangement or
preference or other security agreement of any kind or nature
whatsoever, charge, hypothecation, interest or adverse claim
affecting title or resulting in an encumbrance upon or with
respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired, or a security
interest of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell and any
filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any
jurisdiction, excluding operating leases).
"Liquor Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature
whatsoever of the United States federal or foreign government,
any state, province or any city or other political subdivision or
otherwise and whether now or hereafter in existence, or any
officer or official thereof, with authority to regulate the
service or distribution of liquor or alcoholic beverages by the
Company or any of the Company Subsidiaries.
"Liquor Laws" means each law of any Liquor Authority, including,
without limitation, the State of Colorado, and its political
subdivisions, as amended from time to time, and the regulations
promulgated and rulings issued thereunder applicable to the sale
or distribution of liquor or alcoholic beverages by the Company
or any of the Company Subsidiaries.
"Marketable Securities" means Cash Equivalents or any fund
investing exclusively in Cash Equivalents.
"Maturity", when used with respect to any Note, means the date on
which the principal of such Note or an installment of principal
becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, notice of
redemption, required purchase or otherwise.
"Maturity Date", when used with respect to any Note, means the
date specified in such Note as the fixed date on which the
principal of such Note is due and payable.
"Net Cash Proceeds" means, with respect to any Restricted Asset
Sale, Event of Loss, issuance or sale by the Company of its
Capital Stock or incurrence of Indebtedness, as the case may be,
the proceeds thereof in the form of cash or Cash Equivalents
received by the Company or any of the Company Subsidiaries
(whether as initial consideration, through the payment or
disposition of deferred compensation, the payment of insurance
proceeds or the release of reserves), after deducting therefrom
(without duplication): (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees,
finder's fees and other similar fees and expenses incurred in
connection with such Restricted Asset Sale or Event of Loss;
(b) provisions for all taxes payable as a result of such
Restricted Asset Sale or Event of Loss; and (c) payments made to
retire Indebtedness (other than payments on the Notes),
including, but not limited to, Bank Indebtedness, secured by the
assets subject to such Restricted Asset Sale or Event of Loss to
the extent required pursuant to the terms of such Indebtedness.
"Net Income" means, with respect to any Person for any period,
the net income (or loss) of such Person determined in accordance
with GAAP.
"Non-Operating Subsidiaries" means (i) Michigan City Casino and
Lodge, Inc., an Indiana corporation; (ii) HEI-Mexico, Inc., a
Delaware corporation; and (iii) HEDC, Inc., a Delaware
corporation.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 205.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel,
who is reasonably acceptable to the Trustee, which counsel may be
an employee of, or counsel to, the Company or the Trustee.
"Outstanding", when used with respect to Notes, means, as of the
date of determination, all Notes (including all Secondary Notes)
theretofore authenticated and delivered under this Indenture,
except:
(i)Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii)Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Notes; provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii)Notes, except to the extent provided in Sections 1202 and
1203, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Twelve; and
(iv)Notes which have been paid pursuant to Section 206 or in
exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other
than any such Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Notes
are held by a bona fide purchaser in whose hands the Notes are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Notes have given any
request, demand, authorization, direction, consent, notice or
waiver hereunder, and for the purpose of making the calculations
required by TIA Sections 313, 315(d)(3) or 316(a), Notes owned by
the Company or any other obligor upon the Notes or any Affiliate
of the Company or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in making such calculation or in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes which a Responsible Officer
of the Trustee knows to be so owned shall be so disregarded.
Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
reasonable satisfaction of the Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not the
Company or any other obligor upon the Notes or any Affiliate of
the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of
(and premium, if any, on) or interest on any Notes on behalf of
the Company.
"Permitted Liens" means:
(i)Liens on property acquired by the Company or any of the
Company Subsidiaries (including an indirect acquisition of
property by way of a merger of a Person with or into the Company
or any of the Company Subsidiaries or the acquisition of a
Person), provided that such Liens were in existence prior to the
contemplation of such acquisition, merger or consolidation, and
were not created in connection therewith or in anticipation
thereof, and provided that such Liens do not extend to any
additional property or assets of the Company or any of the
Company Subsidiaries;
(ii)statutory Liens to secure the performance of obligations,
surety or appeal bonds, performance bonds or other obligations of
a like nature incurred in the ordinary course of business
(exclusive of obligations in respect of the payment of borrowed
money), or for taxes, assessments or governmental charges or
claims, provided that in each case the obligations are not yet
delinquent or are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded and any
reserve or other adequate provision as shall be required in
conformity with GAAP shall have been made therefor;
(iii)leases or subleases granted to others not interfering in any
material respect with the business of the Company or any of the
Company Subsidiaries;
(iv)with respect to the property involved, easements,
rights-of-way, navigational servitudes, restrictions, minor
defects or irregularities in title and other similar charges or
encumbrances which do not interfere in any material respect with
the ordinary conduct of business of the Company and the Company
Subsidiaries as now conducted or as contemplated herein;
(v)Liens in favor of the Company or any Guarantor which are
assigned to the Trustee as Collateral for the Notes or the
Guarantee, as applicable;
(vi)Liens in favor of the Collateral Agent under the Indenture
and the Security Documents;
(vii)Liens securing any Bank Indebtedness;
(viii)The replacement extension or renewal of any Lien permitted
by clauses (i) through (vii) upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the principal amount or change in
any direct or contingent obligor) of the Indebtedness secured
thereby.
"Permitted Line of Business" means, with respect to any Person,
any land-based, riverboat, dockside or other casino gaming
business of such Person or any business that is related to,
ancillary or supportive of, connected with or arising out of the
gaming business of such Person (including, without limitation,
developing and operating lodging, dining, child care, amusement,
sports or entertainment facilities, service of alcoholic
beverages, transportation services or other related activities or
enterprises and any additions or improvements thereto).
"Permitted Related Investment" means the acquisition of property
or assets by a Person to be used in connection with a Permitted
Line of Business of such Person, including, without limitation,
any physical improvements of existing property or assets of such
Person.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, limited liability
company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or
agency thereof.
"Plan of Reorganization" means the First Amended Joint Plan of
Reorganization of Hemmeter Enterprises, Inc., BWBH, BWCC, Inc.
and Millsite 27, Inc. which was confirmed in the Bankruptcy
Cases, as the same may have been or may be amended from time to
time.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section
206 in exchange for a mutilated Note or in lieu of a lost,
destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes
(however designated) that ranks prior, as to the payment of
dividends on or to the distribution of assets upon any voluntary
or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such
Person.
"Process Agent" has the meaning specified in Section 1507.
"Purchase Date" has the meaning specified in Section 1012.
"Purchase Notice" has the meaning specified in Section 1012.
"Redemption Date", when used with respect to any Note to be
redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Reference Period" means, as of any date and with regard to any
person, the four full fiscal quarters ended immediately preceding
such date.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the [ ] or [
] (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee,
means any officer in the Trustee's Corporate Trust Office or any
other officer of the Trustee customarily performing functions
similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Restricted Asset Sale" means any direct or indirect (a) issuance
by any Company Subsidiary to any Person (other than the Company
or a wholly-owned Company Subsidiary) of any Capital Stock of any
Company Subsidiary or other similar equity interest or (b) sale,
conveyance, assignment, transfer, lease or other disposition
(including, without limitation, by means of a Sale-Leaseback
Transaction) by the Company or any Company Subsidiary to any
Person (other than the Company or a wholly-owned Company
Subsidiary), in one transaction or a series of related
transactions, of any property or asset of the Company or any
Company Subsidiary, whether now owned or hereafter acquired
(excluding any Unrestricted Asset Sale).
"Restricted Asset Sale Offer" has the meaning specified in
Section 917.
"Restricted Payment" means any of the following: (a) the
declaration or payment of any dividend or any other distribution
(whether made in cash, property or securities) on Capital Stock
of the Company or any Company Subsidiary or any payment made to
the direct or indirect holders (in their capacities as such) of
Capital Stock of the Company or any Company Subsidiary (other
than (i) dividends or distributions payable solely in Capital
Stock (other than Disqualified Stock) otherwise permitted by the
Indenture and (ii) in the case of a Company Subsidiary, dividends
or distributions payable to the Company or to a wholly-owned
Company Subsidiary), (b) the purchase, defeasance, redemption or
other acquisition or retirement for value of any Capital Stock,
or any warrants, rights or options to purchase such Capital Stock
of the Company or any Company Subsidiary (other than Capital
Stock of such Company Subsidiary held by the Company or any of
the Company Subsidiaries), (c) the making of any principal
payment on, or the purchase, defeasance, repurchase, redemption
or other acquisition or retirement for value, before any
scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any instrument evidencing Indebtedness which is
subordinated in any manner in right of payment to the Notes and
(d) the making of any Investment in any Person (which shall,
solely for purposes of this clause (d), exclude the payment of
Capital Stock of the Company or any other consideration to the
direct holders of Capital Stock of such Person in connection with
a transaction pursuant to which such Person shall become a
wholly-owned Company Subsidiary) or guarantee of any Investment
in any Person (including, without limitation, any Affiliate of
the Company) other than a Person that would be a wholly-owned
Company Subsidiary immediately after giving effect to such
Investment; provided, however, that any Investments made in a
Company Subsidiary which ceases to be a Company Subsidiary shall
thereafter be considered as having been Restricted Payments when
made in determining the aggregate amount of all Restricted
Payments made to a particular date.
"Sale-Leaseback Transaction" means any arrangement with any
Person providing for the leasing by the Company or any Company
Subsidiary of any real or tangible personal property, which
property has been or is to be sold or transferred by the Company
or any such Company Subsidiary to such Person in contemplation of
such leasing.
"Secondary Notes" has the meaning specified in Section 208.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement of even date
herewith, duly executed by the Company and each Guarantor in
favor of the Trustee for its benefit and the benefit of the
Holders.
"Security Documents" means this Indenture, the Security
Agreement, each mortgage, deed of trust, security agreement or
similar instrument securing the Company's obligations with
respect to the Notes or under this Indenture or any of the
Security Documents.
"Security Interest" has the meaning specified in Section 1101.
"Special Record Date" has the meaning specified in Section 208.
"Stated Maturity" means, with respect to any Indebtedness, the
date specified in such Indebtedness as the fixed date on which
the principal of such Indebtedness or such installment of
interest is due and payable. Unless otherwise stated, "Stated
Maturity" when used with respect to any Note refers to the Stated
Maturity of the principal of (and not interest on) the Notes.
"Subject Subsidiaries" means, collectively, the Company
Subsidiaries, other than BWBH.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor
Trustee.
"Unrestricted Asset Sale" means any sale, conveyance, assignment,
transfer, lease or other disposition by the Company or any
Company Subsidiary to any Person (other than the Company or a
Company Subsidiary) in one transaction or a series of related
transactions, of any property or asset of the Company or the
Company Subsidiaries, whether now owned or hereafter acquired, to
the extent that (a) such sale, conveyance, assignment, transfer,
lease or other disposition is in the ordinary course of business,
(b) the Company or a Company Subsidiary, as the case may be,
receives consideration at the time of such Unrestricted Asset
Sale at least equal to the Fair Market Value (as determined in
good faith by the Company taking into account the aggregate
benefits to the Company and the Company Subsidiaries after giving
effect to the proposed Unrestricted Asset Sale) of the assets or
property sold, conveyed, assigned, transferred or otherwise
disposed of and (c) the aggregate amount of the Fair Market Value
(as determined in good faith by the Company) of the assets or
property sold, conveyed, assigned, transferred or otherwise
disposed of does not exceed $1,500,000 in any twelve-month
period. For purposes of the foregoing sentence, the sale or
other disposition of any slot machine or other equipment
(i) which is obsolete or otherwise unnecessary in the ongoing
operations of the Company and the Company Subsidiaries, or (ii)
as part of a program to replace or upgrade any part of the slot
machines or other equipment of the Company or any of the Company
Subsidiaries, shall be deemed to be a sale or other disposition
in the ordinary course of business.
"U.S. Dollars" means lawful currency of the United States.
"U.S. Government Obligations" has the meaning specified in
Section 1204.
"Vice President", when used with respect to the Company, means
any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors
(or persons performing similar functions) of such Person, whether
at all times or only as long as no senior class of securities has
such voting power by reason of any contingency.
Section 102.Rules of Construction.
Unless the context otherwise requires:
(1)a term defined in this Indenture has the meaning assigned to
it in the Indenture;
(2)an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3)"or" is not exclusive and the word "including" shall mean
without limitation;
(4)words in the singular include the plural, and words in the
plural include the singular;
(5)the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(6)any gender used in this Indenture shall be deemed to include
the neuter, masculine or feminine genders.
Section 103.Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture (including any covenant the compliance with which
constitutes a condition precedent) relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than
pursuant to Section 908(a)) shall include:
(1)a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(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 each such individual, he
has made such examination or investigation as, is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4)a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 104.Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such
officer knows that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion
is based are erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information
with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 105.Acts of Holders.
(a)Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to herein as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Section 502) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b)The record date for determining the Holders entitled to give
or take any request, demand, authorization, direction, notice,
consent, waiver or other Act provided by this Indenture shall be
the first date on which a signed instrument or instruments
embodying or evidencing any of the foregoing is delivered to the
Trustee, and, where it is hereby expressly required, to the
Company.
Notwithstanding the foregoing, the Company may, but shall not be
obligated to, fix a record date for the purpose of determining
the Holders entitled to consent to any amendment, supplement or
waiver of any provision of this Indenture or to any indenture
supplemental hereto, provided that (i) the Company gives at least
20 days' prior written notice of such record date to the Trustee,
the Note Registrar and the Holders and (ii) any such Act of the
Holders shall become effective within 30 days after such record
date.
(c)The fact and date of the execution by any Person of any such
instrument or writing may be established in any reasonable manner
that the Trustee deems sufficient, which shall include, but not
be limited to, notarization of such instrument.
(d)The ownership of Notes shall be proved by the Note Register.
(e)Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Note shall bind
every future Holder of the same Note or the Holder of every Note
issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, suffered or omitted to
be done by the Trustee, any Paying Agent or the Company or any
Guarantor in reliance thereon, whether or not notation of such
action is made upon such Note.
Section 106.Notices, Etc., to Trustee, the Company and the
Guarantors.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or
filed with,
(a)the Trustee by any Holder or by the Company or any Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust
Administration, or at any other address previously furnished in
writing to such Person by the Trustee; or
(b)the Company or any Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and sent via registered
or certified mail, telefax, telex or overnight delivery service
to the Company or the Guarantor, as the case may be, addressed to
it at the address set forth on Schedule 106, or at any other
address previously furnished in writing to the Trustee by the
Company or such Guarantor.
Section 107.Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders
by the Company or the Trustee, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing
and sent via certified mail, telefax or overnight delivery
service, to each Holder affected by such event, at its address as
it appears in the Note Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice is so provided to
Holders, neither the failure to provide such notice, nor any
defect in any such notice, to any particular Holder shall affect
the sufficiency of such notice with respect to any other Holders.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
ARTICLE TWO
THE NOTES
Section 201.Forms Generally.
The Notes and the Trustee's certificate of authentication and the
notation with respect to the Guarantee shall be substantially in
the form of Exhibit A, with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture. Exhibit A is hereby incorporated in
and expressly made a part of this Indenture. The Notes may have
such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may
consistently herewith be determined by the officers executing
such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note or the notation with respect to
the Guarantee may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The definitive Notes shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such
Notes, as evidenced by their execution of such Notes.
Section 202.Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to
$50,000,000 (plus Secondary Notes, as defined in Section 208),
except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Sections 204, 205, 206, 207, 806, 1008 and 1015.
The Notes shall be known and designated as the 12% Senior Secured
Pay-In-Kind Notes Due 2003 of the Company. Their Stated Maturity
shall be [ ], 2003, and they shall bear interest at
the rate per annum equal to 12%, accruing from the Issue Date (or
in the case of Secondary Notes issued after the Issue Date
pursuant to Section 208, the respective dates of issuance
thereof), or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable on [, 1996]
and semiannually thereafter on [] and [] in each year and at said
Stated Maturity, until the principal thereof is paid or duly
provided for; provided, however, that if any interest is not paid
when due, such overdue interest shall bear interest, payable in
arrears on each Interest Payment Date and on demand, at a rate
per annum at all times equal to 12%.
The principal of (and premium, if any, on) and interest on the
Notes shall be payable at the office or agency of the Company
maintained for such purpose in The City of New York, or at such
other office or agency of the Company as may be maintained for
such purpose. Notwithstanding any provisions of this Indenture
to the contrary, if the Company and a Holder shall so agree,
payments of interest on and principal of any Note shall be made
by the Paying Agent directly to the Holder of such Note (whether
by federal funds, wire transfer or otherwise), without any
requirement of surrender of such Note. In any such case, if the
Trustee shall then act as Paying Agent, the Company shall deliver
written instructions to the Trustee at least 15 days prior to the
relevant payment date requesting that such payment will be so
made and designating the bank account to which such payment shall
be made. Unless a new instruction is delivered to the Trustee at
least 15 days prior to any subsequent payment date, the Trustee
shall make any payment due on any such subsequent payment date in
accordance with the previous instructions. The Company will
indemnify and hold harmless the Trustee from and against any
loss, liability or expense (including attorneys' fees) resulting
from any act or omission to act on the part of the Company or any
such Holder in connection with any such agreement or which the
Trustee may incur as a result of making any payment in accordance
with any such agreement.
The payment of the Notes is guaranteed pursuant to the Guarantee
in favor of the Holders.
The Notes and the Guarantee are secured by and entitled to the
benefits of the Liens in the Collateral provided by the Security
Documents.
The Notes shall be repurchased by the Company, at the option of
the Holders, pursuant to Sections 917 and 1011.
The Notes shall be redeemable as provided in Article Ten.
Section 203.Denominations.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral
multiple thereof.
Section 204.Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman, its President or a Vice President, under its corporate
seal reproduced thereon and attested by its Secretary or an
Assistant Secretary. The signature of any of these officers on
the Notes may be manual or facsimile.
The Guarantee shall be executed on behalf of each Guarantor by an
officer of the Guarantor or by an officer of the Company
authorized by power of attorney to act on behalf of such
Guarantor. Each Guarantor hereby irrevocably appoints each
officer of the Company who would be authorized to execute any of
the Notes on behalf of the Company its due and lawful attorney-
in-fact to execute the Notation of Guarantee on the face of each
Note on behalf of such Guarantor. The signature of any such
officer on the Guarantee may be manual or facsimile.
Notes and the Guarantee bearing the manual or facsimile
signatures of individuals who were at any time the proper
officers of the Company or such Guarantor shall bind the Company
and such Guarantors, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or Guarantee or did not
hold such offices at the date of such Notes or Guarantee.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes
executed by the Company and the Guarantors to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Notes, and the Trustee in
accordance with such Company Order shall authenticate and deliver
such Notes.
Each Note shall be dated the date of its authentication.
The Company Order may also request the Trustee to authenticate
certificates representing Notes bearing any notation, legend or
endorsement permitted by Section 201 or to remove any such
notation, legend or endorsement.
The Trustee may appoint an authenticating agent to authenticate
Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent
to deal with the Company, the Guarantors or their Affiliates.
No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on
such Note a certificate of authentication substantially in the
form provided for herein duly executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that
such Note has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Seven, shall be
consolidated or merged with or into any other Person or shall
convey transfer, lease or otherwise dispose of its properties and
assets substantially as an entirety to any Person, and the
successor Person resulting from such consolidation, or surviving
such merger or into which the Company shall have been merged or
the Person which shall have received a conveyance transfer, lease
or other disposition as aforesaid shall have executed an
indenture supplemental hereto with the Trustee pursuant to
Article Seven, any of the Notes authenticated or delivered prior
to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the
successor Person, be exchanged for other Notes executed in the
name of the successor Person with such changes in phraseology and
form as may be appropriate but otherwise in substance of like
tenor as the Notes surrendered for such exchange and of like
principal amount; and the Trustee, upon Company Request of the
successor Person, shall authenticate and deliver Notes as
specified in such request for the purpose of such exchange. If
Notes shall at any time be authenticated and delivered in any new
name of a successor Person pursuant to this Section in exchange
or substitution for or upon registration of transfer of any
Notes, such successor Person, at the option of the Holders but
without expense to them, shall provide for the exchange of all
Notes at the time Outstanding for Notes authenticated and
delivered in such new name.
Section 205.Registration, Transfer and Exchange.
(a)The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to
Section 902 being herein sometimes referred to as the "Note
Register") in which the Company shall provide for the
registration of Notes and of transfers of Notes. The Note
Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At
all reasonable times, the Note Register shall be open to
inspection by the Trustee. The Trustee is hereby initially
appointed as security registrar (the "Note Registrar") for the
purpose of registering Notes and transfers of Notes as herein
provided.
Upon surrender for registration of transfer of any Note at the
office or agency of the Company designated pursuant to
Section 902, the Company and the Guarantors shall execute, and
the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of
any authorized denomination or denominations of a like aggregate
principal amount.
At the option of a Holder, Notes may be exchanged for other Notes
of any authorized denomination and of a like aggregate principal
amount upon surrender of the Notes to be exchanged at such office
or agency. Whenever any Notes are so surrendered for exchange,
the Company and the Guarantors shall execute, and the Trustee
shall authenticate and deliver, the Notes which the Holder making
the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company and the
Guarantors, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Note
Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and
the Note Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 207, 806, 1008 and 1015.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the
opening of business 15 days before mailing of a notice of
redemption of or of an offer to repurchase the Notes selected for
redemption or repurchase and ending at the close of business on
the day of such mailing, (ii) to register the transfer of or
exchange any Note so selected for redemption in whole or in part,
except in the case of any Note to be redeemed in part, the
portion thereof not to be redeemed, or (ii) to register the
transfer of or exchange any Note in respect of which a Purchase
Notice has been given to any Paying Agent until the earlier of
(A) such time as such notice has been withdrawn in accordance
with Section 1013 or (B) the Purchase Date.
Section 206.Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee, or (ii)
the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and
there is delivered to the Company and the Trustee such Note or
indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the
Trustee that such Note has been acquired by a bona fide
purchaser, the Company and the Guarantors shall execute, and upon
Company Order the Trustee shall authenticate and deliver, in
exchange for any such mutilated Note or in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company
may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company and the
Guarantors, whether or not the destroyed, lost or stolen Note
shall be at any time enforceable by anyone, and shall be entitled
to all benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or
stolen Notes.
Section 207.Temporary Notes.
Pending the preparation of definitive Notes, the Company and the
Guarantors may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Notes which are printed,
lithographed typewritten, mimeographed or otherwise produced in
any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such
appropriate insertions omissions substitutions and other
variations as the officers executing such Notes may determine as
conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, the Company and the Guarantors
will cause definitive Notes to be prepared without unreasonable
delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender
of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 902, without
charge to the Holder. Upon surrender for cancellation of any one
or more temporary Notes, the Company and the Guarantors shall
execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits
under this Indenture as definitive Notes.
Section 208.Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to
the Person in whose name such Note (or one or more Predecessor
Notes) is registered at the close of business on the Regular
Record Date for such interest.
Through and including [], 1997, on each Interest Payment Date,
the Company may, at its option and in its sole discretion, in
lieu of the payment in whole or in part of interest in cash
(other than any Notes that were issued after the Issue Date as
Secondary Notes pursuant to this Section 208) on the Notes pay
interest on the Notes through the issuance of additional Notes
("Secondary Notes") in an aggregate principal amount equal to the
amount of interest that would be payable with respect to the
Notes, if such interest were paid in cash. Thereafter, the
Company shall pay interest on the Notes in cash. The Company
shall notify the Trustee in writing of such election not less
than ten nor more than 45 days prior to the Record Date for an
Interest Payment Date on which Secondary Notes will be issued.
On each such Interest Payment Date, the Trustee shall
authenticate Secondary Notes for original issuance to each Holder
on the relevant Record Date in the aggregate principal amount
required to pay such interest. Notwithstanding any other
provision of this paragraph to the contrary, the Company shall
pay cash in lieu of issuing Secondary Notes in any denomination
of less than $1,000 (which shall be determined with respect to
the aggregate amount of Notes held by each Holder as shown by the
records of the Trustee). Notwithstanding anything contained in
this Indenture to the contrary, interest on any Secondary Note
shall be payable only in cash.
Any interest on any Note that is payable, but is not so paid or
duly provided for, on or before any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable
to the Holder of record on the relevant Regular Record Date by
virtue of having been such Holder; and such Defaulted Interest
shall be paid by the Company to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered at
the close of business on the day fixed by the Company to
determine which Holders shall receive the payment of Defaulted
Interest (the "Special Record Date"). The Company shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note, and shall deposit with the
Trustee an amount of U.S. Dollars equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest in
immediately available funds by 10:00 a.m. (New York time) on the
Business Day immediately preceding the payment date, such U.S.
Dollars when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Section
provided. In the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
sent via registered or certified mail, telefax, telex or
overnight delivery service, to each Holder at its address as it
appears in the Note Register, provided that the Company shall
deliver notice to the Trustee at least 15 days' prior to the date
notice is to be given to the Holders. The Trustee shall pay such
Defaulted Interest forthwith to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered on
such Special Record Date.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Note shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
Section 209.Persons Deemed Owners.
Prior to and at the time of the due presentment of a Note for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
such Note is registered as the owner of such Note for the purpose
of receiving payment of principal of (and premium, if any, on)
and (subject to Sections 205 and 208) interest on such Note and
for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the
contrary.
Section 210.Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any
Notes previously authenticated hereunder which the Company has
not issued and sold, and all Notes so delivered shall be promptly
canceled by the Trustee. If the Company shall so acquire any of
the Notes, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by
such Notes unless and until the same are surrendered to the
Trustee for cancellation. No Notes shall be authenticated in
lieu of or in exchange for any Notes canceled as provided in this
Section, except as expressly permitted by this Indenture. All
canceled Notes held by the Trustee shall be disposed of by the
Trustee in accordance with its customary procedures and
certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that canceled Notes be
returned to it. The Company may not issue new Notes to replace
Notes that it has paid or delivered to the Trustee for
cancellation.
Section 211.Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE THREE
SATISFACTION AND DISCHARGE
Section 301.Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to surviving rights of registration of transfer
or exchange of Notes herein expressly provided for) and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture when
(a)either
(i)all Notes theretofore authenticated and delivered (other than
(A) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 206 and (B)
Notes for whose payment U.S. Dollars have theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in
Section 903) have been delivered to the Trustee for cancellation;
or
(ii)all such Notes not theretofore delivered to the Trustee for
cancellation
(A)have become due and payable, or
(B)will become due and payable at their Stated Maturity within
one year, or
(C)are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of subclause (A), (B) or (C) of
clause (ii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds, in trust for such
purpose an amount in U.S. Dollars sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of
Notes which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(b)the Company, any Guarantor or any other obligor under the
Notes has paid or caused to be paid all other sums payable
hereunder by the Company, the Guarantors and any other obligor
under the Notes, including, without limitation, all sums due to
the Trustee;
(c)the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with; and
(d)the Company and each Guarantor has complied with
Section 314(c) of the Trust Indenture Act in connection with such
satisfaction and discharge.
Section 302.Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 507
and, if U.S. Dollars shall have been deposited with the Trustee
pursuant to subclause (ii) of clause (a) of Section 301, the
obligations of the Trustee under Section 303 and the last
paragraph of Section 903 shall survive.
Section 303.Application of Trust Money.
Subject to the provisions of the last paragraph of Section 903,
all U.S. Dollars deposited with the Trustee pursuant to Section
301 shall be held in trust and applied by it, in accordance with
the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such U.S. Dollars
has been deposited with the Trustee.
ARTICLE FOUR
DEFAULTS AND REMEDIES
Section 401.Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default
and whether it shall be occasioned by the provisions of Article
Thirteen or Fourteen or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a)default in the payment of any interest on any Note when the
same becomes due and payable, and such default continues for a
period of 10 days; or
(b)default in the payment of the principal of (or premium, if
any, on) any Note when the same becomes due and payable at Stated
Maturity, upon redemption pursuant to Sections 1001 and 1007,
upon repurchase pursuant to Sections 1011 and 1012, by
acceleration or otherwise, including failure to make payment of
any Purchase Price or Redemption Price, as and when due; or
(c)default in the due observance or performance of any covenant,
condition or agreement contained in Section 919 or 924; or
(d)default in the performance, or breach, of any covenant or
warranty of the Company or any Company Subsidiary in this
Indenture, or by the Company or any Guarantor under the Security
Agreement, or any other Security Document, or by any Guarantor
under the Guarantee on its part to be performed (other than a
default in the performance, or breach, of a covenant or warranty
which is specifically dealt with elsewhere in this Section), and
continuance of such default or breach for a period of 30 days
after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the
Outstanding Notes a written notice specifying such default or
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e)default by the Company or any of the Company Subsidiaries in
(i) any payment of principal of or interest on any Indebtedness
(including, without limitation, any Bank Indebtedness) or in the
payment of any Contingent Obligation, beyond the period of grace,
if any, provided in the instrument or agreement under which such
Indebtedness or Contingent Obligation was created; or (ii) the
observance or performance of any other agreement or condition
relating to any such Indebtedness or Contingent Obligation or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is
to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Contingent Obligation (or
a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated
maturity, any applicable grace period having expired, or such
Contingent Obligation to become payable, any applicable grace
period having expired, provided that the aggregate principal
amount of all such Indebtedness and Contingent Obligations which
would then become due or payable, together with the principal
amount of any other such Indebtedness under which such a default
then exists or with respect to which the maturity thereof has
been so accelerated or that has not been paid at maturity,
aggregates $1,000,000 or more; or
(f)any Person entitled to take the actions described in this
Section 401(f), after the occurrence of any event of default
under any agreement or instrument evidencing any Indebtedness in
excess of $1,000,000 in the aggregate of the Company or any
Company Subsidiary, shall notify the Trustee of the intended sale
or disposition of any assets of the Company or any Company
Subsidiary that have been pledged to or for the benefit of such
Person to secure such Indebtedness or shall commence proceedings,
or take any action (including by way of set-off) to retain in
satisfaction of any Indebtedness, or to collect on, seize,
dispose of or apply, any such assets of the Company or any
Company Subsidiary (including funds on deposit or held pursuant
to lock-box and other similar arrangements), pursuant to the
terms of any agreement or instrument evidencing any such
Indebtedness of the Company or any Company Subsidiary or in
accordance with applicable law; or
(g)any warrant of attachment in an amount of $1,000,000 or more
is issued against any portion of the property or assets of the
Company, any Guarantor or any Company Subsidiary and is not
quashed within 30 days after issuance, or final judgments not
covered by insurance for the payment of money which in the
aggregate at any one time exceeds $1,000,000 shall be rendered
against the Company, any Guarantor or any Company Subsidiary by a
court of competent jurisdiction and shall remain undischarged for
a period (during which execution shall not be effectively stayed)
of 30 days after such judgment becomes final and nonappealable;
or
(h)a court of competent jurisdiction enters a judgment decree or
order for relief under any Bankruptcy Law which shall (i) approve
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company or any
Company Subsidiary, (ii) appoint a Custodian of the Company or
any Company Subsidiary, or for any part of their respective
properties or (iii) order the winding-up or liquidation of the
Company's or any Company Subsidiary's affairs; and such judgment,
decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or any bankruptcy or insolvency petition
or application is filed, or any bankruptcy or insolvency
proceeding is commenced, against the Company or any Company
Subsidiary and such petition, application or proceeding is not
dismissed within 60 days; or
(i)the Company or any Company Subsidiary, pursuant to or within
the meaning of any Bankruptcy Law, (i) becomes insolvent, (ii)
fails generally to pay its debts as they become due, (iii) admits
in writing its inability to pay its debts generally as they
become due, (iv) commences any case, proceeding or other action
seeking to have an order for relief entered with respect to it,
or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or
its debts, (v) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding
under any Bankruptcy Law, (vi) consents to the appointment of a
Custodian of it or for any part of its property, (vii) consents
to or acquiesces in the institution of a bankruptcy or an
insolvency proceeding against it, (viii) applies for, consents to
or acquiesces in the appointment of or taking possession by a
Custodian of the Company or any Company Subsidiary, or for any
part of its property, (ix) makes a general assignment for the
benefit of its creditors, or (x) takes any corporate action in
furtherance of any of the foregoing; or
(j)any Security Document ceases to be in full force and effect or
any Security Document ceases to create in favor of the Trustee,
with respect to any material amount of Collateral, a valid and
perfected first priority Lien (subject only to Permitted Liens)
on the Collateral purported to be covered thereby; or
(k)the Guarantee is determined by a court of competent
jurisdiction to be null and void with respect to any Guarantor or
any Guarantor denies that it has any further liability under the
Guarantee or gives notice to such effect (other than by reason
of: (i) the indefeasible payment in full of all principal of,
premium, if any, and interest on the Notes; (ii) the termination
of this Indenture; or (iii) a release pursuant to the provisions
described under Section 1204 or 1314); or
(l)the cessation of substantially all gaming operations at any
Gaming Facility which has commenced operations, other than the
Central City Casino, for more than 45 consecutive days, except as
a result of an Event of Loss; provided, however, that the
cessation of substantially all gaming operations at any Gaming
Facility as a result of renovations of or construction at or
adjacent to such Gaming Facility for 90 consecutive days or less
shall not constitute an Event of Default under this Section
401(l); or
(m)the occurrence of a Black Hawk Casino Event; or
(n)the revocation, suspension or involuntary loss of the legal
right to own or operate any Gaming Facility and such revocation,
suspension or involuntary loss shall be continuing for more than
45 consecutive days; or
(o)the Company or any Company Subsidiary shall fail to comply
with its obligations under Article Seven hereof.
Section 402.Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 401(h) or 401(i)) occurs and is continuing, then and
in every such case the Trustee or the Holders of not less than
25% in principal amount of the Notes Outstanding may declare the
principal amounts of all the Notes to be due and payable
immediately, together with unpaid interest thereon and, in the
case of an Event of Default under Section 401(a), (b), (d), (e),
(j), (k), (l), (m), (n) or (o), the Default Premium Amount in
effect at the time such Event of Default occurs, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such amounts shall become
immediately due and payable. If an Event of Default specified in
Section 401(h) or 401 (i) occurs and is continuing, then the
principal amount of all the Notes, together with unpaid interest
thereon, shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the
Trustee or any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Notes
Outstanding, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if
(a)the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(i)all overdue interest on all Notes,
(ii)all unpaid principal of (and premium, if any, on) any Notes
which has become due otherwise than by such declaration of
acceleration, and interest thereon as provided herein,
(iii)to the extent that payment of such interest is lawful,
interest on overdue interest at the rate borne by the Notes, and
(iv)all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
(b)all Events of Default, other than the non-payment of principal
of the Notes that has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
413; and
(c)the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Notes because of an
Event of Default specified in Section 401(e) shall have occurred
and be continuing, such declaration of acceleration shall be
automatically annulled if the Indebtedness that is the subject of
such Event of Default has been discharged or the holders thereof
have rescinded their declaration of acceleration in respect of
such Indebtedness, and written notice of such discharge or
rescission, as the case may be, shall have been given to the
Trustee by the Company and countersigned by the holders of such
Indebtedness or a trustee, fiduciary or agent for such holders,
within 30 days after such declaration of acceleration in respect
of the Notes, and no other Event of Default has occurred during
such 30 day period which has not been cured or waived during such
period.
Section 403.Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company and each Guarantor covenant that if
(a)default is made in the payment of any installment of interest
on any Note when such interest becomes due and payable and such
default continues for a period of 10 days, or
(b)default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof,
the Company and each Guarantor (and, in the case of each
Guarantor, subject to the provisions of Article Thirteen) will,
upon demand of the Trustee, pay to the Trustee for the benefit of
the Holders of such Notes, the whole amount then due and payable
on such Notes for principal (and premium, if any) and interest,
and interest on any overdue principal (and premium, if any) and,
to the extent that payment of such interest shall be legally
enforceable, upon any overdue installment of interest, at the
rate borne by the Notes, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
If the Company or any Guarantor, as the case may be, fails to pay
such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may (or, at the
direction of Holders of not less than 25% of Outstanding Notes
shall) institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment
or final decree and may enforce the same against the Company or
any Guarantor or any other obligor upon the Notes and collect the
moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any Guarantor or any
other obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and
the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, including seeking recourse from any
Guarantor pursuant to the terms of the Guarantee, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in the other Security Documents or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy. The Trustee may (in its capacity as the
Collateral Agent), in connection with the matters covered by the
two preceding paragraphs, take such actions under the Security
Documents as shall be required or available thereunder.
Section 404.Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Notes, including any Guarantor, or
the property of the Company or of such other obligor, including
any Guarantor, or their creditors, the Trustee (irrespective of
whether the principal of the Notes shall then be due and payable
as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on
the Company or any Guarantor for the payment of overdue
principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceedings or otherwise,
(i)to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of
the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding,
and
(ii)to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any such judicial proceeding
is hereby authorized by each Holder to make such 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 the
Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section
507.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 405.Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name and as trustee of
an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Notes in respect of which such judgment has been recovered.
Section 406.Application of Money Collected.
Any money collected by the Trustee pursuant to the Indenture, the
Notes, the Guarantee or the Security Documents shall be applied
in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of
the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 507;
SECOND: To the payment of all amounts due the Collateral Agent
under the Security Documents;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on,) and interest on the Notes
in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Notes for
principal (and premium, if any) and interest, respectively; and
FOURTH: To the ratable payment of all other amounts due the
Holders under the Security Documents; and
FIFTH: To the payment of the remainder, if any, to the Company,
its successors or assigns or to whomsoever may be lawfully
entitled to receive the same or as a court of competent
jurisdiction may direct.
Section 407.Limitation on Suits.
No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1)such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2)the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3)such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4)the Trustee for 15 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceedings; and
(5)no direction inconsistent with such written request has been
given to the Trustee during such 15-day period by the Holders of
a majority or more in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders
shall have any right in any manner whatever by virtue of, or by
availing itself of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit
of all the Holders.
Section 408.Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Note shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including,
if applicable, Article Twelve) and in such Note, of the principal
of (and premium, if any, on) and (subject to Section 208)
interest on such Note on the respective Stated Maturities
expressed in such Note (or, in the case of redemption, on the
Redemption Date or in the case of repurchase, on the Purchase
Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the
consent of such Holder.
Section 409.Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, each of the Guarantors, the Trustee and
the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 410.Rights and Remedies Cumulative.
Except as otherwise provided in Section 206, no right or remedy
herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 411.Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note
to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Indenture, the Notes, the
Security Documents, the Guarantee or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 412.Control by Holders.
The Holders of not less than a majority in principal amount of
the Outstanding Notes shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee, provided that
(a)such direction shall not be in conflict with any rule of law
or with this Indenture,
(b)the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c)the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting.
Section 413.Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Notes may on behalf of the Holders of all the
Notes waive any past default hereunder and its consequences,
except a default
(1)in respect of the payment of the principal of (or premium, if
any, on) or interest on any Note, or
(2)in respect of a covenant or provision hereof which under
Article Eight cannot be modified or amended without the consent
of the Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
ARTICLE FIVE
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by
this Indenture and covenants and agrees to perform the same as
herein expressed.
Section 501. Notice of Defaults.
Within 45 days after the occurrence of any Default
hereunder, unless such Default shall have been cured or waived,
the Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Note Register, notice of such Default
hereunder known to the Trustee. Except in the case of a Default
in the payment of the principal of (or premium, if any, on) or
interest on any Note or in the payment of any Redemption Price or
Purchase Price, the Trustee may withhold such notice if and so
long as the board of directors, the executive committee or a
committee of Responsible Officers of the Trustee in good faith
determines that withholding such notice is in the interest of the
Holders. The provisions of Section 315(b) of the Trust Indenture
Act are hereby excluded from this Indenture.
Section 502. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise its rights and powers
and use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(b) Except during the continuance of an Event of
Default known to a Trust Officer:
(1) the Trustee need perform only those duties
that are specifically set forth (or incorporated by
reference) in this Indenture and no others, and no
covenants or obligations shall be implied in or read
into this Indenture which are adverse to 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 certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; provided, however, that
the Trustee shall examine reports, certificates and
opinions specifically required to be furnished to the
Trustee under this Indenture to determine whether or
not they conform to the requirements of this Indenture;
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section 502;
(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 is negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect
to action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 412 hereof;
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to this Section 502,
including without limitation, paragraphs (a), (b) and (c) of
this Section 502; and
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder or to take or omit to take any action under
this Indenture or at the request, order or direction of the
Holders or in exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
Section 503. Certain Rights of Trustee.
Subject to the provisions of Section 502:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney during
regular business hours and upon reasonable prior
notification;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) except with respect to Section 901 (including the
payment as and when due of any Redemption Price or Purchase
Price), the Trustee shall have no duty to inquire as to the
performance of the covenants set forth in Article Nine. In
addition, the Trustee shall not be deemed to have knowledge
of any Default or Event of Default except (i) any Event of
Default under Section 401(a) or 401(b) or (ii) any Default
or Event of Default of which (or of the facts forming the
basis of which) the Trustee shall have received written
notification or obtained actual knowledge.
All references in this Section 503 shall be deemed to
include the Trustee's duties under the other Security Documents,
including in its capacity as Collateral Agent.
Section 504. Trustee Not Responsible for
Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except
for the Trustee's certificates of authentication, shall be taken
as the statements of the Company and the Guarantors, and the
Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes, except that the
Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Notes and perform its
obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification of Form T-1 supplied
to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Company of Notes or
the proceeds thereof.
The Trustee makes no representations with respect to
the effectiveness or adequacy of any Security Document, or the
validity, perfection or priority, if any, of Liens granted to it
under this Indenture or the Security Documents. The Trustee
shall not be responsible for ascertaining or maintaining such
validity, perfection or priority, if any, and shall be fully
protected in relying upon certificates and opinions delivered to
it in accordance with the terms of this Indenture or the Security
Documents.
Section 505. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar or
any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee
of Notes and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Note Registrar or such
other agent.
Section 506. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with
the Company.
Section 507. Compensation, Reimbursement and
Indemnity.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity.
The obligations of the Company under this Section 507
to compensate the Trustee, to pay or reimburse the Trustee for
expenses, disbursements and advances and to indemnify and hold
harmless the Trustee shall constitute additional indebtedness
hereunder. To secure the Company's payment obligations in this
Section 507, the Trustee shall have a Lien prior to that of the
Holders upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any, on) or interest on particular
Notes. When the Trustee incurs expenses or renders services
after an Event of Default specified in Sections 401(h) or (i)
occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any
Bankruptcy Law.
The Company's obligations under this Section 507 and
any Lien arising hereunder shall survive the resignation or
removal of the Trustee, the discharge of the Company's
obligations pursuant to Article Three of this Indenture and any
rejection or termination of this Indenture under any Bankruptcy
Law.
The rights and protections set forth in Sections 503
and 507 afforded the Trustee pursuant to this Article Five shall
also be afforded the Note Registrar, the Paying Agent and the
Collateral Agent if the Trustee acts as such.
Section 508. Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Sections 310(a)(1)
and 310(a)(5) and shall have a combined capital and surplus of at
least $100 million. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. 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. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
Section 509. Resignation and Removal;
Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 510.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 510 shall
not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(c) The Trustee may be removed at any time by Act of
the Holders of not less than a majority in principal amount of
the Outstanding Notes, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 508 and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Note for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed by any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution,
may remove the Trustee, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Note for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Note
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a
successor Trustee to the Holders of Notes in the manner provided
for in Section 107. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Section 510. Acceptance of Appointment by
Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but,
on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute
any and all instruments to more fully and certainly vest in and
confirm to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article. Both the
retiring Trustee and the successor Trustee shall be entitled to
receive an Opinion of Counsel stating that all conditions
precedent have been complied with and that the appointment of
such successor Trustee is enforceable against the Company,
subject to bankruptcy, insolvency, reorganization, moratorium,
arrangement or other similar laws relating to creditors' rights
generally, and general principles of equity (regardless whether
considered in a proceeding at law or in equity), including
concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance
or other equitable relief.
Section 511. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes.
Section 512. Preferential Collection of Claims
Against Company.
The Trustee shall comply with TIA Section 311(a). A
Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
Section 513. Paying Agent; Note Registrar.
(a) Each Paying Agent or Note Registrar (other than
the Company) shall be a corporation organized and doing business
under the laws of the United States of America or of any State
and having a combined capital and surplus of at least
$500,000,000.
(b) Each Agent may resign at any time by giving
written notice thereof to the Company. The Company, by a Board
Resolution and upon giving written notice thereof to the Agent,
may remove each Agent at any time.
(c) If any Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
any Agent for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Agent.
(d) The Company shall give notice of each resignation
and each removal of any Agent and each appointment of a successor
Agent by mailing written notice of such event by first-class
mail, postage prepaid, to the Trustee. Each Notice shall include
the name and address of the successor Agent.
(e) The Trustee is hereby initially appointed Paying
Agent and Note Registrar.
(f) The Company shall enter into an appropriate
written agency agreement with any Agent not a party to this
Indenture, which agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify
the Trustee in writing of the name and address of any such Agent.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 601.Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company, the
Guarantors nor the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names and
addresses of the Holders, regardless of the source from which
such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a
request made under TIA Section 312(b).
Section 602.Company to Furnish Trustee Names and Addresses of
Holders.
(a) The Company will furnish or cause to be furnished
to the Trustee
(i) semiannually, not more than five Business
Days after each Regular Record Date pertaining to the Notes,
a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular
Record Date; and
(ii) at such other times as the Trustee may
request in writing, within 30 days after receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time
such list is furnished; provided, however, that if and so
long as the Trustee shall be the Note Registrar, no such
list need be furnished.
(b) If and whenever the Company or any Affiliate
acquires any Notes, the Company shall within 10 Business
Days after such acquisition by the Company and within 10
Business Days after the date on which it obtains knowledge
of any such acquisition by an Affiliate, provide the Trustee
with written notice of such acquisition, the aggregate
principal amount acquired (to the extent known by the
Company), the Holder from whom such Notes were acquired and
the date of such acquisition.
Section 603. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 602 and the names and addresses of Holders
received by the Trustee in its capacity as Note Registrar. The
Trustee may destroy any list furnished to it as provided in
Section 602 upon receipt of a new list so furnished.
(b) If three or more Holders (referred to as
"applicants" in this Section 603(b)) apply in writing to the
Trustee and furnish to the Trustee reasonable proof that each
such applicant has owned a Note for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders with respect to their rights under this Indenture
or under the Notes and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after
the receipt of such application, at its election, either:
(i) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of Section 603(a); or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in
the information preserved at the time by the Trustee,
in accordance with the provisions of Section 603(a),
and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each Holder whose
name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of Section
603(a), a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five Business Days after such tender
the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of
the Holders of Notes or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the
objection specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if,
after the entry of any order sustaining one or more of such
objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained
have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with
reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved
of any obligation or duty to such applicants respecting their
application.
Section 604. Reports by Trustee.
To the extent required by the Trust Indenture Act, on
or before [ ] of each year commencing with the first [ ]
after the date of this Indenture, the Trustee shall transmit by
mail to the Company and to all Holders, if required, as provided
in Section 313(c) of the Trust Indenture Act, a brief report
dated as of the immediately preceding [] that complies with
Section 313(a) of the Trust Indenture Act. The Trustee also
shall comply with Section 313(b) of the Trust Indenture Act.
If and so long as this Indenture is qualified under the
Trust Indenture Act, a copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee
with each stock exchange upon which the Notes are listed (if
any), with the Commission and with the Company. The Company will
notify the Trustee if and when the Notes are listed on any stock
exchange.
Section 605. Reports by Company.
If and so long as this Indenture is qualified under the
Trust Indenture Act, the Company shall:
(a) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the
Commission pursuant to Section 13, 14 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to any of such
Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as provided in
Section 313(c) of the Trust Indenture Act, within five days after
the filing thereof with the Trustee, summaries of any
information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 605
as may be required by rules and regulations prescribed from time
to time by the Commission.
The Company shall also comply with the other
provisions of Section 314(a) of the Trust Indenture Act to the
extent such provisions are applicable.
ARTICLE SEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 701.Company May Consolidate, Etc., Only on Certain Terms.
Except as part of a Restricted Asset Sale permitted pursuant to
Section 917, neither the Company nor any Company Subsidiary shall
consolidate with or merge with or into or wind up into another
Person or, directly or indirectly, sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its
properties or assets, whether in a single transaction or a series
of related transactions, to another Person or group of affiliated
Persons, except that the Company may consolidate with or merge
with or into or sell, assign, convey, lease or transfer all or
substantially all of its properties and assets to any Person or
group of affiliated Persons in a single transaction or through a
series of transactions
(a) if (i) the Company shall be the continuing Person
or the resulting, surviving or transferee Person (the "surviving
entity") shall be a corporation organized under the laws of the
United States, any state thereof or the District of Columbia,
(ii) the surviving entity expressly assumes by supplemental
indenture or other appropriate document all of the obligations of
the Company in connection with the Security Documents, the Notes
and the Indenture (including any Liens thereunder) and the
Company shall have taken all steps necessary or desirable to
perfect and protect the security interests granted or purported
to be granted by the Security Documents and (iii) each Guarantor
shall have entered into amendments to the Guarantee to reflect
the guarantee of the obligations of the surviving entity and the
Company has delivered to the Trustee an Opinion of Counsel that
all such steps have been taken;
(b) immediately before and immediately after giving
effect to such transaction, or series of transactions (including,
without limitation, any Indebtedness incurred or anticipated to
be incurred in connection with or in respect of such transaction
or series of transactions), no Default or Event of Default shall
have occurred and be continuing;
(c) the Company or the surviving entity (if the
transaction or series of transactions involves the Company) shall
immediately before and after giving effect to such transaction or
series of transactions (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection
with or in respect of the transaction or series of transactions)
have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such
transaction or series of transactions;
(d) immediately after giving effect to such
transaction or series of transactions on a pro forma basis, the
Company or the surviving entity (if the transaction or series of
transactions involves the Company) could incur at least $1.00 of
additional Indebtedness pursuant to clause (c) of Section 911;
(e) the Company or the surviving entity shall have
delivered to the Trustee an Officer's Certificate and an Opinion
of Counsel stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such transaction or series of transactions, such
supplemental indenture, complies with this covenant and that all
conditions precedent in the Indenture and the Security Documents
relating to the transaction or series of transactions have been
satisfied;
(f) such transaction will not result in the loss of
any Gaming License or other license necessary for the continued
operation of the Company or any Company Subsidiary as conducted
immediately prior to such consolidation, merger, conveyance,
transfer or lease;
(g) neither the Company nor any Company Subsidiary
would thereupon become obligated with respect to any
Indebtedness, nor any of its property subject to any Lien, unless
the Company or such Company Subsidiary could incur such
Indebtedness or create such Lien under the Indenture; and
(h) each Guarantor, unless it is another party to the
transactions described above, shall have by supplemental
indenture confirmed that its Guarantee shall apply to the
Company's or the surviving entity's obligations under this
Indenture and the Notes.
Section 702. Successor Substituted.
Upon any consolidation, merger or disposal of all or
substantially all of the assets of the Company in accordance with
Section 701, the successor Person formed by such consolidation or
into which the Company is merged or the successor Person to which
such disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under
this Indenture, the Notes and the Security Documents, with the
same effect as if such successor had been named as the Company
herein or therein. Any such Person will be required to ensure,
by executing and delivering appropriate instruments and opinions
of counsel, that the Trustee continues to hold a Lien with the
required priority on all Collateral for the benefit of the
Holders of the Notes.
Section 703. Redemption.
The provisions of this Article Seven shall not impair
the Holders' right of repurchase following a Change of Control as
provided in Section 1011 herein.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES,
AMENDMENTS AND WAIVERS
Section 801.Supplemental Indentures and Amendments Without
Consent of Holders.
Without the consent of any Holders, the Company and any Company
Subsidiary, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto or amendments to the
Indenture (including any amendment to the Guarantee), the Notes
or the Security Documents, in form satisfactory to the Trustee,
for any of the following purposes:
(a)to evidence the succession of another Person to the Company,
in accordance with Article Seven, or a Subject Subsidiary, in
accordance with a Restricted Asset Sale permitted pursuant to
Section 917, and the assumption by any such successor of the
covenants of the Company, in accordance with Article Seven, or
such Subject Subsidiary, in accordance with a Restricted Asset
Sale permitted pursuant to Section 917, contained herein, in the
Notes, in the Security Documents or in the Guarantee; or
(b) to add to the covenants of the Company or any
Company Subsidiary or Guarantor for the benefit of the
Holders or to surrender any right or power herein conferred
upon the Company or any Company Subsidiary or Guarantor; or
(c) to add any additional Events of Default; or
(d) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee pursuant to the
requirements of Section 510 hereof; or
(e) to cure any ambiguity, to correct or supplement
any provision herein, in the Security Documents, in the
Notes or in the Guarantee which may be inconsistent with any
other provision herein or therein, or to make any other
provisions with respect to matters or questions arising
under this Indenture, under the Security Documents or under
the Guarantee; provided that, in such case, such provision
shall not adversely affect the interests of the Holders; or
(f) to comply with Sections 1314 and 1318 hereof; or
(g) to effectuate any release of Collateral expressly
permitted by Section 1105; or
(h) to establish or maintain the Lien of this
Indenture and the other Security Documents as a first
priority Lien (subject to Permitted Liens) and prior to
Liens (other than Permitted Liens) that are actually known
to the Company or to correct or amplify the description of
any Collateral subject to the Lien of this Indenture or the
other Security Documents, or to subject additional property
to the Lien of this Indenture or other Security Documents;
or
(i) to secure the Notes; or
(j) to comply with any requirement of the Commission
or state securities regulators in connection with the
qualification of the Indenture under the TIA or any
registration or qualification of the Notes under the
Securities Act or state securities laws.
Section 802. Supplemental Indentures and
Amendments with Consent of Holders.
(a) Subject to Section 408, with the written consent
of the Holders of a majority in principal amount of the
Outstanding Notes, by Act of such Holders delivered to the
Company and the Trustee, the Company and the Guarantors,
when authorized by a Board Resolution, and the Trustee may
amend or supplement the Indenture, the Security Documents or
the Notes for the purpose of adding any provisions to or
changing in any manner or eliminating or waiving any of the
provisions of this Indenture, the Security Documents or the
Notes or of modifying in any manner the rights of the
Holders under this Indenture, the Security Documents or the
Notes; provided, however, that
(i) no such amendment, supplement or waiver
shall, without the consent of the Holder of each
Outstanding Note affected thereby,
(A) extend the Stated Maturity of the principal
of, or any installment of interest on, any Note, or
reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the
redemption or repurchase thereof or the Default Premium
Amount payable pursuant to Section 402, or change the
coin or currency in which the principal of any Note or
any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement
of any such payment after the Stated Maturity thereof
(or, in the case of redemption, after the Redemption
Date or, in the case of repurchase, after the Purchase
Date), or affect the ranking (in terms of right or time
of payment) of the Notes or the Guarantee,
(B) release any Guarantor from the Guarantee or
amend Article Thirteen, except as contemplated by
Section 801(a),
(C) except as provided in Section 914 or 1105 or
the Security Documents, release any Collateral, permit
the creation of any Lien senior to or ranking equally
with the Lien of any Security Document, deprive the
Holders of the security of the Collateral, or amend
Section 914, 917, 922, or 923, or Article Eleven,
(D) reduce the percentage in principal amount of
the Outstanding Notes the consent of whose Holders is
required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences)
provided for in this Indenture,
(E) modify any provision of Article Ten or the
definitions used therein if the effect of such
modification or waiver is to decrease the amount of any
payment required to be made by the Company thereunder
or extend the Maturity Date of such payment,
(F) modify in any respect Section 408, or
(G) modify any of the provisions of this Section
802 or Section 413, except to increase any such
percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without
the consent of the Holder of each Note affected
thereby; and
(ii) no such supplemental indenture shall,
without the consent of the Holders of 66-2/3% in
principal amount of the Outstanding Notes, modify
Section 1011 in any respect or modify in any respect,
or waive a Default or Event of Default under,
Section 401(m).
(b) It shall not be necessary for any Act of Holders
under this Section 802 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if
such Act and such notice shall approve the substance thereof.
Section 803. Execution or Acceptance of
Supplemental Indentures, Amendments and Waivers.
In executing, or accepting the additional trusts
created by, any supplement, amendment or waiver permitted by this
Article Eight or the modifications thereby of the trusts created
by this Indenture, the Trustee shall receive, and (subject to
Section 502) shall be fully protected in relying upon, an Opinion
of Counsel stating that this Indenture, the Guarantee, the Notes
and the Security Documents, as amended by such supplement,
amendment or waiver, constitute the legal, valid and binding
obligations of the Company and the Guarantors, enforceable
against each of them in accordance with its terms.
No waiver of any term, provision or condition contained
in the Notes, the Indenture, or the Security Documents shall
extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the
Guarantors and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
Section 804. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture or
amendment under this Article, this Indenture, the Notes, or the
Security Documents, as the case may be, shall be modified in
accordance therewith, and such supplemental indenture or
amendment shall form a part of this Indenture, the Notes, or the
Security Documents, as the case may be, for all purposes, and
every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby and entitled to the
benefits thereof (including the benefits of any amendment to the
Guarantee).
Section 805. Conformity with Trust Indenture
Act.
Every supplemental indenture or amendment made pursuant
to this Article shall conform to the requirements of the TIA as
then in effect.
Section 806. Reference in Notes to Supplemental
Indentures, Amendments or Waivers.
Notes authenticated and delivered after any supplement,
amendment or waiver has been made pursuant to this Article Eight
may, and shall if required by the Trustee, bear a notation in
form acceptable to the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplement,
amendment or waiver may be prepared and executed by the Company
and the Guarantors and authenticated and delivered by the Trustee
in exchange for Outstanding Notes. Without limitation of Section
804, in the case of any amendment to the Guarantee, whether or
not any or all new Notes are so executed, authenticated and
exchanged for previously Outstanding Notes, the Guarantor added
to the Guarantee by such amendment shall be obligated with
respect to the Guarantee as if all Outstanding Notes had been
exchanged for Notes executed by the Company and all Guarantors,
including such Guarantor.
ARTICLE NINE
COVENANTS
Section 901. Payment of Principal, Premium, If
Any, and Interest.
The Company will duly and punctually pay the principal
of (and premium, if any, on) and interest on the Notes in
accordance with the Notes and this Indenture.
Section 902. Maintenance of Note Register, Note
Registrar and Paying Agent.
The Company shall maintain or cause to be maintained in
the State of New York and the City of New York, (i) an office or
agency where Notes may be presented for registration of transfer
or exchange and at which the Notes registrar will be maintained;
and (ii) an office or agency where Notes may be presented for
payment by the Paying Agent. The Note Registrar shall maintain
the Note Register. The Company may appoint the Paying Agent, the
Note Registrar, one or more co-note registrars, and one or more
additional paying agents. The terms "Paying Agent" and "Note
Registrar" include any additional paying agent or co-
note registrar. The Trustee shall cause to be maintained an
office in the State of New York, City of New York (to the extent
required by applicable law) as long as it acts as Note Registrar
or Paying Agent.
Section 903. Money for Note Payments to Be Held
in Trust.
If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of
(and premium, if any, on) or interest on any of the Notes,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying
Agents for the Notes, it will, on or before each due date of the
principal of (and premium, if any, on), or interest on, any
Notes, deposit with a Paying Agent in immediately available funds
a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of such action or any
failure so to act.
The Company will cause each Paying Agent (other than
the Trustee) to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any, on) or interest on Notes
in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Notes) in the making
of any payment of principal (and premium, if any) or
interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent, and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any, on) or interest on any
Note and remaining unclaimed for two years after such principal
(and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal
(national edition), and mail to each such Holder, notice that
such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then
remaining will promptly be repaid to the Company.
Section 904. Corporate Existence and Keeping of
Books.
Subject to Article Seven and Section 917, the Company
will do or cause to be done all things necessary to preserve and
keep in full force and effect the corporate, partnership or other
existence, rights (charter and statutory) and franchises of the
Company and each of the Company Subsidiaries. The Company will
keep, and cause each of the Company Subsidiaries to keep, proper
records and books of account, in which full and correct entries
shall be made of all financial transactions and the assets and
business of the Company and each such Company Subsidiary in
accordance with GAAP in all material respects.
Section 905. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (a) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any Company Subsidiary or any of their
respective properties and (b) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a
Lien upon the property of the Company or any Company Subsidiary;
provided, however, that except as otherwise provided in the
Security Documents, the Company and any such Company Subsidiary
shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (i) that is
being contested in good faith by appropriate proceedings and for
which adequate reserves have been established as required by GAAP
or (ii) if the failure to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim would not
have a material adverse effect on the financial condition,
results of operations, business or properties of the Company and
the Company Subsidiaries taken as a whole.
Section 906. Maintenance of Properties.
With respect to all properties owned by the Company or
any Company Subsidiary or used or held for use in the conduct of
its business or the business of any Company Subsidiary, the
Company will, and will cause the Company Subsidiaries to,
maintain and keep such property in good condition, repair and
working order and supplied with all necessary equipment and will
cause all necessary repairs, renewals, replacements, betterments
and improvements thereof to be made, all as required by the
Security Documents and as otherwise may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company and the Company
Subsidiaries from discontinuing the maintenance of any of such
properties if such discontinuance is (i) in the judgment of the
Company or such Company Subsidiary (which shall, in the case of
properties having an aggregate value of $500,000 or more, be
evidenced by a Board Resolution of the Board of Directors),
desirable in the conduct of the business of the Company or any
Company Subsidiary and (ii) not disadvantageous in any material
respect to the Holders.
Section 907. Insurance.
(a) The Company shall, and shall cause the Company
Subsidiaries to, have in effect customary insurance against such
risks, on terms, with deductibles and in amounts as are
customarily carried by similar businesses conducting gaming in
the jurisdictions of the gaming operations of the Company and the
Company Subsidiaries and reasonably sufficient to avoid a
material adverse change in the financial condition, results of
operation, business or properties of the Company and the Company
Subsidiaries taken as a whole. All such insurance shall be
issued by carriers having an A.M. Best & Company, Inc. rating of
A- or higher, or if such carrier is not rated by A.M. Best &
Company, Inc., having the financial stability and size deemed
appropriate by a reputable insurance broker.
(b) Without limitation of subsection (a) of this
Section 907, customary insurance coverage for the purposes of
this Section 907 shall include, where appropriate, the following:
(i) workers' compensation insurance in full compliance with all
applicable state and federal laws and regulations, (ii) property
insurance protecting property against loss or damage by fire,
lightning, windstorm, tornado, water damage, vandalism, riot,
civil commotion, malicious mischief, hurricane, and such other
risks and hazards as are from time to time covered by an "all-
risk" policy or a property policy covering "special" causes of
loss, (iii) business interruption insurance and (iv) such other
insurance as is in effect on the date hereof, in the case of each
of (i), (ii), (iii) and (iv) in amounts and with deductibles and
other significant terms at least as favorable as those in effect
on the date hereof (which are described on Schedule 907).
(c) All insurance shall name the Collateral Agent as
an additional insured (in the case of liability insurance) or
loss payee (in the case of casualty insurance with respect to
Collateral), as applicable. To the extent obtainable on
commercially reasonable terms, all required insurance shall
contain an endorsement or agreement by the insurer (i) that any
loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of the Company and the
Company Subsidiaries that might otherwise result in forfeiture of
such insurance, (ii) that such policies will not be canceled or
materially amended, which term shall include any reduction in the
scope or limits of coverage, without at least 20 days prior
written notice to the Collateral Agent, (iii) providing for no
recourse to the Holders for the payment of premiums and waiving
all rights of set off, counterclaim or deductions against the
Collateral Agent and (iv) that its liability to the Collateral
Agent will not be affected by acts outside of the Collateral
Agent's control. All policies of required casualty insurance
shall have attached thereto a lender's loss payable endorsement
for the benefit of the Holders.
Section 908. Statement by Officers as to
Default.
(a) The Company will deliver to the Trustee, on or
before a date not more than 45 days after the end of the first,
second and third fiscal quarters of each fiscal year of the
Company and not more than 90 days after the end of each fiscal
year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not, after a review under each
signer's supervision of the activities of the Company and the
Company Subsidiaries during such fiscal quarter or fiscal year,
as the case may be, and of the performance of the Company and
each Company Subsidiary under this Indenture and the other
Security Documents, to the best knowledge, based on such review,
of the signers thereof, a Default or Event of Default has
occurred during such fiscal quarter or fiscal year that is
continuing, as the case may be, and, if there has been a Default
or Event of Default that is continuing, specifying each Default
or Event of Default and the nature and status thereof. Each such
statement shall comply with Section 314(a)(4) of the Trust
Indenture Act and shall, commencing with the fiscal quarter
ending March 31, 1998, set forth all computations, in reasonable
detail satisfactory to the Trustee, demonstrating compliance with
the provisions of Section 924.
(b) When the Company is aware that any Default, or
Event of Default or if any holder or the trustee for the holder
of any other evidence of Indebtedness of the Company or any
Company Subsidiary gives any notice to the Company or takes any
other action of which the Company is aware with respect to a
claimed default, the Company shall deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile
transmission an Officers' Certificate specifying such event,
notice or other action within three Business Days after the
Company becomes aware of its occurrence.
Section 909. Provision of Financial Statements.
(a) The Company shall file with the Trustee, within 15
days after it files them with the Commission, copies of the
annual, quarterly and periodic reports, and of the information,
documents and other reports, which the Company is required to
file with the Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act. If the Company is not subject to the
requirements of Section 13, 14 or 15(d) of the Exchange Act, the
Company shall file with the Trustee, within 15 days after it
would have been required to file such information with the
Commission were it subject to Section 13, 14 or 15(d) of the
Exchange Act, financial statements, including any notes thereto
(and with respect to annual reports, an auditors' report by a
firm of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of
Operations," both comparable to that which the Company would have
been required to include in the annual and quarterly reports the
Company would have been required to file if the Company were
subject to the requirements of Section 13, 14 or 15(d) of the
Exchange Act. The Company also shall comply with the provisions
of TIA Section 314(a).
(b) If the Company is required to furnish annual or
quarterly reports to its stockholders pursuant to the Exchange
Act, so long as any Notes remain outstanding, the Company shall
cause any annual report to stockholders and any quarterly or
other financial reports furnished by it to stockholders to be
filed with the Trustee at the time of such mailing or furnishing
to stockholders. If the Company is not required to furnish
annual or quarterly reports to its stockholders pursuant to the
Exchange Act, the Company shall cause its financial statements
referred to in Section 909(a) above, including any notes thereto
(and with respect to annual reports, an auditors' report by a
firm of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of
Operations," comparable to that which would have been required to
appear in annual or quarterly reports filed under Section 13 or
15(d) of the Exchange Act to be filed with the Trustee within 105
days after the end of each of the Company's fiscal years and
within 60 days after the end of each of the Company's first three
fiscal quarters of such fiscal year. The Company shall file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of
this Indenture as may be required from time to time by such rules
and regulations. The Trustee will make such reports available
for inspection and copying by, and will provide copies to, each
Holder requesting the reports described in this Section 909(b).
(c) The Company shall provide the Trustee with a
sufficient number of copies of all reports and other documents
and information that the Trustee may be required to provide to
the Holders upon request under Section 909(b) to permit the
Trustee to satisfy that requirement.
(d) If any Company Subsidiary is required to file
reports or other information with the Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act separately from the
Company, the Company shall file or cause to be filed with the
Trustee, and supply or cause to be supplied to each Holder of
Notes, without cost to such Holder, copies of such reports or
other information, within fifteen days after the same shall be
filed with the Commission.
Section 910. Compliance with Laws, Etc.
The Company will comply, and cause each of the Company
Subsidiaries to comply, with all applicable laws except to the
extent any such applicable law is contested in good faith by
appropriate proceedings and adequate reserves have been
established as required by GAAP, unless the failure to so comply
would not have a material adverse effect on the financial
condition, results of operations, business or properties of the
Company and the Company Subsidiaries taken as a whole.
Section 911. Limitation on Company Indebtedness.
The Company shall not, and shall not permit any of the
Company Subsidiaries to, directly or indirectly, create, incur,
assume, suffer to exist, guarantee or in any manner become
directly or indirectly liable for the payment of ("incur"), any
Indebtedness other than:
(a) Indebtedness under the Notes, the Indenture and
the Security Documents;
(b) Bank Indebtedness, so long as the aggregate
principal amount outstanding at any one time does not exceed
the Bank Indebtedness Amount;
(c) Indebtedness if (i) no Default or Event of Default
shall have occurred and be continuing at the time of, or
would occur after giving effect to, on a pro forma basis,
such incurrence of such Indebtedness and (ii) immediately
after giving pro forma effect to the incurrence thereof, and
the receipt and the application of the proceeds thereof, the
Consolidated Coverage Ratio would be greater than (A) 1.75
to 1, in the case of Indebtedness incurred or to be incurred
on or prior to December 31, 1996 and (B) 2.0 to 1, in the
case of Indebtedness incurred or to be incurred on or after
January 1, 1997; provided that any such Indebtedness shall
mature at a date not earlier than the Stated Maturity of the
Notes and shall have an Average Life to Stated Maturity
equal to or greater than the remaining Average Life to
Stated Maturity of the Notes;
(d) Any Indebtedness issued in exchange for or to
repay, prepay, repurchase, redeem, defease, retire or
refinance ("refinance") any Indebtedness permitted by
clauses (a) through (c) above; provided that (i) if the
principal amount of the Indebtedness so issued shall exceed
the principal amount of the Indebtedness so exchanged or
refinanced, then such excess shall be permitted only to the
extent that it is otherwise permitted to be incurred under
this covenant and (ii) the Indebtedness so issued (A) has a
Stated Maturity later than the Stated Maturity of the
Indebtedness so exchanged or refinanced, (B) has an Average
Life to Stated Maturity equal to or greater than the
remaining Average Life to Stated Maturity of the
Indebtedness so exchanged or refinanced, and (C) is
subordinated to the Notes to at least the same extent as the
Indebtedness so exchanged or refinanced.
Section 912. Limitation on Company Subsidiary
Stock.
The Company shall not sell, and shall not cause or
permit any Company Subsidiary to issue or sell directly or
indirectly, any of its Capital Stock, including, without
limitation, any of its Common Stock, Preferred Stock or
Disqualified Stock, to any Person other than the Company or a
wholly-owned Company Subsidiary.
Section 913. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of the
Company Subsidiaries to, make, directly or indirectly, any
Restricted Payment if, after giving effect thereto, on a pro
forma basis:
(a) a Default or Event of Default shall have occurred
and is continuing or would occur as a consequence thereof;
(b) the Company would not have been permitted, at the
time of such Restricted Payment and after giving pro forma
effect thereto as if such Restricted Payment had been made
at the beginning of the applicable Reference Period, to
incur at least $1.00 of additional Indebtedness pursuant to
Section 911(c); or
(c) the aggregate amount of all Restricted Payments
declared or made after the Issue Date would exceed the sum
of a (i) 50% of the aggregate Consolidated Net Income (or in
the event such Consolidated Net Income shall be a deficit,
minus 100% of such deficit) accrued during the period
(treated as one accounting period) commencing on the first
full fiscal quarter commencing after the Issue Date, to and
including the last day of the fiscal quarter ended
immediately prior to the date of each such calculation,
minus (ii) 100% of the amount of any write downs, write-
offs, or negative extraordinary charges not otherwise
reflected in Consolidated Net Income during such period,
plus (iii) an amount equal to the aggregate Net Cash
Proceeds received by the Company from the issuance or sale
(other than to a Company Subsidiary) of its Capital Stock
(excluding Disqualified Stock, but including Capital Stock
issued upon conversion of convertible Indebtedness and from
the exercise of options, warrants or rights to purchase
Capital Stock (other than Disqualified Stock) of the
Company) after the Issue Date;
provided, however, that the foregoing provisions will not
prevent, provided that no Default or Event of Default shall have
occurred and be continuing at the time of and after giving effect
to such Restricted Payment: (i) the payment of any dividend
within 60 days after the date of its declaration if, at the date
of declaration, such payment would be permitted by such
provisions; (ii) the payment of dividends or the making of
distributions on shares of Capital Stock of the Company solely in
shares of Capital Stock of the Company; and (iii) Restricted
Payments not otherwise permitted by this Section 913 which do not
exceed $200,000 in any fiscal year.
Section 914. Limitation of Liens.
The Company shall not, and shall not permit any of the
Company Subsidiaries to, create, incur, assume or suffer to exist
any Lien in or on any right, title or interest to any of their
properties or assets (including, without limitation, any income
or profits) now owned or hereafter acquired by it, other than
Permitted Liens.
Section 915. Limitation on Dividends and Other
Payment Restrictions Affecting Company
Subsidiaries.
The Company shall not, and shall not permit any of the
Company Subsidiaries to, directly or indirectly, create, assume
or suffer to exist any consensual encumbrance or restriction on
the ability of such Company Subsidiary to pay dividends, or make
any other distributions on the Capital Stock of such Company
Subsidiary or pay any obligation to the Company or the Company
Subsidiaries, or otherwise transfer assets or make or pay loans
or advances to the Company or any Company Subsidiary, except
(a) restrictions imposed by the Security Documents;
(b) customary non-assignment provisions restricting
subletting or assignment of any lease entered into in the
ordinary course of business, consistent with industry
practices,
(c) restrictions imposed by applicable Gaming Laws or
Liquor Laws or any applicable Gaming Authority or Liquor
Authority,
(d) restrictions under any agreement relating to any
property, assets or business acquired by the Company or the
Company Subsidiaries, which restrictions existed at the time
of acquisition, were not put in place in anticipation of
such acquisition and are not applicable to any Person, other
than the Person acquired or to any property, assets or
business other than the property, assets and business of the
Person so acquired,
(e) any restrictions (continuing for a period of not
more than 90 consecutive days) with respect to Capital Stock
or assets, as the case may be, of a Subject Company
Subsidiary imposed pursuant to an agreement that has been
entered into for the sale or disposition, constituting a
Restricted Asset Sale permitted under Section 917, of all or
substantially all of the Capital Stock or assets of such
Subject Subsidiary, and
(f) replacements of restrictions imposed pursuant to
clauses (a) through (e) that are no more restrictive than
those being replaced.
Section 916. Limitation on Sale-Leaseback
Transactions.
The Company shall not, directly or indirectly, and
shall not permit any of the Company Subsidiaries to, directly or
indirectly, enter into, guarantee or otherwise become liable with
respect to any Sale-Leaseback Transaction unless (a) after giving
effect to any such Sale-Leaseback Transaction the Company could
incur $1.00 of additional Indebtedness pursuant to Section
911(c), (b) such Sale-Leaseback Transaction is otherwise
permitted under Section 914, (c) the consideration received by
the Company and/or any of the Company Subsidiaries for such Sale-
Leaseback Transaction are at least equal to the Fair Market Value
of such property being transferred, and (d) the Company shall
apply the Net Cash Proceeds of the sale as provided under Section
917. Notwithstanding anything contained in this covenant, the
Company shall not, and shall not permit any of the Company
Subsidiaries to, directly or indirectly, enter into, guarantee or
otherwise become liable with respect to any Sale-Leaseback
Transaction with respect to any Collateral.
Section 917. Limitation on Restricted Asset
Sales.
(a) The Company shall not, and shall not permit any
Subject Subsidiary to, directly or indirectly, make any
Restricted Asset Sale unless (i) at the time of such Restricted
Asset Sale the Company or such Subject Subsidiary, as the case
may be, receives consideration at least equal to the Fair Market
Value of the assets sold or otherwise disposed of; (ii) at least
90% in value of the form of the consideration therefore received
by the Company or such Subject Subsidiary is in U.S. Dollars;
provided, however, that the amount of (A) any liabilities (as
shown on the Company's or the Subject Subsidiary's most recent
balance sheet or in the notes thereto) of the Company or any
Subject Subsidiary that are assumed by the transferee in any such
transaction, and (B) any notes, obligations or other marketable
securities received by the Company or any Subject Subsidiary from
such transferee that are immediately converted by the Company or
such Subject Subsidiary into the form of consideration
constituting U.S. Dollars, shall both be deemed to be U.S.
Dollars for purposes of this provision; provided, further,
however, that the 90% limitation referred to above shall not
apply to (I) the sale by the Company of all of the Capital Stock
of BWCC, Inc. or the sale by BWCC, Inc. of substantially all of
the assets of the Central City Casino, or (II) any Restricted
Asset Sale in which the portion of the consideration received in
U.S. Dollars is equal to or greater than what the net after-tax
proceeds would have been had such Restricted Asset Sale complied
with the aforementioned 90% limitation; (iii) no Default or Event
of Default shall have occurred and be continuing at the time of
or after giving effect to such Restricted Asset Sale; and
(iv) unless otherwise expressly provided in the Indenture, the
Company shall apply the Net Cash Proceeds of such Restricted
Asset Sale in connection with the offer to purchase the Notes
described below; provided, however, that notwithstanding anything
contained herein to the contrary, other than as permitted by
Section 1105, in no event shall the Company or any Subject
Subsidiary be permitted to, directly or indirectly, engage in any
Restricted Asset Sale involving any Collateral.
(b) On or before the 180th day after the date on which
the Company or any Subject Subsidiary consummates the relevant
Restricted Asset Sale, the Company shall make an offer to
purchase (the "Restricted Asset Sale Offer") from all holders of
Notes up to a maximum principal amount (expressed as a multiple
of $1,000) of Notes equal to the Net Cash Proceeds at a purchase
price equal to 101% of the principal amount thereof plus accrued
and unpaid interest thereon, if any, to the date of purchase;
provided that the Company will not be required to make a
Restricted Asset Sale Offer if, and only to the extent that, on
or before the 180th day after the date on which the Company or
such Subject Subsidiary consummates the relevant Restricted Asset
Sale, the Company or any Subject Subsidiary applies all of such
portion thereof that is not applied in connection with an
Restricted Asset Sale Offer to make a Permitted Related
Investment and upon consummation thereof the Trustee shall have
or shall have received a first priority fully perfected security
interest (subject only to the Permitted Liens) in the property or
assets acquired by the Company or any of its Subject Subsidiaries
in connection therewith, and the Company has delivered to the
Trustee an Opinion of Counsel with respect to the validity and
perfection of such security interest. Each Restricted Asset Sale
Offer shall remain open for a period of at least 20 Business
Days. To the extent the Restricted Asset Sale Offer is not fully
subscribed to by the holders of the Notes, the Company may retain
such unutilized portion of the Net Cash Proceeds. Holders whose
Notes are purchased only in part will be issued new Notes equal
in part in principal amount to the unpurchased portion of the
Notes surrendered.
The Company shall comply with applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, in connection
with an Restricted Asset Sale Offer.
Section 918. Application of Net Cash Proceeds in
Event of Loss.
In the event that the Company or any Subject Subsidiary
suffers any Event of Loss that does not otherwise constitute a
Default or an Event of Default, on or before the 360th day after
the Company or such Subject Subsidiary receives any Net Cash
Proceeds from such Event of Loss, the Company shall make an offer
to purchase (the "Event of Loss Offer") from all holders of Notes
up to a maximum principal amount (expressed as a multiple of
$1,000) of Notes equal to the Net Cash Proceeds at a purchase
price equal to 101% of the principal amount thereof plus accrued
and unpaid interest thereon, if any, to the date of purchase;
provided that the Company will not be required to make an Event
of Loss Offer if, and only to the extent that, on or before the
360th day after the date on which the Company or such Subject
Subsidiary receives any Net Cash Proceeds from the relevant Event
of Loss, the Company or any Subject Subsidiary applies all or
such portion thereof that is not applied in connection with an
Event of Loss Offer to make a Permitted Related Investment and,
upon consummation thereof, the Trustee shall have or shall have
received a first priority fully perfected security interest
(subject only to Permitted Liens) in the property or assets
acquired by the Company or any of its Subject Subsidiaries in
connection therewith, and the Company has delivered to the
Trustee an Opinion of Counsel as to the validity and perfection
of such security interest. Each Event of Loss Offer shall remain
open for a period of at least 20 Business Days. To the extent
the Event of Loss Offer is not fully subscribed to by the holders
of the Notes, the Company may retain such unutilized portion of
the Net Cash Proceeds. Holders whose Notes are purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered.
In the event any Event of Loss involves any Collateral,
the Company or the Company Subsidiary, as the case may be, shall
cause such Net Cash Proceeds to be deposited in the Collateral
Account on the Business Day on which such Net Cash Proceeds are
received by the Company or such Company Subsidiary. Collateral
Proceeds (including any earnings thereon) may be released from
the Collateral Account only in accordance with Section 1105.
The Company shall comply with applicable tender offer
rules, including Rule 14e-1 under the Exchange act, in connection
with an Event of Loss Offer.
Section 919. Ownership of Stock of Company
Subsidiaries.
(a) The Company shall at all times have, or cause a
wholly-owned Company Subsidiary (other than a Non-Operating
Subsidiary) to have, ownership of at least 100% of each class of
Voting Stock of, and all other equity securities in, each Company
Subsidiary (other than a Non-Operating Subsidiary), except
(i) any Company Subsidiary that shall be disposed of in its
entirety or consolidated or merged with or into the Company or
another wholly-owned Company Subsidiary, in each case in
accordance with Section 701 and Section 917, and (ii) any Company
Subsidiary which becomes a Company Subsidiary by means of an
Investment by the Company or any Company Subsidiary expressly
permitted pursuant to Section 913.
Section 920. Limitation on Transactions with
Affiliates.
(a) Subject to subsection (b) below, the Company shall
not, and shall not permit any Company Subsidiary to, enter into,
renew or extend any transaction or series of related transactions
with any of their respective Affiliates (each an "Affiliate
Transaction"), unless (i) the Affiliate Transaction is on terms
at least as favorable to the Company or such Company Subsidiary,
as the case may be, as those that could have been obtained in a
comparable transaction on an arm's-length basis with an
unaffiliated third party; (ii) in the case of an Affiliate
Transaction (including any series of related transactions) with a
value to either party in excess of $500,000, a majority of the
Independent directors of the Board of Directors has determined in
good faith that such Affiliate Transaction complies with clause
(i), as evidenced by a Board Resolution; and (iii) in the case of
any Affiliate Transactions (including any series of related
transactions) with an aggregate value (to either party) in excess
of $1,000,000, the Company or such Company Subsidiary obtains a
written favorable opinion as to the fairness of such transaction
to the Company or such Company Subsidiary from a financial point
of view from any national or regional independent investment
banking firm with recognized experience with the Gaming industry.
The Company, and any Company Subsidiary that is a Guarantor, may
only sell, transfer, convey, lease or assign any Collateral to
the Company or a Company Subsidiary if the Trustee has or
receives a first priority fully perfected security interest
(subject only to the Permitted Liens) in such Collateral upon
such sale, transfer, conveyance, lease or assignment and the
Company has delivered to the Trustee an Opinion of Counsel with
respect to the validity and perfection of such security interest.
(b) Subsection (a) shall not apply to any of the
following: (i) transactions between one or more Guarantors or
between the Company and one or more Guarantors, (ii) Restricted
Payments permitted to be made under Section 913 or
(iii) customary directors' fees and indemnities.
Section 921. Change in Nature of Business;
Limitation on Acquisitions.
The Company shall not, and shall not permit any of the
Company Subsidiaries to, own, acquire, manage or conduct any
operation other than a Permitted Line of Business.
Section 922. Additional Collateral.
The Company will, and will cause each of the Company
Subsidiaries that owns any assets to, grant to the Trustee a
valid and perfected first priority security interest (subject
only to the Permitted Liens) in such assets enforceable against
all third parties and to execute and deliver all documents and to
take all action necessary or desirable to perfect and protect
such a security interest in favor of the Trustee, including,
without limitation, the following:
(i) executing and delivering to the Trustee (A) a
first priority mortgage and/or a deed of trust (subject only
to the Permitted Liens) which is (a) in the case of any
Colorado real property interests, in substantially the form
of the deeds of trust filed in respect of the fee or
leasehold interests in real property securing the Notes as
of the date of this Indenture, and (b) in the case of real
property interests in any other jurisdiction, in
substantially the form of the deed of trust referred to in
clause (a), appropriately modified to reflect the local law
of the jurisdiction in which such real property interest is
located, in any event with such modifications as are
acceptable to the Trustee and covering each real property
interest that is or becomes part of such assets (an
"Additional Deed of Trust"), together with (A) evidence that
counterparts of such Additional Deed of Trust have been duly
filed or recorded in all filing or recording offices
necessary or desirable in order to create a valid and
enforceable first priority Lien (subject only to the
Permitted Liens) on such real property interest in favor of
the Trustee for its benefit and the benefit of the Holders,
and that all filing and recording taxes and fees have been
paid; (B) a fully paid American Land Title Association
Lender's Extended Coverage title insurance policy (or
written commitment to issue such policy) in an amount not
less than the fair market value, reasonably determined by
the Company, of such real property interest, insuring the
Additional Deed of Trust to be a valid and enforceable first
priority Lien (subject only to the Permitted Liens) on such
real property interest, free and clear of all defects and
encumbrances; (C) if necessary, copies of all
authorizations, consents and approvals of, evidence of other
actions by, and notices to and filings with, all
governmental authorities and regulatory bodies required for
the due execution, delivery or performance by the Company or
such Company Subsidiary of the Additional Deed of Trust
certified as to accuracy and completeness by a duly
authorized officer of the Company or such Company
Subsidiary; and (D) all necessary documentation or consents
required to perfect and maintain the validity, effectiveness
and enforceability of the Additional Deed of Trust,
including, without limitation, with respect to leasehold
interests acquired by the Company or such Company
Subsidiary, fully executed memoranda of lease, in recordable
form, and consents to assignment of the lease, provided that
where any such documentation or consents are required from a
third party, the Company or such Company Subsidiary will use
all reasonable efforts to obtain such documentation or
consent;
(ii) executing and delivering additional security
agreements or supplements to the Security Agreement (and the
schedules thereto) so as to create a first priority Lien
(subject only to the Permitted Liens) on all personal
property (exclusive of leasehold interests therein) that is
or becomes part of such assets (including the filing of
Uniform Commercial Code financing statements, endorsement
and physical delivery, if applicable, and the giving of
notices and obtaining appropriate consents), and otherwise
complying with all of the terms and conditions of the
Security Agreement; and
(iii) delivering to the Trustee within 30 days
after taking any of the foregoing actions a favorable
Opinion of Counsel as to the matters described in clause
(i), (ii) or (iii) being legal, valid and binding
obligations of the Person delivering the same and the
Company has delivered to the Trustee an Opinion of Counsel
with respect to the validity and perfection of such security
interest.
Section 923. Non-Operating Subsidiaries.
The Company shall not permit any of its Non-Operating
Subsidiaries to engage in, or conduct, any business whatsoever or
hold for use or own any assets or property (including, without
limitation, any equity securities), except for the assets or
property listed on Schedule . Without limiting the generality of
the foregoing, the Company shall not permit any Non-Operating
Subsidiary to (i) incur any Indebtedness or (ii) issue or sell
any Capital Stock, including, without limitation, any Common
Stock, Preferred Stock or Disqualified Stock of such Non-
Operating Subsidiary to any Person.
Section 924. Maintenance of Fixed Charge
Coverage.
As of the end of each fiscal quarter commencing with
the fiscal quarter ending March 31, 1998, the Company shall not
permit the Consolidated Fixed Charges Coverage Ratio for the four
fiscal quarters ended as of such fiscal quarter to be less than
1.25 to 1.
Section 925. Security Documents.
Simultaneously herewith, the Company shall execute, or
cause the Company Subsidiaries and Guarantors to execute, the
respective Security Documents, as appropriate, securing the
Company's and the Guarantor's obligations under this Indenture
(including the Guarantee), the Security Documents and the Notes.
Each Holder, by accepting a Note, agrees to all terms and
provisions of the Security Documents as the same may be amended
or supplemented from time to time pursuant to the provisions
hereof and thereof. The terms of the release of the Collateral
and the rights of the Holders with respect thereto shall be
governed by the Security Documents and this Indenture; provided,
however, that in the event of a conflict between the terms of the
Indenture and the terms of any other Security Documents, the
terms of this Indenture shall govern.
Section 926. Validity of Security Interest.
The Company represents and warrants that it has, and
covenants that it shall continue to have, full power and lawful
authority to grant, release, convey, assign, transfer, mortgage,
pledge, hypothecate and otherwise create the Security Interest
referred to in Article Eleven, and the Company shall warrant,
preserve and defend the Security Interest of the Trustee in and
to the Collateral or any asset that should constitute Collateral
but for the fact that the Company and/or the Company Subsidiaries
failed to comply with the provisions of the Indenture or the
Security Documents against the claims of all persons, and will
maintain and preserve the Security Interest contemplated by
Article Eleven. No assets may be used at or in connection with a
Gaming Facility unless the Company and/or the Company
Subsidiaries have done all things necessary or desirable to
create and perfect a first priority security interest (subject
only to the Permitted Liens) in such assets, except as otherwise
permitted by this Indenture and the Security Documents, and the
Company has delivered to the Trustee an Opinion of Counsel with
respect to the validity and perfection of such security interest.
Section 927. Investment Company Act.
Neither the Company nor any of the Company Subsidiaries
shall become an investment company subject to registration under
the Investment Company Act of 1940, as amended.
Section 928. Payment for Consent.
The Company shall not, and shall cause the Company
Subsidiaries not to, directly or indirectly, pay or cause to be
paid any consideration, whether by way of interest, fee or
otherwise, to any Holder of any Notes for or as an inducement to
any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the other Security Documents
unless such consideration is offered to be paid or agreed to be
paid to all Holders that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
Section 929. Stay, Extension and Usury Laws.
Each of the Company, the Guarantors and the Company
Subsidiaries covenants (to the extent permissible under
applicable law) that it will not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other
law, wherever enacted, now or at any time hereafter in force,
that would prohibit or forgive the Company or the Guarantors from
paying all or any portion of the principal of, premium, if any,
or interest on the Notes and amounts from time to time payable
under the Guarantees, in each case as contemplated herein, or
that may materially affect the covenants or the performance of
this Indenture or the other Security Documents in a manner
inconsistent with the provisions of this Indenture or such
Security Documents and (to the extent that it may lawfully do so)
each of the Company and the Guarantors hereby expressly waives
all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power
herein granted to the Trustee or the Collateral Agent, but will
suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE TEN
REDEMPTIONS AND REPURCHASES OF NOTES
Section 1001.Right of Redemption.
(a)The Notes may be redeemed, at the election of the Company, as
a whole or from time to time in part, by payment thereof in
accordance with Paragraph 5 of the Notes.
(b)All references in Article Ten to "Holder" shall include any
beneficial owner of Notes
Section 1002.Applicability of Article.
Redemption of Notes at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture,
shall be made in accordance with such provision and this Article.
Section 1003.Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes
pursuant to Section 1001 shall be evidenced by a Board
Resolution. The Company shall, at least 45 and no more than 60
days prior to the Redemption Date fixed by the Company
(a) deliver an Officers' Certificate to the Trustee notifying the
Trustee of such Redemption Date and of the principal amount of
Notes to be redeemed and (b) provide the Trustee with an Opinion
of Counsel stating that such redemption is authorized or
permitted by this Indenture.
Section 1004. Selection by Trustee of Notes to Be
Redeemed or Repurchased.
Except as contemplated by Section 1001(b), if less than
all the Outstanding Notes are to be redeemed or repurchased, the
particular Notes or portions thereof to be redeemed or
repurchased shall be determined on a pro rata basis, by lot or by
such other method determined by the Trustee to be fair and
appropriate (subject to the requirements of any securities
exchange or trading system on which the Notes are then listed or
approved for trading) in principal amounts of $1,000 or integral
multiples thereof from the Outstanding Notes not previously
called for redemption or repurchase.
The Trustee shall promptly notify the Company and each
Note Registrar in writing of the Notes to be redeemed or
repurchased and, in the case of any Notes which will be redeemed
or repurchased in part, the principal amount thereof to be
redeemed or repurchased.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption or
repurchase of Notes shall relate, in the case of any Note
redeemed or repurchased, or to be redeemed or repurchased only in
part, to the portion of the principal amount of such Note which
has been or is to be redeemed or repurchased.
Section 1005. Notice of Redemption.
Notice of redemption shall be given in the manner
provided for in Section 107 not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Notes to be
redeemed at the address appearing in the Note Register. All
notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of
accrued and unpaid interest to the Redemption Date;
(3) if less than all Outstanding Notes are to be
redeemed, the identification (and in the case of a partial
redemption, the principal amounts) of the particular Notes
to be redeemed;
(4) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption
Date payable as provided in Section 1007) will become due
and payable upon each such Note, or the portion thereof, to
be redeemed, and that interest thereon will cease to accrue
on and after said date; and
(5) the place or places where such Notes are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense
of the Company, provided that the text of any such notice shall
be determined by the Company.
Section 1006. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall 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 as
provided in Section 903) an amount of money in same day funds by
10:00 a.m. New York time on the Business Day immediately
preceding the Redemption Date sufficient to pay the Redemption
Price of, and (if the Redemption Date shall not be an Interest
Payment Date, but subject to 1001(b)) accrued interest on, all
the Notes or portions thereof which are to be redeemed on that
date.
Section 1007. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Notes so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price herein specified and from
and after such date (unless the Company shall default in the
payment of the Redemption Price and, subject to Section 1001(b),
accrued interest to the Redemption Date) such Notes shall cease
to bear interest. Upon the later of the Redemption Date or
surrender of any such Note for redemption in accordance with said
notice, such Note shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date,
subject to Section 1001(b); provided, however, that installments
of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Notes or
one or more Predecessor Notes, registered as such on the relevant
Record Dates according to their terms and the provisions of
Section 208.
If any Note called for redemption shall not be so paid
or duly provided for upon the later of the Redemption Date or
surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date as
provided herein.
Section 1008. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered to the Paying Agent or Note Registrar (with, if the
Company, the Paying Agent, the Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Paying Agent, the
Registrar or the Trustee duly executed by, the Holder thereof or
such Holder's attorney duly authorized in writing), and the
Company and the Guarantors shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in an aggregate
principal amount equal to, and in exchange for, the unredeemed
portion of the principal of the Note so surrendered.
Section 1009. Redemption Pursuant to Gaming Laws.
Each Holder, by accepting the Notes, shall be deemed to
have agreed (to the extent permitted by applicable law) that if
the Gaming Authority of any jurisdictions in which the Company or
any of the Company Subsidiaries conducts or proposes to conduct
gaming requires that a Person who is a Holder must be licensed or
found suitable under Gaming Laws, such Holder shall apply for a
license or a finding of suitability within the required time
period. If such Person fails to apply or become licensed or is
found unsuitable, the Company shall have the right, at its
option, (i) to require such Person to dispose of its Notes or
beneficial interest therein within 30 days of receipt of notice
of the Company's election or such earlier date as may be ordered
by such Gaming Authority or (ii) to redeem such Notes at a
Redemption Price equal to the lesser of (A) such Person's cost
and (B) 100% of the principal amount thereof, plus accrued and
unpaid interest to the earlier of the Redemption Date and the
date of the finding of unsuitability, which may be less than 30
days following the notice of redemption if so ordered by the
Gaming Authority. The Company shall notify the Trustee in
writing of any such redemption as soon as practicable. The
Company shall not be responsible for any costs or expenses any
such Holder may incur in connection with its application for a
license, qualification or a finding of suitability.
Section 1010. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for
redemption shall become due and payable on the Redemption Date at
the Redemption Price. Upon surrender to the Paying Agent, such
Notes shall be paid on the Redemption Date at the Redemption
Price. If a Redemption Date is a date other than a Business Day,
payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to
such succeeding Business Day.
Section 1011. Offer to Purchase Notes upon Change
of Control.
(a) If a Change of Control (as defined below) shall
occur, the Company shall offer (a "Change of Control Purchase
Offer") to purchase from Holders of the Notes, and shall purchase
from Holders accepting such offer, Notes, at a purchase price
equal to 101% of the aggregate principal amount of the Notes,
plus accrued and unpaid interest to the Purchase Date (the
"Change of Control Purchase Price"), subject to satisfaction by
or on behalf of the Holder of the requirements set forth in
Section 1012(c). "Change of Control" means (i) a sale,
assignment, lease, transfer, conveyance or other disposition,
directly or indirectly, of all or substantially all of the
Company's assets or properties, whether in a single transaction
or a series of related transactions (other than by way of merger
or consolidation), to any "person" or "group" (as such terms are
used for purposes of Sections 13(d) and 14(d) of the Exchange
Act), (ii) the liquidation or dissolution of the Company,
(iii) the time that the Company first determines or reasonably
should have known that any "person" or "group" (as such terms are
used for purposes of Section 13(d) and 14(d) of the Exchange Act,
whether or not applicable) is or becomes the "beneficial owner"
(as such terms is used in Rules 13d-3 and 13d-5 under the
Exchange Act, whether or not applicable, except that a "person"
shall be deemed to have "beneficial ownership" of all shares that
any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly (including as a result of a merger or
consolidation), of more than 50% of the total voting power in the
aggregate of all classes of Capital Stock then outstanding of the
Company normally entitled to vote in elections of directors, or
(iv) during any period of 12 consecutive months after the Issue
Date, individuals who at the beginning of such period constituted
the Board of Directors of the Company (determined after the
resignation of interim directors who are serving as directors
only until all of the individuals who are proposed by the Plan of
Reorganization as the initial directors (the "Initial Directors")
of the Company are approved by the Gaming Authorities with
jurisdiction and together with any new directors whose election
by such board or whose nomination for election by the
shareholders of the Company was approved by a vote of a majority
of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination
for election was previously so approved or who were elected by
the vote of one or more of the Existing Equity Holders or their
Related Parties; provided, however, that any interim director of
the Company who is still serving as a director of the Company six
months after the Issue Date shall be deemed to be an Initial
Director for purposes of this clause (iv)) cease for any reason
to constitute a majority of the Board of Directors of the Company
then in office. Notwithstanding anything contained herein to the
contrary, the occurrence of a Black Hawk Casino Event shall not
give rise to a Change of Control.
(b) Within 15 Business Days after the occurrence of a
Change of Control, the Company shall given written notice of
Change of Control to the Trustee. Within 15 Business Days after
the Trustee receives such notice, the Trustee shall send, via
registered or certified mail, telefax, telex or overnight
delivery, a copy of such written notice to each Holder (and to
beneficial owners if required by applicable law). The Trustee
shall be under no obligation to ascertain the occurrence of a
Change of Control or to give notice with respect thereto other
than as provided above upon receipt of the written notice of
Change of Control from the Company. The Trustee may conclusively
assume, in the absence of written notice to the contrary from the
Company, that no Change of Control has occurred.
Section 1012. Procedure for Offers to Purchase
Notes.
(a) Any notice to Holders given pursuant to
Section 1011(b) shall include a form of Purchase Notice (as
defined below) and shall state:
(i) that the Company thereby offers to repurchase
at the Change of Control Purchase Price, all Notes of
such Holder;
(ii) the events causing the Change of Control and
the date on which such Change of Control is deemed to
have occurred for purposes of this Section 1012;
(iii) the date by which the Purchase Notice
must be given;
(iv) the date as of which Notes will be purchased
pursuant to the Change of Control Purchase Offer (the
"Purchase Date"), which shall be the date 20 Business
Days (unless a longer period is required by applicable
law) after the date on which the Purchase Notice is
sent pursuant to Section 1011(b);
(v) the name and address of the Paying Agent;
(vi) that Notes must be surrendered to the Paying
Agent at the office of the Paying Agent to collect
payment;
(vii) that the Purchase Price for any Notes as
to which a Purchase Notice has been duly given and not
withdrawn will be paid on the later of (A) the Purchase
Date and (B) the first Business Day following the date
of surrender of such Notes as described in clause (vi);
(viii) the procedures the Holder must follow to
exercise rights under Section 1011 and this
Section 1012 and a brief description of those rights;
and
(ix) the procedures for withdrawing a Purchase
Notice.
If any such notice is given by the Trustee at the
Company's request, the text of such notice shall be determined by
the Company.
(c) A Holder may exercise its rights under
Section 1011, as applicable, and this Section 1012 by delivering
to the Paying Agent at the office of the Paying Agent a written
notice of purchase (a "Purchase Notice") at any time prior to the
close of business on the third Business Day prior to the Purchase
Date, stating:
(i) the certificate numbers of the Notes that the
Holder will deliver to be purchased; and
(ii) the portion of the principal amount of the
Notes that the Holder will deliver to be purchased,
which portion must be $1,000 or an integral multiple
thereof.
The delivery of such Notes (together with all necessary
endorsements) to the Paying Agent at the office of the Paying
Agent prior to, on or after the Purchase Date shall be a
condition to the receipt by the Holder of the Purchase Price
therefor; provided that such Purchase Price shall be so paid
pursuant to this Section 1012 only if the Notes so delivered
shall conform in all respects to the description thereof set
forth in the related Purchase Notice.
Notwithstanding anything herein to the contrary, any
Holder delivering to the Paying Agent at the office of the Paying
Agent the Purchase Notice contemplated by this Section 1012(c)
shall have the right to withdraw such Purchase Notice in
accordance with Section 1013.
The Paying Agent shall promptly notify the Company by
telecopier of the receipt by the former of any Purchase Notice or
written notice of withdrawal thereof.
The Company shall purchase from the Holder thereof,
pursuant to this Section 1012, all or a portion of a Note if the
principal amount of such portion is $1,000 or an integral
multiple of $1,000. Provisions of this Indenture that apply to
the purchase of all of a Note also apply to the purchase of a
portion of such Note.
Section 1013. Effect of Purchase Notice.
Upon receipt by the Company or the Paying Agent of any
Purchase Notice, the Holder of the Note in respect of which such
Purchase Notice was given shall (unless such Purchase Notice is
withdrawn as specified in the following two paragraphs of this
Section 1013) thereafter be entitled to receive solely the
applicable Purchase Price with respect to such Note. Such
Purchase Price shall be paid to such Holder on the later of
(a) the applicable Purchase Date with respect to such Note
(provided the conditions in Section 1012(c) have been satisfied)
and (b) the first Business Day following the date of delivery of
such Note to the Paying Agent at the office of the Paying Agent
by the Holder thereof in the manner required by Section 1013.
A Purchase Notice may be withdrawn before or after
delivery by the Holder to the Paying Agent at the office of the
Paying Agent of the Note to which such Purchase Notice relates,
by means of a written notice of withdrawal delivered by the
Holder to the Paying Agent at the office of the Paying Agent at
any time prior to the close of business on the third Business Day
prior to the Purchase Date, specifying, as applicable:
(a) the certificate number and series of the Note in
respect of which such notice of withdrawal is being submitted,
(b) the principal amount of the Note with respect to
which such notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note that
remains subject to the original Purchase Notice, and that has
been or will be delivered for purchase by the Company.
The Paying Agent will promptly return to the respective
Holders thereof any Notes with respect to which a Purchase Notice
has been withdrawn in compliance with this Indenture.
Section 1014. Deposit of Purchase Price.
No later than 10:00 a.m. (local time at the office of
the Paying Agent) on the Business Day immediately preceding the
Purchase Date, the Company shall deposit with the Trustee or with
the Paying Agent (or, if the Company or a Company Subsidiary or
an Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust, or cause to be segregated and
held in trust, as provided in Section 903) an amount of cash
sufficient to pay the aggregate Purchase Price of all the Notes
or portions thereof that are to be purchased as of the Purchase
Date. Upon such deposit or segregation, all Notes or portions
thereof that are to be purchased shall cease to bear interest
after the Purchase Date.
Section 1015. Notes Purchased in Part.
Any Note that is to be purchased only in part shall be
surrendered to the Paying Agent at the office of the Paying Agent
or Note Registrar (with, if the Company, the Paying Agent, the
Note Registrar or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the
Company, the Paying Agent, the Note Registrar and the Trustee
duly executed by, the Holder thereof or such Holder's attorney
duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such
Note, without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder in an
aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Note so surrendered that
is not purchased.
Section 1016. Covenant to Comply With Securities
Laws Upon Purchase of Notes.
In connection with any offer to purchase or purchase of
Notes under Section 1011 or 1012, the Company shall comply with
all applicable federal and state securities laws so as to permit
the rights and obligations under Sections 1011 or 1012 to be
exercised to the greatest extent practicable in the time and in
the manner specified in such Sections.
Section 1017. Repayment to the Company.
The Trustee and the Paying Agent shall return to the
Company upon written order any cash that remains unclaimed,
together with interest, if any, accrued thereon, held by them for
the payment of the Purchase Price two years after the related
Purchase Date.
ARTICLE ELEVEN
SECURITY INTEREST
Section 1101.Security Interests Generally.
(a)In order to secure the performance of the Company's obligation
to pay the principal amount of, premium, if any, and interest on
the Notes when and as the same shall be due and payable, whether
at maturity or on an Interest Payment Date, by acceleration, call
for redemption or otherwise, and interest on the overdue
principal of and interest on, if any, the Notes and performance
of all other obligations of the Company to the Holders and the
Trustee under this Indenture and the Notes, according to the
terms hereunder or thereunder, and to secure the obligations of
the Guarantors under the Guarantee, the Company and the
Guarantors pursuant to the Security Documents have
unconditionally and absolutely granted and conveyed to the
Trustee for the benefit of itself and all Holders, a first
priority security interest in the Collateral (the "Security
Interest"), subject only to the Permitted Liens.
(b) The Security Interest as now or hereafter in
effect shall be held for the Trustee and for the equal and
ratable benefit and security of the Notes without preference,
priority or distinction of any thereof over any other by reason,
or difference in time, of issuance, sale or otherwise, and for
the enforcement of the payment of principal of, premium, if any,
and interest on the Notes in accordance with their terms.
(c) The Security Interest shall be and is expressly
made subordinate to any security interest in the Collateral that
the Company or any Guarantor grants to secure any Bank
Indebtedness. [Nothing contained herein shall restrict the
rights of the Trustee or the Holders to have claims filed on
their behalf in any proceeding under the Bankruptcy Laws
involving the Company or the Company Subsidiaries.]
(d) The Company and the Guarantors have executed and
delivered, filed and recorded and/or will execute and deliver,
file and record, all instruments and documents, and have done or
will do or cause to be done all such acts and other things as are
necessary to subject the Collateral to the Lien of the Security
Documents. The Company and the Guarantors will execute and
deliver, file and record all instruments and do all acts and
other things as may be reasonably necessary or advisable to
perfect, maintain and protect the Security Interest and shall pay
all filing, recording, mortgage or other taxes or fees incidental
thereto.
Section 1102. Evidence of Perfection of Liens.
The Company and the Guarantors shall furnish to the
Trustee:
(a) On the Issue Date, an Opinion of Counsel stating
that, in the opinion of such counsel, all recordings, filings and
other actions contemplated by such Security Documents necessary
to make effective or perfect the Lien have been taken, reciting
such actions;
(b) On or prior to each anniversary of the date
hereof, an Opinion of Counsel, dated as of such date, either (i)
stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of the Security
Documents, or financing statements, continuation statements or
other instruments of further assurance, as is necessary to
maintain the Liens of the Security Documents to the extent
required hereby, until the next such anniversary, and reciting
the details of such action, or (ii) stating that, in the opinion
of such counsel no such action is necessary to maintain such
Liens.
Section 1103. Suits to Protect the Collateral.
To the extent permitted under the Security Documents
and this Indenture, the Trustee shall have power to institute and
maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Collateral by any acts which may be
unlawful or in violation of this Indenture or the Security
Documents and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interest
of the Holders in the Collateral and in the profits, rents,
revenues and other income arising therefrom (including power to
institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the
Security Interest thereunder or be prejudicial to the interest of
the Holders or of the Trustee).
Section 1104. Further Assurances and Security.
The Company and the Guarantors represent and warrant
that at the time the Security Documents and this Indenture are
executed, the Company and/or the Guarantors (i) will have full
right, power and lawful authority to grant, bargain, sell,
release, convey, hypothecate, assign, mortgage, pledge, transfer
and confirm, absolutely, the Collateral, in the manner and form
done, or intended to be done, in the Security Documents, free and
clear of all Liens, except for the (A) Liens created by the
Security Documents, (B) Permitted Liens and (C) Liens contested
in good faith or arising by operation of law and not by contract,
and will forever warrant and defend the title to the same against
the claims of all Persons whatsoever; (ii) will execute,
acknowledge and deliver to the Trustee, at the Company's and the
Guarantor's expense, at any time and from time to time such
further assignments, transfer, assurances or other instruments as
may be required to effectuate the terms of this Indenture or the
Security Documents; and (iii) will at any time and from time to
time do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the Trustee, to
assure and confirm to the Trustee the Security Interest in the
Collateral contemplated hereby and by the Security Documents.
Section 1105. Release of Collateral.
(a) The Company or any Company Subsidiary (including
any Guarantor) shall have the right, in connection with any
Unrestricted Asset Sale involving Collateral, to release from the
Lien of the Security Documents any Collateral sold, conveyed,
assigned, transferred, leased or otherwise disposed of as part of
such Unrestricted Asset Sale, provided that immediately before
and after giving effect to such release and proposed Unrestricted
Asset Sale, no Default or Event of Default has occurred and is
continuing, upon compliance by the Company of each of the
following:
(1) Receipt by the Trustee of a Company Request
at least ten (10) Business Days in advance of the
requested date for the delivery of the release
instruments, requesting that the Trustee execute one or
more specifically described release instruments; and
(2) Receipt by the Trustee on or before the date
scheduled for such release of an Officer's Certificate
certifying that the conditions of this Section 1105(a)
with respect to such release have been fulfilled and
setting forth a description of each item of Collateral
to be released, the Fair Market Value of any such item
of Collateral, the total consideration, if any, that
the Company, any Company Subsidiary, or any Guarantor
will receive in connection with the Unrestricted Asset
Sale and, that in the opinion of the signors, the
security interest in favor of the Trustee in the
remaining Collateral would not be impaired by such
release.
(b) The Company or any Company Subsidiary or any
Guarantor shall have the right, in connection with any Restricted
Asset Sale involving Collateral otherwise permitted by Section
917, to release from the Lien of the Security Documents any
Collateral, provided that immediately before and after giving
effect to such release and the proposed Restricted Asset Sale:
(x) the Consolidated Coverage Ratio immediately after giving
effect to such release (assuming that the Net Cash Proceeds to be
received are applied immediately after the Restricted Asset Sale
first, to reduce the principal amount of any outstanding Bank
Indebtedness to the extent required by the terms thereof, and
thereafter to the extent of any remaining Net Cash Proceeds, to
reduce the principal amount of Notes Outstanding) would be no
less than the Consolidated Coverage Ratio immediately prior to
such release, (y) no Default or Event of Default has occurred and
is continuing, and (z) upon compliance by the Company with each
of the following:
(1) Receipt by the Trustee of a Company Request
at least ten (10) Business Days in advance of the
requested date for the delivery of the release
instruments, requesting the Trustee to execute one or
more specifically described release instruments;
(2) Receipt by the Trustee on or before the date
scheduled for such release (the "Collateral Release
Date") of an Officers' Certificate certifying that the
conditions of this Section 1105 set forth below have
been fulfilled. Such Officers' Certificate shall also
set forth:
(A) a description of each item of Collateral
to be released, the Fair Market Value of each such
item of Collateral, the total consideration, if
any, that the Company, any Company Subsidiary or
any Guarantor will receive in connection with the
Restricted Asset Sale and the amount of cash
and/or Cash Equivalents that the Company, any
Company Subsidiary or any Guarantor shall receive
in connection with such Restricted Asset Sale;
(B) that, in the opinion of the signers, (x)
the security interest in favor of the Trustee in
the remaining Collateral will not be impaired by
such release, and (y) the Collateral to be
released is not necessary for the efficient
operation of the Black Hawk Casino or for the
conduct of the business of the Company and the
Company Subsidiaries (taken as a whole) as
conducted immediately prior thereto; and
(C) that (x) the Consolidated Coverage Ratio
immediately after giving effect to such release
(assuming that the Net Cash Proceeds to be
received are applied immediately after the
Restricted Asset Sale first, to reduce the
principal amount of any outstanding Bank
Indebtedness to the extent required by the terms
thereof, and thereafter to the extent of any
remaining Net Cash Proceeds, to reduce the
principal amount of Notes Outstanding) would be no
less than the Consolidated Coverage Ratio
immediately prior to such release; (y) no Default
or Event of Default has occurred and is
continuing; and (z) all conditions precedent in
the Indenture and the Security Documents relating
to the release of such Collateral have been
complied with; and
(D) (i) whether the aggregate amount of the
fair value of the property to be released at the
date of the Company Request and the fair value of
all securities or other property released since
the commencement of the then current calendar year
(as previously certified to the Trustee in
connection with releases) is 5% or more of the
aggregate principal amount of the Notes at the
time Outstanding and (ii) whether said fair value
of the property to be released is at least $25,000
and at least 1% of the aggregate principal amount
of the Notes at the time Outstanding; and
(E) if the criteria in (D) are met, that a
certificate or opinion of an Independent Person
selected and approved as required by TIA
Section 314(d) is being furnished pursuant to
paragraph (3) of this Section 1105; and
(F) the Bank Indebtedness Amount immediately
after giving effect to the Restricted Asset Sale.
(3) The Company shall deliver to the Trustee any
certificate or opinion of an engineer, appraiser or
other expert required by TIA Section 314(d) as to the
Fair Market Value of the Collateral to be released,
dated or updated as of the date not more than 90 days
prior to the date of release; such certificate or
opinion shall state that the proposed release of
Collateral will not impair the Security Interest under
this Indenture in contravention of the terms hereof.
Any certificate or opinion required by TIA
Section 314(d) may be made by an officer of the
Company, except in cases as to which TIA Section 314(d)
required that such certificate or opinion be made by an
Independent Person, in which case such certificate or
opinion shall be made by an Independent Person selected
and approved as required by TIA Section 314(d).
(4) The Company shall deliver to the Trustee an
Opinion of Counsel stating that the certificate,
opinions, other instruments or cash which have been or
are therewith delivered to and deposited with the
Trustee conform to the requirements of this Indenture,
that the property to be released pursuant to a Company
Request may be lawfully released from the Lien of the
Security Documents and that all conditions precedent in
this Indenture and the Security Documents relating to
such release have been complied with.
(c) The Company or such Company Subsidiary or
Guarantor, as the case may be, shall cause such Net Cash Proceeds
of any Restricted Asset Sale pursuant to Section 917 that
involves Collateral or any Event of Loss that involves Collateral
to be deposited in the Collateral Account on the Business Day on
which such Net Cash Proceeds are received by the Company or such
Company Subsidiary or Guarantor. Collateral Proceeds (including
any earnings thereon) may be released from the Collateral Account
in order to, and in only such amount as is required to, (i) pay
the principal amount of Notes tendered pursuant to a Restricted
Asset Sale Offer or Event of Loss Offer or (ii) make a Permitted
Related Investment; provided that upon consummation of such
Permitted Related Investment the Trustee shall have received a
first priority security interest (subject only to the Permitted
Liens) in the property or assets acquired by the Company or any
Company Subsidiary or Guarantor in connection therewith and the
Company delivers to the Trustee each of the following:
(1) an Officer's Certificate, dated the date on which
Collateral Proceeds shall be released from the Collateral
Account (the "Collateral Proceeds Release Date"), stating
in substance as to certain matters (which statements shall,
on the Collateral Proceeds Release Date, be true), including
the following:
(A) the reason the Company is requesting a
release of the Collateral Proceeds and a description of
the use to be made of the Collateral Proceeds to be
released;
(B) in the case of clause (i) above, the
aggregate principal amount of Notes purchased on the
Collateral Proceeds Release Date and, in the case of
clause (ii) above, a description of the property or
assets being acquired and the Fair Market Value and the
purchase price of each such property or asset to be
acquired by the Company and/or the Company Subsidiaries
(if more than one);
(C) that the amount to be released from the
Collateral Account does not exceed the aggregate
principal amount of Notes to be purchased on the
Collateral Proceeds Release Date or the purchase price
of the property or assets to acquired by the Company or
any of the Company Subsidiaries, as the case may be;
(D) that, in the case of clause (ii) above, the
Company and/or the Company Subsidiaries, as the case
may be, have taken all steps necessary or desirable so
that upon consummation of such Permitted Related
Investment the Trustee shall receive a first priority
security interest in such property or assets (subject
to Permitted Liens);
(E) that no Default or Event of Default has
occurred and is continuing at the time of or after
giving effect to such release of Collateral Proceeds;
and
(F) that all conditions precedent in the
Indenture and the Security Documents relating to the
release of the Collateral Proceeds have been complied
with.
(2) An Opinion of Counsel stating that the
certificate, opinions, other instruments or cash which have
been or are therewith delivered to and deposited with the
Trustee conform to the requirements of this Indenture, that
the property to be released pursuant to a Company Request
may be lawfully released from the Lien of the Security
Documents and that all conditions precedent in this
Indenture and the Security Documents relating to such
release (including, without limitation, the requirement that
the Trustee receive a first priority security interest in
the property or assets acquired, subject only to Permitted
Liens), have been complied with.
Section 1106. Reliance on Opinion of Counsel.
The Trustee shall, before taking any action under this
Article Eleven, be entitled to receive an Opinion of Counsel,
stating the legal effect of such action, the steps necessary to
consummate the same and to perfect the Trustee's priority with
respect to any Lien in connection therewith and that such action
will not be in contravention of the provisions thereof or this
Indenture and such opinion shall be full protection to the
Trustee for any action taken or omitted to be taken in reliance
thereon.
Section 1107. Purchaser May Rely.
A purchaser in good faith of the Collateral or any part
thereof or interest therein which is purported to be transferred,
granted or released by the Trustee as provided in this Article
Eleven shall not be bound to ascertain, and may rely on the
authority of the Trustee to execute, transfer, grant or release,
or to inquire as to the satisfaction of any conditions precedent
to the exercise of such authority, or to see to the application
of the purchase price therefor.
Section 1108. Payment of Expenses.
On demand of the Trustee, the Company forthwith shall
pay or satisfactorily provide for the payment of all reasonable
expenditures incurred by the Trustee under this Article Eleven,
including, without limitation, the costs of title insurance,
surveys, attorneys' fees and expenses, recording fees and taxes,
transfer taxes, taxes on indebtedness and other expenses
incidental thereto and all such sums shall be a Lien upon the
Collateral prior to the Notes and shall be secured thereby.
Section 1109. Release and Substitution of
Collateral-Trust Indenture Act Compliance.
At all times after qualification of this Indenture
under the Trust Indenture Act:
(a) To the extent applicable, the Company and each
Guarantor shall comply with Section 314 of the Trust Indenture
Act relating to the release of property or securities from the
Lien of any Security Document.
(b) The release of any Collateral from the Lien of any
Security Document or the subordination of any Lien of any
Security Document shall not be deemed to impair such Lien or the
Collateral under the Security Documents in contravention of the
provisions of this Indenture or such Security Document if and to
the extent the Collateral or Lien is released or subordinated
pursuant to, and in accordance with, this Indenture and such
Security Document.
Section 1110. Release Upon Termination of the
Company's Obligations.
(a) If (i) the Company delivers an Officers'
Certificate certifying that all of its obligations under this
Indenture have been indefeasibly satisfied and discharged by
complying with the provisions of Article Three or Twelve hereof
or (ii) all Outstanding Notes issued under this Indenture shall
have been surrendered to the Trustee for cancellation, the
Collateral Agent and/or the Trustee, subject to compliance by the
Company with Section 1109, shall deliver to the Company and the
Guarantors a certificate stating that the Collateral Agent and
the Trustee, on behalf of the Holders, disclaim and have given up
any and all rights they have in or to the Collateral, and any
rights they have under the Security Documents, and, upon and
after the receipt by the Company and the Guarantors of such
certificate, the Collateral Agent and the Trustee shall no longer
be deemed to hold the Lien in the Collateral for the benefit of
the Holders.
(b) Any release of Collateral made in compliance with
this Section 1110 shall not be deemed to impair the Lien under
the Security Documents or the Collateral thereunder in
contravention of the provisions of this Indenture or the Security
Documents.
(c) Nothing in this Section 1110 shall impair the
first priority Lien and trust created pursuant to Article Three
or Twelve in any funds or securities deposited with the Trustee
pursuant to such Articles.
Section 1111. Collateral Agent's Duties.
(a) The Collateral Agent shall:
(i) to the extent contemplated by the relevant
Security Documents and this Indenture, execute and deliver all
Security Documents required to be executed by the Collateral
Agent and hold in its possession all Collateral Proceeds from
time to time delivered to it; and
(ii) take all steps the Collateral Agent is
entitled to take under the relevant Security Documents for the
protection of the Collateral or the Liens of the Holders therein
or its priority (including by discharging or paying Liens and
claims the Collateral Agent is entitled to discharge or pay),
provided the Collateral Agent has received notice of facts
indicating that such steps are required for the protection of the
Collateral or such Lien or its priority, whether in the Opinion
of Counsel required by Section 1102, pursuant to any requirement
of the Security Documents to give such notice, or otherwise.
(b) The Collateral Agent shall have only such duties
with respect to the Collateral as are set forth in this
Indenture, the Security Documents.
(c) In the performance of its duties hereunder and the
Security Documents, the Collateral Agent shall be fully protected
and indemnified to the full extent of the indemnity provided in
Section 503.
ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 1201.Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time,
with respect to the Notes, elect to have the provisions set forth
in either Section 1202 or Section 1203 applied to all Outstanding
Notes upon compliance with the conditions set forth below in this
Article Twelve.
Section 1202.Legal Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and the Guarantors
shall be deemed to have been discharged from their obligations
with respect to all Outstanding Notes on the date the conditions
set forth in Section 1204 are satisfied (hereinafter, "Legal
Defeasance"). For these purposes, such Legal Defeasance means
that the Company and each Guarantor shall be deemed to have paid
and discharged the entire Indebtedness represented by the
Outstanding Notes and this Indenture shall cease to be of further
effect as to all Outstanding Notes (except as to the rights of
Holders to receive payment which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1205 and the other
Sections of this Indenture referred to in (a) and (b) below), and
to have satisfied all its other obligations under such Notes,
this Indenture and the Guarantee insofar as such Notes are
concerned (and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of
Holders of Outstanding Notes to receive, solely from the trust
fund described in Section 1204 and as more fully set forth in
such Section, payments in respect of the principal of (and
premium, if any, on) and interest on such Notes when such
payments are due, (b) the Company's and the Guarantor's
obligations with respect to such Notes under Sections 205, 207,
208, 902, 903 and 1401, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Company's and the
Guarantors' obligations in connection therewith and (d) this
Article Twelve. Subject to compliance with this Article Twelve,
the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section
1203 with respect to the Notes.
Section 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the
option applicable to this Section 1203, the Company and the
Guarantors shall be released from their obligations under any
covenant contained in Section 701 and Sections 911 through 928
with respect to the Outstanding Notes on and after the date the
conditions set forth in Section 1204 are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes shall thereafter be deemed
not to be "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the Outstanding Notes, the Company
and the Guarantors need not comply with and shall have no
liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other
provision herein or in any other document, but, except as
specified above, the remainder of this Indenture (including the
Guarantee) and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 1201 of the
option applicable to this Section 1203, the events specified in
clauses (c) and (d) (to the extent they relate to any of the
covenants from which the Company and the Guarantors are being
released pursuant to this Section 1203) and clauses (e) through
(o) of Section 401 shall not constitute Events of Default.
Section 1204. Conditions to Legal Defeasance or
Covenant Defeasance.
The following shall be the conditions to application of
either Section 1202 or Section 1203 to the Outstanding Notes:
(1) The Company shall irrevocably deposit or cause to
be deposited with the Trustee (or another trustee satisfying
the requirements of Section 508 who shall agree to comply
with the provisions of this Article Twelve applicable to it)
as trust funds, in trust for the purpose of making the
following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such
Notes, (A) U.S. Dollars in an amount, or (B) U.S. Government
Obligations that through the scheduled payment of principal
and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due
date of any payment, U.S. Dollars in an amount, or (C) a
combination thereof, as in each case will be sufficient, in
the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal of (and premium,
if any, on) and interest on the Outstanding Notes on the
stated date for payment thereof (or on the Redemption Date,
as the case may be, of such principal (and premium, if any)
or installment of principal, premium, if any or interest on
such Notes, and the Trustee on behalf of the Holders must
have a valid, perfected and exclusive security interest in
such trust; provided that the Trustee shall have been
irrevocably instructed to apply such U.S. Dollars or the
proceeds of such U.S. Government Obligations to such
payments with respect to the Notes. Before such a deposit,
the Company may give to the Trustee, in accordance with
Section 1003 hereof, a notice of its election to redeem all
of the Outstanding Notes at a future date in accordance with
Article Ten hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given
effect in applying the foregoing. For purposes of this
Article Twelve, "U.S. Government Obligations" means direct
non-callable obligations of, or non-callable obligations
guaranteed by, the United States of America for the payment
of which obligation or guarantee the full faith and credit
of the United States is pledged.
(2) No Default or Event of Default with respect to the
Notes shall have occurred and be continuing on the date of
such deposit or, insofar as paragraphs (h) and (i) of
Section 401 hereof are concerned, at any time during the
period ending on the ninety-first day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(3) Such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a
default under, this Indenture or any other material
agreement or instrument to which the Company or any of the
Company Subsidiaries is a party or by which the Company or
any of the Company Subsidiaries is bound.
(4) In the case of an election under Section 1202, the
Company shall have delivered to the Trustee an Opinion of
Counsel, reasonably satisfactory in form and substance to
the Trustee, stating that (x) the Company has received from,
or there has been published by, the Internal Revenue Service
a ruling, or (y) 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 shall confirm that, the Holders of the Outstanding
Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred.
(5) In the case of an election under Section 1203, the
Company shall have delivered to the Trustee an Opinion of
Counsel, reasonably satisfactory in form and substance to
the Trustee, to the effect that the Holders of the
Outstanding Notes 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.
(6) The Company and Guarantors shall have delivered to
the Trustee Officers' Certificates stating that the deposit
made by the Company pursuant to its election under
Section 1202 or 1203 was not made with the intent of
preferring the Holders of such Notes over any other
creditors of the Company or such Guarantors or with the
intent of defeating, hindering, delaying or defrauding any
other creditors of the Company or such Guarantors or others.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating
to either the Legal Defeasance under Section 1202 or the
Covenant Defeasance under Section 1203 (as the case may be)
have been complied with.
Section 1205. Deposited U.S. Dollars and U.S.
Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of
Section 903 and Section 1206, all U.S. Dollars and U.S.
Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1205, the "Trustee") pursuant to Section
1204 in respect of the Outstanding Notes shall be held in trust
(and subject to a first priority Lien in favor of the Trustee for
the benefit of the Holders) and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums
due and to become due thereon in respect of principal (and
premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on, or assessed against, the
U.S. Government Obligations deposited pursuant to Section 1204 or
the principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account
of the Holders of the Outstanding Notes.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any U.S. Dollars or U.S.
Government Obligations held by it as provided in Section 1204
which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance,
as applicable, in accordance with this Article.
Section 1206. Repayment to the Company.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of, premium, if any, or interest on any Note and
remaining unclaimed for two years after such principal, and
premium, if any, or interest has become due and payable, shall be
paid to the Company on its request, and the Holder of such Note
shall thereafter look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the
Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then
remaining will be repaid to the issuers.
Section 1207. Reinstatement.
If the Trustee or any Paying Agent is unable to apply
any U.S. Dollars or the proceeds of any U.S. Government
Obligations in accordance with Section 1205 by reason of any
order or judgment of any court or Governmental Authority
enjoining, restraining or otherwise prohibiting such application,
then the Company's and the Guarantor's obligations under this
Indenture (including the Guarantee) and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant
to Section 1202 or 1203, as the case may be, until such time as
the Trustee or Paying Agent is permitted to apply all such U.S.
Dollars or the proceeds of any U.S. Government Obligations in
accordance with Section 1205; provided, however, that if the
Company makes any payment of principal of (or premium, if any,
on) or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE THIRTEEN
GUARANTEE OF NOTES
Section 1301.Guarantee.
Each of the Guarantors, for consideration received, jointly and
severally unconditionally and irrevocably guarantees to each
Holder of Notes, to the Trustee and to the Collateral Agent, as
applicable, the due and punctual payment of the Indenture
Obligations. The term "Indenture Obligations" means any and all
present and future obligations and liabilities of the Company of
every type and description to the Holders under the Indenture,
the Notes and the Security Documents, whether for principal,
premium (if any), interest, expenses, indemnities or other
amounts, in each case whether due or not due, absolute or
contingent, voluntary or involuntary, liquidated or unliquidated,
determined or undetermined, now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, whether or
not arising after the commencement of a proceeding under any
Bankruptcy Law (including post-petition interest) and whether or
not allowed or allowable as a claim in any such proceeding, and
whether or not recovery of any such obligation or liability may
be barred by a statute of limitations or such obligation or
liability may otherwise be unenforceable. All Indenture
Obligations shall be conclusively presumed to have been created
in reliance on the Guarantee. The Guarantee is a continuing
guaranty of the Indenture Obligations and may not be revoked and
shall not otherwise terminate unless and until any and all
Indenture Obligations have been indefeasibly paid and performed
in full, except as otherwise provided in Section 1314.
Section 1302. Nature of Guarantee.
The liability of each Guarantor under the Guarantee is
independent of and not in consideration of or contingent upon the
liability of the Company or any other Guarantor and a separate
action or actions may be brought and prosecuted against any
Guarantor, whether or not any action is brought or prosecuted
against the Company or any other Guarantor or whether the Company
or any other Guarantor is joined in any such action or actions.
The Guarantee given by each Guarantor shall be construed as a
continuing, absolute and unconditional guaranty of payment (and
not merely of collection) without regard to:
(a) the legality, validity or enforceability of the
Notes, this Indenture or any other Security Document, any of the
Indenture Obligations, any Lien on Collateral or the Guarantee
given by any other Guarantor;
(b) any defense (other than payment), set-off or
counterclaim that may at any time be available to the Company or
any other Guarantor against, and any right of setoff at any time
held by, any Holder; or
(c) any other circumstance whatsoever (with or without
notice to or knowledge of any Guarantor or the Company), whether
or not similar to any of the foregoing, that constitutes, or
might be construed to constitute, an equitable or legal discharge
of the Company or any other Guarantor, in bankruptcy or in any
other instance.
Any payment by the Company or any Guarantor or other
circumstance that operates to toll any statute of limitations
applicable to such Persons shall also operate to toll the statute
of limitations applicable to each Guarantor.
Section 1303. Authorization.
Each Guarantor authorizes each Holder and the Trustee,
without notice to or further assent by such Guarantor, and
without affecting any Guarantor's liability hereunder (regardless
of whether any subrogation or similar right that such Guarantor
may have or any other right or remedy of such Guarantor is
extinguished or impaired), from time to time to do any or all of
the following:
(a) permit the Company to increase or create Indenture
Obligations, or terminate, release, compromise, subordinate,
extend, accelerate or otherwise change the amount or time, manner
or place of payment of, or rescind any demand for payment or
acceleration of, the Indenture Obligations or any part thereof,
consent or enter into supplemental indentures or otherwise amend
the terms and conditions of the Security Documents or any
provision thereof;
(b) take and hold Collateral from the Company or any
other Person, perfect or refrain from perfecting a Lien on such
Collateral, and exchange, enforce, subordinate, release (whether
intentionally or unintentionally), or take or fail to take any
other action in respect of, any such Collateral or Lien or any
part thereof;
(c) exercise in such manner and order as it elects in
its sole discretion, fail to exercise, waive, suspend, terminate
or suffer expiration of, any of the remedies or rights of such
Holder against the Company or any Guarantor in respect of any
Indenture Obligation or any Collateral;
(d) release, add or settle with any Guarantor or the
Company in respect of the Guarantee or the Indenture Obligations:
(e) accept partial payments on the Indenture
Obligations and apply any and all payments or recoveries from any
Guarantor or the Company or Collateral to such of the Indenture
Obligations as any Holder may elect in its sole discretion,
whether or not such Indenture Obligations are secured or
guaranteed;
(f) refund at any time, at such Holder's sole
discretion, any payments or recoveries received by such Holder in
respect of any Indenture Obligations or Collateral; and
(g) otherwise deal with the Company, any Guarantor and
any Collateral as such Holder may elect in its sole discretion.
Section 1304. Right to Demand Full Performance.
In the event of any demand for payment or performance
by the Trustee from any Guarantor hereunder, the Trustee or the
Holders shall have the right to demand its full claim and to
receive all dividends or other payments in respect thereof until
the Indenture Obligations have been paid in full, and the
Guarantors shall continue to be jointly and severally liable
hereunder for any balance which may be owing to the Trustee or
the Holders by the Company under this Indenture and the Notes.
The retention by the Trustee or the Holders of any security,
prior to the realization by the Trustee or the Holders of its
rights to such security upon foreclosure thereon, shall not, as
between the Trustee and any Guarantor, be considered as a
purchase of such security, or as payment, satisfaction or
reduction of the Indenture Obligations due to the Trustee or the
Holders by the Company or any part thereof. Each Guarantor,
promptly after demand, will reimburse the Trustee and the Holders
for all costs and expenses of collecting such amount under, or
enforcing this Guarantee, including, without limitation, the
reasonable fees and expenses of counsel.
Section 1305. Certain Waivers.
Each Guarantor waives:
(a) the right to require the Holders to proceed
against the Company or any other Guarantor, to proceed against or
exhaust any Collateral or to pursue any other remedy in any
Holder's power whatsoever and the right to have the property of
the Company or any other Guarantor first applied to the discharge
of the Indenture Obligations;
(b) all rights and benefits under applicable law
purporting to reduce a guarantor's obligations in proportion to
the obligation of the principal or providing that the obligation
of a surety or guarantor must neither be larger nor in other
respects more burdensome than that of the principal;
(c) the benefit of any statute of limitations
affecting the Indenture Obligations or any Guarantor's liability
hereunder;
(d) any requirement of marshaling or any other
principle of election of remedies;
(e) any right to assert against any Holder any defense
(legal or equitable), set-off, counterclaim and other right that
any Guarantor may now or any time hereafter have against the
Company or any other Guarantor;
(f) presentment, demand for payment or performance
(including diligence in making demands hereunder), notice of
dishonor or nonperformance, protest, acceptance and notice of
acceptance of this Guarantee, and, except to the extent expressly
required by the Security Documents, all other notices of any
kind, including (i) notice of any action taken or omitted by the
Holders in reliance hereon, (ii) notice of any default by the
Company or any other Guarantor, (iii) notice that any portion of
the Indenture Obligations is due, (iv) notice of any action
against the Company or any other Guarantor, or any enforcement of
other action with respect to any Collateral, or the assertion of
any right of any Holder hereunder; and
(g) all defenses that at any time may be available to
any Guarantor by virtue of any valuation, stay, moratorium or
other law now or hereafter in effect.
Section 1306. The Guarantors Remain Obligated in
Event the Company Is No Longer Obligated to
Discharge Indenture Obligations.
It is the express intention of the Trustee and the
Guarantors that if for any reason the Company has no legal
existence, is or becomes under no legal obligation to discharge
the Indenture Obligations owing to the Trustee or the Holders by
the Company or if any of the Indenture Obligations owing by the
Company to the Trustee or the Holders becomes irrecoverable from
the Company by operation of law or for any reason whatsoever,
this Guarantee and the covenants, agreements and obligations of
the Guarantors contained in this Article Thirteen shall
nevertheless be binding upon the Guarantors, as principal debtor,
until such time as all such Indenture Obligations have been paid
in full to the Trustee and all Indenture Obligations owing to the
Trustee or the Holders by the Company have been discharged, or
such earlier time as Section 1202 shall apply to the Notes, and
the Guarantors shall be responsible for the payment thereof to
the Trustee or the Holders upon demand.
Section 1307. Severability of Void Obligations
under Company Subsidiary Guarantee.
The obligations of any Guarantor hereunder shall be
limited to the maximum amount that would not render its
obligations hereunder subject to avoidance under Section 548 of
the Federal Bankruptcy Code or any applicable provisions of
comparable state law.
Section 1308. Guarantee Is in Addition to Other
Security.
This Guarantee shall be in addition to and not in
substitution for any other guarantees or other security which the
Trustee may now or hereafter hold in respect of the Indenture
Obligations owing to the Trustee or the Holders by the Company
and (except as may be required by law) the Trustee shall be under
no obligation to marshal in favor of each of the Guarantors any
other guarantees or other security or any moneys or other assets
which the Trustee may be entitled to receive or upon which the
Trustee or the Holders may have a claim.
Section 1309. Release of Security Interests.
Without limiting the generality of the foregoing and
except as otherwise provided in this Indenture, each Guarantor
hereby consents and agrees, to the fullest extent permitted by
applicable law, that the rights of the Trustee hereunder, and the
liability of the Guarantors hereunder, shall not be affected by
any and all releases for any purpose of any Collateral, if any,
from the Liens and security interests created by any Security
Documents and that this Guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time any payment
of any of the Indenture Obligations is rescinded or must
otherwise be returned by the Trustee upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, all as
though such payment had not been made.
Section 1310. No Bar to Further Actions.
Except as provided by law, no action or proceeding
brought or instituted under Article Thirteen and the Guarantee
and no recovery or judgment in pursuance thereof shall be a bar
or defense to any further action or proceeding which may be
brought under Article Thirteen and the Guarantee by reason of any
further default or defaults under Article Thirteen and the
Guarantee or in the payment of any of the Indenture Obligations
owing by the Company.
Section 1311. Failure to Exercise Rights Shall
Not Operate as a Waiver; No Suspension of
Remedies.
(a) No failure to exercise and no delay in exercising,
on the part of the Trustee or the Holders, any right, power,
privilege or remedy under this Article Thirteen and the Guarantee
shall operate as a waiver thereof, nor shall any single or
partial exercise of any rights, power, privilege or remedy
preclude any other or further exercise thereof, or the exercise
of any other rights, powers, privileges or remedies. The rights
and remedies herein provided for are cumulative and not exclusive
of any rights or remedies provided in law or equity.
(b) Nothing contained in this Article Thirteen shall
limit the right of the Trustee or the Holders to take any action
to accelerate the maturity of the Notes pursuant to Article Four
and as set forth in the Indenture or to pursue any rights or
remedies hereunder or under applicable law.
Section 1312. Trustee's Duties; Notice to
Trustee.
(a) Any provision in this Article Thirteen or
elsewhere in this Indenture allowing the Trustee to request any
information or to take any action authorized by, or on behalf of
any Guarantor, shall be permissive and shall not be obligatory on
the Trustee except as the Holders may direct in accordance with
the provisions of this Indenture or where the failure of the
Trustee to request any such information or to take any such
action arises from the Trustee's negligence, bad faith or willful
misconduct.
(b) The Trustee shall not be required to inquire into
the existence, powers or capacities of the Company, any Guarantor
or the officers, directors or agents acting or purporting to act
on their respective behalf.
Section 1313. Successors and Assigns.
All terms, agreements and conditions of this Article
Thirteen shall extend to and be binding upon each Guarantor and
its successors and permitted assigns and shall inure to the
benefit of and may be enforced by the Trustee and its successors
and assigns; provided, however, that the Guarantors may not
assign any of their rights or obligations hereunder other than in
accordance with Article Seven.
Section 1314. Release of Guarantee.
In the event of a Restricted Asset Sale permitted under
Section 917 involving the sale by the Company of all of the
Capital Stock of any Company Subsidiary (other than BWBH or a
Non-Operating Subsidiary) or the sale by any Company Subsidiary
(other than BWBH or a Non-Operating Subsidiary) of all or
substantially all of the assets of such Company Subsidiary (other
than to another Company Subsidiary), and subject to compliance
with the provisions of Section 1105 (including the delivery of
all required Officer's Certificates), the Company Subsidiary
whose Capital Stock or assets are sold shall be released from and
relieved of its obligations under this Article Thirteen.
Concurrently with the payment in full of all of the Indenture
Obligations, the Guarantors shall be released from and relieved
of their obligations under this Article Thirteen.
Upon the delivery by the Company to the Trustee of an
Officers' Certificate and, if requested by the Trustee, an
Opinion of Counsel to the effect that the transaction giving rise
to the release of this Guarantee was made by the Company in
accordance with the provisions of this Indenture and the Notes,
the Trustee shall execute any documents reasonably required in
order to evidence the release of a Company Subsidiary or all of
the Guarantors, as the case may be, from its or their obligations
under this Guarantee. If any of the Indenture Obligations are
revived and reinstated after the termination of this Guarantee,
then all of the obligations of the Guarantors (other than any
Company Subsidiary that is otherwise released from the Guarantee
pursuant to this Section) under this Guarantee shall be revived
and reinstated as if this Guarantee had not been terminated until
such time as the Indenture Obligations are paid in full, and each
Guarantor (except as provided in the first part of this sentence)
shall enter into an amendment to this Guarantee, reasonably
satisfactory to the Trustee, evidencing such revival and
reinstatement.
Section 1315. Execution of Guarantee.
To evidence the Guarantee, each Guarantor hereby agrees
to execute a notation relating to the Guarantee to be endorsed on
each Note authenticated and delivered by the Trustee. Each
Guarantor agrees that this Indenture shall be executed on behalf
of each Guarantor by its Chairman of the Board, its President,
its Chief Executive Officer, Chief Operating Officer or one of
its Vice Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Notes may be manual
or facsimile.
If an officer whose signature is on this Indenture no
longer holds that office at the time the Trustee authenticates a
Note on which this Guarantee is endorsed, such Guarantee shall be
valid nevertheless.
Section 1316. No Subrogation; Certain Agreements.
(a) EACH GUARANTOR WAIVES ANY AND ALL RIGHTS OF
SUBROGATION, INDEMNITY OR REIMBURSEMENT, AND ANY AND ALL BENEFITS
OF AND RIGHTS TO ENFORCE ANY POWER, RIGHT OR REMEDY THAT ANY
HOLDER OR THE TRUSTEE MAY NOW OR HEREAFTER HAVE IN RESPECT OF THE
INDENTURE OBLIGATIONS AGAINST THE COMPANY OR ANY OTHER OBLIGOR
(OTHER THAN RIGHTS OF CONTRIBUTION FROM OTHER GUARANTORS), ANY
AND ALL BENEFITS OF AND RIGHTS TO PARTICIPATE IN ANY COLLATERAL,
WHETHER REAL OR PERSONAL PROPERTY, NOW OR HEREAFTER HELD BY ANY
HOLDER OR THE TRUSTEE, AND ANY AND ALL OTHER RIGHTS AND CLAIMS
(AS DEFINED IN THE FEDERAL BANKRUPTCY CODE) ANY GUARANTOR MAY
HAVE AGAINST THE COMPANY, UNDER APPLICABLE LAW OR OTHERWISE, AT
LAW OR IN EQUITY, BY REASON OF ANY PAYMENT UNDER THE GUARANTEE,
UNLESS AND UNTIL THE INDENTURE OBLIGATIONS SHALL HAVE BEEN PAID
IN FULL.
(b) Each Guarantor assumes the responsibility for
being and keeping itself informed of the financial condition of
each other Guarantor and of all other circumstances bearing upon
the risk of nonpayment of the Indenture Obligations or the
Guarantee of any other Guarantor that diligent inquiry would
reveal, and agrees that neither the Holders nor the Trustee shall
have any duty to advise any Guarantor of information regarding
such condition or any such circumstances.
Section 1317. Bankruptcy; No Discharge.
(a) Without limiting Section 1302 or any other
provision of this Article Thirteen, the Guarantee shall not be
discharged or otherwise affected by any bankruptcy,
reorganization or similar proceeding commenced by or against the
Company or any other Guarantor, including (i) any discharge of,
or bar or stay against collecting, all or any part of the
Indenture Obligations in or as a result of any such proceeding,
whether or not assented to by any Holder, (ii) any disallowance
of all or any portion of any Holder's claim for repayment of the
Indenture Obligations, (iii) any use of cash or other collateral
in any such proceeding, (iv) any agreement or stipulation as to
adequate protection in any such proceeding, (v) any failure by
any Holder to file or enforce a claim against the Company or any
other Guarantor or its estate in any bankruptcy or reorganization
case, (vi) any amendment, modification, stay or cure of any
Holder's rights that may occur in any such proceeding, (vii) any
election by any Holder under Section 1112(b)(2) of the Federal
Bankruptcy Code, or (viii) any borrowing or grant of a Lien under
Section 364 of the Federal Bankruptcy Code. Each Guarantor
understands and acknowledges that by virtue of this Guarantee, it
has specifically assumed any and all risks of any such proceeding
with respect to the Company and each other Guarantor.
(b) Notwithstanding anything in this Article Thirteen
to the contrary, any Event of Default under Section 401(h) or (i)
of this Indenture shall render all Indenture Obligations
automatically due and payable for purposes of the Guarantee,
without demand on the part of the Trustee or any Holder.
(c) Notwithstanding anything to the contrary herein
contained, the Guarantee (and any Lien on the Collateral securing
the Guarantee or the Indenture Obligations) shall continue to be
effective or be reinstated, as the case may be, if at any time
any payment, or any part thereof, of any or all of the Indenture
Obligations is rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be restored or returned
by any Holder or the Trustee in connection with any bankruptcy,
reorganization or similar proceeding involving the Company, any
other Guarantor or otherwise, if the proceeds of any Collateral
are required to be returned by such Holder or the Trustee under
any such circumstances, or if any Holder or the Trustee elects to
return any such payment or proceeds or any part thereof in its
sole discretion, all as though such payment had not been made or
such proceeds not been received.
Section 1318. Additional Guarantors.
Each Company Subsidiary that executes and delivers to
the Trustee from time to time an amendment to the Guarantee after
the Issue Date shall be a Guarantor as if such Company Subsidiary
had been a signatory to this Indenture, and no such amendment to
the Guarantee must be executed and delivered by any other
Guarantor. Each Guarantor hereby consents to any such amendment,
whether or not it receives notice thereof.
ARTICLE FOURTEEN
MEETING OF NOTE HOLDERS
Section 1401.Purpose for Which Meeting May Be Called.
A meeting of Holders may be called at any time and from time to
time pursuant to the provisions of this Article Fourteen for any
of the following purposes:
(a)to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive or consent to the
waiver of any Default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken
by Holders pursuant to any of the provisions of Article Four;
(b)to remove the Trustee or appoint a successor Trustee pursuant
to the provisions of Article Five;
(c) to consent to an amendment, supplement or
waiver pursuant to the provisions of Section 802; or
(d) to take any other action (i) authorized to be
taken by or on behalf of the Holder or Holders of any
specified aggregate principal amount of the Notes under any
other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary
or appropriate in connection with the administration of this
Indenture.
Section 1402. Manner of Calling Meeting.
The Trustee may at any time call a meeting of Holders
to take any action specified in Section 1401, to be held at such
time and at such place in the City of New York, State of New York
or elsewhere as the Trustee shall determine. Notice of every
meeting of Holders, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed by the Trustee, first-class postage
prepaid, to the Company and to the Holders at their last
addresses as they shall appear on the registration books of the
Note Registrar, not less than 10 nor more than 60 days prior to
the date fixed for a meeting.
Any meeting of Holders shall be valid without notice if
the Holders of all Notes then outstanding are present in person
or by proxy, or if notice is waived before or after the meeting
by the Holders of all Notes outstanding, and if the Company and
the Trustee are either present by duly authorized representatives
or have received notice of the meeting or, before or after the
meeting, waived notice.
Section 1403. Call of Meeting by Company or
Holders.
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of not less than 10% in aggregate
principal amount of the Notes then outstanding shall have
requested the Trustee to call a meeting of Holders to take any
action specified in Section 1401, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the
Company or such Holders of Notes may determine the time and place
in the City of New York, State of New York or elsewhere for such
meeting and may call such meeting for the purpose of taking such
action, by mailing or causing to be mailed notice thereof as
provided in Section 1402, or by causing notice thereof to be
published at least once in each of two successive calendar weeks
(on any Business Day during such week) in a newspaper or
newspapers of general circulation in the City of New York, State
of New York printed in the English language and customarily
published at least five days a week, the first such publication
to be not less than 10 nor more than 60 days prior to the date
fixed for the meeting.
Section 1404. Who May Attend and Vote at
Meetings.
To be entitled to vote at any meeting of Holders, a
Person must be (a) a registered Holder of one or more Notes, or
(b) a Person appointed by an instrument in writing as proxy for
the registered Holder or Holders of Notes. The only persons who
shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and
their counsel, representatives of the Trustee and its counsel and
representatives of the Company, any of the Guarantors and their
counsel.
Section 1405. Regulations May Be Made by Trustee;
Conduct of the Meeting; Voting Rights;
Adjournment.
Notwithstanding any other provision of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any action by or any meeting of Holders, in regard
to proof of the holding of Notes and of the appointment of
proxies, and in regard to the appointment and duties of
inspectors of votes, and submission and examination of proxies,
certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall
deem appropriate. Such regulations may fix a record date and
time for determining the Holders of record of Notes entitled to
vote at such meeting, in which case those and only those Persons
who are Holders of Notes at the record date and time so fixed, or
their proxies, shall be entitled to vote at such meeting whether
or not they shall be such Holders at the time of the meeting.
The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders as provided in
Section 1403, in which case the Company or Holders calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and permanent secretary
of the meeting shall be elected by vote of the Holders of a
majority in principal amount of the Notes represented at the
meeting and entitled to vote.
At any meeting each Holder or proxy shall be entitled
to one vote for each $100 principal amount of Notes held or
represented by such Holder; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Notes
challenged as not outstanding and ruled by the chairman of the
meeting to be not outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Notes held by him
or instruments in writing as aforesaid duly designating him as
the proxy to vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to the provisions of Section 1402 or
Section 1403 may be adjourned from time to time by vote of the
Holder or Holders of a majority in aggregate principal amount of
the Notes represented at the meeting and entitled to vote, and
the meeting may be held as so adjourned without further notice.
Section 1406. Voting at the Meeting and Record to
Be Kept.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders of Notes or of their
representatives by proxy and the principal amount of the Notes
voted by the ballot. The permanent chairman of the meeting shall
appoint two inspectors of votes, who shall count all votes cast
at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceeds of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one
or more Persons having knowledge of the facts, setting forth a
copy of the notice of the meeting and showing that such notice
was mailed as provided in Section 1402 or published as provided
in Section 1403. The record shall be signed and verified by the
affidavits of the permanent chairman and the secretary of the
meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at
the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Section 1407. Exercise of Rights of Trustee or
Noteholders May Not Be Hindered or Delayed by Call
of Meeting.
Nothing contained in this Article Fourteen shall be
deemed or construed to authorize or permit, by reason of any call
of a meeting of Holders or any rights conferred hereunder,
expressed or implied, to make such call, any hindrance or delay
in the exercise of any right or rights conferred upon or reserved
to the Trustee or to the Holders under any of the provisions of
the Indenture (including with respect to the Guarantee) or of the
Notes.
ARTICLE FIFTEEN
MISCELLANEOUS
Section 1501.Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with any other provision hereof that is then required
to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
Section 1502. Notices.
Any notice or communication shall be sufficiently given
if in writing and delivered in person or mailed by certified or
registered mail (return receipt requested) or sent by facsimile
transmission addressed as follows:
If to the Company:
[ ]
with a copy to:
[ ]
If to the Trustee:
[ ]
with a copy to:
[ ]
The Company or the Trustee by notice to the other may
designate an additional or different address for subsequent
notices or communications.
Any notice or communication mailed to a Holder shall be
mailed to him by first-class mail at his address as it appears on
the registration books of the Note Registrar and shall be
sufficiently given to him if so mailed within the time
prescribed.
Failure to mail, or any defect in, a notice or
communication to a Holder shall not affect the sufficiency
thereof with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 1503. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company and each Guarantor shall bind their respective successors
and permitted assigns, whether so expressed or not.
All covenants and agreements in the Security Documents
by each Guarantor shall bind its successors and assigns, whether
so expressed or not.
Section 1504. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto,
any Paying Agent, any Note Registrar and their successors
hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1505. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity or Maturity of any Note shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or of the Notes) payment of interest or principal (and
premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date or Redemption Date
or at the Stated Maturity or Maturity; provided that no interest
shall accrue for the period from and after such Interest Payment
Date, Redemption Date, Stated Maturity or Maturity, as the case
may be.
Section 1506. Exhibits and Schedules.
All of the Exhibits and Schedules attached to this
Indenture shall be deemed incorporated herein by reference and
made a part of this Indenture.
Section 1507. Governing Law.
(a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW. EACH
OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE HOLDERS
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN
IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE COMPANY, THE GUARANTORS, THE
TRUSTEE AND THE HOLDERS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE
HOLDERS IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR
ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
COMPANY OR ANY GUARANTOR IN ANY OTHER JURISDICTION.
(b) The Company and each Guarantor hereby irrevocably
appoints [ ] (the "Process Agent," which has consented
thereto) with offices on the date hereof at [ ], as Process
Agent to receive for and on behalf of the Company or such
Guarantor, as the case may be, service of process in the County
of New York relating to this Indenture and the Notes. SERVICE OF
PROCESS IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY OR
ANY GUARANTOR MAY BE MADE ON THE PROCESS AGENT BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER METHOD
OF SERVICE PROVIDED FOR UNDER APPLICABLE LAWS IN EFFECT IN THE
STATE OF NEW YORK, AND THE PROCESS AGENT IS HEREBY AUTHORIZED AND
DIRECTED TO ACCEPT SUCH SERVICE FOR AND ON BEHALF OF THE COMPANY
OR SUCH GUARANTOR, AS THE CASE MAY BE, AND TO ADMIT SERVICE WITH
RESPECT THERETO. SUCH SERVICE UPON THE PROCESS AGENT SHALL BE
DEEMED EFFECTIVE PERSONAL SERVICE ON THE COMPANY OR SUCH
GUARANTOR, AS THE CASE MAY BE, SUFFICIENT FOR PERSONAL
JURISDICTION, 10 DAYS AFTER MAILING, AND SHALL BE LEGAL AND
BINDING UPON THE COMPANY OR SUCH GUARANTOR, AS THE CASE MAY BE,
FOR ALL PURPOSES, NOTWITHSTANDING ANY FAILURE OF THE PROCESS
AGENT TO MAIL COPIES OF SUCH LEGAL PROCESS TO THE COMPANY OR SUCH
GUARANTOR, AS THE CASE MAY BE, OR ANY FAILURE ON THE PART OF THE
COMPANY OR SUCH GUARANTOR, AS THE CASE MAY BE, TO RECEIVE THE
SAME. The Company and each Guarantor confirms that it has
instructed the Process Agent to mail to such Person, upon service
of process being made on the Process Agent pursuant to this
Section, a copy of the summons and complaint or other legal
process served upon it, by registered mail, return receipt
requested, at such Person's address set forth in Schedule [ ],
or to such other address as such Person may notify the Process
Agent in writing. The Company and each Guarantor agrees that it
will at all times maintain a process agent to receive service of
process in the County of New York on its behalf with respect to
this Indenture and the Notes. If for any reason the Process
Agent or any successor thereto shall no longer serve as such
process agent or shall have changed its address without
notification thereof to the Trustee, the Company or such
Guarantor, as the case may be, immediately after gaining
knowledge thereof, irrevocably shall appoint a substitute process
agent acceptable to the Trustee in the County of New York and
advise the Trustee thereof.
Section 1508. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Company
Subsidiary. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
Section 1509. No Recourse Against Others.
A director, officer, employee, stockholder or
incorporator, as such, of the Company, any Guarantor or any
Company Subsidiary shall not have any liability for any
obligations of the Company, any Guarantor or any Company
Subsidiary under the Notes, this Indenture, the other Security
Documents or the Guarantee or for any claim based on, in respect
of or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such
liability.
Section 1510. Severability Clause.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1511. Duplicate Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of
them together shall represent the same instrument.
Section 1512. Table of Contents, Headings, Etc.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
HEMMETER ENTERPRISES, INC.
By:
Name:
Title:
BWBH, INC.
By:
Name:
Title:
BWCC, INC.
By:
Name:
Title:
MILLSITE 27, INC.
By:
Name:
Title:
SILVER HAWK CASINO, INC.
By:
Name:
Title:
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
Name:
Title: