_________________________________________________________________
AMERISTAR CASINOS, INC.,
SERIES A AND SERIES B
10 1/2% SENIOR SUBORDINATED NOTES DUE 2004
________________________________________
INDENTURE
Dated as of July 15, 1997
________________________________________
________________________________________
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
________________________________________
CROSS-REFERENCE TABLE
TIA Section Indenture
Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.08; 7.10
(b) 7.08; 7.10;
12.02
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06; 12.02
(d) 7.06
314(a) 4.07; 4.08;
12.02
(b) N.A.
(c)(1) 12.04
(c)(2) 12.04
(c)(3) N.A.
(d) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01(b)
(b) 7.05; 12.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.10
316(a) (last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.06
(c) 9.05
317(a)(1) 6.07
(a)(2) 6.08
(b) 2.04
318(a) 12.01
(c) 12.01
____________________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE 7
SECTION 1.01. Definitions. 7
SECTION 1.02. Incorporation by Reference of TIA. 28
SECTION 1.03. Rules of Construction. 28
ARTICLE TWO THE NOTES 29
SECTION 2.01. Form and Dating. 29
SECTION 2.02. Execution and Authentication; Aggregate
Principal Amount. 30
SECTION 2.03. Registrar and Paying Agent. 31
SECTION 2.04. Paying Agent To Hold Assets in Trust. 31
SECTION 2.05. Noteholder Lists. 32
SECTION 2.06. Transfer and Exchange. 32
SECTION 2.07. Replacement Notes. 33
SECTION 2.08. Outstanding Notes. 33
SECTION 2.09. Treasury Notes. 33
SECTION 2.10. Temporary Notes. 34
SECTION 2.11. Cancellation. 34
SECTION 2.12. Defaulted Interest. 34
SECTION 2.13. CUSIP Number. 34
SECTION 2.14. Deposit of Money. 35
SECTION 2.15. Restrictive Legends. 35
SECTION 2.16. Book-Entry Provisions for Global
Security. 36
SECTION 2.17. Special Transfer Provisions. 38
ARTICLE THREE REDEMPTION 40
SECTION 3.01. Notices to Trustee. 40
SECTION 3.02. Selection of Notes To Be Redeemed. 40
SECTION 3.03. Notice of Redemption. 40
SECTION 3.04. Effect of Notice of Redemption. 41
SECTION 3.05. Deposit of Redemption Price. 41
SECTION 3.06. Notes Redeemed in Part. 41
SECTION 3.07. Redemption. 42
SECTION 3.08. Mandatory Disposition or Redemption
Pursuant to Gaming Laws. 42
ARTICLE FOUR COVENANTS 43
SECTION 4.01. Payment of Notes. 43
SECTION 4.02. Maintenance of Office or Agency. 44
SECTION 4.03. Corporate Existence. 44
SECTION 4.04. Payment of Taxes and Other Claims. 44
SECTION 4.05. Maintenance of Properties and Insurance. 45
SECTION 4.06. Compliance Certificate; Notice of
Default. 45
SECTION 4.07. Compliance with Laws. 46
SECTION 4.08. SEC Reports. 46
SECTION 4.09. Waiver of Stay, Extension or Usury Laws. 47
SECTION 4.10. Limitation on Restricted Payments. 47
SECTION 4.11. Limitation on Transactions with
Affiliates. 49
SECTION 4.12. Limitation on Indebtedness. 49
SECTION 4.13. Limitation on Restrictions on
Distributions from Subsidiaries. 51
SECTION 4.14. Change of Control. 51
SECTION 4.15. Limitation on Sales of Assets and
Restricted Subsidiary Stock. 52
SECTION 4.16. Limitation on Issuance and Sale of
Capital Stock of Restricted
Subsidiaries. 54
SECTION 4.17. Limitation on Liens. 54
SECTION 4.18. Limitation of Layered Indebtedness. 54
SECTION 4.19. Limitation on Designations of Restricted
Subsidiaries and Unrestricted
Subsidiaries. 55
SECTION 4.20. Repurchase of Notes on Loss of Material
Gaming License. 56
SECTION 4.21. Limitation on Other Business Activities. 57
SECTION 4.22. Additional Subsidiary Guarantees. 57
SECTION 4.23. Payment for Consents. 57
SECTION 4.24. General Procedures for Purchase of
Notes. 57
ARTICLE FIVE SUCCESSOR CORPORATION 59
SECTION 5.01. Merger, Consolidation and Sale of
Assets. 59
ARTICLE SIX DEFAULT AND REMEDIES 60
SECTION 6.01. Events of Default. 60
SECTION 6.02. Acceleration. 62
SECTION 6.03. Other Remedies. 63
SECTION 6.04. Waiver of Past Defaults. 63
SECTION 6.05. Control by Majority. 63
SECTION 6.06. Rights of Holders To Receive Payment. 63
SECTION 6.07. Collection Suit by Trustee. 64
SECTION 6.08. Trustee May File Proofs of Claim. 64
SECTION 6.09. Priorities. 64
SECTION 6.10. Undertaking for Costs. 65
SECTION 6.11. Restoration of Rights and Remedies. 65
SECTION 6.12. Limitation on Suits. 65
ARTICLE SEVEN TRUSTEE 66
SECTION 7.01. Duties of Trustee. 66
SECTION 7.02. Rights of Trustee. 67
SECTION 7.03. Individual Rights of Trustee. 68
SECTION 7.04. Trustee's Disclaimer. 68
SECTION 7.05. Notice of Default. 68
SECTION 7.06. Reports by Trustee to Holders. 68
SECTION 7.07. Compensation and Indemnity. 68
SECTION 7.08. Replacement of Trustee. 69
SECTION 7.09. Successor Trustee by Merger, Etc. 70
SECTION 7.10. Eligibility; Disqualification. 70
SECTION 7.11. Preferential Collection of Claims
Against Company. 71
ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE 71
SECTION 8.01. Termination of the Company's
Obligations. 71
SECTION 8.02. Legal Defeasance and Covenant
Defeasance. 72
SECTION 8.03. Conditions to Legal Defeasance or
Covenant Defeasance. 73
SECTION 8.04. Application of Trust Money. 75
SECTION 8.05. Repayment to the Company. 75
SECTION 8.06. Reinstatement. 75
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS 76
SECTION 9.01. Without Consent of Holders. 76
SECTION 9.02. With Consent of Holders. 77
SECTION 9.03. Effect on Senior Indebtedness. 78
SECTION 9.04. Compliance with TIA. 78
SECTION 9.05. Revocation and Effect of Consents. 78
SECTION 9.06. Notation on or Exchange of Notes. 79
SECTION 9.07. Trustee To Sign Amendments, Etc. 79
ARTICLE TEN SUBORDINATION 79
SECTION 10.01.Agreement to Subordinate. 79
SECTION 10.02.Payment to Noteholders. 80
SECTION 10.03.Subrogation of Notes. 81
SECTION 10.04.Authorization by Securityholders. 82
SECTION 10.05.Notice to Trustee. 82
SECTION 10.06.Trustee's Relation to Senior Debt
Holders. 83
SECTION 10.07.No Impairment of Subordination. 84
ARTICLE ELEVEN SUBSIDIARY GUARANTEES 84
SECTION 11.01.Subsidiary Guarantees. 84
SECTION 11.02.Release Following Disposition of Capital
Stock or Designation as an Unrestricted
Subsidiary. 86
SECTION 11.03.Rights of Contribution. 86
SECTION 11.04.Limitation on Liability. 87
ARTICLE TWELVEMISCELLANEOUS 88
SECTION 12.01.TIA Controls. 88
SECTION 12.02.Notices. 88
SECTION 12.03.Communications by Holders with Other
Holders. 89
SECTION 12.04.Certificate and Opinion as to Conditions
Precedent. 89
SECTION 12.05.Statements Required in Certificate or
Opinion. 89
SECTION 12.06.Rules by Trustee, Paying Agent,
Registrar. 89
SECTION 12.07.Legal Holidays. 90
SECTION 12.08.Governing Law. 90
SECTION 12.09.No Adverse Interpretation of Other
Agreements. 90
SECTION 12.10.No Recourse Against Others. 90
SECTION 12.11.Successors. 90
SECTION 12.12.Duplicate Originals. 90
SECTION 12.13.Severability. 90
SECTION 12.14.Designation of Notes as Senior
Indebtedness Under Gem Notes. 91
SECTION 12.15.Liability of ACCBI. 91
Exhibit A - Form of Note A-1
Exhibit B - Form of Certificate To Be Delivered in
Connection with Transfers to Non-U.S Persons
Pursuant to Regulation S B-1
Exhibit C - Form of Certificate To Be Delivered in
Connection with Transfers to QIBs C-1
Exhibit D - Portions of Final Offering Memorandum D-1
Exhibit E - Form of Supplemental Indenture E-1
Exhibit F - Form of Subsidiary Guarantee F-1
Note: This Table of Contents shall not, for any purpose, be
deemed to be a part of the Indenture.
THIS INDENTURE, dated as of July 15, 1997 is entered
into by and among AMERISTAR CASINOS, INC., a Nevada corporation
(the "Company"), AMERISTAR CASINO LAS VEGAS, INC., a Nevada
corporation, AMERISTAR CASINO VICKSBURG, INC., a Mississippi
corporation, A.C. FOOD SERVICES, INC., a Nevada corporation, AC
HOTEL CORP., a Mississippi corporation, AMERISTAR CASINO COUNCIL
BLUFFS, INC., an Iowa corporation (collectively, the "Initial
Guarantors"), and FIRST TRUST NATIONAL ASSOCIATION, a national
banking corporation (the "Trustee").
The Company has duly authorized the creation of an issue of
10 1/2% Senior Subordinated Notes due 2004 Series A (the "Initial
Notes") and 10 1/2% Senior Subordinated Notes due 2004 Series B
(the "Exchange Notes," and together with the Initial Notes, the
"Notes"; all references to the Initial Notes, the Exchange Notes
and the Notes include the Subsidiary Guarantees endorsed thereon)
and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. All things necessary
to make the Notes, when duly issued and executed by the Company,
and authenticated and delivered hereunder, the valid obligations
of the Company, and to make this Indenture a valid and binding
agreement of the Company, have been done. Except for the receipt
by ACCBI of all requisite approvals under Gaming Laws of this
Indenture and the Subsidiary Guarantee made by ACCBI (as those
terms are defined herein), all things necessary to make each of
the Subsidiary Guarantees, when duly issued and executed by the
Initial Guarantor party thereto, and authenticated and delivered
hereunder, the valid obligations of such Initial Guarantor, and
to make this Indenture a valid and binding agreement of each
Initial Guarantor, have been done.
Each party hereto agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders
of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01.Definitions.
"ACCBI" means Ameristar Casino Council Bluffs, Inc., an Iowa
corporation, and its successors.
"ACFSI" means A.C. Food Services, Inc., a Nevada
corporation, and its successors.
"ACHC" means AC Hotel Corp., a Mississippi corporation, and
its successors.
"ACLVI" means Ameristar Casino Las Vegas, Inc., a Nevada
corporation, and its successors.
"ACVI" means Ameristar Casino Vicksburg, Inc., a Mississippi
corporation, and its successors.
"Additional Assets" means (i) any long-term property
or assets (other than Indebtedness and Capital Stock) in a
Related Business; (ii) Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such
Capital Stock by the Company or another Restricted Subsidiary; or
(iii) Capital Stock, not held by the Company or a Restricted
Subsidiary, constituting a minority interest in any Person that
at such time is a Restricted Subsidiary; provided, however, that,
in the case of clauses (ii) and (iii), such Restricted Subsidiary
is primarily engaged in a Related Business.
"Affiliate" of any specified Person means (i) any other
Person, directly or indirectly, controlling or controlled by or
under direct or indirect common control with such specified
Person or (ii) any other Person who is a director or officer (a)
of such specified Person, (b) of any subsidiary of such specified
Person or (c) of any Person described in clause (i) above. 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 securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing. For purposes of Section 4.11 only,
"Affiliate" shall also mean any beneficial owner of shares
representing 10% or more of the total voting power of the Voting
Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"Affiliate Transaction" is defined in Section 4.11.
"Agent" means any Registrar, Paying Agent, or co-Registrar.
"Agent Members" is defined in Section 2.16.
"Asset Disposition" means (i) the direct or indirect sale,
lease, conveyance or other disposition (each referred to for the
purposes of this definition as a "disposition") of any assets
(including, without limitation, by way of a Sale/Leaseback
Transaction) of the Company or any Restricted Subsidiary, and
(ii) the issue or sale by the Company or any of its Restricted
Subsidiaries of Capital Stock of any of the Company's Restricted
Subsidiaries, provided that Asset Disposition shall not include
(a) a disposition by a Restricted Subsidiary to the Company or by
the Company or a Restricted Subsidiary to a Specified Subsidiary
or a Guarantor, (b) a single disposition, or a series of related
dispositions of assets with an aggregate Fair Market Value and a
sale price of less than $2 million, (c) dispositions of inventory
or equipment (including gaming equipment) in the ordinary course
of business or pursuant to an established program for the
maintenance and upgrading of such equipment, (d) for purposes of
Section 4.15 only, a disposition subject to and in accordance
with the limitations set forth under Section 4.10, (e) a sale,
lease, conveyance or other disposition of all or substantially
all of the assets of the Company and its Restricted Subsidiaries,
which disposition will be governed by Section 4.14 and
Article Five, (f) any Event of Loss, or (g) any foreclosure sale
of FF&E pursuant to a Non-Recourse FF&E Financing.
"Attributable Indebtedness" means Indebtedness deemed to be
incurred in respect of a Sale/Leaseback Transaction and shall be,
at the date of determination, the greater of (i) the Fair
Market Value of the property subject to such Sale/Leaseback
Transaction (as determined in good faith by the Board of
Directors) or (ii) the present value (discounted at the actual
rate of interest implicit in such transaction, compounded
annually) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such
lease has been extended).
"Authenticating Agent" is defined in Section 2.02.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient
obtained by dividing (i) the sum of the products of the numbers
of years from the date of determination to the dates of each
successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred
Stock multiplied by the amount of such payment by (ii) the sum of
all such payments.
"Bank Indebtedness" means any and all amounts payable from
time to time under or in respect of the Revolving Credit
Facility, including principal, premium (if any), interest
(including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the
Company whether or not a claim for post-filing interest is
allowed in such proceedings), fees, charges, expenses,
reimbursement obligations, guarantees, indemnities and all other
amounts and other liabilities payable thereunder or in respect
thereof.
"Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. All
references to any Section of the Bankruptcy Law are to Title 11,
United States Code.
"Benefited Party" is defined in Section 11.01(d).
"Blockage Notice" is defined in Section 10.02(b).
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf
of such Board.
"Board Resolution" means a duly adopted resolution of the
Board of Directors in full force and effect at the time of
determination and certified as such by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee.
"Business Day" means each day that is not a Legal Holiday.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized
lease for financial reporting purposes in accordance with GAAP,
and the amount of Indebtedness represented by such obligation
shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be
the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all stock,
partnership interests, limited liability company interests,
shares, interests, rights to purchase, warrants, options,
participations
or other equivalents of or interests in (however
designated) equity of such Person, including any Preferred Stock,
but excluding any debt securities convertible or exchangeable
into such equity.
"Cede" is defined in Section 2.01.
"CEDEL" is defined in Section 2.01.
"Change of Control" means the occurrence of any of the
following events: (i) any "person" or "group" (as each such term
is used in Sections 13(d) and 14(d) of the Exchange Act) other
than the Permitted Holders or an underwriter engaged in a firm
commitment underwriting in connection with a public offering of
the Voting Stock of the Company, is or becomes the "beneficial
owner" (as that term is used in Rules 13d-3 and 13d-5 under the
Exchange Act, except that, for purposes of this definition, a
person shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 35% of the total
voting power of the Voting Stock of the Company, and at such time
the Permitted Holders together shall fail to "beneficially own,"
directly or indirectly, a greater percentage of the total voting
power of the Voting Stock of the Company than is "beneficially
owned" by such "person" or "group"; (ii) 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 (together with any new directors whose election or
appointment by such Board of Directors or whose nomination for
election by the stockholders of the Company was approved by an
affirmative vote of not less than a majority of the directors of
the Company then still in office who were either directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors then in office;
(iii) the Company consolidates with or merges into another Person
or any Person consolidates with or merges into the Company in any
such event pursuant to a transaction in which the outstanding
Voting Stock of the Company is reclassified into or exchanged for
cash, securities or other property, other than any such
transaction where (a) the outstanding Voting Stock of the Company
is reclassified into or exchanged for Voting Stock of the
surviving corporation that is Capital Stock and (b) the holders
of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority
of the Voting Stock of the surviving corporation immediately
after such transaction in substantially the same proportion as
before the transaction; (iv) the Company sells, leases or
otherwise transfers, directly or indirectly, all or substantially
all of its consolidated assets (including by way of sales of
assets of Subsidiaries) to any Person other than a Restricted
Subsidiary; or (v) the stockholders of the Company shall have
approved any plan of liquidation or dissolution of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" is defined in the preamble, and includes its
successors.
"Consolidated Cash Flow" for any period means the
Consolidated Net Income for such period, plus the following to
the extent deducted in calculating such Consolidated Net Income:
(i) income tax expense, (ii) Consolidated Fixed Charges, (iii)
depreciation expense and (iv) amortization expense, and (v)
preopening costs that are required by GAAP to be charged as an
expense prior to or upon opening, in each case for such
period and, in the case of clauses (i), (iii), (iv) and (v),
determined in accordance with GAAP.
"Consolidated Coverage Ratio" on any date of determination
(a "Transaction Date") means the ratio, on a pro forma basis, of
(a) Consolidated Cash Flow attributable to continuing operations
and businesses (exclusive of amounts attributable to assets
disposed of in Asset Dispositions and operations and businesses
discontinued or disposed of or subject to a License Loss) for the
period of the most recent four consecutive fiscal quarters ended
prior to the date of such determination for which internal
financial statements are available (the "Reference Period"), to
(b) Consolidated Fixed Charges for the Reference Period;
provided, that for purposes of such calculation, (i) Investments
in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of assets, which
constitute all or substantially all assets of an operating unit
of a business, and which acquisition occurred during the
Reference Period or subsequent to the Reference Period and on or
prior to the Transaction Date, shall be assumed to have occurred
on the first day of the Reference Period, (ii) transactions
(including, without limitation, the designation of an
Unrestricted Subsidiary or a Restricted Subsidiary) giving rise
to the need to calculate the Consolidated Coverage Ratio shall be
assumed to have occurred on the first day of the Reference
Period, (iii) the incurrence of any Indebtedness or issuance of
any Disqualified Stock during the Reference Period or subsequent
to the Reference Period and on or prior to the Transaction Date
(and the application of the proceeds therefrom to the extent used
to refinance or retire other Indebtedness) shall be assumed to
have occurred on the first day of such Reference Period, (iv)
Indebtedness of any Person that becomes a Restricted Subsidiary
shall be deemed to have been Incurred on the first day of such
Reference Period, and (v) Consolidated Fixed Charges attributable
to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate
shall be computed as if the rate in effect on the Transaction
Date had been the applicable rate for the entire period, unless
the Company or any of its Restricted Subsidiaries is a party to
an Interest Rate Protection Agreement (which shall remain in
effect for the 12-month period immediately following the
Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether
higher or lower) shall be used.
"Consolidated Fixed Charges" means, for any period, the
total interest expense of the Company and its Restricted
Subsidiaries determined in accordance with GAAP, plus, to the
extent not included in such interest expense, (i) interest
expense attributable to capital leases, (ii) amortization of debt
discount and debt issuance cost, (iii) capitalized interest, (iv)
non-cash interest expense, (v) accrued interest, (vi)
commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing,
(vii) interest attributable to the Indebtedness of any other
Person for which the Company or any Restricted Subsidiary is
responsible or liable as obligor, guarantor or otherwise
(including Indebtedness Guaranteed pursuant to Guarantees) or
secured by a Lien on assets of the Company or one of its
Restricted Subsidiaries (whether or not such Indebtedness or Lien
is called upon), (viii) net costs associated with Interest Rate
Protection Agreements (including amortization of fees), (ix) the
interest portion of any deferred obligation, (x) Preferred Stock
dividends in respect of all Preferred Stock of the Company or its
Restricted Subsidiaries and Redeemable Stock of the Company held
by Persons other than the Company or a Restricted Subsidiary
multiplied by a fraction, (i) the numerator of which is one and
(ii) the denominator of which is one minus the then current
combined federal,
state and local statutory tax rate of the Company and its
Restricted Subsidiaries, (xi) fees payable in connection with
financings to the extent not included in (ii) above, including
commitment, availability and similar fees and (xii) the cash
contributions to any employee stock ownership plan or similar
trust to the extent such contributions are used by such plan or
trust to pay interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by such plan or
trust; provided, however, that there shall be excluded therefrom
any such interest expense of any Unrestricted Subsidiary to the
extent related to Indebtedness that is not Guaranteed or paid by
the Company or any Restricted Subsidiary and is not secured by a
Lien on assets of the Company or one of its Restricted
Subsidiaries (whether or not such Guarantee or Lien is called
upon).
"Consolidated Net Income" means, for any period, the net
income (loss) of the Company and its Subsidiaries determined in
accordance with GAAP; provided, however, that there shall not be
included in such Consolidated Net Income (i) any net income
(loss) of any Person if such Person is not a Restricted
Subsidiary, except that (a) subject to the limitations contained
in (iv) below, the Company's equity in the net income of any such
Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by
such Person during such period to the Company or a Restricted
Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause (iii) below)
and (b) the Company's equity in a net loss of any such Person
(other than an Unrestricted Subsidiary) for such period shall be
included in determining such Consolidated Net Income, (ii) any
net income (loss) of any Person acquired by the Company or a
Subsidiary in a pooling of interests transaction for any period
prior to the date of such acquisition, (iii) any net income
(loss) of any Restricted Subsidiary if such Subsidiary is subject
to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that
(a) subject to the limitations contained in (iv) below, the
Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash that could have
been distributed by such Restricted Subsidiary during such period
to the Company or another Restricted Subsidiary as a dividend
(subject, in the case of a dividend to another Restricted
Subsidiary, to the limitation contained in this clause) and (b)
the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income, (iv) any gain (but not loss) realized
upon the sale or other disposition of any property, plant or
equipment of the Company or its consolidated Subsidiaries
(including pursuant to any Sale/Leaseback Transaction) which is
not sold or otherwise disposed of in the ordinary course of
business and any gain (but not loss) realized upon the sale or
other disposition of any Capital Stock of any Person, (v) any
extraordinary gain or loss, (vi) write-offs or charges not to
exceed $700,000 attributable to the demolition of the 54 room
hotel owned by ACVI in Vicksburg, and (vii) the cumulative effect
of a change in accounting principles.
"Consolidated Net Worth" means the total of the amounts
shown on the balance sheet of the Company and its consolidated
Subsidiaries, determined on a consolidated basis in accordance
with GAAP, as of the end of the most recent fiscal quarter of the
Company for which internal financial statements are then
available, prior to the taking of any action for the purpose of
which the determination is being made, as (i) the par or stated
value of all outstanding Capital Stock of
the Company plus (ii) paid-in capital or capital surplus
relating to such Capital Stock plus (iii) any retained earnings
or earned surplus less (a) any accumulated deficit and (b) any
amounts attributable to Disqualified Stock.
"Corporate Trust Office" means the office of the Trustee
located at the address specified in Section 12.02 or such other
office as to which the Trustee may give notice to the Company.
"Covenant Defeasance" is defined in Section 8.02(c).
"CPI" means Cactus Pete's, Inc., a Nevada corporation, and
its successors.
"Custodian" means any receiver, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy
Law.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Depository" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified
in Section 2.03 as the Depository with respect to the Notes,
until a successor shall have been appointed and become such
pursuant to the terms hereof, and, thereafter, "Depository" shall
mean or include such successor.
"Designated Senior Indebtedness" means (i) the Bank
Indebtedness and (ii) any other Senior Indebtedness that (a) has
an outstanding principal amount of at least $25 million
(including the amount of all unpaid reimbursement obligations
pursuant to letters of credit and the maximum principal amount
available to be drawn under letters of credit, assuming that all
conditions precedent to such drawing could be satisfied), and (b)
has been designated as "Designated Senior Indebtedness" for
purposes hereof in an Officers' Certificate received by the
Trustee.
"Disqualified Stock" of a Person means Redeemable Stock of
such Person as to which the maturity, mandatory redemption,
conversion or exchange or redemption at the option of the holder
thereof occurs, or may occur, on or prior to the first
anniversary of the Stated Maturity of the Notes.
"Euroclear" is defined in Section 2.01.
"Event of Default" is defined in Section 6.01.
"Event of Loss" means, with respect to any property or asset
of the Company or any Restricted Subsidiary, any (i) loss,
destruction or damage of such property or asset; or (ii) any
condemnation, seizure or taking, by exercise of the power of
eminent domain or otherwise, of such property or asset, or
confiscation or requisition of the use of such property or asset.
"Excess Proceeds Offer" is defined in Section 4.15.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Notes" is defined in the preamble and
include the Subsidiary Guarantees endorsed thereon.
"Fair Market Value" means, with respect to any asset or
property, the price which would be negotiated in an arms' 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.
"FF&E" means furniture, fixtures or equipment used directly
in the operation of any Gaming Establishment owned or leased by
the Company or its Restricted Subsidiaries.
"Funding Guarantor" is defined in Section 11.03(a).
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date,
including those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant
segment of the accounting profession.
"Gaming Authority" means any of the Nevada Gaming
Commission, the Nevada State Gaming Control Board, the
Mississippi Gaming Commission, the Mississippi State Tax
Commission, the Iowa Racing and Gaming Commission or any agency
(including, without limitation, any agency established by a
federally-recognized Indian tribe to regulate gaming on such
tribe's reservation) which has, or may at any time after the
Issue Date have, jurisdiction over the gaming activities of the
Company or any of its Subsidiaries or any successor to such
authority.
"Gaming Establishment" means any gaming establishment and
all other property, assets or operations directly ancillary
thereto or used in connection therewith, including any building,
restaurant, lounge, hotel, vessel, barge, ship, theater, parking
facilities, retail shops, land, child care centers,
retail/wholesale food and beverage distribution facilities, gas
stations, transportation services, swimming pools, tennis courts,
personal care services, golf courses and other leisure,
recreation and entertainment facilities and equipment.
"Gaming Laws" means the Legal Requirements of a jurisdiction
or jurisdictions to which the Company or any of its Subsidiaries
is, or may at any time after the Issue Date, be subject as a
result of the conduct or proposed conduct of gaming operations.
"Gaming License" means any license, qualification, permit,
franchise or other authorization from any Governmental Authority
required on the date hereof or at any time thereafter to own,
lease, operate or otherwise conduct the gaming business of the
Company and its Subsidiaries, including all licenses, findings of
suitability and registrations granted under Gaming Laws.
"Gem Notes" means those certain subordinated promissory
notes referred to herein as the "Gem Notes," made by the Company
in favor of certain Persons, as in effect on the Issue Date, and
any Refinancing Indebtedness with respect thereto; provided that
(i) the aggregate outstanding principal amount of such notes,
together with the principal amount of any such
Refinancing Indebtedness, does not exceed the sum of (a)
the aggregate initial principal amount thereof described under
"Description of Existing Indebtedness" in the Offering Memorandum
plus (b) any accrued and unpaid interest accrued at the rate set
forth in such notes on the Issue Date that is added to principal,
(ii) the other material terms and conditions of such notes or any
such Refinancing Indebtedness (including the subordination and
enforcement provisions) remain in full force and effect and
conform in all material respects to the description of the "Gem
Notes" under "Description of Existing Indebtedness" in the
Offering Memorandum and (iii) any such note and any such
Refinancing Indebtedness shall cease to constitute a "Gem Note"
at any time when the aggregate amount of "Senior Indebtedness"
(as defined in the Gem Notes) of the Company exceeds $250 million
or such higher amount of "Senior Indebtedness" as is then
permitted under all of the Gem Notes.
"Global Note" is defined in Section 2.01 and includes the
Subsidiary Guarantees endorsed thereon.
"Guarantee" means any obligation, contingent or otherwise,
of any Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of
such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor" means (i) any Initial Guarantor and (ii) any
other Subsidiary that, pursuant to Section 4.22, has executed and
delivered an indenture supplemental hereto guaranteeing the
Obligations of the Company under the Notes, and their respective
successors, in each case unless and until such Person is released
from its Subsidiary Guarantee in accordance with the applicable
provisions hereof. Notwithstanding the foregoing, for purposes of
Section 4.12, neither CPI nor ACCBI shall be considered a
Guarantor, unless it becomes a Guarantor, or its
previously-executed Guarantee is approved under applicable Gaming
Laws, as the case may be, within 9 months after the Issue Date.
"Holder" or "Noteholder" means a Person in whose name a Note
is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or
Capital Stock of a Person existing at the time such person
becomes a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be incurred by such
Subsidiary at the time it becomes a Subsidiary. The terms
"Incurred," "Incurrence" and "Incurring" shall each have a
correlative meaning.
"Indebtedness" means, with respect to any Person on
any date of determination (without duplication),
(i) the principal of and premium (if any) in respect
of indebtedness of such Person for borrowed money;
(ii) the principal of and premium (if any) in respect
of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations and
Attributable Indebtedness of such Person;
(iv) all obligations of such Person to pay the deferred
and unpaid purchase price of property or services (except
Trade Payables), which purchase price is due more than six
months after the date of placing such property in service or
taking delivery and title thereto or the completion of such
services;
(v) all obligations of such Person in respect of
letters of credit, bankers' acceptances or other similar
instruments or credit transactions (including reimbursement
obligations with respect thereto);
(vi) the amount of all obligations of such Person with
respect to the redemption, repayment or other repurchase of
any Disqualified Stock and, with respect to the Company, any
Disqualified Stock or Preferred Stock of any Restricted
Subsidiary (excluding, in each case, any accrued dividends);
(vii) all Indebtedness of other Persons secured by
a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; provided, however,
that the amount of such Indebtedness shall be the lesser of
(a) the Fair Market Value of such asset at such date of
determination and (b) the amount of such Indebtedness of
such other Persons;
(viii) all Indebtedness of other Persons to the
extent Guaranteed by such Person; and
(ix) to the extent not otherwise included in this
definition, obligations in respect of Interest Rate
Protection Agreements.
The amount of Indebtedness of any Person at any date shall
be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability, upon
the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Independent Director" means a director of the Company other
than a director who is a party, or who is a director, officer,
employee or Affiliate (or is related by blood or marriage to any
such person) of a party, to the transaction in question,
and who is, in fact, independent in respect of such transaction.
"Initial Guarantors" is defined in the preamble and includes
their respective successors.
"Initial Notes" is defined in the preamble and includes the
Subsidiary Guarantees endorsed thereon.
"Interest Payment Date" means February 1 and August 1 of
each year, commencing February 1, 1998.
"Interest Rate Protection Agreement" means, in respect of a
Person, any interest rate swap agreement, interest rate option
agreement, interest rate cap agreement, interest rate collar
agreement, interest rate floor agreement or other similar
agreement or arrangement.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary
course of business that are recorded as accounts receivable on
the balance sheet of the Person making such advances) or other
extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer
of cash or other property to others or any payment for property
or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar
instruments issued by, such Person. Upon a redesignation of any
Subsidiary previously designated as an Unrestricted Subsidiary as
a Restricted Subsidiary, the Company shall be deemed to have a
continuing Investment in an Unrestricted Subsidiary in an amount
equal to the excess, if any, of (i) the net book value of all
outstanding Investments of the Company and any of its Restricted
Subsidiaries in such redesignated Subsidiary at the time of such
redesignation over (ii) the Fair Market Value of such Investments
at the time of such redesignation.
"Issue Date" means the date of original issuance of the
Initial Notes pursuant hereto.
"Legal Defeasance" is defined in Section 8.02(b).
"Legal Holiday" is defined in Section 12.07.
"Legal Requirements" means all laws, statutes and ordinances
and all rules, orders, rulings, regulations, directives, decrees,
injunctions and requirements of all governmental authorities,
that are now or may hereafter be in existence, and that may be
applicable to the Company or any Subsidiary or Affiliate thereof
or the Trustee (including building codes, zoning and
environmental laws, regulations and ordinances), as modified by
any variances, special use permits, waivers, exceptions or other
exemptions which may from time to time be applicable.
"License Loss" is defined in Section 4.20.
"License Loss Amount" is defined in Section 4.20.
"License Loss Offer" is defined in Section 4.20.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any
conditional sale or other title retention agreement or lease in
the nature thereof) or any Sale/Leaseback Transaction.
"Liquidated Damages" means all liquidated damages owing
pursuant to Section 4 of the Registration Rights Agreement.
"Maturity Date" means August 1, 2004.
"Maximum Net Worth" is defined in Section 11.03(b).
"Net Available Cash" from an Asset Disposition or Event of
Loss means payments of cash or cash equivalents received
(including any cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or
otherwise, but only as and when received, but excluding any
consideration received in the form of assumption by the acquiring
person of Senior Indebtedness of the Company or Indebtedness of
any Restricted Subsidiary) therefrom, in each case net of (i) all
legal, title and recording tax expenses, commissions and other
fees and expenses incurred, and all Federal, state, provincial,
foreign and local taxes required to be paid or accrued as a
liability under GAAP (after taking into account any available tax
credits or deductions and any tax sharing arrangements), as a
consequence of such Asset Disposition or Event of Loss, (ii) all
payments made on any Indebtedness which is secured by any assets
subject to such Asset Disposition, in accordance with the terms
of any Lien upon such assets permitted hereunder, or any
Indebtedness (other than Subordinated Obligations) which must by
applicable law be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments required
to be made to minority interest holders in Subsidiaries or joint
ventures as a result of such Asset Disposition or Event of Loss
and (iv) the deduction of appropriate amounts to be provided by
the seller as a reserve, in accordance with GAAP, against any
liabilities associated with the assets disposed of in such Asset
Disposition and retained by the Company or any Restricted
Subsidiary after such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale
net of attorneys' fees, accountants' fees, underwriters or
placement agents' fees, discounts or commissions and brokerage,
consultant and other fees actually incurred in connection with
such issuance or sale and net of taxes paid or payable as a
result thereof.
"Net Worth" is defined in Section 11.03(b).
"Non-Payment Default" is defined in Section 10.02(b).
"Non-Recourse FF&E Financing" means Indebtedness of the
Company or any Restricted Subsidiary (i) that is Incurred to
finance the acquisition or lease after the Issue Date of newly
acquired or leased FF&E used in the operation of any Gaming
Establishment owned or leased by the Company or its Restricted
Subsidiaries, (ii) the amount of which, together with any
Refinancing Indebtedness with respect thereto, does not exceed
100% of the lesser of the cost or Fair Market Value of the FF&E
so purchased or leased at the time such Indebtedness is incurred,
and (iii) that is secured by a Permitted Lien on such FF&E
but no other assets; (iv) that provides that no personal recourse
shall be had against the Company or any Restricted Subsidiary for
the payment of such Indebtedness, enforcement being limited to
such FF&E, (v) as to which neither the Company nor any of its
Restricted Subsidiaries (other than the party obligated with
respect thereto) provides any credit support or is liable, under
a Guarantee or otherwise, or constitutes the lender; (vi) as to
which no default on such Indebtedness (including any rights that
the holders thereof may have to take enforcement action against
an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness (other than
the Notes) of the Company or any of its Restricted Subsidiaries
to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated
maturity; provided, however, that any event that results in any
such Indebtedness ceasing to meet any of the foregoing conditions
shall be deemed to constitute the Incurrence of Indebtedness by
the party obligated with respect thereto.
"Non-Recourse Indebtedness" means Indebtedness of a Person
to the extent that under the terms thereof or pursuant to
applicable law (i) neither the Company nor any of its Restricted
Subsidiaries provides any credit support or is liable thereon,
under a Guarantee or otherwise, or constitutes the lender; (ii)
no default with respect to such Indebtedness (including any
rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other
Indebtedness (other than the Notes) of the Company or any of its
Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity; and (iii) the lenders
thereunder will not have any recourse to the stock or assets of
the Company or any of its Restricted Subsidiaries and have been
notified in writing to that effect.
"Non-U.S. Person" means a Person who is not a U.S. Person,
as defined in Rule 902 of Regulation S.
"Notes" is defined in the preamble and includes the
Subsidiary Guarantees endorsed thereon.
"Obligations" means any principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any
Indebtedness.
"Obligor" means any of the Company and the Guarantors.
"Offering Memorandum" means the Company's Offering
Memorandum with respect to the Notes, dated July 10, 1997,
certain portions of which are attached hereto as Exhibit D.
"Officer" means the Chairman of the Board, the President,
any Vice President, the Treasurer or the Secretary of the
relevant Obligor.
"Officers' Certificate" means a certificate, in compliance
with Sections 12.04 and 12.05, signed by two Officers at least
one of whom shall be the principal executive officer, principal
accounting officer or principal financial officer of the relevant
Obligor.
"Opinion of Counsel" means a written opinion from
legal counsel who is acceptable to the Trustee, in compliance
with Sections 12.04 and 12.05. The counsel may be an employee of
or counsel to the Company or the Trustee.
"pari passu," as applied to the ranking of any Indebtedness
of a Person in relation to other Indebtedness of such Person,
means that each such Indebtedness either (i) is not subordinate
in right of payment to any Indebtedness or (ii) is subordinate in
right of payment to the same Indebtedness as is the other, and is
so subordinate to the same extent, and is not subordinate in
right of payment to each other or to any Indebtedness as to which
the other is not so subordinate.
"pay the Notes" and "payment of the Notes" are defined in
Section 10.02(a).
"Paying Agent" is defined in Section 2.03.
"Payment Blockage Notice" is defined in Section 10.02(b).
"Permitted Holders" means Craig H. Neilsen, his estate,
spouse, ancestors and their spouses and lineal descendants and
their spouses, the executors, administrators, and legal
representatives of any of the foregoing and the trustee of any
bona fide trust of which any of the foregoing are the sole
beneficiaries, or any Person of which the foregoing "beneficially
owns" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act) Voting Stock representing at least a majority of the total
voting power of all classes of Capital Stock of such Person.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (i) a Guarantor or a Person which
will, upon the making of such Investment, become a Guarantor;
provided, however, that the primary business of such Subsidiary
is a Related Business; (ii) another Person if as a result of such
Investment such other Person is merged or consolidated with or
into, or transfers or conveys all or substantially all of its
assets to, the Company or a Guarantor; provided, however, that
such Person's primary business is a Related Business; (iii)
Temporary Cash Investments; (iv) receivables owing to the Company
or any Restricted Subsidiary, if created or acquired in the
ordinary course of business and payable or dischargeable in
accordance with customary trade terms; provided, however, that
such trade terms may include such concessionary trade terms as
the Company or any such Restricted Subsidiary deems reasonable
under the circumstances; (v) payroll, travel and similar advances
to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business; (vi) loans or
advances to employees made in the ordinary course of business
consistent with past practices of the Company or such Restricted
Subsidiary, as the case may be (other than loans or advances to
finance the purchase by such employees of Capital Stock of the
Company or any Subsidiary); (vii) stock, obligations or
securities received in settlement of (or pursuant to any
bankruptcy proceeding involving the obligor under) debts created
in the ordinary course of business and owing to the Company or
any Restricted Subsidiary or in satisfaction of judgments; and
(viii) Investments received as permitted by clause (ii) of the
first paragraph of Section 4.15.
"Permitted Junior Securities" means Capital Stock or any
debt securities that are subordinated to Senior Indebtedness to
at least the same extent as the Notes.
"Permitted Liens" means, with respect to any Person,
(a) pledges or deposits by such Person under workmen's
compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness)
or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of
cash or United States government bonds to secure surety or appeal
bonds to which such Person is a party, or deposits as security
for contested taxes or import duties or for the payment of rent,
in each case Incurred in the ordinary course of business; (b)
Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings, or other
Liens arising out of judgments or awards against such Person with
respect to which such Person shall then be prosecuting an appeal
or other proceedings for review; (c) Liens for property taxes not
yet due or payable or subject to penalties for non-payment and
which are being contested in good faith by appropriate
proceedings; (d) Liens in favor of issuers of surety bonds or
letters of credit issued pursuant to the request of and for the
account of such Person in the ordinary course of its business;
(e) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-
way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning or other restrictions as to the
use of real property or Liens incidental to the conduct of the
business of such Person or to the ownership of its properties
which were not Incurred in connection with Indebtedness and which
do not in the aggregate materially adversely affect the value of
said properties or materially impair their use in the operation
of the business of such Person; (f) Liens existing on the Issue
Date; (g) Liens on property or shares of stock of a Person at the
time such Person becomes a Subsidiary; provided, however, that
any such Lien may not extend to any other property owned by the
Company or any Restricted Subsidiary; provided further, however,
that such Lien was not incurred in anticipation of or in
connection with the transaction or series of transactions
pursuant to which such Person became a Subsidiary of the Company
or any Restricted Subsidiary; (h) Liens on property at the time
the Company or a Subsidiary acquired the property, including any
acquisition by means of a merger or consolidation with or into
the Company or any Restricted Subsidiary; provided, however, that
any such Lien may not extend to any other property owned by the
Company or any Restricted Subsidiary; (i) Liens securing an
Interest Rate Protection Agreement so long as the related
Indebtedness is permitted to be Incurred hereunder, (j) Liens
securing Non-Recourse FF&E Financings or Recourse FF&E
Financings, in each case on the FF&E financed thereby, and Liens
securing the Vicksburg Note, meeting the conditions of the
definition of the Vicksburg Note; (k) Liens to secure any
refinancing, refunding, extension, renewal or replacement (or
successive refinancings, refundings, extensions, renewals or
replacements) as a whole, or in part, of any Indebtedness secured
by any Lien referred to in the foregoing clauses (f), (g), (h)
and (j); provided, however, that (x) such new Lien shall be
limited to all or part of the same property that secured the
original Lien (plus improvements on such property) and (y) the
Indebtedness secured by such Lien at such time is not increased
to any amount greater than the sum of (A) the outstanding
principal amount or, if greater, committed amount of the
Indebtedness described under the foregoing clauses (f), (g), (h)
or (j) at the time the original Lien became a Permitted Lien
hereunder and (B) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement; (l) leases or
subleases to third parties that do not materially interfere with
the operation of a Related Business by the Company and its
Restricted Subsidiaries; (m) Liens arising by reason of a
judgment or decree for
the payment of money to the extent not otherwise resulting
in an Event of Default; (n) Liens in favor of the Company or any
Guarantor; (o) Liens securing Senior Indebtedness; and (p) Liens
incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations
that do not exceed $2 million in the aggregate at any one time
outstanding and that (a) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit (other
than Trade Payables) and (b) do not in the aggregate materially
detract from the value of the property or materially impair the
use thereof in the operation of a Related Business by the Company
or such Restricted Subsidiary.
"Person" means any individual, corporation, partnership,
joint venture, association, Joint-stock company, trust,
unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Physical Note" is defined in Section 2.01 and includes the
Subsidiary Guarantees endorsed thereon.
"Preferred Stock," as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends, or
as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such corporation, over
shares of Capital Stock of any other class of such corporation.
"principal" of a Note means the principal of the Note plus
the premium, if any, payable on the Note which is due or overdue
or is to become due at the relevant time.
"Private Placement Legend" is defined in Section 2.15(a).
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms hereof, a calculation
in accordance with Article 11 of Regulation S-X promulgated under
the Securities Act (to the extent applicable), or any succeeding
provision, as interpreted in good faith by the Board of Directors
after consultation with the independent certified public
accountants of the Company, or otherwise a calculation made in
good faith by the Board of Directors after consultation with the
independent certified public accountants of the Company, as the
case may be.
"Public Equity Offering" means an underwritten public
offering of common stock of the Company meeting the registration
requirements of the Securities Act (other than a public offering
registered on Form S-8 under the Securities Act or under any
successor form) that results in Net Cash Proceeds of at least $20
million to the Company.
"Purchase Date", when used with respect to any Note to be
purchased pursuant to Sections 4.14, 4.15 or 4.20, means the date
on which such Note is required to be purchased pursuant to such
Section.
"Purchase Price", when used with respect to any Note to be
purchased pursuant to Sections 4.14, 4.15 or 4.20, means the
price fixed for such purchase pursuant to such Section.
"Qualified Institutional Buyer" or "QIB" has the
meaning specified in Rule 144A under the Securities Act.
"Record Date" means a record date set forth in the Notes.
"Recourse FF&E Financing" means Indebtedness of the Company
or any of its Restricted Subsidiaries (other than Non-Recourse
FF&E Financing) that is Incurred to finance the acquisition or
lease after the Issue Date of newly acquired or leased FF&E used
in the operation of any Gaming Establishment owned or leased by
the Company or its Restricted Subsidiaries and secured by a Lien
on such FF&E, provided that such Indebtedness does not exceed the
lesser of cost or Fair Market Value of such FF&E at the time of
the acquisition or lease of such FF&E.
"Redeemable Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable) or
upon the happening of any event (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness (other than
Preferred Stock) or Disqualified Stock or (iii) is redeemable at
the option of the holder thereof, in whole or in part.
"Redemption Date" when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to
this Indenture and the Notes.
"Redemption Price" when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to
this Indenture and the Notes.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances, replaces, renews, restates, repays or extends
(including pursuant to any defeasance or discharge mechanism)
(collectively, "refinances," and "refinanced" shall have a
correlative meaning) any Indebtedness existing on the Issue Date
or Incurred in compliance herewith (including, subject to the
proviso below, Indebtedness of the Company that refinances
Indebtedness of any Restricted Subsidiary and Indebtedness of any
Restricted Subsidiary that refinances Indebtedness of another
Restricted Subsidiary) including Indebtedness that refinances
Refinancing Indebtedness; provided, however, that (i) the
Refinancing Indebtedness has a Stated Maturity no earlier than
the Stated Maturity of the Indebtedness being refinanced, (ii)
the Refinancing Indebtedness has an Average Life at the time such
Refinancing Indebtedness is Incurred that is equal to or greater
than the Average Life of the Indebtedness being refinanced, (iii)
such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the
aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the
Indebtedness being refinanced, (iv) if the Indebtedness of the
Company or a Restricted Subsidiary being refinanced is
subordinated to other Indebtedness of the Company or a Restricted
Subsidiary in any respect, such Refinancing Indebtedness is
subordinated at least to the same extent (except that up to $22
million, less the aggregate amount of principal payments made on
the Gem Notes, of Indebtedness Incurred to refinance the Gem
Notes may rank pari passu with the Notes, if (a) the terms of
such Indebtedness (except for the interest rate) are
substantially similar to those of the Notes and (b) after giving
pro forma effect to the Incurrence of such Indebtedness, the
Consolidated Coverage
Ratio of the Company is at least 2.25:1 and no Default or
Event of Default shall exist) and (v) if the Indebtedness of the
Company or a Restricted Subsidiary being refinanced is a Non-
Recourse FF&E Financing or the Vicksburg Note, such Refinancing
Indebtedness shall meet the conditions set forth in the
definition of "Non-Recourse FF&E Financing" (other than clause
(i) thereof) or "Vicksburg Note," as applicable; provided
further, however, that Refinancing Indebtedness shall not include
(a) Indebtedness of a Subsidiary that refinances Indebtedness of
the Company, (b) Indebtedness of a Restricted Subsidiary that is
not a Guarantor that refinances Indebtedness of a Guarantor, or
(c) Indebtedness of the Company or a Restricted Subsidiary that
refinances Indebtedness of an Unrestricted Subsidiary.
"Registrar" is defined in Section 2.03.
"Registration Rights Agreement" means that certain
Registration Rights Agreement, dated as of July 15, 1997, by and
among the Company and the other parties named on the signature
pages thereto, as amended from time to time.
"Regulation S Global Notes" is defined in Section 2.01 and
includes the Subsidiary Guarantees endorsed thereon.
"Regulation S Permanent Global Notes" is defined in Section
2.01 and includes the Subsidiary Guarantees endorsed thereon.
"Regulation S Temporary Global Notes" is defined in Section
2.01 and includes the Subsidiary Guarantees endorsed thereon.
"Related Business" means the business conducted (or proposed
to be conducted) as of the Issue Date by the Company and its
Subsidiaries in connection with any Gaming Establishment and any
and all reasonably related businesses necessary for, in support
or anticipation of and ancillary to or in preparation for, such
business including, without limitation, the development,
expansion or operation of any Gaming Establishment (including any
land-based, dockside, riverboat or other type of casino), owned,
or to be owned, leased or managed by the Company or one of its
Restricted Subsidiaries.
"Remaining Guarantor" is defined in Section 11.03(a).
"Representative" means the trustee, agent or representative
(if any) for an issue of Senior Indebtedness.
"Repurchase Offer" is defined in Section 4.24.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Global Notes" is defined in Section 2.01 and
includes the Subsidiary Guarantees endorsed thereon.
"Restricted Payment" has the meaning set forth in
Section 4.10.
"Restricted Period" is defined in Section 2.01.
"Restricted Security" has the meaning assigned to such term
in Rule 144(a)(3) under the Securities Act; provided that the
Trustee shall be entitled to request and conclusively rely on an
Opinion of Counsel with respect to whether any Note constitutes a
Restricted Security.
"Restricted Subsidiary" means (i) any Specified Subsidiary
and (ii) any other Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"Revolving Credit Facility" means the $125 million Revolving
Credit Facility pursuant to a Credit Agreement dated as of
July 8, 1997, as amended from time to time, among the Company,
certain of the Company's Subsidiaries, the Lenders named therein
and Wells Fargo Bank N.A., as agent, arranger and swingline
lender, and any related documents or instruments and any
extensions, revisions, refinancings or replacements thereof by a
bank or a syndicate of institutional lenders (including any
increase in the commitments thereunder to the extent otherwise
permissible under this Indenture).
"Sale/Leaseback Transaction" means an arrangement relating
to property now owned or hereafter acquired whereby the Company
or a Restricted Subsidiary transfers such property to a Person
and the Company or a Restricted Subsidiary leases it from such
Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Senior Indebtedness" means, with respect to the Company or
any Guarantor, (i) the Bank Indebtedness of such Person and (ii)
all other Indebtedness of such Person (other than Disqualified
Stock), including interest thereon, whether outstanding on the
date of the Indenture or thereafter issued, unless in the
instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such obligations are
not superior in right of payment to the Notes or the Subsidiary
Guarantee of such Guarantor, as applicable; provided, however,
that Senior Indebtedness shall not include (a) any obligation of
the Company to any Subsidiary or any Affiliate, (b) any liability
for Federal, state, local or other taxes owed or owing by the
Company or any Guarantor, (c) any Trade Payables or other
liability to trade creditors arising in the ordinary course of
business (including Guarantees thereof or instruments evidencing
such liabilities), (d) any Indebtedness, Guarantee or obligation
of the Company or any Guarantor that is subordinate or junior in
any respect to any other Indebtedness, Guarantee or obligation of
such Person, including any Senior Subordinated Indebtedness and
any Subordinated Obligations, (e) any obligations with respect to
any Capital Stock, (f) any Indebtedness Incurred in violation of
the Indenture, or (g) any Indebtedness Incurred after the Issue
Date in excess of the $250 million limit (or such higher limit as
then in effect under all Gem Notes) on "Senior Indebtedness"
under, and as defined in, the Gem Notes.
"Senior Subordinated Indebtedness" means the Notes and any
other Indebtedness of the Company that specifically provides that
such Indebtedness is to rank pari passu with the Notes
and is not subordinated by its terms to any Indebtedness or
other obligation of the Company that is not Senior Indebtedness.
"Specified Subsidiary" means CPI, ACCBI, ACLVI, ACVI, ACHC
and any other existing or future Subsidiary of the Company that
owns, leases, operates or manages any of the assets of CPI,
ACCBI, ACLVI, ACVI or ACHC on the Issue Date, or any additions,
extensions or replacements of any such assets, or holds any
Gaming License relating to any such assets, additions, extensions
or replacements.
"Stated Maturity" means, with respect to any security or
Indebtedness, the date specified in such security or Indebtedness
as the fixed date on which the payment of principal of such
security or Indebtedness is due and payable, including pursuant
to any mandatory redemption or prepayment provision (but
excluding any provision providing for the repurchase or
prepayment of such security or Indebtedness at the option of the
holder thereof upon the happening of any contingency beyond the
control of the issuer or borrower unless such contingency has
occurred).
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the date hereof or thereafter
Incurred) which is subordinate or junior in right of payment to
the Notes in any respect and, in any event, includes the Gem
Notes (except for Refinancing Indebtedness relating to the Gem
Notes that satisfies the criteria of the parenthetical provisions
to clause (iv) of the definition of "Refinancing Indebtedness").
"Subsidiary" of any Person means any corporation,
association, limited liability company, partnership or other
business entity of which more than 50% of the total voting power
of shares of Capital Stock or other interests (including limited
liability company or partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such
Person, (ii) such Person and one or more Subsidiaries of such
Person or (iii) one or more Subsidiaries of such Person.
"Subsidiary Guarantee" is defined in Section 11.01(a).
"Temporary Cash Investments" means any of the following: (i)
investments in U.S. Government Obligations maturing within 90
days of the date of acquisition thereof, (ii) investments in time
deposit accounts, certificates of deposit and money market
deposits maturing within 90 days of the date of acquisition
thereof issued by a bank or trust company organized under the
laws of the United States or any state thereof having capital,
surplus and undivided profits aggregating in excess of
$500,000,000 and (a) whose long-term debt is rated "A-3" or "A-"
or higher according to Moody's Investors Service, Inc. or
Standard and Poor's Ratings Group (or such similar equivalent
rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)
or (b) which has a Keefe Bank Watch Rating of "B" or better,
(iii) repurchase obligations with a term of not more than 7 days
for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications
described in clause (ii) above, and (iv) investments in
commercial paper, maturing not more than 90 days after the date
of acquisition, issued by a corporation (other than an Affiliate
of the Company) organized and in existence under the laws of the
United States of
America with a rating at the time as of which any
investment therein is made of "P-1 " (or higher) according to
Moody's Investors Service, Inc. or "A-1" (or higher) according to
Standard and Poor's Corporation.
"TIA" means the Trust Indenture Act of 1939, as amended from
time to time.
"Trade Payables" means, with respect to any Person, any
accounts payable or any indebtedness or monetary obligation to
trade creditors created, assumed or Guaranteed by such Person
arising in the ordinary course of business of such Person in
connection with the acquisition of goods or services.
"Trustee" means the party named in the preamble until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor
serving hereunder.
"U.S. Legal Tender" means such coin or currency of the
United States of America as at the time of payment shall be legal
tender for the payment of public and private debts.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors in the manner
provided under Section 4.19(b), and (ii) any Subsidiary of an
Unrestricted Subsidiary, but, in each case, only to the extent
that such Subsidiary or a Subsidiary of such Subsidiary (a) does
not own any Capital Stock or Indebtedness of, or own or hold any
Lien on any property of, the Company or any other Subsidiary of
the Company that is not a Subsidiary of such Unrestricted
Subsidiary, (b) has no Indebtedness other than Non-Recourse
Indebtedness, (c) is not a party to any agreement, contract,
arrangement or understanding with the Company or any Restricted
Subsidiary of the Company the terms of which are less favorable
to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates
of the Company, (d) is not a Person with respect to which the
Company or any of its Restricted Subsidiaries has any direct or
indirect obligation (unless the payment or fulfillment of such
obligation is expressly conditioned upon compliance with
Section 4.10) (1) to subscribe for additional Capital Stock, or
(2) to maintain or preserve such Person's financial condition or
to cause such Person to achieve any specified levels of operating
results, and (e) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the
Company or any of its Restricted Subsidiaries. If, at any time,
any Unrestricted Subsidiary would fail to meet the requirements
set forth in the preceding sentence, it shall thereafter cease to
be an Unrestricted Subsidiary for purposes hereof and any
Indebtedness of such Subsidiary shall be deemed to be incurred by
a Restricted Subsidiary of the Company as of such date (and, if
such Indebtedness is not permitted to be incurred as of such date
under Section 4.12, the Company shall be in default of such
Section).
"U. S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such
obligations) of the United States of America (including any
agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged
and which are not callable or redeemable at the issuer's option.
"Vicksburg Hotel" means the hotel being constructed
across the street from the main entrance to the Vicksburg Casino
and the underlying real estate.
"Vicksburg Note" means the promissory note made or to be
made by ACHC in favor of certain lenders (and any related loan or
collateral security agreements) the proceeds of which are used to
fund the construction costs of the Vicksburg Hotel, as described
under "Description of Existing Indebtedness," in the Offering
Memorandum provided that (i) the aggregate outstanding principal
amount thereof, together with any Refinancing Indebtedness with
respect thereto, shall not exceed $7.5 million at any time, (ii)
the Indebtedness evidenced thereby is secured by a Lien on the
Vicksburg Hotel and any other related assets, but no other
collateral, (iii) such note provides that no personal recourse
shall be had against the Company or any Restricted Subsidiary for
the payment of Indebtedness evidenced by such note, enforcement
being limited to the Vicksburg Hotel and such other related
assets, (iv) neither the Company nor any of the Restricted
Subsidiaries (other than ACHC) shall provide any credit support
or be liable with respect to such note, under a Guarantee or
otherwise, or constitute the lender with respect to such note,
and (v) any event that results in any such Indebtedness ceasing
to meet any of the foregoing conditions shall be deemed to
constitute the Incurrence of Indebtedness by the obligor thereof.
The prohibition set forth in clause (iv) above shall not restrict
ACVI and ACHC from entering into a management agreement, an
operating agreement and/or related contractual arrangements,
provided that ACVI does not Incur any liability on the Vicksburg
Note.
"Voting Stock" of a corporation means all classes of Capital
Stock of such corporation then outstanding and normally entitled
to vote in the election of directors.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of
the Company all the Capital Stock of which (other than directors'
qualifying shares) is owned by the Company or another Wholly
Owned Subsidiary.
SECTION 1.02.Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in, and made a part
of, this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"indenture securities" means the Notes, including the
Subsidiary Guarantees with respect thereto.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means any Obligor or
any other obligor on the Notes.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by SEC rule and not otherwise defined herein have the
meanings assigned to them therein.
SECTION 1.03.Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP, and unless
otherwise provided herein, all accounting determinations
shall be made in accordance with GAAP consistently applied;
(iii) "or" is not exclusive and "including" is not
limiting;
(iv) words in the singular include the plural, and
words in the plural include the singular;
(v) references in this Indenture to any agreement,
other document or law "as amended" or "as amended from time
to time," or to "amendments" of any document or law, shall
include any amendments, supplements, replacements, renewals
or other modifications from time to time, provided in the
case of modifications to documents, such modifications are
permissible hereunder;
(vi) references in this Indenture to any law include
regulations promulgated thereunder from time to time; and
(vii) The Table of Contents, Cross-Reference Table
and Headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are
not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions
hereof. These and any other references to any subdivision
in this Indenture are to this Indenture, and 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.
ARTICLE TWO
THE NOTES
SECTION 2.01.Form and Dating.
The Notes, and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto (including
in the case of Initial Notes the bracketed text referred to in
footnotes 1, 3, 4, 6, 7, 9, 12, 13 and 14). The Notes may have
notations, legends or endorsements required by law, stock
exchange rule or depository rule or usage. The Company
and the Trustee shall approve the form of the Notes and any
notation, legend or endorsement on them. Each Note shall be
dated the date of its authentication.
The terms and provisions contained in the Notes, annexed
hereto as Exhibit A, shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the
Obligors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be
bound thereby.
Notes offered and sold to QIBs in reliance on Rule 144A
shall be issued initially in the form of one or more global Notes
in registered form, substantially in the form set forth in
Exhibit A (including the bracketed text referred to in footnotes
2, 5, 10, 11 and 15) (the "Restricted Global Note"). Notes
offered and sold in reliance on Regulation S shall be issued
initially in the form of one or more global Notes in registered
form, substantially in the form set forth in Exhibit A (including
the bracketed text referred to in footnotes 2, 5, 10, 11 and 15)
(the "Regulation S Temporary Global Note"). Beneficial interests
in a Regulation S Temporary Global Note will be exchanged for
beneficial interests in a single Note in permanent global form
(the "Regulation S Permanent Global Note", and, together with the
Regulation S Temporary Note, the "Regulation S Global Notes")
after the Restricted Period (as defined below) upon certification
that the beneficial interests in such global securities are owned
by either Non-U.S. Persons or QIBs. Regulation S Global Notes
and Restricted Global Notes are collectively referred to herein
as the "Global Notes." A beneficial interest in a Global Note
may be exchanged for certificated notes ("Physical Notes") in
accordance with the rules of the Depository, Section 2.16 and
Section 2.17.
The Global Notes shall be deposited with the Trustee, as
custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Global
Notes shall be registered in the name of Cede & Co. ("Cede"), as
the Depository's nominee, for credit to an account of a direct or
indirect participant in the Depository. With respect to any
beneficial interest in a Regulation S Global Note acquired from
the Company, a distributor (as such term is defined in
Regulation S under the Securities Act) or any of their respective
affiliates, through and including August 24, 1997 (such period
through and including August 24, 1997, the "Restricted Period"),
beneficial interests in the Regulation S Global Notes may be held
only through the Euroclear System ("Euroclear") and Cedel, S.A.
("CEDEL") (as indirect participants in the Depository), unless
transferred to a person that takes delivery through the
Restricted Global Notes in accordance with the requirements of
Section 2.17.
The aggregate principal amount of a Global Note may from
time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, and by
corresponding adjustment to Schedule A of such Notes, as
hereinafter provided.
SECTION 2.02.Execution and Authentication; Aggregate
Principal Amount.
Two Officers, or an Officer and an Assistant Secretary,
shall sign, or one Officer shall sign and one Officer or an
Assistant Secretary (each of whom shall, in each case, have been
duly authorized by all requisite corporate actions) shall attest
to, the Notes for the Obligors by manual or facsimile signature.
The Company's seal shall also be reproduced on the Notes.
If an Officer or Assistant Secretary whose signature
is on a Note was an Officer or Assistant Secretary at the time of
such execution but no longer holds that office or position at the
time the Trustee authenticates the Note, the Note shall
nevertheless be valid.
A Note shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on
the Note. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Notes for
original issue in the aggregate principal amount not to exceed
$100,000,000, and (ii) Exchange Notes from time to time for issue
only in exchange for a like principal amount of Initial Notes, in
each case upon written orders of the Obligors in the form of an
Officers' Certificate. The Officers' Certificate shall specify
the amount of Notes to be authenticated, the date on which the
Notes are to be authenticated and the aggregate principal amount
of Notes outstanding on the date of authentication, whether the
Notes are to be Initial Notes or Exchange Notes. The aggregate
principal amount of Notes outstanding at any time may not exceed
$100,000,000, except as provided in Section 2.07.
The Trustee may appoint an authenticating agent (the
"Authenticating Agent") reasonably acceptable to the Company to
authenticate Notes. Unless otherwise provided in the
appointment, 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
Authenticating Agent. An Authenticating Agent has the same
rights as an Agent to deal with the Company and Affiliates of the
Company.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral
multiple thereof.
SECTION 2.03.Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall
be located in the Borough of Manhattan in The City of New York,
State of New York) where (a) Notes may be presented or
surrendered for registration of transfer or for exchange (the
"Registrar"), (b) Notes may be presented or surrendered for
payment (the "Paying Agent") and (c) notices and demands to or
upon the Company in respect of the Notes and this Indenture may
be served. The Registrar shall keep a register of the Notes and
of their transfer and exchange. The Company, upon prior written
notice to the Trustee, may have one or more co-Registrars and one
or more additional paying agents reasonably acceptable to the
Trustee. The term "Paying Agent" includes any additional Paying
Agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement
shall incorporate the provisions of the TIA and implement the
provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice,
the Trustee shall act as such.
The Company initially appoints the Trustee as
Registrar, Paying Agent and agent for service of demands and
notices in connection with the Notes, until such time as the
Trustee has resigned or a successor has been appointed.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
SECTION 2.04.Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in
trust for the benefit of the Holders or the Trustee all assets
held by the Paying Agent for the payment of principal of, or
premium or interest on, the Notes (whether such assets have been
distributed to it by the Company or any other obligor on the
Notes), and the Company and the Paying Agent shall notify the
Trustee of any Default by the Company (or any other obligor on
the Notes) in making any such payment. The Company at any time
may require a Paying Agent to distribute all assets held by it to
the Trustee and account for any assets disbursed and the Trustee
may at any time during the continuance of any payment Default,
upon written request to a Paying Agent, require such Paying Agent
to distribute all assets held by it to the Trustee and to account
for any assets distributed. Upon distribution to the Trustee of
all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability
for such assets. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05.Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of the Holders. If the Trustee is not
the Registrar, the Company shall furnish or cause the Registrar
to furnish to the Trustee promptly following each Record Date and
at such other times as the Trustee may request in writing a list
as of such date and in such form as the Trustee may reasonably
require of the names and addresses of the Holders, which list may
be conclusively relied upon by the Trustee.
SECTION 2.06.Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented
to the Registrar or a co-Registrar with a request to register the
transfer of such Notes or to exchange such Notes for an equal
principal amount of Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction
are met; provided, however, that the Notes presented or
surrendered for registration of transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer
in form satisfactory to the Obligors and the Registrar or co-
Registrar, duly executed by the Holder thereof or its attorney
duly authorized in writing. To permit registrations of transfer
and exchanges, the Obligors shall execute and the Trustee shall
authenticate Notes at the Registrar's or co-Registrar's request.
No service charge shall be made for any registration of transfer
or
exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon
exchanges or transfers pursuant to Sections 2.10, 3.06, 4.14,
4.15, 4.20 or 9.06, in which event the Company shall be
responsible for the payment of such taxes).
The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Note (i) during a
period beginning at the opening of business 15 days before the
mailing of a notice of redemption of Notes and ending at the
close of business on the day of such mailing, (ii) selected for
redemption in whole or in part pursuant to Article Three, except
the unredeemed portion of any Note being redeemed in part, and
(iii) during a period beginning at the opening of business 15
days before an Interest Payment Date and ending at the close of
business on such Interest Payment Date.
Any Holder of a Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interests in such
Global Notes may be effected only through a book entry system
maintained by the Holder of such Global Note (or its agent), and
that ownership of a beneficial interest in the Note shall be
required to be reflected in a book entry.
SECTION 2.07.Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Obligors shall issue and the Trustee shall
authenticate a replacement Note if the Trustee's requirements are
met. If required by the Trustee or the Obligors, such Holder
must provide an affidavit of lost certificate and an indemnity
bond or other indemnity, sufficient in the judgment of both the
Obligors and the Trustee, to protect the Obligors, the Trustee or
any Agent from any loss which any of them may suffer if a Note is
replaced. The Obligor may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Note, including reasonable
fees and expenses of counsel. Every replacement Note shall
constitute an additional obligation of the Obligors.
SECTION 2.08.Outstanding Notes.
Notes outstanding at any time are all the Notes that have
been authenticated by the Trustee except those canceled by it,
those delivered to it for cancellation and those described in
this Section 2.08 as not outstanding. Subject to Section 2.09, a
Note does not cease to be outstanding because the Company or any
of its respective Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be
outstanding unless the Trustee receives an Opinion of Counsel
that the replaced Note is held by a bona fide purchaser. A
mutilated Note ceases to be outstanding upon surrender of such
Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date, any Purchase Date or the Maturity
Date, the Paying Agent holds U.S. Legal Tender sufficient to pay
all of the principal and interest and Liquidated Damages, if any,
due on the Notes payable on that date and is not prohibited from
paying such money to the
Holders thereof pursuant to the terms of this Indenture,
then on and after that date such Notes cease to be outstanding
and interest and Liquidated Damages, if any, on them ceases to
accrue.
SECTION 2.09.Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver, consent
or notice, Notes owned by any Obligor, or any of its Affiliates
shall be considered as though they are not outstanding, except
that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent,
only Notes that a Trust Officer of the Trustee actually knows are
so owned shall be so considered. The Company shall notify the
Trustee, in writing, when it or any of its Affiliates repurchases
or otherwise acquires Notes, of the aggregate principal amount of
such Notes so repurchased or otherwise acquired.
SECTION 2.10.Temporary Notes.
Until definitive Notes are ready for delivery, the Obligors
may prepare and the Trustee shall authenticate temporary Notes
upon receipt of a written order of the Obligors in the form of
one or more Officers' Certificates. Each Officers' Certificate
shall specify the amount of temporary Notes to be authenticated
and the date on which the temporary Notes are to be
authenticated. Temporary Notes shall be substantially in the
form of definitive Notes but may have variations that the Company
considers appropriate for temporary Notes. Without unreasonable
delay, the Obligors shall prepare and the Trustee shall
authenticate upon receipt of a written order of the Obligors
pursuant to Section 2.02 definitive Notes in exchange for
temporary Notes.
SECTION 2.11.Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee, or at the direction
of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and shall dispose of all Notes surrendered for
registration of transfer, exchange, payment or cancellation.
Subject to Section 2.07, the Company may not issue new Notes to
replace Notes that it has paid or delivered to the Trustee for
cancellation. If the Company shall acquire any of the Notes,
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 pursuant to this Section 2.11.
The Trustee shall destroy all canceled Notes in accordance
with its usual procedures unless the Company by written
directions shall otherwise direct.
SECTION 2.12.Defaulted Interest.
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest to the
Persons who are Holders on a subsequent special record date,
which date shall be the fifteenth day next preceding the date
fixed by the Company for the payment of defaulted interest or the
next
succeeding Business Day if such date is not a Business Day.
At least 15 days before the subsequent special record date, the
Company shall mail to each Holder, as of a recent date selected
by the Company, with a copy to the Trustee, a notice that states
the subsequent special record date, the payment date and the
amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
SECTION 2.13.CUSIP Number.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the appropriate CUSIP
number in notices of redemption or exchange as a convenience to
Holders; provided that no representation is hereby deemed to be
made by the Trustee as to the correctness or accuracy of any
CUSIP number printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers
printed on the Notes. The Company shall promptly notify the
Trustee of any change in any CUSIP number.
SECTION 2.14.Deposit of Money.
Subject to Section 4.01(b), prior to 11:00 a.m. New York
City time on each Interest Payment Date and Maturity Date, the
Company shall deposit with the Paying Agent in immediately
available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date or Maturity Date, as the case
may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such Interest Payment Date or
Maturity Date, as the case may be.
SECTION 2.15.Restrictive Legends.
(a) Each Global Note that constitutes a Restricted Security
shall bear the following legend (the "Private Placement Legend")
on the face thereof until July 15, 1999, unless otherwise agreed
by the Company and the Holder thereof:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S
THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH NOTE
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(c) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A
U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR
(d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IN THE
CASE OF (b), (c), OR (d), UPON DELIVERY OF AN OPINION
OF COUNSEL IF THE ISSUER OR TRUSTEE, REGISTRAR OR
TRANSFER AGENT FOR THE NOTES SO REQUESTS), (2) TO THE
ISSUER, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(b) Each Global Note shall also bear the following legend
on the face thereof:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY
TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE
OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF
SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE
INDENTURE."
SECTION 2.16.Book-Entry Provisions for Global
Security.
(a) The Global Notes initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, for
credit to an account of a direct or indirect participant in the
Depository, including Euroclear or CEDEL, and (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear
legends as set forth in Section 2.15.
Members of, or participants in, the Depository, including
CEDEL and Euroclear ("Agent Members"), shall have no rights under
this Indenture with respect to any Global Note held on their
behalf by the Depository, or the Trustee as its custodian, or
under any Global Note, and the Depository may be treated by the
Obligors, the Trustee and any agent of the Obligors or the
Trustee as the absolute owner of each Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Obligors, the Trustee or any agent of
the Obligors or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to
transfers in whole, but not in part, to the Depository, its
successors or their respective nominees. Interests of beneficial
owners in the Global Notes may be transferred or exchanged for
Physical Notes in accordance with the rules and procedures of the
Depository.
In addition, if (i) the Company notifies the Trustee in
writing that the Depository is no longer willing or able to act
as a Depository with respect to any Global Note and the Company
is unable to locate a qualified successor within 90 days, (ii)
the Company, at its option, notifies the Trustee in writing that
it elects to cause the issuance of Notes in the form of Physical
Notes under this Indenture, or (iii) if a Default or Event of
Default occurs and any owner of a beneficial interest in a Global
Note so requests, then, upon surrender by the Depository or its
nominee of a Global Note, Physical Notes will be issued to each
person that the Depository or its nominee identifies as being the
beneficial owner of the related Notes.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in a Global Note to beneficial
owners pursuant to Section 2.16(b), the Registrar shall (if one
or more Physical Notes are to be issued) reflect on its books and
records the date and a decrease in the principal amount of the
applicable Global Note in an amount equal to the principal amount
of the beneficial interest in the applicable Global Note to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like
tenor and amount.
(d) In connection with the transfer of an entire Global
Note to beneficial owners pursuant to Section 2.16(b), such
Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to
each beneficial owner identified by the Depository in
exchange for its beneficial interest in such Global Note, an
equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) Any Physical Note constituting a Restricted Security
delivered in exchange for an interest in a Global Note pursuant
to paragraph (b) or (c) shall, except as otherwise provided by
Section 2.17(a)(i)(x) and Section 2.17(c), bear the legend
regarding transfer restrictions applicable to the Physical Notes
set forth in Section 2.15.
(f) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this
Indenture or the Notes.
(g) Whenever, as a result of optional redemption by the
Company pursuant to Section 3.07, an offer to purchase as a
result of a Change of Control pursuant to Section 4.14, an Excess
Proceeds Offer pursuant to Section 4.15, a License Loss Offer
pursuant to Section 4.20, an Exchange Offer (as defined in the
Registration Rights Agreement) or an exchange for Physical Notes,
a Global Note is redeemed, repurchased or exchanged in part, such
Global Note shall be surrendered by the Holder hereof to the
Trustee who shall cause an adjustment to be made to Schedule A of
such Global Note so that the principal amount of such Global Note
will be equal to the portion not redeemed, repurchased or
exchanged and shall thereafter return such Global Note to such
Holder, provided that such Global Note shall be in a principal
amount of $1,000 or an integral multiple of $1,000.
SECTION 2.17.Special Transfer Provisions.
(a) Transfers to Non-U.S. Persons. With respect to any
proposed transfer of a Physical Note constituting a Restricted
Security or any proposed transfer of a beneficial interest in the
Restricted Global Note to any Non-U.S. Person (which Non-U.S.
Person would, in the case of a transfer of a beneficial interest
in the Restricted Global Note, take an interest in the Regulation
S Global Note):
(i) the Registrar shall register the transfer of
such Physical Note constituting a Restricted Security,
whether or not such Note bears the Private Placement
Legend, (x) if the requested transfer is after July 15,
1999, or (y) the proposed transferor has delivered to
the Registrar a certificate substantially in the form
of Exhibit B hereto; and
(ii) in the case of any transfer of any beneficial
interest in the Restricted Global Note, there shall be
delivered to the Registrar (x) the certificate, if any,
required by paragraph (i) above and (y) instructions in
accordance with the Depository's and the Registrar's
procedures.
With respect to all such transfers, (A) the Registrar shall
reflect on its books and records the date of such transfer, (B)
Schedule A to the applicable Global Note or Notes shall be
updated if and as appropriate to reflect such transfer, and (C)
if the transfer is of a Physical Note, the transferred Physical
Note shall be cancelled and, if the entire amount of such
Physical Note was not
transferred, a new Physical Note, in the amount of the
untransferred portion of the original Physical Note, shall be
executed by the Company, authenticated by the Trustee, and
delivered to such transferor.
(b) Transfers to QIBs. With respect to any proposed
transfer of a Physical Note constituting a Restricted Security or
any proposed transfer of a beneficial interest in the Regulation
S Global Note to a QIB (excluding transfers to Non-U.S. Persons)
(which QIB would, in the case of a transfer of a beneficial
interest in the Regulation S Global Notes, take an interest in
the Restricted Global Note):
(i) in the case of a transfer of a Physical Note,
the Registrar shall register the transfer only if the
transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto; and
(ii) in the case of a transfer of any beneficial
interest in the Regulation S Global Note, there shall
be delivered to the Registrar (x) the certificate, if
any, required by paragraph (i) above and
(y) instructions in accordance with the Depository's
and the Registrar's procedures.
With respect to all such transfers, (A) the Registrar shall
reflect on its books and records the date of such transfer, (B)
Schedule A to the applicable Global Note or Notes shall be
updated if and as appropriate to reflect such transfer, and (C)
if the transfer is of a Physical Note, the transferred Physical
Note shall be cancelled and, if the entire amount of such
Physical Note was not transferred, a new Physical Note, in the
amount of the untransferred portion of the original Physical
Note, shall be executed by the Company, authenticated by the
Trustee, and delivered to such transferor.
(c) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the
Private Placement Legend, the Registrar shall deliver Notes that
do not bear the Private Placement Legend. Upon the registration
of transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar shall deliver only Notes that
bear the Private Placement Legend unless (i) the circumstances
contemplated by Section 2.17(a)(i)(x) exist or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of
the Securities Act.
(d) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges
the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and agrees that it
will transfer such Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section
2.16 or this Section 2.17 in accordance with its usual
procedures. The Company shall have the right to inspect and make
copies of all such letters, notices or other
written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01.Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section
3.07 or 3.08, it shall notify the Trustee and the Paying Agent in
writing of the Redemption Date and the principal amount of the
Notes to be redeemed. The Company shall give each notice
provided for in this Section 3.01 at least 60 days before the
Redemption Date (unless a shorter notice period shall be
satisfactory to the Trustee, as evidenced in a writing signed on
behalf of the Trustee), together with an Officers' Certificate
stating that such redemption shall comply with the conditions
contained herein and in the Notes.
SECTION 3.02.Selection of Notes To Be Redeemed.
If fewer than all the Notes are to be redeemed pursuant to
Section 3.07, selection of Notes for redemption will be made by
the Trustee, pro rata or by lot or by any other means the Trustee
determines to be fair and appropriate and which complies with
applicable legal and securities exchange requirements.
SECTION 3.03.Notice of Redemption.
At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first class mail, postage prepaid, to
each Holder whose Notes are to be redeemed, with a copy to the
Trustee and any Paying Agent. At the Company's written request,
the Trustee shall give the notice of redemption in the Company's
name and at the Company's expense.
Each notice for redemption shall identify the Notes to be
redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accrued
interest and Liquidated Damages, if any, to be paid;
(iii) the name and address of the Paying Agent;
(iv) the Section of this Article Three pursuant to
which such redemption is being made;
(v) that Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price plus accrued interest and Liquidated Damages, if any;
(vi) that, unless the Company defaults in
making the redemption payment, interest on Notes called for
redemption and Liquidated Damages, if any, will cease to
accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Notes is to receive
payment of the Redemption Price plus accrued interest and
Liquidated Damages, if any, upon surrender to the Paying
Agent of the Notes redeemed;
(vii) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed
and that, after the Redemption Date, and upon surrender of
such Note, a new Note or Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be
issued; and
(viii) if fewer than all the Notes are to be
redeemed, the identification of the particular Notes (or
portion thereof) to be redeemed, as well as the aggregate
principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such
partial redemption.
SECTION 3.04.Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03, Notes called for redemption become due and payable
on the Redemption Date and at the Redemption Price plus accrued
interest and Liquidated Damages, if any. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall
be paid at the Redemption Price (which shall include accrued
interest thereon and Liquidated Damages, if any, to the
Redemption Date), but installments of interest or Liquidated
Damages, if any, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the
close of business on the relevant record dates referred to in the
Notes.
SECTION 3.05.Deposit of Redemption Price.
Subject to Section 4.01(b), prior to 11:00 A.M., New York
City time, on the Redemption Date, the Company shall deposit with
the Paying Agent U.S. Legal Tender sufficient to pay the
Redemption Price plus accrued interest and Liquidated Damages, if
any, of all Notes to be redeemed on that date. The Paying Agent
shall promptly return to the Company any U.S. Legal Tender so
deposited which is not required for that purpose, except with
respect to amounts owed as obligations to the Trustee pursuant to
Article Seven.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption
Price plus accrued interest and Liquidated Damages, if any,
interest and Liquidated Damages, if any, on the Notes to be
redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Notes are presented for
payment.
SECTION 3.06.Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Note or Notes
equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.07. Redemption.
(a) Except as set forth in Section 3.07(b), the Notes will
not be redeemable at the option of the Company prior to August 1,
2001. On or after that date, the Notes will be redeemable at the
option of the Company, in whole at any time or in part from time
to time, at the Redemption Prices (expressed in percentages of
principal amount) specified below plus accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date,
if redeemed during the 12-month period beginning August 1 of the
years indicated below:
Year Percentage
2001 105.25%
2002 103.50%
2003 and thereafter 101.75%
(b) Notwithstanding the foregoing, but subject to the terms
of any Designated Senior Indebtedness, on or prior to August 1,
2000, the Company may redeem up to 25% in aggregate principal
amount of the Notes originally issued hereunder at a Redemption
Price of 110.50% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date with the net proceeds of one or more Public
Equity Offerings; provided that at least $75.0 million in
aggregate principal amount of Notes remain outstanding
immediately after the occurrence of each such redemption; and
provided, further, that notice of each such redemption shall have
been given pursuant to Section 3.03 within 30 days after the date
of the closing of each such Public Equity Offering.
(c) If an Event of Default occurs prior to August 1, 2001,
by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company with the intention of
avoiding the prohibition on redemption of the Notes prior to
August 1, 2001, then the premium (expressed in percentages of
principal amount) specified below shall also become immediately
due and payable to the extent permitted by law upon the
acceleration of the Notes during the 12-month period beginning
August 1 of the years indicated below:
Year Percentage
1997 (and including the
period from 10.50%
July 15, 1997 to
July 31, 1997)
1998 9.188%
1999 7.875%
2000 6.563%
SECTION 3.08.Mandatory Disposition or Redemption
Pursuant to Gaming Laws.
If a Holder or beneficial owner of a Note is required to be
licensed, qualified or found suitable under applicable Gaming
Laws and is not so licensed, qualified or found suitable, or if a
Holder or a beneficial owner of a Note fails to take the steps
necessary to seek such license, qualification or finding of
suitability, the Holder or beneficial owner of a Note shall be
obliged, at
the request of the Company, to dispose of such Holder's or
beneficial owner's Notes within 30 days after receipt of notice
of failure to be licensed, qualified or found suitable or such
earlier date prescribed by any Gaming Authority (in which event
the Company's obligation to pay any interest and Liquidated
Damages, if any, after the receipt of such notice shall be
limited as provided in such Gaming Laws), and thereafter, the
Company shall have the right to redeem, on the date fixed by the
Company for the redemption of such Notes, such Holder's or
beneficial owner's Notes at a Redemption Price equal to the
lowest of (i) the price at which such Holder or beneficial owner
acquired such Notes without accrued interest or Liquidated
Damages, if any, unless the payment of such interest or
Liquidated Damages, if any, is permitted by the applicable Gaming
Authority, in which case such interest and Liquidated Damages, if
any, shall be paid through the Redemption Date, (ii) the fair
market value of such Notes on such Redemption Date and (iii) the
principal amount of such Notes without accrued interest or
Liquidated Damages, if any, thereon, unless the payment of such
interest or Liquidated Damages, if any, is permitted by the
applicable Gaming Authority, in which case such interest and
Liquidated Damages, if any, shall be paid through the Redemption
Date. The Company is not required to pay or reimburse any Holder
or beneficial owner of a Note for the costs of licensure or
investigation for such licensure, qualification, or finding of
suitability. Any Holder or beneficial owner of a Note required to
be licensed, qualified or found suitable under applicable Gaming
Laws must pay all investigative fees and costs of the Gaming
Authorities in connection with such licensure, qualification,
suitability or application therefor.
ARTICLE FOUR
COVENANTS
SECTION 4.01.Payment of Notes.
(a) The Company shall pay the principal of and interest and
Liquidated Damages, if any, on the Notes on the dates and in the
manner provided in the Notes, this Indenture and the Registration
Rights Agreement. Subject to Section 4.01(b), an installment of
principal of or interest on the Notes shall be considered paid on
the date it is due if the Trustee or Paying Agent (other than the
Company or an Affiliate of the Company) holds, prior to 11:00
A.M. New York City time, on that date U.S. Legal Tender
designated for and sufficient to pay the installment in full and
is not prohibited from paying such money to the Holders pursuant
to the terms of this Indenture.
(b) Principal and interest and Liquidated Damages, if any,
will initially be payable at the offices of the Paying Agent but,
at the option of the Company, interest and Liquidated Damages, if
any, may be paid by check mailed to the persons who are
registered Noteholders at their registered addresses provided
that (i) all payments with respect to Global Notes are required
to be made in same day funds in accordance with the policies of
the Depository and (ii) all payments with respect to Notes, the
Holders or beneficial owners of which have given wire transfer
instructions to the Company, will be required to be made by wire
transfer of immediately available funds to the accounts specified
by such Persons, in each case on the due date therefor.
(c) The Company shall pay, to the extent such payments
are lawful, interest on overdue principal and on overdue
installments of interest and Liquidated Damages, if any, (without
regard to any applicable grace periods) from time to time on
demand at the rate borne by the Notes plus 2% per annum.
(d) Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
(e) Notwithstanding anything herein to the contrary
contained in this Indenture, each of the Obligors may, to the
extent it is required to do so by law, deduct or withhold income
or other similar taxes imposed by the United States of America
from principal or interest payments hereunder.
SECTION 4.02.Maintenance of Office or Agency.
The Company shall maintain the office or agency required
under Section 2.03. The Company shall give prior written notice
to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02.
SECTION 4.03.Corporate Existence.
Except as otherwise permitted by Article Five and Section
4.15, the Company shall do or cause to be done, at its own cost
and expense, all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate
existence of each of its Restricted Subsidiaries in accordance
with the respective organizational documents of each such
Restricted Subsidiary and the material rights (charter and
statutory) and franchises of the Company and each such Restricted
Subsidiary; provided, however, that the Company shall not be
required to preserve, with respect to itself, any material right
or franchise and, with respect to any of its Restricted
Subsidiaries, any such existence, material right or franchise, if
the Board of Directors of the Company shall determine in good
faith that the preservation thereof is no longer desirable in the
conduct of the business of the Company and the Restricted
Subsidiaries, taken as a whole.
SECTION 4.04.Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all
material taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to
taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of it or any of its
Subsidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings
properly instituted and diligently conducted for which
adequate reserves, to the extent required under GAAP, have been
taken.
SECTION 4.05.Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its
Restricted Subsidiaries to, maintain its material properties in
good working order and condition (subject to ordinary wear and
tear) and make all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto and actively
conduct and carry on its business; provided, however, that
nothing in this Section 4.05 shall prevent the Company or any of
its Restricted Subsidiaries from discontinuing the operation and
maintenance of any of its properties, if such discontinuance is,
in the good faith judgment of the Board of Directors of the
Company or the Restricted Subsidiary, as the case may be,
desirable in the conduct of their respective businesses and is
not disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for
itself and each of its Restricted Subsidiaries, insurance
(including appropriate self-insurance) against loss or damage of
the kinds that, in the good faith judgment of the Board of
Directors of the Company, are adequate and appropriate for the
conduct of the business of the Company and such Restricted
Subsidiaries in a prudent manner, with reputable insurers or with
the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles,
and by such methods as shall be, in the good faith judgment of
the Board of Directors of the Company, adequate and appropriate
for the conduct of the business of the Company and such
Restricted Subsidiaries.
SECTION 4.06.Compliance Certificate; Notice of
Default.
(a) The Company shall deliver to the Trustee, within 90
days after the end of the Company's fiscal year, an Officers'
Certificate signed by the chief executive officer or the chief
operating officer and the chief financial officer or the chief
accounting officer of the Company stating that a review of its
activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether each of the
Company and its Subsidiaries has kept, observed, performed and
fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that
to the best of such Officer's knowledge each of the Company and
its Subsidiaries during such preceding fiscal year has kept,
observed, performed and fulfilled each and every such covenant
and no Default or Event of Default occurred during such year and
at the date of such certificate there is no Default or Event of
Default that has occurred and is continuing or, if such signers
do know of such Default or Event of Default, the certificate
shall describe the Default or Event of Default and its status
with particularity and shall also describe what action the
Company is taking or proposes to take with respect thereto.
The Officers' Certificate shall also notify the Trustee
should the Company elect to change the manner in which it fixes
its fiscal year end.
(b) The annual financial statements delivered pursuant
to Section 4.08 shall be accompanied by a written report of the
Company's independent accountants (who shall be a firm of
established national reputation) that in conducting their audit
of such financial statements nothing has come to their attention
that would lead them to believe that the Company has violated any
of Article Four, Five or Six of this Indenture insofar as they
relate to accounting matters or, if any such violation has
occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred and
is continuing or (ii) if any Holder seeks to exercise any remedy
hereunder with respect to a claimed Default under this Indenture
or the Notes, the Company shall deliver to the Trustee, at its
address set forth in Section 12.02, by registered or certified
mail or by telegram, telex or facsimile transmission followed by
hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action within
five Business Days of its becoming aware of such occurrence.
SECTION 4.07.Compliance with Laws.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of
America, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority,
bureau, agency and instrumentality of the foregoing, in respect
of the conduct of their respective businesses and the ownership
of their respective properties, except for such noncompliances as
are not in the aggregate reasonably likely to have a material
adverse effect on the financial condition or results of
operations of the Company and its Restricted Subsidiaries, taken
as a whole.
SECTION 4.08.SEC Reports.
Notwithstanding that the Company may not be, or may not be
required to remain, subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file
with the Commission (unless the Commission will not accept such
filing) and provide the Trustee and Holders of the Notes with
such annual reports and such information, documents and other
reports as are specified in Sections 13 and 15(d) of the Exchange
Act and applicable to a U.S. corporation subject to such
Sections, such information, documents and other reports to be so
filed and provided at the times specified for the filing of such
information, documents and reports under such Sections. In
addition, for so long as any Notes remain outstanding, the
Company shall furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information,
if any, required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act. Notwithstanding anything herein to the
contrary, the Trustee shall have no duty to review such documents
for purposes of determining their compliance with any provision
of this Indenture.
SECTION 4.09. Waiver of Stay, Extension or
Usury Laws.
Each Obligor covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law that would
prohibit or forgive any Obligor from paying all or any portion of
the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which
may affect the covenants or the performance of this Indenture;
and (to the extent that it may lawfully do so) each Obligor
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, but will
suffer and permit the execution of every such power as though no
such law had been enacted.
SECTION 4.10.Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, (i) declare or
pay any dividend or make any distribution or other payment on or
in respect of its Capital Stock (including any payment in
connection with any merger or consolidation involving the Company
or a Restricted Subsidiary) except dividends or distributions or
payments payable solely in its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to
purchase such Capital Stock and except dividends or distributions
payable to the Company or a Guarantor, (ii) purchase, redeem,
retire or otherwise acquire for value any Capital Stock of the
Company or any Restricted Subsidiary held by Persons other than
the Company or a Guarantor (including any payment in connection
with any merger or consolidation involving the Company or a
Restricted Subsidiary), (iii) make any payment on or with respect
to, or purchase, repurchase, redeem, defease or otherwise acquire
or retire for value, any Subordinated Obligations, except a
payment of any interest or any principal installment at its
stated maturity or due date (and except for the purchase,
repurchase or other acquisition of Subordinated Obligations
purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition); provided after
giving effect to such payment with respect to a Gem Note, no
Default or Event of Default would then exist; or (iv) make any
Restricted Investment in any Person (any such dividend,
distribution, purchase, redemption, repurchase, defeasance, other
acquisition, retirement or Investment being herein referred to as
a "Restricted Payment"), unless, at the time of and after giving
effect to such Restricted Payment:
(A) no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence thereof;
(B) the Company would, at the time of such Restricted
Payment and after giving pro forma effect to such Restricted
Payment, have been permitted to incur at least $1.00 of
additional Indebtedness under the Consolidated Coverage Ratio
test set forth in Section 4.12(a); and
(C) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its
Restricted Subsidiaries after March 31, 1997 (excluding the
Restricted Payments permitted by the next succeeding paragraph),
is less than the sum of (i) 50% of the Consolidated Net Income of
the Company for the period (taken as one accounting
period) from March 31, 1997 to the end of the Company's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment
(or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit), plus (ii) 100% of the
aggregate net cash proceeds received by the Company from capital
contributions or the issue or sale after the Issue Date of
Capital Stock of the Company or of debt securities of the Company
that have been converted into such Capital Stock (other than
Capital Stock (or convertible debt securities) sold to a
Subsidiary of the Company and other than Disqualified Stock or
debt securities that have been converted into Disqualified
Stock), plus (iii) to the extent that any Restricted Investment
that was made after the Issue Date is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (A) the cash return
of capital with respect to such Restricted Investment (less the
cost of disposition, if any) and (B) the initial amount of such
Restricted Investment, plus (iv) 50% of any dividends or
distributions received by the Company or a Restricted Subsidiary
after the Issue Date with respect to a Restricted Investment, to
the extent that such dividends or distributions were not
otherwise included in Consolidated Net Income of the Company for
such period or in the immediately preceding clause (iii),
provided that clause (iii) and (iv) of this paragraph (C) shall
not include cash proceeds received from Restricted Investments
and applied pursuant to clause (iv) of Section 4.10(b).
(b) Notwithstanding the foregoing, Section 4.10(a) will not
prohibit any of (i) the payment of any dividend or other
distribution within 60 days after the date of declaration
thereof, if at said date of declaration no Default or Event of
Default exists and such payment would have complied with the
provisions of the Indenture; (ii) the making of any Restricted
Investment, or the redemption, repurchase, retirement or other
acquisition of any Capital Stock of the Company, in either case
in exchange for, or out of the proceeds of, a substantially
concurrent capital contribution or sale (other than by or to a
Subsidiary of the Company) of Capital Stock of the Company (other
than any Disqualified Stock), provided that the amount of any
such net cash proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition shall be excluded
from clause (C)(ii) of Section 4.10(a); (iii) the defeasance,
redemption, prepayment or repurchase of Subordinated Obligations
with the net cash proceeds from (a) an incurrence of Refinancing
Indebtedness or (b) a substantially concurrent capital
contribution or sale (other than by or to a Subsidiary of the
Company) of Capital Stock of the Company (other than Disqualified
Stock); provided that the amount of any such net cash proceeds
referred to in clause (b) that are utilized for any such
redemption, repurchase, prepayment, retirement or other
acquisition shall be excluded from clause (C)(ii) of Section
4.10(a); (iv) Restricted Investments in any Person or Persons
primarily engaged in a Related Business in an aggregate amount
outstanding at any time, net of any net cash proceeds received by
the Company or a Guarantor therefrom (but only to the extent not
otherwise included in the Consolidated Net Income of the
Company), not to exceed $10.0 million; and (v) any redemption
required pursuant to Section 3.08.
(c) The Company may designate any Restricted Subsidiary,
other than a Specified Subsidiary, to be an Unrestricted
Subsidiary if such designation would not cause a Default and the
other conditions set forth in Section 4.19 are satisfied. For
purposes of making such determination, all outstanding
Investments by the Company and its Restricted Subsidiaries
(except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments at the time
of such designation and will reduce the amount available for
Restricted
Payments. All such outstanding Investments will be deemed
to constitute Investments in an amount equal to the greatest of
(i) the net book value of such Investments at the time of such
designation, (ii) the Fair Market Value of such Investments at
the time of such designation and (iii) the original Fair Market
Value of such Investments at the time they were made. Such
designation will only be permitted if such Restricted Payment
would be permitted at such time and if such Restricted Subsidiary
otherwise meets the conditions set forth in Section 4.19.
SECTION 4.11.Limitation on Transactions with
Affiliates.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, conduct any
business, enter into or permit to exist any transaction or series
of transactions (including the purchase, conveyance, disposition,
sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Company (an "Affiliate
Transaction") unless: (i) the terms of such Affiliate Transaction
are (x) set forth in writing, (y) in the best interest of the
Company or such Restricted Subsidiary, as the case may be, (z) as
favorable to the Company or such Restricted Subsidiary, as the
case may be, as those that could be obtained at the time of such
transaction for a similar transaction in arms' length dealings
with a Person who is not such an Affiliate and (ii) (x) with
respect to an Affiliate Transaction involving aggregate payments
or value of $1 million or greater, the Board of Directors of the
Company (including a majority of the Independent Directors) have
determined in their good faith judgment that the criteria set
forth in clauses (i) (y) and (z) are satisfied and have approved
the relevant Affiliate Transaction, such approval to be evidenced
by a Board Resolution and an Officers' Certificate and (y) with
respect to an Affiliate Transaction involving aggregate payments
or value of $5 million or greater, the Company obtains from an
independent nationally recognized accounting, appraisal or
investment banking firm experienced in the review of similar
types of transactions a written opinion addressed to the Trustee
that such Affiliate Transaction is fair, from a financial point
of view, to the Company or such Restricted Subsidiary, as the
case may be.
(b) Section 4.11(a) shall not prohibit (i) any Restricted
Payment permitted to be paid pursuant to Section 4.10 above, (ii)
any issuance of securities, or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership and/or
employee benefit plans entered into in the ordinary course of
business, approved by the Board of Directors and consistent with
past practices of the Company, (iii) loans or advances to
employees in the ordinary course of business in accordance with
past practices of the Company, (iv) the payment of reasonable
fees to directors of the Company and its Restricted Subsidiaries
who are not employees of the Company or its Restricted
Subsidiaries, or (v) any transaction between the Company and a
Guarantor that is a Wholly-Owned Subsidiary or between Guarantors
that are Wholly-Owned Subsidiaries.
SECTION 4.12.Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, Incur any Indebtedness; provided,
however, that the Company or any Guarantor may Incur Indebtedness
if on the date thereof, and giving pro forma effect to the
Incurrence thereof, the Consolidated Coverage Ratio would be
greater than 2:1.
(b) Notwithstanding Section 4.12(a), the Company and
its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness under the Revolving Credit Facility in an
aggregate amount outstanding at any time not to exceed $140
million (less the amount of any permanent reductions in the
amount of available borrowings under the Revolving Credit
Facility as a result of repayments made thereunder pursuant to
Section 4.15; (ii) Indebtedness outstanding under any Non-
Recourse FF&E Financing or the Vicksburg Note; (iii) Indebtedness
under one or more Recourse FF&E Financings, that, when added to
all Indebtedness then outstanding under other Recourse FF&E
Financings, and all refinancing Indebtedness with respect
thereto, does not exceed $15 million in the aggregate; (iv)
Indebtedness outstanding on the Issue Date immediately after
issuance of the Notes and application of the proceeds therefrom
(other than Indebtedness described in clause (i), (ii), (iii),
(v), (vi) or (viii) of this Section 4.12(b)), provided that the
amount thereof, together with any Refinancing Indebtedness with
respect thereto, does not exceed the amount outstanding on the
Issue Date; (v) Indebtedness evidenced by the Notes, the New
Notes and the Subsidiary Guarantees; (vi) Indebtedness of the
Company owing to and held by any Guarantor or Indebtedness of a
Restricted Subsidiary owing to and held by the Company; provided,
however, that any subsequent issuance or transfer of any Capital
Stock or other event which results in any such Guarantor ceasing
to be a Guarantor or any subsequent transfer of any such
Indebtedness (except to the Company or a Guarantor) shall be
deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer; (vii) Indebtedness under Interest
Rate Protection Agreements related to Indebtedness permitted
under the Indenture; provided, however, such Interest Rate
Protection Agreements do not increase the consolidated
Indebtedness of the Company outstanding at any time other than as
a result of fluctuations in the exchange rates or interest rates
or by reason of customary fees, indemnities and compensation
payable thereunder; (viii) Indebtedness under the Gem Notes;
provided, however, that any event that results in any Gem Note
ceasing to meet the conditions of the definition thereof shall be
deemed to constitute the Incurrence of such Indebtedness by the
obligor thereof; (ix) Indebtedness Incurred solely in respect of
performance bonds or completion guarantees, to the extent that
such Incurrence does not result in the Incurrence of any
obligation for the payment of borrowed money to others; (x)
Refinancing Indebtedness Incurred in respect of Indebtedness
Incurred pursuant to Section 4.12(a) or the foregoing clauses
(ii), (iii) and (iv); (xi) Indebtedness arising out of standby
letters of credit covering workers compensation, performance or
similar non-Indebtedness obligations in an aggregate amount not
to exceed $500,000 at any time outstanding; and (xii)
Indebtedness (other than Indebtedness permitted by Section
4.12(a) or elsewhere in this Section 4.12(b)) in an aggregate
principal amount outstanding at any time not to exceed $5
million.
(c) For purposes of determining the outstanding principal
amount of any particular Indebtedness Incurred pursuant to this
Section 4.12, (i) Indebtedness permitted by this section need not
be permitted solely by reference to one provision permitting such
Indebtedness but may be permitted in part by one such provision
and in part by one or more other provisions of this provision
permitting such Indebtedness and (ii) in the event that
Indebtedness or any portion thereof meets the criteria of more
than one of the types of Indebtedness described in this section,
the Company, in its sole discretion, shall classify such
Indebtedness and only be required to include the amount of such
Indebtedness in one of such clauses.
SECTION 4.13.Limitation on Restrictions on
Distributions from Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, create or otherwise cause or permit to exist or
become effective any encumbrance or restriction on the ability of
any Restricted Subsidiary to (i) pay dividends or make any other
distributions on its Capital Stock or pay any Indebtedness owed
to the Company or any other Restricted Subsidiary, (ii) make any
loans or advances to the Company or any other Restricted
Subsidiary, or (iii) transfer any of its property or assets to
the Company or any other Restricted Subsidiary, except: (a) any
encumbrance or restriction in effect at the Issue Date pursuant
to an agreement disclosed herein; (b) any encumbrance or
restriction with respect to a Restricted Subsidiary pursuant to
an agreement relating to any Indebtedness Incurred by such
Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company or another Restricted
Subsidiary (other than Indebtedness Incurred as consideration in,
or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became
a Restricted Subsidiary or was acquired by the Company or another
Restricted Subsidiary) and outstanding on such date; (c) any
encumbrance or restriction pursuant to an agreement effecting a
refinancing of Indebtedness Incurred pursuant to an agreement
referred to in clause (a) or (b) of this provision or contained
in any amendment to an agreement referred to in clause (a) or (b)
of this provision; provided however, that the encumbrances and
restrictions contained in any such refinancing agreement or
amendment are no less favorable to the Noteholders than
encumbrances and restrictions contained in such agreements; (d)
in the case of any encumbrance or restriction referred to in
clause (iii), any such encumbrance or restriction (1) that
restricts in a customary manner the subletting, assignment or
transfer of any property or asset that is a lease, license,
conveyance or contract or similar property or asset, (2) arising
by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited
hereby, or (3) any encumbrance or restriction pursuant to an
agreement relating to an acquisition of property, so long as such
encumbrance or restriction relates solely to the property so
acquired; (e) any encumbrance or restriction imposed by any
Gaming Authority; and (f) any encumbrance or restriction imposed
by Legal Requirements.
SECTION 4.14.Change of Control.
(a) Upon a Change of Control, each Holder shall have the
right to require that the Company repurchase all or a part of
such Holder's Notes at a Purchase Price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, to the Purchase Date.
(b) Within 30 calendar days following any Change of
Control, the Company shall send, by first-class mail, a notice to
each Holder with a copy to the Trustee stating:
(i) that a Change of Control has occurred and that
such Holder has the right to require the Company to purchase
such Holder's Notes at a Purchase Price in cash equal to
101% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, to the Purchase
Date;
(ii) the circumstances and relevant facts
regarding such Change of Control which the Company in good
faith believes will enable Holders to make an informed
decision (which at a minimum will include information, if
relevant, with respect to pro forma historical income, cash
flow and capitalization, each after giving effect to such
Change of Control, events causing such Change of Control and
the date such Change of Control is deemed to have occurred);
(iii) the Purchase Date (which shall be no earlier
than 30 days and no later than 60 days from the date such
notice is mailed); and
(iv) the instructions and relevant information
determined by the Company, consistent with this provision,
that a Holder must follow or consider in order to have its
Notes purchased, which in each case shall include a summary
of the procedures, set forth in Section 4.24, to be followed
with respect to such repurchase.
(c) In making such an offer to repurchase Notes upon a
Change of Control, the Company shall comply with the procedures
set forth in Section 4.24.
SECTION 4.15.Limitation on Sales of Assets and
Restricted Subsidiary Stock.
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Disposition unless (i) the Company
or such Restricted Subsidiary receives consideration at the time
of such Asset Disposition at least equal to the Fair Market
Value, as determined in good faith by the Board of Directors, the
determination of which shall be evidenced by a Board Resolution
(including as to the value of all non-cash consideration), of the
shares and assets subject to such Asset Disposition; (ii) at
least 85% of the consideration thereof received by the Company or
such Restricted Subsidiary is in the form of cash or cash
equivalents; and (iii) the Company delivers an Officers'
Certificate to the Trustee certifying that such Asset Disposition
complies with clauses (i) and (ii) (if applicable), provided,
however, that the amount of (x) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance
sheet) of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms
subordinated to the Notes or any Subsidiary Guarantee) that are
assumed by the transferee of any such assets pursuant to a
customary novation or other agreement that releases the Company
or such Restricted Subsidiary from further liability and (y) any
securities, notes or other obligations received by the Company or
any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash
(to the extent of the cash received) within 20 Business Days
after receipt, shall be deemed to be cash for purposes of this
provision.
Net Available Cash (or any portion thereof) from any
permitted Asset Disposition or from any Event of Loss shall be
applied by the Company (or such Restricted Subsidiary, as the
case may be) within 270 days from receipt of such Net Available
Cash (a) to prepay, repay or purchase Indebtedness of a
Restricted Subsidiary that is not a Guarantor (other than any
Disqualified Stock, Preferred Stock or Subordinated Obligations
or any Indebtedness owed to the Company or any Subsidiary) or
Senior Indebtedness; and/or (b) to reinvest in Additional Assets
(including by
means of an Investment in Additional Assets by a Guarantor
with Net Available Cash received by the Company or another
Restricted Subsidiary); provided, however, that in connection
with any prepayment, repayment or purchase of Indebtedness
pursuant to clause (a) above, the Company or such Restricted
Subsidiary shall retire such Indebtedness and shall cause the
related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid or
purchased; provided further, that the entering into of a binding
commitment to reinvest Net Available Cash within such 270 day
period shall be deemed to constitute reinvestment pursuant to the
foregoing clause (b) so long as such reinvestment definitively
occurs within 330 days from receipt of such Net Available Cash,
after which time such Net Available Cash shall become and be
added to any then-existing "Excess Proceeds" if such reinvestment
has not definitively occurred. Any Net Available Cash that is not
applied by the Company or its Restricted Subsidiaries in the
manner and in the relevant time periods described in the
preceding sentence shall, immediately upon expiration of such
time periods, become and be added to any then-existing "Excess
Proceeds." When the aggregate amount of Excess Proceeds (together
with income earned thereon) exceeds $5 million, the Company shall
make an offer (an "Excess Proceeds Offer") to purchase Notes
pursuant to and subject to the conditions of the following
paragraph. Pending application of Net Available Cash pursuant to
this provision, such Net Available Cash shall be invested in
Temporary Cash Investments.
In the event the Company is required to make an Excess
Proceeds Offer, it shall make an offer to purchase from all
Holders on a pro rata basis the Notes at a Purchase Price of 100%
of their principal amount plus accrued and unpaid interest and
Liquidated Damages, if any, to the Purchase Date and shall
purchase from Holders accepting such offer, the maximum principal
amount of Notes that may be purchased from funds in an amount
equal to all then-existing Excess Proceeds. Upon completion of an
Excess Proceeds Offer (including payment of the Purchase Price
for Notes duly tendered) the Excess Proceeds that were the
subject of such offer shall cease to be Excess Proceeds and the
Company or the Restricted Subsidiary that engaged in the Asset
Disposition, as applicable, may use the remaining Excess Proceeds
for general corporate purposes.
Within 10 calendar days after the date on which the Company
is required to make an Excess Proceeds Offer, the Company shall
send, by first-class mail, a notice to each Holder with a copy to
the Trustee stating:
(i) that one or more Asset Dispositions or Events of
Loss have occurred and that such Holder has the right to
require the Company to purchase such Holder's Notes at a
Purchase Price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated
Damages, if any, to the Purchase Date;
(ii) the circumstances and relevant facts regarding
such Asset Disposition(s) or Event(s) of Loss which the
Company in good faith believes will enable Holders to make
an informed decision (which at a minimum will include
information, if relevant, with respect to pro forma
historical income, cash flow and capitalization, each after
giving effect to such Asset Disposition(s) or Event(s) of
Loss, events causing such Asset Disposition(s) or Event(s)
of Loss and the date such Asset Disposition(s) or Event(s)
of Loss occurred);
(iii) the Purchase Date (which shall be no
earlier than 30 days and no later than 60 days from the date
such notice is mailed); and
(iv) the instructions and relevant information
determined by the Company, consistent with this provision
and this Indenture, that a Holder must follow or consider in
order to have its Notes purchased, which in each case shall
include a summary of the procedures set forth in
Section 4.24, to be followed with respect to such Excess
Proceeds Offer.
In making such an Excess Proceeds Offer, the Company shall
comply with the procedures set forth in Section 4.24.
SECTION 4.16.Limitation on Issuance and Sale of
Capital Stock of Restricted Subsidiaries.
The Company shall not permit any Restricted Subsidiary to,
directly or indirectly, issue or otherwise Incur any Preferred
Stock, except for any Preferred Stock issued to and held by the
Company. The Company shall not sell or otherwise transfer any
Capital Stock of any Specified Subsidiary, and shall not permit
any Specified Subsidiary to, directly or indirectly, issue or
otherwise Incur any Capital Stock, except for (a) the sale or
other transfer of 100% of the Capital Stock of a Specified
Subsidiary in accordance with Section 4.15 or (b) the issuance or
other Incurrence of Capital Stock to or held by the Company or
another Specified Subsidiary (but only so long as such Specified
Subsidiary is a Specified Subsidiary).
SECTION 4.17.Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or permit to exist
any Lien on any of its property or assets (including Capital
Stock), whether owned on the date hereof or thereafter acquired,
or any interest therein or income or profits therefrom, securing
any obligation other than Permitted Liens.
SECTION 4.18.Limitation of Layered Indebtedness.
The Company shall not, directly or indirectly, Incur any
Indebtedness, and shall not permit any Guarantor to Incur any
Indebtedness, that is subordinate in right of payment to any
other Indebtedness of the Company or such Guarantor, as
applicable, unless such Indebtedness is subordinate in right of
payment to, or ranks pari passu with, the Notes or the Subsidiary
Guarantee of such Guarantor in all respects.
SECTION 4.19.Limitation on Designations of Restricted
Subsidiaries and Unrestricted
Subsidiaries.
(a) Designation of a Subsidiary as a Restricted Subsidiary.
Unless the Capital Stock of any such Subsidiary is disposed of in
compliance with Section 4.15, all Specified Subsidiaries will be
Restricted Subsidiaries at all times. Any newly acquired or newly
formed Subsidiary of the Company must be designated by the Board
of Directors as a Restricted Subsidiary unless (i) it may be, and
is, designated as an Unrestricted Subsidiary by the Board of
Directors in the manner
provided below or (ii) it is a Subsidiary of an
Unrestricted Subsidiary. Any Unrestricted Subsidiary may be
designated by the Company as a Restricted Subsidiary; provided
that (i) at the time of such designation after giving pro forma
effect thereto, the Company would be permitted to incur $1.00 of
additional Indebtedness pursuant to the Consolidated Coverage
Ratio test contained in Section 4.12(a); and (ii) no Default or
Event of Default has occurred and is continuing immediately
preceding such designation and after giving pro forma effect
thereto.
(b) Designation of a Subsidiary as an Unrestricted
Subsidiary. Any newly-organized Subsidiary may be designated by
the Company as an Unrestricted Subsidiary at the time of its
formation, provided that such Subsidiary has total assets of
$1,000 or less at the time of such designation and the conditions
set forth in the definition of "Unrestricted Subsidiary" are
satisfied. Any Restricted Subsidiary (other than a Specified
Subsidiary) may be designated by the Company as an Unrestricted
Subsidiary (at which time the Subsidiary Guarantee of such
Restricted Subsidiary will terminate); provided that:
(i) at the time of such designation and after giving
pro forma effect thereto,
(A) the Company would be permitted to incur $1.00
of additional Indebtedness pursuant to the
Consolidated Coverage Ratio test contained in
Section 4.12(a) and
(B) the Consolidated Coverage Ratio is not less
than 80% of the Consolidated Coverage Ratio
without giving pro forma effect to such
designation;
(ii) no Default or Event of Default has occurred and is
continuing immediately preceding such designation and after
giving pro forma effect thereto, including the requirement set
forth in Section 4.10(c) that any Investment in such Restricted
Subsidiary be deemed to be a Restricted Payment made on the date
of such designation; and
(iii) the conditions set forth in the definition of
"Unrestricted Subsidiary" are satisfied.
(c) Any designation by the Board of Directors pursuant to
the foregoing provisions shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution
giving effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing
provisions.
SECTION 4.20.Repurchase of Notes on Loss of Material
Gaming License.
If (i) a Gaming License of the Company or any Restricted
Subsidiary is revoked or terminated, or if any such Gaming
License is suspended or otherwise ceases to be effective, in any
case resulting in the cessation or suspension of operation for a
period of more than 90 days of the gaming business of any Gaming
Establishment owned, leased or operated directly or indirectly by
the Company or any of its Restricted Subsidiaries (each a
"License Loss"), and (ii) the Gaming Establishment subject to
such License Loss, during the period of four consecutive fiscal
quarters of the Company then most recently ended for which
internal financial statements are available,
accounted for more than 10% of the Consolidated Cash Flow
of the Company, the Company shall apply an amount equal to four
times the contribution of such Gaming Establishment to such
Consolidated Cash Flow (the "License Loss Amount"), within 40
days after such License Loss occurs, to the prepayment, repayment
or purchase of Indebtedness of a Restricted Subsidiary that is
not a Guarantor (other than any Disqualified Stock, Preferred
Stock or Subordinated Obligations or any Indebtedness owed to the
Company or any Subsidiary) or Senior Indebtedness; provided,
however, that the related loan commitment (if any) shall be
permanently reduced by an amount equal to the principal amount so
prepaid, repaid or purchased. If any part of the License Loss
Amount is not applied by the Company or its Restricted
Subsidiaries in the manner and in the 40-day period described in
the preceding sentence, the Company shall, immediately upon
expiration of such period, make an offer to purchase from all
Holders (a "License Loss Offer"), and shall purchase from Holders
accepting such offer on a pro rata basis, the maximum principal
amount of Notes that may be purchased with such unapplied portion
of the License Loss Amount, at a Purchase Price of 101% of their
principal amount plus accrued and unpaid interest and Liquidated
Damages, if any, to the Purchase Date. Notwithstanding the
foregoing, the Company will not be required to make any such
application or a License Loss Offer if, giving effect to the
License Loss on a pro forma basis, the Company's Consolidated
Coverage Ratio at the time such License Loss occurs would be at
least 2.25 to 1.
Prior to or upon the date on which the Company is required
to make a License Loss Offer, the Company shall send, by first-
class mail, a notice to each Holder with a copy to the Trustee
stating:
(i) that one or more License Losses have occurred and
that such Holder has the right to require the Company to
purchase such Holder's Notes at a Purchase Price in cash
equal to 101% of the principal amount thereof plus accrued
and unpaid interest and Liquidated Damages, if any, to the
Purchase Date;
(ii) the circumstances and relevant facts regarding
such License Loss which the Company in good faith believes
will enable Holders to make an informed decision (which at a
minimum will include information, if relevant, with respect
to pro forma historical income, cash flow and
capitalization, each after giving effect to such License
Loss, events causing such License Loss(es) and the date such
License Loss(es) occurred);
(iii) the Purchase Date (which shall be no earlier
than 30 days and no later than 60 days from the date such
notice is mailed); and
(iv) the instructions and relevant information
determined by the Company, consistent with this Indenture,
that a Holder must follow or consider in order to have its
Notes purchased which, in each case shall include a summary
of the procedures set forth in Section 4.24, to be followed
with respect to such License Loss Offer.
In making such a License Loss Offer, the Company shall
comply with the procedures set forth in Section 4.24.
SECTION 4.21. Limitation on Other Business
Activities.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage, directly or indirectly, in any business
other than a Related Business.
SECTION 4.22.Additional Subsidiary Guarantees.
If (i) CPI shall have received all requisite approvals by
the relevant Gaming Authorities, or (ii) (A) the Company or any
of its Restricted Subsidiaries shall acquire, create or designate
another Restricted Subsidiary after the date hereof and (B) all
requisite approvals by the relevant Gaming Authorities shall have
been received, the Company shall cause CPI or such other
Restricted Subsidiary to execute a supplement to this Indenture
substantially in the form of Exhibit E hereto and providing for
the issuance of a Subsidiary Guarantee. ACCBI shall be a
Guarantor at all times after the approvals contemplated by
Section 12.15 have been obtained, and the Company shall notify
the Trustee and each Noteholder of the receipt of such approvals.
The Company agrees to use its best efforts to obtain all such
approvals from Gaming Authorities. Upon execution of any such
supplement providing for a Subsidiary Guarantee, the relevant
Subsidiary will deliver to the Trustee an Opinion of Counsel
(including opinions of local counsel in the relevant
jurisdictions) relating to such Subsidiary, the authorization and
enforceability of such Subsidiary Guarantee in accordance with
the terms hereof, subject to the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors rights generally
and equitable principles of general applicability, and the other
matters covered by the opinions rendered with respect to the
Initial Guarantors and their respective Subsidiary Guarantees on
the Issue Date, in each case substantially similar in scope and
form to such opinions rendered on the Issue Date.
SECTION 4.23.Payment for Consents.
Neither the Company nor any of its Subsidiaries will,
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 hereof or
the Notes unless such consideration is offered to be paid or is
paid to all Holders of the Notes 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 4.24.General Procedures for Purchase of Notes.
The following procedures shall apply to (i) any offer to
repurchase Notes upon a Change of Control pursuant to Section
4.14, (ii) any Excess Proceeds Offer pursuant to Section 4.15, or
(iii) any License Loss Offer pursuant to Section 4.20 (each a
"Repurchase Offer"):
(a) The Holders electing to have a Note purchased will be
required to surrender such Note, with an appropriate form duly
completed, to the Company at the address specified in the notice
at least five Business Days prior to the Purchase Date. Holders
will be entitled to withdraw their election if the Trustee or the
Company receives not later than three Business Days prior to the
Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the
name of the Holder, the principal amount of the Note which
was delivered for purchase by the Holder and a statement that
such Holder is withdrawing his election to have such Note
purchased.
(b) On the Purchase Date, (i) all Notes or portions thereof
purchased by the Company pursuant to a Repurchase Offer shall be
delivered by the Trustee for cancellation, (ii) the Company shall
pay the Purchase Price plus accrued and unpaid interest and
Liquidated Damages, if any, to the Holders entitled thereto, (ii)
the Company shall promptly issue a new Note, and (iv) the
Trustee, upon written request from the Company shall authenticate
and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered,
provided that each such new Note shall be in a principal amount
of $1,000 or an integral multiple thereof. Any Note not so
accepted shall be promptly mailed or delivered by the Company to
the Holder thereof.
(c) The Company shall publicly announce the results of the
applicable Repurchase Offer on or as soon as practicable after
the Purchase Date, but in no case more than five Business Days
after such Purchase Date.
(d) If the Company complies with this Section 4.24 and the
other requirements related to a Repurchase Offer, on and after
the Purchase Date, interest shall cease to accrue on the Notes or
the portions of Notes called for repurchase. If a Note is
repurchased after a Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid interest shall
be paid to the Person in whose name such Note was registered at
the close of business on such Record Date. If any Note called
for repurchase shall not be so paid upon surrender for repurchase
because of the failure of the Company to comply with this Section
4.24, interest shall be paid on the unpaid principal, from the
Purchase Date until such principal is paid, and to the extent
lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in Section 4.01(c).
(e) The Company shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the
Repurchase Offers described herein. To the extent that the
provisions of any securities laws or regulations conflict with
this provision, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have
breached its obligations under this provision by virtue thereof.
(f) Other than as specifically provided in this
Section 4.24, any Repurchase Offer pursuant to this Section 4.24
shall be made pursuant to the provisions of Sections 4.14, 4.15
or 4.20, as the case may be.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01.Merger, Consolidation and Sale of Assets.
The Company shall not consolidate with or merge with or
into, or convey, lease or otherwise transfer all or substantially
all its assets to, any Person, and shall not permit one or more
Restricted Subsidiaries representing all or substantially all of
the assets of the Company to consolidate with or merge with or
into or convey, lease or otherwise transfer all or substantially
all of its assets to, any Person other than the Company, unless:
(i) the resulting, surviving or transferee Person shall be a
corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia
and such Person (if not the Company) shall expressly assume, by
an indenture supplemental to this Indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under the Notes and this
Indenture; (ii) immediately before and after giving effect to
such transaction or series of transactions on a pro forma basis
(and treating any Indebtedness which becomes an obligation of
such Person or any Restricted Subsidiary as a result of such
transaction as having been Incurred by such Person or such
Restricted Subsidiary at the time of such transaction), no
Default or Event of Default shall have occurred and be
continuing; (iii) immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and
treating any Indebtedness which becomes an obligation of such
Person or any Restricted Subsidiary as a result of such
transaction as having been Incurred by such Person or such
Restricted Subsidiary at the time of such transaction), such
Person would be able to incur an additional $1.00 of Indebtedness
under Section 4.12(a), (iv) immediately after giving effect to
such transaction or series of transactions, on a pro forma basis
(and treating any Indebtedness which becomes an obligation of
such Person or any Restricted Subsidiary as a result of such
transaction as having been Incurred by such Person or such
Restricted Subsidiary at the time of such transaction or series
of transactions), such Person shall have Consolidated Net Worth
in an amount which is not less than the Consolidated Net Worth of
the Company immediately prior to such transaction; (v) any such
transaction would not require any Holder of Notes to obtain a
Gaming License or be qualified under the laws of any applicable
gaming jurisdiction in the absence of such transaction, provided
that a transaction involving a jurisdiction that does not require
the licensing or qualification of all of the holders of the
Notes, but reserves the discretionary right to require the
licensing or qualification of any holder of Notes, shall not be
prohibited pursuant to the terms of this clause (v); (vi) any
such transaction would not result in the loss of any
qualification or any material Gaming License of the Company or
its Subsidiaries; and (vii) the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply herewith.
No Guarantor may consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another
Person whether or not affiliated with such Guarantor, unless (i)
the resulting, surviving or transferee Person shall be a
corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia
and such Person (if not the Company) shall expressly assume, by
an indenture supplemental to this
Indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of such
Guarantor under its Subsidiary Guarantee and this Indenture; (ii)
immediately before and after giving effect to such transaction or
series of transactions on a pro forma basis (and treating any
Indebtedness which becomes an obligation of such Person or any
Restricted Subsidiary as a result of such transaction as having
been Incurred by such Person or such Restricted Subsidiary at the
time of such transaction), no Default or Event of Default shall
have occurred and be continuing; (iii) immediately after giving
effect to such transaction or series of transactions on a pro
forma basis (and treating any Indebtedness which becomes an
obligation of such Person or any Restricted Subsidiary as a
result of such transaction as having been Incurred by such Person
or such Restricted Subsidiary at the time of such transaction),
the Company would be able to incur an additional $1.00 of
Indebtedness under the Section 4.12(a); (iv) immediately after
giving effect to such transaction or series of transactions, on a
pro forma basis (and treating any Indebtedness which becomes an
obligation of such Person or any Restricted Subsidiary as a
result of such transaction as having been Incurred by such Person
or such Restricted Subsidiary at the time of such transaction or
series of transactions), such Person shall have consolidated net
worth in an amount which is not less than the consolidated net
worth of such Guarantor immediately prior to such transaction;
(v) any such transaction would not result in the loss of any
qualification or any material Gaming License of the Company or
its Subsidiaries; and (vi) the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with the Indenture;
provided that this paragraph shall not apply to an Asset
Disposition subject to and complying with Section 4.15.
The resulting, surviving or transferee Person in any such
transaction involving the Company or any Guarantor shall succeed
to, and be substituted for, and may exercise every right and
power of, the Company or such Guarantor under this Indenture, but
the Company in the case of a lease shall not be released from the
obligation to pay the principal of and interest on the Notes.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01.Events of Default.
(a) An "Event of Default" occurs if:
(i) the Company defaults in any payment of interest on, or
Liquidated Damages, if any, with respect to, any Note when the
same becomes due and payable (whether or not prohibited by
Article Ten), and such default continues for a period of 30 days;
(ii) the Company defaults in the payment of the principal of
any Note when the same becomes due and payable at its Stated
Maturity, on a Redemption Date, Purchase Date, upon acceleration
or otherwise (whether or not prohibited by Article Ten);
(iii) the Company or any Guarantor fails to comply with
Sections 4.10, 4.12, 4.14, 4.15 or 4.20 or Article Five;
(iv) the Company or any Guarantor fails to comply with any
of its agreements in the Notes or the Indenture (other than those
referred to in (i), (ii) or (iii) above) and such failure
continues for 30 days after the notice to the Company from the
Trustee or Holders of at least 25% in principal amount of the
Notes specified below or, if the Company fails to timely give the
notice to the Trustee specified below, such failure continues for
30 days after the date such notice should have been given by the
Company;
(v) any installment of principal of, or any premium or
accrued and unpaid interest on, any Indebtedness of the Company
or any Restricted Subsidiary is not paid within any applicable
grace period after its maturity or any such Indebtedness is
accelerated by the holders thereof because of a default, or any
such Indebtedness is required to be repurchased or prepaid, and
the total amount of interest, premium, principal or other amount
with respect to such Indebtedness that is unpaid, accelerated or
required to be repurchased or prepaid exceeds $5 million at the
time, provided that this clause (v) shall not apply to any
failure to make any scheduled payment of principal of, or
interest on, any Gem Note, but only if the consequence of such
failure is limited to an increase of the interest rate, and/or
the compounding of interest, applicable thereto and, without
limitation, does not include a right under such Gem Note or under
applicable law to accelerate the due date of, or in any way
enforce, such Gem Note;
(vi) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law: (a) commences a
voluntary case; (b) consents to the entry of an order for relief
against it in an involuntary case; (c) consents to the
appointment of a Custodian of it or for any substantial part of
its property; (d) makes a general assignment for the benefit of
its creditors; or (e) takes any comparable action under any
foreign laws relating to insolvency;
(vii) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that: (a) is for relief
against the Company or any Restricted Subsidiary in an
involuntary case; (b) appoints a Custodian of the Company or any
Restricted Subsidiary or for any substantial part of its
property; or (c) orders the winding up or liquidation of the
Company or any Restricted Subsidiary; or any similar relief is
granted under any foreign laws and the order or decree remains
unstayed and in effect for 60 days;
(viii) any judgment or decree for the payment of money in
excess of $5 million at the time is entered against the Company
or any Restricted Subsidiary and is not discharged and either (a)
an enforcement proceeding has been commenced by any creditor upon
such judgment or decree or (b) there is a period of 60 days
following the entry of such judgment or decree during which such
judgment or decree is not discharged, waived or the execution
thereof stayed; or
(ix) except as permitted by Section 11.02, any Subsidiary
Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in
full force and effect or any Guarantor, or any Person acting on
behalf of any Guarantor, shall deny or disaffirm its obligations
under its Subsidiary Guarantee.
(b) The foregoing will constitute Events of Default
whatever the reason for any such Event of Default and whether it
is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body.
(c) A Default under clause (iv) of Section 6.01(a) is not
an Event of Default until the Trustee or the Holders of at least
25% in principal amount of the Notes notify the Company of the
Default and the Company does not cure such Default within the
time specified after receipt of such notice. Such notice must
specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default."
(d) The Company shall deliver to the Trustee, promptly upon
becoming aware of the occurrence thereof, written notice in the
form of an Officers' Certificate of any Event of Default or
Default under clause (iii), (iv), (v), (vi), (vii), (viii) or
(ix) of Section 6.01(a), its status and what action the Company
is taking or proposes to take with respect thereto.
SECTION 6.02.Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in clauses (vi) or (vii) of Section 6.01(a) with
respect to the Company) occurs and is continuing and has not been
waived pursuant to Section 6.04, the Trustee by notice to the
Company, or the Holders of at least 25% in principal amount of
the Notes by notice to the Company and the Trustee, may declare
the principal of and accrued interest and Liquidated Damages, if
any, on all the Notes to be due and payable. Upon such a
declaration, such principal, interest and Liquidated Damages, if
any, shall be due and payable immediately.
(b) If an Event of Default specified in clause (vi) or
(vii) of Section 6.01(a) with respect to the Company occurs, the
principal of and interest and Liquidated Damages, if any, on all
the Notes shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the
Trustee or any Noteholders.
(c) In the case of any Event of Default occurring by reason
of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of
the premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to Section 3.07(a),
an equivalent premium shall also become and be immediately due
and payable to the extent permitted by law upon the acceleration
of the Notes. If an Event of Default occurs prior to August 1,
2001, by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company with the intention of
avoiding the prohibition on redemption of the Notes prior to
August 1, 2001, then the premium specified in Section 3.07(c)
shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
(d) The Holders of a majority in principal amount of the
Notes by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have
been cured or waived except
nonpayment of principal or interest that has become due
solely because of acceleration. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
SECTION 6.03.Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity
to collect the payment of principal of or interest on the Notes
or to enforce the performance of any provision of the Notes or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Noteholder
in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
SECTION 6.04.Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of
the Notes then outstanding may, by notice to the Trustee, on
behalf of the Holders of all of the Notes, waive any existing
Default or Event of Default and its consequences hereunder except
(i) a continuing Default or Event of Default in the payment of
principal of, or premium, interest or Liquidated Damages, if any,
on, the Notes, or (ii) any Default or Event of Default in respect
of a provision that under Article Nine hereof cannot be waived
without the consent of each Noteholder affected thereby.
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 impair
any right consequent thereon.
SECTION 6.05.Control by Majority.
The Holders of a majority in principal amount of the
outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on it, including,
without limitation, any remedies provided for in Section 6.03.
Subject to Section 7.01, however, the Trustee may refuse to
follow any direction that the Trustee reasonably believes
conflicts with any law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another
Noteholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such
direction.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or
priority over another Noteholder.
SECTION 6.06.Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and
interest and Liquidated Damages, if any, on a Note, on or after
the
respective due dates expressed in such Note, or to bring
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.07.Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is
continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other
Obligor on the Notes for the whole amount of principal and
accrued interest, and Liquidated Damages, if any, remaining
unpaid, together with interest on overdue principal and, to the
extent that payment of such interest is lawful, interest on
overdue installments of interest at the rate set forth in Section
4.01 and 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.
SECTION 6.08.Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, taxes, disbursements and advances of the
Trustee, its agents and counsel) and the Noteholders allowed in
any judicial proceedings relating to the Company or any other
obligor upon the Notes, any of their respective creditors or any
of their respective property and shall be entitled and empowered
to collect and receive any funds or other property payable or
deliverable on any such claims and to distribute the same, and
any Custodian in any such judicial proceedings is hereby
authorized by each Noteholder 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 Noteholders, to pay to
the Trustee any amount due to it for the reasonable compensation,
expenses, taxes, disbursements and advances of the Trustee, its
agent and counsel, and any other amounts due the Trustee under
Section 7.07. The Company's payment obligations under this
Section 6.08 shall be secured in accordance with Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Noteholder in any such proceeding.
SECTION 6.09.Priorities.
If the Trustee collects any funds or property pursuant to
this Article Six, it shall pay out the funds in the following
order:
First: to the Trustee for amounts due under Section
7.07;
Second: if the Holders are forced to proceed against
the Company directly without the Trustee, to Holders for
their collection costs;
Third: to Holders for amounts due and unpaid on
the Notes for principal and interest and Liquidated Damages,
if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for
principal and interest, respectively; and
Fourth: to Obligors or any other obligor on the Notes,
as their interests may appear, or as a court of competent
jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Noteholders
pursuant to this Section 6.09.
SECTION 6.10.Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.10 does not apply to
a suit by the Trustee, a suit by a Holder pursuant to Section
6.06, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Notes.
SECTION 6.11.Restoration of Rights and Remedies.
If the Trustee or any Holder of Notes 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, the Company, the
Trustee and the Holders shall, subject to any determination in
such proceeding, 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 6.12.Limitation on Suits.
A Noteholder may not pursue any remedy with respect hereto
or the Notes unless: (i) the Holder gives to the Trustee written
notice stating that an Event of Default is continuing; (ii) the
Holders of at least 25% in principal amount of the Notes make a
written request to the Trustee to pursue the remedy; (iii) such
Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense; (iv) the
Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity;
and (v) the Holders of a majority in principal amount of the
Notes do not give the Trustee a direction inconsistent with the
request during such 60-day period.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01.Duties of Trustee.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill
in its exercise thereof as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and confirming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein
contained, 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
Section 7.01(b).
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.02,
6.04 or 6.05.
(d) 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 in the 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.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to this Article Seven.
(f) The Trustee shall not be liable for interest on
any money or assets received by it except as the Trustee may
agree in writing with the Company. Assets held in trust by the
Trustee need not be segregated from other assets except to the
extent required by law.
SECTION 7.02.Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or
an Opinion of Counsel, which shall conform to Sections 12.04 and
12.05. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of
any agent appointed with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith which it reasonably believes
to be authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, notice, request,
direction, consent, order, bond, debenture, or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon
reasonable notice to the Company, to examine the books, records,
and premises of the Company, personally or by agent or attorney
and to consult with the officers and representatives of the
Company, including the Company's accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders pursuant to the
provisions of this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred by it in compliance with such
request, order or direction.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder.
(h) Except with respect to Section 4.01, the Trustee shall
have no duty to inquire as to the performance by the Company with
respect to the covenants contained in Article Four. In addition,
the Trustee shall not be deemed to have knowledge of a Default or
Event of Default except (i) any Default or Event of Default
occurring pursuant to Section 6.01(a)(i), 6.01(a)(ii) or 4.01 or
(ii) any Default or Event of Default of which the Trustee shall
have received written notification or obtained actual knowledge.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with
the Company, any Subsidiary of the Company, or their respective
Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04.Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, and it shall not be
accountable for the Company's use of the proceeds from the Notes,
and it shall not be responsible for any statement of the Company
in this Indenture or the Notes other than the Trustee's
certificate of authentication.
SECTION 7.05.Notice of Default.
If a Default or Event of Default occurs and is continuing
and if the Trustee has actual knowledge of such Default or Event
of Default, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 90 days after it
occurs. The Trustee may withhold from Holders of the Notes
notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal,
premium, interest or Liquidated Damages, if any) if it determines
that withholding notice is in the best interest of the Holders.
SECTION 7.06.Reports by Trustee to Holders.
Within 60 days after each May 15, the Trustee shall, to the
extent that any of the events described in TIA Section 313(a) occurred
within the previous twelve months, but not otherwise, mail to
each Noteholder a brief report dated as of such date that
complies with TIA Section 313(a). The Trustee also shall comply with
TIA Sections 313(b), (c) and (d).
A copy of each report at the time of its mailing to
Noteholders shall be mailed to the Company and filed with the SEC
and each stock exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes
become listed on any stock exchange and the Trustee shall comply
with TIA Section 313(d).
SECTION 7.07.Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it in connection with the performance of its
duties under this Indenture. Such expenses shall include the
reasonable fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents,
employees, stockholders and directors and officers for, and hold
them harmless against, any loss, liability or expense incurred
by them except for such actions to the extent caused by any
negligence, bad faith or willful misconduct on their part,
arising out of or in connection with the administration of this
trust including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their rights, powers or duties
hereunder. The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek
indemnity. At the Trustee's sole discretion, the Company shall
defend the claim and the Trustee shall cooperate and may
participate in the defense; provided that any settlement of a
claim shall be approved in writing by the Trustee.
Alternatively, the Trustee may at its option have separate
counsel of its own choosing and the Company shall pay the
reasonable fees and expenses of such counsel; provided that the
Company will not be required to pay such fees and expenses if it
assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with
such defense as reasonably determined by the Trustee. The
Company need not pay for any settlement made without its written
consent. The Company need not reimburse any expense or indemnify
against any loss or liability to the extent incurred by the
Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Notes on all
assets or money held or collected by the Trustee, in its capacity
as Trustee, except assets or money held in trust to pay principal
of or interest on particular Notes. The Trustee's right to
receive payment of any amounts due under this Section 7.07 shall
not be subordinate to any other liability or indebtedness of the
Company (even though the Notes may be subordinate to such other
liability or indebtedness).
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(6) or (7) occurs,
such expenses and the compensation for such services are intended
to constitute expenses of administration under any Bankruptcy
Law.
This Section 7.07 shall survive the resignation or removal
of the Trustee and the discharge or other termination of this
Indenture.
SECTION 7.08.Replacement of Trustee.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by so notifying the Company and the
Trustee and may appoint a successor Trustee. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall notify
each Holder of such event and shall promptly appoint a
successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal
amount of the Notes may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee, subject
to the lien provided in Section 7.07, the resignation or removal
of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least 10% in principal
amount of the outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any
Noteholder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor
Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.
SECTION 7.09.Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust
business to, another corporation, the resulting, surviving or
transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise
eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this
Article Seven.
SECTION 7.10.Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(l), (2) and (5). The Trustee (or,
in the case of a corporation included in a bank holding company
system, the related bank holding company) shall have a combined
capital and surplus of at least $50 million as set forth in its
most recent published annual report of condition. In addition,
if the Trustee is a corporation included in a bank holding
company system, the Trustee, independently of such bank holding
company, shall meet the capital requirements of TIA Section 310(a)(2).
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. The
provisions of TIA Section 310 shall apply to the Company, as obligor of
the Notes.
SECTION 7.11. Preferential Collection of
Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein. The provisions of TIA Section 311 shall
apply to the Company, as obligor on the Notes.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01.Termination of the Company's Obligations.
The Obligors may terminate their respective obligations
under the Notes and this Indenture, except those obligations
referred to in the penultimate paragraph of this Section 8.01, if
all Notes previously authenticated and delivered (other than
destroyed, lost or stolen Notes which have been replaced or paid
or Notes for whose payment U.S. Legal Tender have theretofore
been deposited with the Trustee or the Paying Agent or a trustee
satisfactory to the Trustee in trust or segregated and held in
trust by the Company and thereafter repaid to the Company, as
provided in Section 8.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it
hereunder, or if:
(a) either (i) pursuant to Article Three, the Company
shall have given notice to the Trustee and mailed a notice
of redemption to each Holder of the redemption of all of the
Notes under arrangements satisfactory to the Trustee for the
giving of such notice or (ii) all Notes have otherwise
become due and payable hereunder;
(b) the Company shall have irrevocably deposited or
caused to be deposited with the Trustee, the Paying Agent or
a trustee satisfactory to the Trustee, under the terms of an
irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely
for the benefit of the Holders for that purpose, U.S. Legal
Tender in such amount as is sufficient without consideration
of reinvestment of such interest, to pay principal of,
premium and Liquidated Damages, if any, and interest on the
outstanding Notes to maturity or redemption; provided that
the Trustee shall have been irrevocably instructed to apply
such U.S. Legal Tender to the payment of said principal,
premium and Liquidated Damages, if any, and interest with
respect to the Notes and, provided, further, that from and
after the time of deposit, the money deposited shall not be
subject to the rights of holders of Senior Indebtedness
pursuant to Article Ten;
(c) no Default or Event of Default with respect to
this Indenture or the Notes shall have occurred and be
continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any
other instrument to which the Company is a party or by which
it is bound;
(d) the Company shall have paid all other sums payable
by it hereunder; and
(e) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent providing for the
termination of the Company's obligations under the Notes and
this Indenture have been complied with. Such Opinion of
Counsel shall also state that such satisfaction and
discharge does not result in a default under any agreement
or instrument then known to such counsel that binds or
affects the Company.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.10, 2.15, 2.16,
2.17, 4.01, 4.02, 7.07, 8.05 and 8.06 shall survive until the
Notes are no longer outstanding pursuant to the last paragraph of
Section 2.08. After the Notes are no longer outstanding, the
Company's rights and obligations in Sections 7.07, 8.05 and 8.06
shall survive.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the
Obligors' obligations under the Notes and this Indenture except
for those surviving obligations specified above.
SECTION 8.02.Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution of
the Board of Directors of the Company, at any time, elect to have
either Section 8.02(b) or Section 8.02(c) be applied to all
outstanding Notes upon compliance with the conditions set forth
in Section 8.03.
(b) Upon the Company's exercise under Section 8.02(a) of
the option applicable to this Section 8.02(b), the Obligors
shall, subject to the satisfaction of the conditions set forth in
Section 8.03, be deemed to have been discharged from their
respective obligations with respect to all outstanding Notes on
the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid
and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.04 and the other
Sections of this Indenture referred to in (i) and (ii) below, and
to have satisfied all its other obligations under such Notes and
this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging
the same), and Holders of the Notes and any amounts deposited
under Section 8.03 shall cease to be subject to any obligations
to, or the rights of, any holder of Senior Indebtedness under
Article Ten or otherwise, except for the following provisions,
which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Notes to
receive solely from the trust fund described in Section 8.04, and
as more fully set forth in Section 8.04, payments in respect of
the principal of and interest and Liquidated Damages, if any, on
such Notes when such payments are due, (ii) the Company's
obligations with respect to such Notes under Sections 2.05, 2.06,
2.07, 2.08, 2.10, 2.15, 2.16, 2.17, 4.01, 4.02, 7.07, 8.05 and
8.06 hereof, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations
in connection therewith and (iv) this Article Eight. Subject to
compliance with this Article Eight, the Company may exercise its
option under this Section 8.02(b) notwithstanding the prior
exercise of its option under Section 8.02(c).
(c) Upon the Company's exercise under Section 8.02(a)
of the option applicable to this Section 8.02(c), the Obligors
shall, subject to the satisfaction of the conditions set forth in
Section 8.03, be released from their respective obligations under
the covenants contained in Sections 4.05 through 4.23, inclusive,
any covenant added to this Indenture subsequent to the date
hereof and Article Five with respect to the outstanding Notes on
and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "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 (it being understood that such Notes
shall not be deemed outstanding for accounting purposes) and
Holders of the Notes and any amounts deposited under Section 8.03
shall cease to be subject to any obligations to, or the rights
of, any holder of Senior Indebtedness under Article Ten or
otherwise. For this purpose, such Covenant Defeasance means
that, with respect to the outstanding Notes, the Obligors may
omit to 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 and such omission to comply shall not
constitute a Default or an Event or Default under Section
6.01(a)(iii) or (iv), but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Company's exercise under
Section 8.02(a) of the option applicable to this Section 8.02(c),
subject to the satisfaction of the conditions set forth in
Section 8.03, Section 6.01(a)(v), 6.01(a)(viii) and 6.01(a)(ix)
shall not constitute Events of Default.
SECTION 8.03.Conditions to Legal Defeasance or
Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.02(b) or 8.02(c) to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders,
unencumbered U.S. Legal Tender or U.S. Government
Obligations, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay
the principal of and interest and Liquidated Damages, if
any, on the Notes on the stated date for payment thereof or
on the applicable Redemption Date, as the case may be, of
such principal or installment of principal of or interest on
the Notes; provided that the Trustee shall have received an
irrevocable written order from the Company instructing the
Trustee to apply such U.S. Legal Tender or the proceeds of
such U.S. Government Obligations to said payments with
respect to the Notes;
(b) in the case of an election under Section 8.02(b),
the Company shall have delivered to the Trustee an Opinion
of Counsel in the United States reasonably acceptable to the
Trustee confirming that (A) the Company has received from,
or there has been published by, the Internal Revenue Service
a ruling or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in
either case to the
effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the 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;
(c) in the case of an election under Section 8.02(c),
the Company shall have delivered to the Trustee an Opinion
of Counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders of the 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;
(d) no Default or Event of Default or event which with
notice or lapse of time or both would become a Default or an
Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from the
incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Notes pursuant to this
Article Eight concurrently with such incurrence) or insofar
as Sections 6.01(vi) and 6.01(vii) are concerned, at any
time in the period ending on the 91st day after the date of
such deposit (and any such Legal Defeasance or Covenant
Defeasance shall not take effect until such day);
(e) 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 its
Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made
by the Company with the intent of preferring the Holders
over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other
creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance
have been complied with; and
(h) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (i) the trust funds
will not be subject to any rights of any holders of
Indebtedness of the Company other than the Notes, and
(ii) assuming no intervening bankruptcy or insolvency of the
Company between the date of deposit and the 91st day
following the deposit and that no Holder is an insider of
the Company, after the 91st day following the deposit, the
trust funds will not be subject to the effect of any
applicable Bankruptcy Law.
SECTION 8.04. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal
Tender or U.S. Government Obligations deposited with it pursuant
to Article Eight, and shall apply the deposited U.S. Legal Tender
and the money from U.S. Government Obligations in accordance with
this Indenture to the payment of principal of and interest and
Liquidated Damages, if any, on the Notes. The Trustee shall be
under no obligation to invest said U.S. Legal Tender or U.S.
Government Obligations except as it may agree in writing with the
Company.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Legal Tender or U.S. Government Obligations deposited pursuant to
Section 8.03 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 Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the Company's request any U.S. Legal
Tender or U.S. Government Obligations held by it as provided in
Section 8.03 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 that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.05.Repayment to the Company.
Subject to the other provisions of this Article Eight, any
U.S. Legal Tender or U.S. Government Obligations deposited with
the Trustee, the Paying Agent or another trustee for payment of
the principal of, premium and Liquidated Damages, if any, or
interest on any Note and remaining unclaimed for two years after
such principal, premium and Liquidated Damages, if any, or
interest has become due and payable, shall be promptly paid to
the Company upon its written request and the Trustee and the
Paying Agent thereupon shall be relieved from all liability with
respect to such funds; provided that the Trustee or such Paying
Agent, before being required to make any payment, may at the
expense of the Company cause to be published once in a newspaper
of general circulation in The City of New York or mail to each
Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein which shall be
at least 30 days from the date of such publication or mailing any
unclaimed balance of such funds then remaining will be repaid to
the Company. After payment to the Company Noteholders entitled
to such funds must look to the Company for payment as general
creditors unless an applicable law designates another Person.
SECTION 8.06.Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S.
Legal Tender or U.S. Government Obligations in accordance with
this Article Eight by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application,
the Obligors' obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred
pursuant to Article Eight until such time as the Trustee or
Paying Agent is permitted to apply all such U.S. Legal Tender or
U.S. Government Obligations in accordance with Article Eight;
provided that if the Company has made any payment of interest on
or principal of any Notes because of 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 U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01.Without Consent of Holders.
The Obligors, when authorized by Board Resolutions, and the
Trustee, together, may amend or supplement this Indenture or the
Notes without notice to or consent of any Noteholder:
(1) to cure any ambiguity, defect or inconsistency;
provided that such amendment or supplement does not, in the
opinion of the Trustee, adversely affect the rights of any
Holder in any material respect;
(2) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
(3) to comply with any requirements of the SEC in
order to effect or maintain the qualification of this
Indenture under the TIA;
(4) to make any change that would provide any
additional benefit or rights to the Noteholders or that does
not adversely affect the rights of any Noteholder;
(5) to provide for issuance of the Exchange Notes,
which will have terms substantially identical in all
material respects to the Initial Notes (except that the
transfer restrictions and the reference to the Registration
Rights Agreement with respect to Liquidated Damages and
registration rights contained in the Initial Notes will be
modified or eliminated, as appropriate), and which will be
treated together with any outstanding Initial Notes, as a
single issue of securities;
(6) to provide for the assumption of the Company's or
any Guarantor's obligations to Noteholders by a successor
company or guarantor;
(7) to release any Subsidiary Guarantee in accordance
with the provisions of this Indenture;
(8) to provide for additional Guarantors; or
(9) to make any other change that does not, in the
opinion of the Trustee, adversely affect the rights of any
Noteholders hereunder;
provided that the Company has delivered to the Trustee, in
addition to the documents required by Section 12.04, an Opinion
of Counsel stating that such amendment or supplement complies
with the provisions of this Section 9.01.
Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02(b), if any,
the Trustee shall join with the Obligors in the execution of any
amended or supplemental Indenture authorized or permitted by the
terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02.With Consent of Holders.
(a) Subject to Section 6.06 and the exceptions noted below,
the Obligors, when authorized by Board Resolutions, and the
Trustee, together, with the written consent of the Holder or
Holders of at least a majority in aggregate principal amount of
then outstanding Notes, may amend or supplement this Indenture or
the Notes, without notice to any other Noteholders. Subject to
Section 6.06 and the exceptions noted below, the Holder or
Holders of a majority in aggregate principal amount of then
outstanding Notes may waive compliance by the Company with any
provision of this Indenture or the Notes without notice to any
other Noteholder. No amendment, supplement or waiver, including
a waiver pursuant to Section 6.04, shall, without the consent of
each Holder of each Note affected thereby:
(i) reduce the principal amount of Notes the Holders
of which must consent to any such amendment, supplement or
waiver;
(ii) reduce the rate or extend the time for payment of
interest on or Liquidated Damages, if any, with respect to
any Note;
(iii) reduce the principal of or extend the fixed
maturity of any Note;
(iv) reduce the price payable upon the redemption of
any Note or change the time at which any Note may or shall
be redeemed;
(v) reduce the price payable upon the repurchase of
any Note upon a Change of Control, upon an Excess Proceeds
Offer or License Loss Offer or change the time at which any
Note shall be repurchased;
(vi) waive a Default or Event of Default in the payment
of principal of, or premium, interest or Liquidated Damages
(if any) on, the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in
aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration);
(vii) make any Note payable in money other than
that stated in the Note;
(viii) make any change in the provisions
concerning waiver of Defaults or Events of Default by
Holders of the Notes or rights of Holders to receive payment
of principal, interest or Liquidated Damages, if any;
(ix) make any change in the subordination provisions
herein that affects the right of any Holder; or
(x) release the Company or any Guarantor from its
obligations under the Notes or the Subsidiary Guarantee
(except pursuant to Section 4.19 or 11.02).
(b) It shall not be necessary for the consent of the
Holders under this Section 9.02 to approve the particular form of
any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
(c) After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company shall mail to the
Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03.Effect on Senior Indebtedness.
No amendment of this Indenture shall adversely affect the
rights of any holder of Senior Indebtedness under Article Ten of
this Indenture, without the consent of such holder.
SECTION 9.04.Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or
the Notes shall comply with the TIA as then in effect.
SECTION 9.05.Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective,
a consent to it by a Holder is a continuing consent by the Holder
and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if
notation of the consent is not made on any Note. Subject to the
following paragraph, any such Holder or subsequent Holder may
revoke the consent as to such Holder's Note or portion of such
Note by notice to the Trustee or the Company received before the
date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of
Notes have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.
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, which record date
shall be at least 30 days prior to the first solicitation of such
consent. If a record date is fixed, then notwithstanding the
last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to
revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such
consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective,
it shall bind every Noteholder, unless it makes a change
described in any of clauses (i) through (x) of Section 9.02(a),
in which case, the amendment, supplement or waiver shall bind
only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note; provided that any
such waiver shall not impair or affect the right of any Holder to
receive payment of principal of and interest on a Note, on or
after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after
such respective dates without the consent of such Holder.
SECTION 9.06.Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder of the Note to deliver
it to the Trustee. The Trustee may place an appropriate notation
on the Note about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms.
Any such notation or exchange shall be made at the sole cost and
expense of the Company.
SECTION 9.07.Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or
waiver authorized pursuant to this Article Nine; provided that
the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture. The Trustee
shall be entitled to receive, and shall be fully protected in
relying upon, in addition to the documents required by Section
12.04, an Opinion of Counsel and an Officers' Certificate each
stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or
permitted by this Indenture. Such Opinion of Counsel shall not
be an expense of the Trustee.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Agreement to Subordinate.
The Company, each Guarantor and the Trustee agree, and each
Holder by its acceptance thereof likewise acknowledges and
agrees, that all Notes, Subsidiary Guarantees and the
Registration Rights Agreement shall be issued subject to this
Article Ten; and each Person holding any Note or entitled to the
benefit of any Subsidiary Guarantee, whether upon original issue
or upon transfer, assignment or exchange thereof accepts and
agrees that the payment of principal of, premium, if any, and
interest on the Notes and the Subsidiary Guarantees and
Liquidated Damages, if any, will be subordinated to the prior
payment in full of all Obligations with respect
to Senior Indebtedness of the Company and any Guarantor
(whether outstanding on the date of this Indenture or thereafter
incurred), to the extent set forth in this Article Ten.
SECTION 10.02. Payment to Noteholders.
(a) In the event that (i) any Designated Senior
Indebtedness is not paid when due or (ii) any other default on
Designated Senior Indebtedness occurs and the maturity of such
Designated Senior Indebtedness is accelerated in accordance with
its terms, no Obligor may pay the principal of or interest on the
Notes or make any deposit for the purpose of the discharge of its
liabilities under the Indenture or may repurchase, redeem or
otherwise retire any Notes or make any payment under any
Subsidiary Guarantee or may pay any Liquidated Damages
(collectively, "pay the Notes"; "payment of the Notes" shall have
a correlative meaning), except in Permitted Junior Securities,
unless, in either case, (a) the default has been cured or waived
and any such acceleration has been rescinded or (b) such
Designated Senior Indebtedness has been paid in full.
(b) During the continuance of any default (other than
a default described in clause (i) or (ii) of Section 10.02(a), a
"Non-Payment Default") with respect to any Designated Senior
Indebtedness as a result of which the maturity thereof may then
be accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, no Obligor may pay
the Notes, except in Permitted Junior Securities, for a period (a
"Payment Blockage Period") commencing upon the receipt by any
Obligor and the Trustee of written notice of such default from
the Representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a
"Blockage Notice") and ending 179 days thereafter (or earlier if
such Payment Blockage Period is terminated (i) by written notice
to the Trustee and the Company from the Person or Persons who
gave such Blockage Notice, (ii) by repayment in full of such
Designated Senior Indebtedness or (iii) because the default
giving rise to such Blockage Notice is no longer continuing or is
waived). Notwithstanding the immediately preceding sentence (but
subject to the next preceding sentence), unless the holders of
such Designated Senior Indebtedness or the Representative of such
holders shall have accelerated the maturity of such Designated
Senior Indebtedness, the Obligors may resume payments on the
Notes after such Payment Blockage Period. Not more than one
Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated
Senior Indebtedness during such period. No Non-Payment Default
that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the
basis for a subsequent Blockage Notice.
(c) Upon any payment or distribution of the assets of
any Obligor to creditors upon a total or partial liquidation or a
total or partial dissolution of any Obligor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding
relating to any Obligor or its property or an assignment for the
benefit of creditors or any marshaling of any Obligor's assets
and liabilities: (i) holders of Senior Indebtedness shall be
entitled to receive payment in full of all Obligations due in
respect of the Senior Indebtedness before Noteholders shall be
entitled to receive any payment of the Notes; and (ii) until the
Senior Indebtedness is paid in full, any distribution to which
Noteholders would be entitled but for this provision shall be
made to holders
of the Senior Indebtedness as their interests may appear,
except that Noteholders may receive Permitted Junior Securities.
(d) Section 10.02(a), (b) and (c) shall not prevent or
delay (i) the Company from redeeming any Notes if required by any
Gaming Authority as set forth in Section 3.08 or from otherwise
purchasing any Notes pursuant to any Legal Requirement relating
to the gaming business of the Company and its Subsidiaries or
(ii) the receipt by the Noteholders of payments of principal and
interest on the Notes, as set forth in Article Eight, from the
application of any money or U.S. Government Obligations held in
trust by the Trustee.
(e) If payment of the Notes is accelerated because of
a Default or Event of Default, the Company shall promptly notify
each Representative of holders of Designated Senior Indebtedness.
(f) In the event that, notwithstanding subsection (a),
(b) or (c) of this Section 10.02, any payment or distribution of
assets of any Obligor of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be
received by the Trustee under this Indenture or the Holders
before all Senior Indebtedness is paid in full or provision is
made for such payment in accordance with its terms, such payment
or distribution shall be held in trust for the benefit of and
shall be paid over or delivered to the holders of such Senior
Indebtedness or their respective Representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have
been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in
full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such
Senior Indebtedness.
(g) The consolidation of the Company or any Guarantor
with, or the merger of the Company or any Guarantor into, another
corporation or the liquidation or dissolution of the Company or
any Guarantor following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided in
Article Five shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section
10.02 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Five. Nothing in this Section shall
apply to claims of, or payments to, the Trustee under or pursuant
to Article Seven, except as provided therein. This Section shall
be subject to Section 10.05.
SECTION 10.03. Subrogation of Notes.
(a) Subject to the payment in full of all Senior
Indebtedness, Holders shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company or
any Guarantor applicable to the Senior Indebtedness until the
principal of and interest on the Notes shall be paid in full;
and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any
cash, property or securities to which the Holders or any
Guarantor or the Trustee on their behalf would be entitled except
for this Article Ten, and no payment over pursuant to this
Article Ten to the holders of such Senior Indebtedness by Holders
or the Trustee on their behalf shall, as between the Company or
any Guarantor, as the case may be, its creditors other than
holders of Senior Indebtedness and the Holders, be deemed to be a
payment by the Company or such Guarantor to or on account of such
Senior Indebtedness; and no payments or distributions of cash,
property or securities to or for the benefit of the
Securityholders pursuant to the subrogation provision of this
Article Ten, which would otherwise have been paid to the holders
of Senior Indebtedness shall be deemed to be a payment by the
Company or any Guarantor to or for the account of the Notes. It
is understood that this Article Ten is and is intended solely for
the purpose of defining the relative rights of the Holders, on
the one hand, and the holders of the Senior Indebtedness, on the
other hand.
(b) Nothing contained in this Article Ten or elsewhere
in this Indenture or in the Notes is intended to or shall impair,
as between the Company or a Guarantor, on the one hand, and their
creditors (other than the holders of Senior Indebtedness), and
the Holders, the obligation of the Company or such Guarantors,
which is absolute and unconditional, on the other, to pay to the
Holders the principal of and interest on the Notes as and when
the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Company or such Guarantors, as
the case may be, other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent a
Holder or the Trustee on his behalf from exercising all remedies
otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Ten
of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company or any Guarantor received
upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of any
Obligor referred to in this Article Ten, the Trustee, subject to
Sections 7.01 and 7.02, and the Holders shall be entitled to rely
upon any order or decree made by any court of competent
jurisdiction in which such bankruptcy, dissolution, winding up,
liquidation, arrangement or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and
other indebtedness of such Obligor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article Ten.
SECTION 10.04. Authorization by Securityholders.
Each Holder by his acceptance thereof authorizes the Trustee
in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this
Article Ten and appoints the Trustee his attorney in fact for any
and all such purposes.
SECTION 10.05. Notice to Trustee.
(a) The Company and each Guarantor, as the case may be,
shall give prompt written notice to the Trustee and to any Paying
Agent of any fact known to the Company or such Guarantor which
would prohibit the making of any payment of moneys to or by the
Trustee or
any Paying Agent in respect of the Notes pursuant to this
Article Ten. Regardless of anything to the contrary contained in
this Article Ten or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any
Senior Indebtedness or of any default or event of default with
respect to any Senior Indebtedness or of any other facts which
would prohibit the making of any payment of moneys to or by the
Trustee, unless and until the Trustee shall have received notice
in writing at its Corporate Trust Office to that effect signed by
an officer of the Company or Guarantor, as the case may be, or by
a holder of Senior Indebtedness or Representative, who shall have
been certified by the Company or such Guarantor, or otherwise
established to the reasonable satisfaction of the Trustee to be
such holder or Representative, and, prior to the receipt of any
such written notice, the Trustee shall, subject to Sections 7.01
and 7.02, be entitled to assume that no such facts exist;
provided that if on a date at least three Business Days prior to
the date upon which by the terms hereof any such moneys shall
become payable for any purpose (including, without limitation,
the payment of the principal of, or interest on any Note) the
Trustee shall not have received with respect to such moneys the
notice provided for in this Section, then, regardless of anything
herein to the contrary, the Trustee shall have full power and
authority to receive such moneys and to apply the same to the
purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or
after such prior date.
(b) Notwithstanding anything to the contrary herein,
nothing shall prevent (a) any payment by the Company or any
Guarantor or the Trustee to the Noteholders of amounts in
connection with a redemption of Notes if (i) notice of such
redemption has been given pursuant to Article Three prior to the
receipt by the Trustee of written notice as aforesaid, and
(ii) such notice of redemption is given not earlier than 60 days
before the redemption date, or (b) any payment by the Trustee to
the Noteholders of amounts deposited with it pursuant to Article
Eight.
(c) The Trustee shall be entitled to rely on the delivery
to it of a written notice by a Person representing himself to be
a holder of Senior Indebtedness (or a Representative) to
establish that such notice has been given by a holder of Senior
Indebtedness or a Representative on behalf of such holder. In
the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Ten, the Trustee may
request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this
Article Ten, and, if such evidence is not furnished the Trustee,
may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 10.06. Trustee's Relation to Senior Debt
Holders.
(a) The Trustee, or any agent of the Company, or a
Guarantor or the Trustee shall be entitled to all the rights set
forth in this Article Ten with respect to any Senior Indebtedness
which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall deprive the
Trustee or any such agent, of any of its rights as such holder.
Nothing in this Article Ten shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 7.07.
(b) With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically
set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness of
the Company or any Guarantor shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and the
Trustee shall not be liable to any holder of Senior Indebtedness
if it shall pay over or deliver to Holders, the Company, any
Guarantor any other Person moneys or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this
Article Ten or otherwise.
SECTION 10.07. No Impairment of Subordination.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or any Guarantor or by
any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company or such Guarantor with the
terms, provisions and covenants of this Indenture, regardless of
any knowledge thereof which any such holder may have or otherwise
be charged with.
ARTICLE ELEVEN
SUBSIDIARY GUARANTEES
SECTION 11.01. Subsidiary Guarantees.
(a) Each Guarantor hereby jointly and severally
unconditionally guarantees (each such guarantee together with the
guarantee endorsement to the Notes by such Guarantor,
substantially in the form of Exhibit F hereto, being a
"Subsidiary Guarantee") to each Holder authenticated and
delivered by the Trustee irrespective of the validity or
enforceability of this Indenture, the Notes or the Obligations of
the Company under this Indenture or the Notes, that: (i) the
principal of, interest, premium, if any, and Liquidated Damages,
if any, on the Notes will be paid in full when due, whether at
the Maturity Date, any Interest Payment Date, any Redemption Date
or Purchase Date, by acceleration, call for redemption, offer to
purchase or otherwise, and interest on the overdue principal of
and interest and Liquidated Damages, if any, on the Notes and all
other Obligations of the Company to the Holders or the Trustee
under this Indenture or the Notes will be promptly paid in full
or performed, all in accordance with the terms of this Indenture
and the Notes; and (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations,
they will be paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at maturity,
by acceleration or otherwise. Failing payment when due
(including any applicable grace periods) of any amount so
guaranteed for whatever reason, each Guarantor will be obligated
to pay the same pursuant to the preceding sentence whether or not
such failure to pay has become an Event of Default that could
cause acceleration pursuant to Section 6.02. Each Guarantor
agrees that this is a guarantee of payment and not a guarantee of
collection.
(b) For purposes of this Article Eleven, "Obligations"
means, with respect to the Company, any and all present and
future obligations and liabilities of the Company of every type
and description to the Holders under the Notes, this Indenture
and the Registration Rights Agreement, whether for principal,
premium (if any), interest, Liquidated Damages, if any, expenses,
indemnities or other amounts, in each case whether due or not
due, absolute or contingent, 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.
(c) Each Guarantor's Obligations with regard to this
Subsidiary Guarantee shall be (i) joint and several,
unconditional, irrespective of the validity or enforceability of
the Notes or the Obligations of the Company under this Indenture
or the Notes, the absence of any action to enforce the same, the
recovery of any judgment against the Company or any other Obligor
with respect to this Indenture, the Notes or the Obligations of
the Company under this Indenture or the Notes, any action to
enforce the same or any other circumstances (other than complete
performance) which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor and
(ii) subordinated to the prior payment in full of all Obligations
with respect to Senior Indebtedness of such Guarantor (whether
outstanding on the date of this Indenture or thereafter
incurred) in accordance with Article Ten.
(d) Each Guarantor, to the extent permitted by law, hereby
waives and relinquishes all claims, rights and remedies accorded
by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but
not limited to: (i) any right to require the Trustee or the
Holders (each, a "Benefited Party") to proceed against the
Company, any other Obligor or any other Person or to proceed
against or exhaust any security held by a Benefited Party at any
time or to pursue any other remedy in any Benefited Party's power
before proceeding against such Guarantor; (ii) any defense that
may arise by reason of the incapacity, lack of authority, death
or disability of any other Person or the failure of a Benefited
Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other
Person; (iii) demand, protest and notice of any kind including
but not limited to notice of the existence, creation or incurring
of any new or additional Indebtedness or obligation or of any
action or non-action on the part of such Guarantor, the Company,
any other Obligor, any Benefited Party, any creditor of such
Guarantor, the Company, any other Obligor or on the part of any
other Person whomsoever in connection with any Indebtedness or
Obligations hereby guaranteed; (iv) any defense based upon an
election of remedies by a Benefited Party, including but not
limited to an election to proceed against such Guarantor for
reimbursement; (v) any defense based upon any statute or rule or
law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome
than that of the principal; (vi) any defense arising because of a
Benefited Party's election, in any proceeding instituted under
the Bankruptcy Law or the application of Section 1111(b)(2) of
the Bankruptcy Law; or (vii) any defense based on any borrowing
or grant of a security interest under Section 364 of the
Bankruptcy Law. Except as provided in Section 11.02, a
Subsidiary Guarantee will not be discharged except by discharge
of this Indenture pursuant to Article Eight hereof or by complete
performance of the Obligations contained in such Subsidiary
Guarantee and this Indenture.
(e) If any Holder or the Trustee is required by any
court or otherwise to return to either the Company or any
Guarantor, or any custodian acting in relation to either the
Company or such Guarantor, any amount paid by the Company or such
Guarantor to the Trustee or such Holder, the applicable
Subsidiary Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect. No Guarantor shall be
entitled to any right of subrogation in relation to the Holders
in respect of any Obligations guaranteed until payment in full of
all Obligations guaranteed pursuant to such Subsidiary Guarantee.
(f) As between each Guarantor, on the one hand, and the
Holders and the Trustee, on the other, (i) the maturity of the
Obligations guaranteed pursuant to a Subsidiary Guarantee may be
accelerated pursuant to Section 6.02, notwithstanding any stay,
injunction or other prohibition preventing such acceleration as
to the Company or any other Obligor on the Notes of the
Obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of those Obligations as provided in
Section 6.02, those Obligations (whether or not due and
payable) will forthwith become due and payable by such Guarantor
for the purpose of the Subsidiary Guarantee.
SECTION 11.02. Release Following Disposition of
Capital Stock or Designation as an
Unrestricted Subsidiary.
The Trustee shall release any Guarantor from its Subsidiary
Guarantee, and such Subsidiary Guarantee shall cease to be valid
and to have any force and effect if (i) there shall occur a sale
or other disposition (other than to the Company or any Restricted
Subsidiary) of all of the assets of any Guarantor, by way of
merger, consolidation or otherwise, or a sale or other
disposition (other than to the Company or any Restricted
Subsidiary) of all of the Capital Stock of any Guarantor;
provided that such sale or other disposition is an Asset
Disposition subject to and complying with Section 4.15, and the
Net Available Cash resulting therefrom are applied in accordance
with such Section 4.15, or (ii) such Restricted Subsidiary is
designated as an Unrestricted Subsidiary in accordance with
Section 4.19. In such event, each of the Company, the Trustee
and the remaining Guarantors shall, in accordance with Article
Nine hereof, execute an Indenture Supplemental hereto that
reflects the release of such Subsidiary Guarantee. Any Guarantor
not released from its obligations under its Subsidiary Guarantee
shall remain liable for the full amount of principal and interest
on the Notes and for the other Obligations of the Company as
provided in this Article Eleven.
SECTION 11.03. Rights of Contribution.
(a) In order to provide for just and equitable contribution
among the Guarantors in connection with their respective
Subsidiary Guarantees, the Guarantors have agreed among
themselves that if any Guarantor satisfies some or all of the
Obligations of the Company guaranteed by it hereunder (a "Funding
Guarantor"), the Funding Guarantor shall be entitled to
contribution from the other Guarantors that have positive Maximum
Net Worth (as defined below) for all payments made by the Funding
Guarantor in satisfying such Obligations, so that each Guarantor
that remains obligated under its Subsidiary Guarantee at the time
that a Funding Guarantor makes such payment (a "Remaining
Guarantor") and has a positive Maximum Net Worth shall bear a
portion of such payment equal to the percentage that such
Remaining
Guarantor's Maximum Net Worth bears to the aggregate
Maximum Net Worth of all Remaining Guarantors that have positive
Maximum Net Worth.
(b) For purposes of this Section 11.03, the following terms
are defined as set forth below:
"Net Worth" means, with respect to any Guarantor, the
amount, as of any date of calculation, by which the sum of such
Person's assets (including subrogation, indemnity, contribution,
reimbursement and similar rights that such Guarantor may have),
determined on the basis of a "fair valuation" or their "fair
salable value" (whichever is the applicable test under
Section 548 and other relevant provisions of Bankruptcy Law, and
the relevant state fraudulent conveyance or transfer laws) is
greater than the amount that will be required to pay all of such
Person's debts, in each case matured or unmatured, contingent or
otherwise, as of the date of calculation, but excluding
liabilities arising under its Subsidiary Guarantee and excluding,
to the maximum extent permitted by applicable law with the
objective of avoiding rendering such Person insolvent,
liabilities subordinated to the Obligations under such Subsidiary
Guarantees arising out of loans or advances made to such Person
by any other Person.
"Maximum Net Worth" means, with respect to any Guarantor,
the greatest of the Net Worths calculated as of the following
dates: (A) the date on which the Guarantor becomes a Guarantor
hereunder, (B) the date on which such Guarantor expressly
reaffirms its Subsidiary Guarantee, (C) the date on which demand
for payment is made on such Guarantor hereunder, (D) the date on
which payment is made by such Guarantor hereunder or (E) the date
on which any judgment, order or decree is entered requiring such
Guarantor to make payment hereunder or in respect hereof.
The meaning of the terms "fair valuation" and "fair salable
value" and the calculation of assets and liabilities shall be
determined and made in accordance with the relevant provisions of
any Bankruptcy Law and applicable state fraudulent conveyance or
transfer laws.
SECTION 11.04. Limitation on Liability.
If the obligations of any Guarantor hereunder otherwise
would be subject to avoidance under Section 548 of the Bankruptcy
Law or any applicable state law relating to fraudulent
conveyances or fraudulent transfers, taking into consideration
such Guarantor's (i) rights of reimbursement and indemnity from
the Company with respect to amounts paid by such Guarantor and
(ii) rights of contribution from other Guarantors pursuant to
Section 11.03, then such obligations hereby are reduced to the
largest amount that would make them not subject to such
avoidance. Any Person asserting that such Guarantor's
obligations are so avoidable shall have the burden (including the
burden of production and of persuasion) of proving (a) that,
without giving effect to this paragraph, such Guarantor's
obligations hereunder would be avoidable and (b) the extent to
which such obligations are reduced by operation of this
paragraph.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall
control.
SECTION 12.02. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by telecopier or registered or certified
mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company or any Guarantor:
Ameristar Casinos, Inc.
3773 Howard Hughes Parkway
Suite 490 South
Las Vegas, Nevada 89109
Attention: Senior Vice President and Chief
Financial Officer
Telecopy: (702) 369-8860
if to the Trustee:
First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Corporate Trust Administration
Telecopy: (612) 244-0711
Each of the Company and the Trustee by written notice to
each other such Person may designate additional or different
addresses for notices to such Person. Any notice or
communication to the Company or the Trustee shall be deemed to
have been given or made as of the date so delivered if personally
delivered; when receipt is acknowledged, if faxed; and five
calendar days after mailing if sent by registered or certified
mail, postage prepaid (except that a notice of change of address
shall not be deemed to have been given until actually received by
the addressee).
Any notice or communication mailed to a Noteholder shall be
mailed to him by first class mail or other equivalent means at
his address as it appears on the registration books of the
Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to
other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the
addressee receives it.
SECTION 12.03. Communications by Holders with
Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this
Indenture or the Notes. The Company, the Trustee, the Registrar
and any other Person shall have the protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to
Conditions Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of
the signers, all conditions precedent to be performed by the
Company, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, stating that, in the opinion of
such counsel, all such conditions precedent to be performed
by the Company, if any, provided for in this Indenture
relating to the proposed action have been complied with.
SECTION 12.05. Statements Required in Certificate
or Opinion.
Each certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture, other
than the Officers' Certificate required by Section 4.06, shall
include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such Person,
he has made such examination or investigation as is
reasonably necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been
complied with.
SECTION 12.06. Rules by Trustee, Paying Agent,
Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking
institutions in New York, New York or at such place of payment
are not required to be open. If a payment date is a Legal
Holiday at such place, payment may be made at such place on the
next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
SECTION 12.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE.
SECTION 12.09. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
Subsidiaries. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
SECTION 12.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator,
as such, of any Obligor or of the Trustee shall not have any
liability for any obligations of any Obligor under the Notes or
this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Noteholder
by accepting a Note waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance
of the Notes.
SECTION 12.11. Successors.
All agreements of the Obligors in this Indenture and the
Notes shall bind their respective successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 12.12. Duplicate Originals.
All 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 agreement.
SECTION 12.13. Severability.
In case any one or more of the provisions in this Indenture
or in the Notes shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and
of the remaining provisions shall
not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable
to the full extent permitted by law.
SECTION 12.14. Designation of Notes as Senior
Indebtedness Under Gem Notes.
The Company hereby designates, with respect to each Gem
Note, all Indebtedness evidenced by the Notes and this Indenture,
including, without limitation, all Liquidated Damages, if any, as
Senior Indebtedness, as such term is defined in such Gem Note.
SECTION 12.15Liability of ACCBI.
Notwithstanding anything herein to the contrary, ACCBI shall
have no obligation or liability hereunder prior to the time, if
at all, that this Indenture, and the Subsidiary Guarantee of
ACCBI provided for herein, shall have been approved by the Iowa
Racing and Gaming Commission.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the date first
written above.
Company:
AMERISTAR CASINOS, INC., a Nevada
corporation
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Senior Vice President
Guarantors:
AMERISTAR CASINO COUNCIL BLUFFS,
INC., an Iowa corporation
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
AMERISTAR CASINO LAS VEGAS, INC., a
Nevada corporation
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
AMERISTAR CASINO VICKSBURG, INC., a
Mississippi corporation
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
A.C. FOOD SERVICES, INC., a Nevada
corporation
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
AC HOTEL CORP., a Mississippi
corporation
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
Trustee:
FIRST TRUST NATIONAL ASSOCIATION
as Trustee
By: /s/ Richard H. Prokosch
Name: Richard H. Prokosch
Title: Trust Officer
EXHIBIT A
FORM OF NOTE
AMERISTAR CASINOS, INC.
No. _____________________ $_______________
CUSIP No. ______________
10 1/2% SENIOR SUBORDINATED NOTES DUE 2004 [SERIES A] [SERIES B]1
AMERISTAR CASINOS, Inc., a Nevada corporation (the
"Company"), for value received, hereby promises to pay to
__________, or its registered assigns, the principal sum of
________ Dollars [as reduced or increased from time to time as
indicated on Schedule A hereto],2 on August 1, 2004.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
duly executed by the Trustee (as defined on the reverse hereof)
referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture (as
defined on the reverse hereof) or be valid or obligatory for any
purposes.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.
AMERISTAR CASINOS, INC.
By:
Name:
Title:
[Corporate Seal]
Attest:
By:
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee, certifies that this is one of
the Notes referred to in the Indenture.
By:
Authorized Signatory
FORM OF REVERSE SIDE OF NOTE
AMERISTAR CASINOS, INC.
10 1/2% Senior Subordinated NOTES DUE 2004 [SERIES A] [SERIES B]3
[THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S
THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH NOTE
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE
902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT,
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IN THE
CASE OF (b), (c) OR (d), UPON DELIVERY OF AN OPINION OF
COUNSEL IF THE ISSUER OR TRUSTEE, REGISTRAR OR TRANSFER
AGENT FOR THE NOTES SO REQUESTS), (2) TO THE ISSUER,
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.]4
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE
OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF
SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION
2.17 OF THE INDENTURE.]5
1. Indenture.
This Note is one of a duly authorized issue of debt
securities of the Company designated as its "10 1/2% Senior
Subordinated Notes due 2004 [Series A] [Series B]"6 (herein
called the "Notes") limited in aggregate principal amount to
$100,000,000, issued under an indenture dated as of July 15, 1997
(as amended or supplemented from time to time, the "Indenture")
between the Company, as Issuer, Ameristar Casino Council Bluffs,
Inc., an Iowa corporation, Ameristar Casino Las Vegas, Inc., a
Nevada corporation, Ameristar Casino Vicksburg, Inc., a
Mississippi corporation, A.C. Food Services, Inc., a Nevada
corporation and AC Hotel Corp., a Mississippi corporation, as
Guarantors (together with certain other current and future
subsidiaries of the Company that may become guarantors,
collectively, the "Guarantors") and First Trust National
Association, as trustee (the "Trustee," which term includes any
successor Trustee under the Indenture), to which Indenture
reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Guarantors, the Trustee and each Holder and
of the terms upon which the Notes are, and are to be,
authenticated and delivered. The summary of the terms of the
Indenture contained herein does not purport to be complete and is
qualified by reference to the Indenture. All terms used in this
Note which are not defined herein shall have the meanings
assigned to them in the Indenture.
The Indenture restricts, among other things, the Company's
ability to incur additional indebtedness, incur liens, pay
dividends or make certain other restricted payments, sell assets,
apply net proceeds from certain asset sales, enter into certain
transactions with affiliates, merge or consolidate with any other
person, sell stock of Subsidiaries or sell, assign, transfer,
lease, convey or otherwise dispose of substantially all of the
assets of the Company. The Indenture also imposes similar
restrictions on Restricted Subsidiaries, but permits, under
certain circumstances, Subsidiaries to be deemed Unrestricted
Subsidiaries and thus not be subject to the restrictions of the
Indenture.
2. Interest.
The Company shall pay interest on this Note at a rate of 10
1/2% per annum, semiannually in arrears on February 1 and
August 1 of each year, commencing on February 1, 1998, to the
Holder hereof until the principal amount hereof is paid or duly
provided for. The Record Dates for such Interest Payment Dates
shall be January 15 and July 15, respectively (each, a "Record
Date"). Interest shall accrue from July 15, 1997 or from the
most recent Interest Payment Date thereafter to which interest
has been paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Note (or the
Note in exchange or substitution for which this Note was issued)
is registered at the close of business on the Record Date for
interest payable on such Interest Payment Date. Any such
interest not so punctually paid or duly provided for ("Defaulted
Interest") shall forthwith cease to be payable to the Holder on
such Record Date and shall be paid as provided in Section 2.12 of
the Indenture. Interest will be computed on the basis of a 360-
day year of twelve 30-day months.
Each payment of interest in respect of an Interest Payment
Date will include interest accrued through the day before such
Interest Payment Date. If an Interest Payment Date falls on a
day that is a Legal Holiday, the interest payment to be made on
such Interest Payment Date will be made on the next succeeding
business day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as
a result of such delayed payment.
[If this Note is exchanged pursuant to an Exchange Offer
Registration Statement (as defined in the Registration Rights
Agreement) prior to the Record Date for the first Interest
Payment Date following such exchange, accrued and unpaid
interest, if any, on this Note, up to but not including the date
of issuance of the Exchange Note or Exchange Notes issued in
exchange for this Note, shall be paid on the first Interest
Payment Date for such Exchange Note or Exchange Notes to the
Holder or Holders of such Exchange Note or Exchange Notes on the
first Record Date with respect to such Exchange Note or Exchange
Notes. If this Note is exchanged pursuant to an Exchange Offer
Registration Statement subsequent to the Record Date for the
first Interest Payment Date following such exchange but on or
prior to such Interest Payment Date, then any such accrued and
unpaid interest with respect to this Note and any accrued and
unpaid interest on the Exchange Note or Exchange Notes issued in
exchange for this Note, through the day before such Interest
Payment Date, shall be paid on such Interest Payment Date to the
Holder of the Initial Note on such Record Date.]7
[If this Note has been issued in exchange for an Initial
Note pursuant to an Exchange Offer Registration Statement (as
defined in the Registration Rights Agreement) prior to the Record
Date for such Initial Note with respect to the first Interest
Payment Date following such exchange, accrued and unpaid
interest, if any, on such Initial Note, up to but not including
the date of issuance of this Note, shall be paid on the first
Interest Payment Date for this Note to the Holder hereof on the
first Record Date with respect hereto. If this Note has been
issued in exchange for an Initial Note pursuant to an Exchange
Offer Registration Statement subsequent to the Record Date for
such Initial Note with respect to the first Interest Payment Date
following such exchange but on or prior to such Interest Payment
Date, then any such accrued and unpaid interest with respect to
the Initial Note and any accrued and unpaid interest on this
Note, through the day before such Interest Payment Date, shall be
paid on such Interest Payment Date to the Holder of this Note on
such Record Date.]8
To the extent lawful, the Company shall pay interest on
overdue principal, overdue premium, defaulted interest and
overdue Liquidated Damages (without regard to any applicable
grace period), at the interest rate borne on the Notes plus 2%
per annum. The Company's obligation pursuant to the previous
sentence shall apply whether such overdue amount is due at its
Stated Maturity, as a result of the Company's obligations
pursuant to the Indenture, or otherwise.
[3. Registration Rights; Liquidated Damages.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement. Such benefits include the right
of the Holder to receive Liquidated Damages in the event of a
failure on the part of the Company to comply with certain
registration covenants, as provided in Section 4 of the
Registration Rights Agreement.]9
[4]. Method of Payment.
The Company, through the Paying Agent, shall pay interest on
this Note to the registered Holder of this Note, as provided
above. The Holder must surrender this Note to a Paying Agent to
collect principal payments. The Company will pay principal,
premium, if any, and interest and Liquidated Damages, if any, in
money of the United States of America that at the time of payment
is legal tender for payment of all debts public and private.
Principal, premium, if any, and interest and Liquidated Damages,
if any, will be payable at the office of the Paying Agent but, at
the option of the Company, interest and Liquidated Damages may be
paid by check mailed to the registered Holders at their
registered addresses; provided that all payments with respect to
Notes the Holders of which have given wire transfer instructions
to the Company will be required to be made by wire transfer of
immediately available funds to the accounts specified by the
Holders thereof. [Payments with respect to this Global Note are
required to be made in same day funds in accordance with the
policies of the Depository.]10
[5]. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and
Registrar under the Indenture. The Company may, upon written
notice to the Trustee, appoint and change any Paying Agent or
Registrar. The Company or any of its subsidiaries may act as
Paying Agent or Registrar.
[6]. Notice of Redemption; Selection of Notes to be
Redeemed.
At least 30 calendar days but not more than 60 days before a
Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first class mail, postage prepaid, to
each Holder whose Notes are to be redeemed at the addresses of
such Holders as they appear in the Register.
If fewer than all the Notes are to be redeemed, selection of
Notes for redemption will be made by the Trustee, pro rata or by
lot or by any other means the Trustee determines to be fair and
appropriate and which complies with applicable legal and
securities exchange requirements.
[7]. Optional Redemption.
Except as described below, the Notes will not be redeemable
at the option of the Company prior to August 1, 2001. On or
after that date, the Notes will be redeemable at the option of
the Company, in whole at any time or in part from time to time,
on at least 30 but not more than 60 days' prior notice, mailed by
first-class mail to the Noteholders' registered addresses, at the
Redemption Prices (expressed in percentages of principal amount)
specified below plus accrued and unpaid interest and Liquidated
Damages, if any, to the applicable Redemption Date, if redeemed
during the 12-month period beginning August 1 of the years
indicated below:
Year Percentage
2001 105.25%
2002 103.50%
2003 and 101.75%
thereafter
Notwithstanding the foregoing, but subject to the terms of
any Designated Senior Indebtedness, on or prior to August 1,
2000, the Company may redeem up to 25% in aggregate principal
amount of the Notes originally issued under the Indenture at a
Redemption Price of 110.50% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date with the net proceeds of one or
more Public Equity Offerings; provided that at least $75.0
million in aggregate principal amount of Notes remain outstanding
immediately after the occurrence of each such redemption; and
provided, further, that notice of each such redemption shall have
been given within 30 days after the date of the closing of such
Public Equity Offering.
If an Event of Default occurs prior to August 1, 2001, by
reason of any willful action (or inaction) taken (or not taken)
by or on behalf of the Company with the intention of avoiding the
prohibition on redemption of the Notes prior to August 1, 2001,
then the premium (expressed in percentages of principal amount)
specified below shall also become immediately due and payable to
the extent permitted by law upon the acceleration of the Notes
during the 12-month period beginning August 1 of the years
indicated below:
Year Percentage
1997 (and including the
period from 10.50%
July 15, 1997 to
July 31, 1997)
1998 9.188%
1999 7.875%
2000 6.563%
The Notes are not subject to any mandatory sinking fund
payments.
[8]. Effect of Notice of Redemption.
Once notice of redemption is mailed as described above,
Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price plus accrued interest
and Liquidated Damages, if any. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at
the Redemption Price (together with accrued interest, and
Liquidated Damages, if any, thereon to the Redemption Date), but
installments of interest and Liquidated Damages, if any, the
maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the
relevant Record Dates referred to in the Notes.
Prior to 11:00 A.M., New York City time, on the Redemption
Date, the Company shall deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the Redemption Price plus accrued
interest and Liquidated Damages, if any, on, of all Notes to be
redeemed on that date. If the Company complies with such deposit
requirements, then, unless the Company defaults in the payment of
such Redemption Price plus accrued interest and Liquidated
Damages, if any, interest and Liquidated Damages, if any, on the
Notes to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Notes are
presented for payment.
[9]. Mandatory Disposition or Redemption Pursuant to Gaming
Law.
If a Holder or beneficial owner of this Note is required to
be licensed, qualified or found suitable under applicable Gaming
Laws and is not so licensed, qualified or found suitable, or if a
Holder or a beneficial owner of this Note fails to take the steps
necessary to seek such license, qualification or finding of
suitability, the Holder or beneficial owner of this Note shall be
obliged, at the request of the Company, to dispose of such
Holder's or beneficial owner's Notes within 30 days after receipt
of notice of failure to be licensed, qualified or found suitable
or such earlier date prescribed by any Gaming Authority (in which
event the Company's obligation to pay any interest and Liquidated
Damages, if any, after the receipt of such notice shall be
limited as provided in such Gaming Laws), and thereafter, the
Company shall have the right to redeem, on the date fixed by the
Company for the redemption of such Notes, such Holder's or
beneficial owner's Notes at a redemption price equal to the
lowest of (i) the price at which such Holder or beneficial owner
acquired such Notes without accrued interest or Liquidated
Damages, if any, unless the payment of such interest or
Liquidated Damages, if any, is permitted by the applicable Gaming
Authority, in which case such interest and Liquidated Damages, if
any, shall be paid through the Redemption Date, (ii) the fair
market value of such Notes on such Redemption Date and (iii) the
principal amount of such Notes without accrued interest or
Liquidated Damages, if any, thereon, unless the payment of such
interest or Liquidated Damages, if any, is permitted by the
applicable Gaming Authority, in which case such interest and
Liquidated Damages, if any, shall be paid through the Redemption
Date. The Company is not required to pay or reimburse any Holder
or beneficial owner of this Note for the costs of licensure or
investigation for such licensure, qualification, or finding of
suitability. Any Holder or beneficial owner of this Note required
to be licensed, qualified or found suitable under applicable
Gaming Laws must pay all investigative fees and costs of the
Gaming Authorities in connection with such licensure,
qualification, suitability or application therefor.
[10]. Repurchase at the Option of Holders upon Change of
Control.
Upon a Change of Control, each Holder shall have the right
to require that the Company repurchase all or a part of such
Holder's Notes at a Purchase Price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, to the Purchase Date.
Within 30 calendar days following any Change of Control, the
Company shall send, by first class mail to each Holder, a notice
respecting such Change of Control. The Holder of this Note may
elect to have this Note or a portion hereof in an authorized
denomination purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing below and tendering this Note
to the Company at the address specified in the notice at least
five Business Days prior to the Purchase Date. Holders will be
entitled to withdraw their election if the Trustee or the Company
receives not later than three Business Days prior to the Purchase
Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Note
which was delivered for purchase by the Holder and a statement
that such Holder is withdrawing its election to have such Note
purchased.
On the Purchase Date, all Notes purchased by the Company
under this provision shall be delivered by the Trustee for
cancellation, and the Company shall pay the Purchase Price plus
accrued and unpaid interest and Liquidated Damages, if any, to
the Holders entitled thereto.
[11]. Repurchase at the Option of Holders upon Sale of
Assets.
If at any time the Company or any Restricted Subsidiary
engages in any Asset Disposition, as a result of which the
aggregate amount of Excess Proceeds (together with interest
thereon) exceeds $5 million, the Company shall make an offer to
purchase from all Holders on a pro rata basis the Notes at a
Purchase Price of 100% of their principal amount plus accrued and
unpaid interest and Liquidated Damages, if any, to the Purchase
Date and shall purchase from Holders accepting such offer, the
maximum principal amount of Notes that may be purchased from
funds in an amount equal to the then-existing Excess Proceeds.
Upon completion of such an Excess Proceeds Offer (including
payment of the Purchase Price for Notes duly tendered), the
Excess Proceeds that were the subject of such offer shall cease
to be Excess Proceeds and the Company or the Restricted
Subsidiary that engaged in the Asset Disposition, as applicable,
may use the remaining Excess Proceeds for general corporate
purposes.
Within 10 calendar days of the date on which the Company is
required to make an Excess Proceeds Offer, the Company shall
send, by first-class mail, a notice to each Holder respecting the
Excess Proceeds Offer. The Holder of this Note may elect to have
this Note or a portion hereof in an authorized denomination
purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below and tendering this Note to the
Company at the address specified in the notice at least five
Business Days prior to the Purchase Date. Holders will be
entitled to withdraw their election if the Trustee or the Company
receives not later than three Business Days prior to the Purchase
Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Note
which was delivered for purchase by the Holder and a statement
that such Holder is withdrawing his election to have such Note
purchased.
On the Purchase Date, all Notes purchased by the Company
under this provision shall be delivered by the Trustee for
cancellation, and the Company shall pay the Purchase Price plus
accrued and unpaid interest and Liquidated Damages, if any, to
the Holders entitled thereto.
[12]. Repurchase of Notes on Loss of Material Gaming
License.
If at any time a License Loss occurs with respect to the
Company or a Restricted Subsidiary, and if any part of the
License Loss Amount is not applied by the Company or its
Restricted Subsidiaries in the manner and in the 40-day period
set forth in Section 4.20 of the Indenture, subject to certain
exceptions and conditions contained in the Indenture, the Company
shall, immediately upon expiration of such period, make a License
Loss Offer to all Holders in accordance with the procedures set
forth in the Indenture, and shall purchase from Holders accepting
such offer on a pro rata basis, the maximum principal amount of
Notes that may be purchased with such unapplied portion of the
License Loss Amount, at a Purchase Price of 101% of their
principal amount plus accrued and unpaid interest and Liquidated
Damages, if any, to the Purchase Date.
Prior to or upon the date on which the Company is required
to make a License Loss Offer, the Company shall send, by first-
class mail, a notice to each Holder respecting the License Loss
Offer. The Holder of this Note may elect to have this Note or a
portion hereof in an authorized denomination purchased by
completing the form entitled "Option of Holder to Elect Purchase"
appearing below and tendering this Note to the Company at the
address specified in the notice at least five Business Days prior
to the Purchase Date. Holders will be entitled to withdraw their
election if the Trustee or the Company receives not later than
three Business Days prior to the Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note which was delivered
for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Note purchased.
On the Purchase Date, all Notes purchased by the Company
under this provision shall be delivered by the Trustee for
cancellation, and the Company shall pay the Purchase Price plus
accrued and unpaid interest and Liquidated Damages, if any, to
the Holders entitled thereto.
[13. The Global Note.
So long as this Global Note is registered in the name of the
Depositary or its nominee, members of, or participants in, the
Depositary ("Agent Members") shall have no rights under the
Indenture with respect to this Global Note held on their behalf
by the Depositary, or the Trustee as its custodian, and the
Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of this
Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee
or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished
by the Depositary or impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of Notes.
The Holder of this Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under the Indenture
or this Note.
Whenever, as a result of optional redemption by the Company,
a Change of Control offer, an Excess Proceeds Offer, a License
Loss Offer, an Exchange Offer (as defined in the Registration
Rights Agreement) or an exchange for Physical Notes, this Global
Note is redeemed, repurchased or exchanged in part, this Global
Note shall be surrendered by the Holder hereof to the Trustee who
shall cause an adjustment to be made to Schedule A hereof so that
the principal amount of this Global Note will be equal to the
portion not redeemed, repurchased or exchanged and shall
thereafter return this Global Note to such Holder, provided that
this Global Note shall be in a principal amount of $1,000 or an
integral multiple of $1,000.]11
[14. The Exchange Offer.
If this Note is presented to the Registrar for exchange
pursuant to the Exchange Offer (as defined in the Registration
Rights Agreement), it shall be exchanged for an Exchange Note of
equal principal amount in accordance with the terms of the
Exchange Offer and the Indenture.]12
[15]. Denomination, [Transfer and Exchange]13.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral
multiple thereof. [By its acceptance of any Note bearing the
Private Placement Legend set forth above, each Holder of such a
Note acknowledges the restrictions on transfer of such Note set
forth in the Indenture and in the Private Placement Legend and
agrees that it will transfer such Note only as provided in the
Indenture.] 14
[16]. Repayment to the Company.
Subject to Article Eight of the Indenture, any U.S. Legal
Tender or U.S. Government Obligations deposited with the Trustee
or the Paying Agent or another trustee for payment of the
principal of, premium and Liquidated Damages, if any, or interest
on any Note and remaining unclaimed for two years after such
principal, premium and Liquidated Damages, if any, or interest
has become due and payable, shall be promptly paid to the Company
upon its written request and the Trustee and the Paying Agent
thereupon shall be relieved from all liability with respect to
such funds; provided that the Trustee or such Paying Agent,
before being required to make any payment, may at the expense of
the Company cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed
and that after a date specified therein which shall be at least
30 days from the date of such publication or mailing any
unclaimed balance of such funds then remaining will be repaid to
the Company. After payment to the Company Noteholders entitled
to such funds must look to the Company for payment as general
creditors unless an applicable law designates another Person.
[17]. Discharge and Defeasance.
Subject to certain conditions contained in the Indenture,
the Company at any time may terminate some or all of its
obligations under the Notes and the Indenture if the Company
irrevocably deposits with the Trustee, the Paying Agent or a
trustee satisfactory to the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the
Notes to maturity or redemption, as the case may be.
[18]. Amendment, Waiver.
Subject to conditions set forth in the Indenture, the
Company and the Guarantors, when authorized by Board Resolutions,
and the Trustee, together, may amend or supplement the Indenture
or the Notes without notice to or consent of any Noteholder
(i) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not, in the opinion of the
Trustee, adversely affect the rights of any Holder in any
material respect; (ii) to provide for uncertificated Notes in
addition to or in place of certificated Notes; (iii) to comply
with any requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA; (iv) to make
any change that would provide any additional benefit or rights to
the Noteholders or that does not adversely affect the rights of
any Noteholder; (v) to provide for issuance of the Exchange
Notes, which will have terms substantially identical in all
material respects to the Initial Notes (except that the transfer
restrictions and the reference to the Registration Rights
Agreement with respect to Liquidated Damages and registration
rights contained in the Initial Notes will be modified or
eliminated, as appropriate), and which will be treated together
with any outstanding Initial Notes, as a single issue of
securities; (vi) to provide for the assumption of the Company's
or any Guarantor's obligations to Noteholders by a successor
company or guarantor; (vii) to release any Subsidiary Guarantee
in accordance with the provisions of the Indenture; (viii) to
provide for additional Guarantors; or (ix) to make any other
change that does not, in the opinion of the Trustee, adversely
affect in any material respect the rights of any Noteholders
under the Indenture.
Subject to certain exceptions and conditions set forth in
the Indenture, the Company and the Guarantors, when authorized by
a Board Resolution, and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in
aggregate principal amount of then outstanding Notes, may amend
or supplement the Indenture or the Notes, without notice to any
other Noteholders. Subject to certain exceptions set forth in
the Indenture, the Holder or Holders of a majority in aggregate
principal amount of then outstanding Notes may waive compliance
by any Obligor with any provision of the Indenture or the Notes
without notice to any other Noteholder. After an amendment,
supplement or waiver pursuant to the Indenture becomes effective,
the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
[19]. Defaults and Remedies.
If an Event of Default occurs and is continuing and has not
been waived pursuant to the Indenture, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount
of the Notes by notice to the Company and the Trustee, subject to
certain limitations, may declare the principal of and accrued
interest and Liquidated Damages, if any, on all the Notes to be
immediately due and payable. Certain events of bankruptcy or
insolvency are Events of Default and shall result in the Notes
being immediately due and payable upon the occurrence of such
Events of Default without any declaration or other act on the
part of the Trustee or any Noteholders.
In the case of any Event of Default occurring by reason of
any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of
the premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to the optional
redemption provisions hereof, an equivalent premium shall also
become and be immediately due and payable to the extent permitted
by law upon the acceleration of the Notes. If an Event of
Default occurs prior to August 1, 2001, by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding the prohibition on
redemption of the Notes prior to August 1, 2001, then the premium
specified in the third paragraph of Section [7] of this Note
shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
Subject to certain conditions contained in the Indenture,
the Holders of a majority in principal amount of the outstanding
Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it, including, without
limitation, any remedies provided for in Section 6.03 of the
Indenture. Subject to Section 7.01 of the Indenture, however,
the Trustee may refuse to follow any direction that the Trustee
reasonably believes conflicts with any law or the Indenture, that
the Trustee determines may be unduly prejudicial to the rights of
another Noteholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such
direction.
A Noteholder may not pursue any remedy with respect to the
Indenture or the Notes unless: (i) the Holder gives to the
Trustee written notice stating that an Event of Default is
continuing; (ii) the Holders of at least 25% in principal amount
of the Notes make a written request to the Trustee to pursue the
remedy; (iii) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss, liability or
expense; (iv) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of security or
indemnity; and (v) the Holders of a majority in principal amount
of the Notes do not give the Trustee a direction inconsistent
with the request during such 60-day period.
The Holders of a majority in principal amount of the Notes
by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest
that has become due solely because of acceleration. No such
rescission shall affect any subsequent Default or impair any
right consequent thereto.
[20]. Subordination; Senior Indebtedness Under Gem
Notes.
The payment of principal of, premium, if any, and interest
on the Notes is subordinated to the prior payment in full of all
Obligations with respect to Senior Indebtedness of the Company
and any Guarantor (whether outstanding on the date of this
Indenture or thereafter incurred), as set forth in Article Ten of
the Indenture. The Company hereby designates, with respect to
each Gem Note, the Indebtedness evidenced by this Note and the
Indenture as Senior Indebtedness, as such term is defined in such
Gem Notes.
[21]. Individual Rights of Trustee.
Subject to certain limitations contained in the Indenture,
the Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the
Company, any Subsidiary of the Company, or their respective
Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
[22]. Trustee's Disclaimer
The Trustee makes no representation as to the validity or
adequacy of the Indenture or the Notes, and it shall not be
accountable for the Company's use of the proceeds from the Notes,
and it shall not be responsible for any statement of the Company
in the Indenture or the Notes other than the Trustee's
certificate of authentication.
[23]. No Recourse Against Certain Others.
A director, officer, employee, stockholder or incorporator,
as such, of any Obligor or of the Trustee shall not have any
liability for any obligations of any Obligor under the Notes or
the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Noteholder
by accepting a Note waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance
of the Notes.
[24]. Governing Law.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
[25]. Liability of ACCBI.
Notwithstanding anything herein to the contrary, ACCBI shall
have no obligation or liability hereunder prior to the time, if
at all, the Indenture and the Subsidiary Guarantee of ACCBI
provided for therein shall have been approved by the Iowa Racing
and Gaming Commission.
The Company will furnish to any Holder of Notes upon written
request and without charge to the Holder a copy of the Indenture
which has in it the text of this Note. Requests may be made to:
Ameristar Casinos, Inc.
3773 Howard Hughes Parkway
Suite 490 South
Las Vegas, Nevada 89109
Attention: Chief Financial Officer
[SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be
$___________. The following decreases/increase in the principal
amount at maturity of this Note have been made:
Total
Principal
Amount at
Date of Decrease in Increase in Maturity Notation
Decrease/ Principal Principal Following Made by or
Increase Amount at Amount at such on Behalf
Maturity Maturity Decrease/ of Trustee]15
Increase
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Note)
FOR VALUE RECEIVED ______________________________ hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
_________________________________________________________________
_____________
(Please print name and address of transferee)
_________________________________________________________________
_____________
this Note, together with all right, title and interest herein,
and does hereby irrevocably constitute and appoint
_______________________ Attorney to transfer this Note on the
Register, with full power of substitution.
Dated: __________________________
__________________________________
________________________________
Signature of Holder Signature Guaranteed:
(Signature must be guaranteed by a bank or trust company having
an office or correspondent in the United States or by a member
firm of a registered securities exchange or the National
Association of Securities Dealers, Inc. The guarantor of
signature must be a participant in the Medallion Stamp Program.)
NOTICE: The signature to the foregoing Assignment must
correspond to the Name as written upon the face of this Note in
every particular, without alteration or any change whatsoever.
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
In connection with the offer made upon a Change of
Control pursuant to Section 4.14 of the Indenture, the
undersigned hereby elects to have
the entire principal amount
$ __________________($1,000 in principal amount or
an integral multiple thereof) of this Note
repurchased by the Company. The undersigned hereby
directs the Trustee or Paying Agent to pay it or
___________________ an amount in cash equal to 101% of
the principal amount indicated in the preceding
sentence, plus accrued and unpaid interest and
Liquidated Damages, if any, to the Purchase Date.
In connection with the Excess Proceeds Offer made
pursuant to Section 4.15 of the Indenture, the
undersigned hereby elects to have
the entire principal amount (or the maximum amount
thereof after selection of Notes for repurchase on a
pro rata basis)
$ __________________($1,000 in principal amount or
an integral multiple thereof) of this Note
repurchased by the Company. The undersigned hereby
directs the Trustee or Paying Agent to pay it or
_____________________ an amount in cash equal to 100%
of the principal amount indicated in the preceding
sentence, plus accrued and unpaid interest and
Liquidated Damages, if any, to the Purchase Date.
In connection with the License Loss Offer made pursuant
to Section 4.20 of the Indenture, the undersigned
hereby elects to have
the entire principal amount (or the maximum amount
thereof after selection of Notes for repurchase on a
pro rata basis)
$ __________________($1,000 in principal amount or
an integral multiple thereof) of this Note
repurchased by the Company. The undersigned hereby
directs the Trustee or Paying Agent to pay it or
_____________________ an amount in cash equal to 100%
of the principal amount indicated in the preceding
sentence, plus accrued and unpaid interest and
Liquidated Damages, if any, to the Purchase Date.
Dated: ______________________
__________________________________
________________________________
Signature of Holder Signature Guaranteed:
(Signature must be guaranteed by a bank or trust company having
an office or correspondent in the United States or by a member
firm of a registered securities exchange or the National
Association of Securities Dealers, Inc. The guarantor of
signature must be a participant in the Medallion Stamp Program.)
NOTICE: The signature to the foregoing must correspond to the
Name as written upon the face of this Note in every particular,
without alteration or any change whatsoever.
EXHIBIT B
Form of Certificate To Be Delivered
in Connection with Transfers to Non-U.S. Persons
Pursuant to Regulation S
_______________________, ____
First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Corporate Trust Administration
Re:Ameristar Casinos, Inc. (the "Company")
10 1/2% Senior Subordinated Notes due 2004 Series A
(the "Notes")
Ladies and Gentlemen:
In connection with our proposed transfer of $___________
aggregate principal amount of the Notes (the "Transfer"), we
confirm that (i) we are familiar with the transfer provisions of
the Indenture, dated as of July 15, 1997, by and among the
Company, the Guarantors named therein and you, as Trustee (the
"Indenture"), and (ii) such Transfer has been effected in
compliance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent
that:
(1) the offer of the Notes was not made to a person in
the United States;
(2) either (a) at the time the buy offer or order was
originated, the transferee was outside the United States or
we and any person acting on our behalf reasonably believed
that the transferee was outside the United States, or (b)
the transaction was executed in, on or through the
facilities of a designated off-shore securities market and
neither we nor any person acting on our behalf knows that
the transaction has been pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S, as applicable;
(4) the Transfer is not part of a plan or scheme to
evade the registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes; and
(6) if the Transfer will occur prior to the expiration
of the Restricted Period (as defined in the Indenture), the
interest transferred will be held immediately hereafter
through Euroclear or CEDEL (as defined in the Indenture).
You and the Company are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters
covered hereby. Terms used in this certificate have the meanings
set forth in Regulation S.
Very truly yours, [Name of
Transferor]
By:__________________________
Authorized Signature
EXHIBIT C
Form of Certificate To Be Delivered
in Connection with Transfers to QIBs
_______________________, ____
First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Corporate Trust Administration
Re:Ameristar Casinos, Inc. (the "Company")
10 1/2% Senior Subordinated Notes due 2004 Series A
(the "Notes")
Ladies and Gentlemen:
In connection with our proposed transfer of $___________
aggregate principal amount of the Notes (the "Transfer"), we
confirm that (i) we are familiar with the transfer provisions of
the Indenture, dated as of July 15, 1997, by and among the
Company, the Guarantors named therein and you, as Trustee (the
"Indenture"), and (ii) such Transfer has been effected in
compliance with Rule 144A under the Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent
that:
(1) the Transfer is being made to a person whom we
reasonably believe is purchasing for its own account or
accounts as to which it exercises sole investment discretion
and that such person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A under
the Securities Act; and
(2) the Transfer otherwise complies with the
requirements of Rule 144A.
You and the Company are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters
covered hereby. Terms used in this certificate have the meanings
set forth in Rule 144A.
Very truly yours, [Name of
Transferor]
By:__________________________
Authorized Signature
EXHIBIT D
EXHIBIT D - PORTIONS OF FINAL OFFERING MEMORANDUM
Gem Notes
Upon the effectiveness of the Gem Settlement Agreement on
June 20, 1997, Ameristar issued the Gem Notes in the aggregate
amount of $28.7 million. See "Business - The Gem Merger." The
per annum interest rate on the Gem Notes is 8%, subject to
increase by 3.4 or 3.3 percentage points, up to a maximum of 18%
per annum, following one or more failures to make payments under
the Gem Notes by scheduled dates. Interest is scheduled to be
paid initially on a quarterly basis and on a monthly basis after
October 1998. Any interest not paid when scheduled will
thereafter accrue interest as principal. A principal reduction
payment of $2.0 million is scheduled for November 1998, followed
by semiannual principal reduction payments of $1.0 million
commencing in July 1999 until January 2002, when the semiannual
principal reduction payments will increase to $1.5 million. The
Gem Notes mature on December 31, 2004. The Gem Notes are not be
subject to acceleration or other collection efforts upon failure
to make a scheduled payment prior to maturity, and the only
remedy for such a failure to make a scheduled payment is the
increase in interest rate described above. The failure to make a
scheduled payment under the Gem Notes will not constitute an
event of default under the Revolving Credit Facility or the
Indenture.
The Gem Notes may be prepaid in whole or in part at any time
without penalty. The Gem Notes are subordinate to the Revolving
Credit Facility, the Notes and other long-term indebtedness of
Ameristar specified by Ameristar up to a maximum of $250 million,
plus additional indebtedness incurred in connection with certain
interest rate protection or similar agreements related to senior
indebtedness. The Gem Notes are unsecured and do not bind the
Company to any affirmative or negative covenants other than the
payment obligations and a covenant prohibiting Ameristar from
incurring more than $250 million in senior indebtedness. A
portion of the Gem Notes ($15 million) expressly provide that
Ameristar may set off any liabilities of the Gem Stockholders to
the Company. Ameristar will be permitted to effect such a setoff
even if such Gem Notes have been transferred to a third party
holder. The release of the Gem Stockholders provided for in the
Gem Settlement Agreement excludes certain claims that the Company
may have against the Gem Stockholders. See "Business - The Gem
Merger."
Vicksburg Hotel Loan
The Company intends that AC Hotel Corp., a newly formed
wholly owned subsidiary of ACVI, will enter into a loan agreement
in July 1997 providing for borrowings of up to $7.5 million for
the purpose of funding a portion of the construction costs of a
148-room hotel at Ameristar Vicksburg. The Company is currently
negotiating with a private lender for a nonrecourse loan that
would be secured by a deed of trust on the hotel and the
underlying land senior in priority to the liens securing the
Revolving Credit Facility. The Company anticipates that this
loan will have a maturity date of not earner than June 1, 1998
and require monthly or quarterly interest payments. However, no
assurance can be given that this or any other loan will be
obtained on these terms or other terms acceptable to the Company.
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of , ____, among
(the "Additional Guarantor"), Ameristar Casinos, Inc., a Nevada
corporation (the "Company"), the other Guarantors listed on the
signature pages hereto (the "Existing Guarantors") and First
Trust National Association, as trustee under the indenture
referred to below (the "Trustee").
RECITALS
A. The Company, as Issuer, and Ameristar Casino Las Vegas,
Inc., a Nevada corporation, Ameristar Casino Council Bluffs,
Inc., an Iowa corporation, Ameristar Casino Vicksburg, Inc., a
Mississippi corporation, A.C. Food Services, Inc., a Nevada
corporation and AC Hotel Corp., a Mississippi corporation, have
heretofore executed and delivered to the Trustee an indenture
(the "Indenture"), dated as of July 15, 1997, providing for the
issuance of an aggregate principal amount at maturity of
$100,000,000 of 10 1/2 Senior Subordinated Notes due 2004 (the
"Notes");
B. Section 4.22 of the Indenture provides that under
certain circumstances the Company is required to cause the
Additional Guarantor to execute and deliver to the Trustee a
supplemental indenture pursuant to which the Additional Guarantor
shall unconditionally guarantee all of the Company's obligations
under the Notes pursuant to a Subsidiary Guarantee on the terms
and conditions set forth in Article Eleven of the Indenture; and
C. Pursuant to Section 9.01 of the Indenture, the Trustee
is authorized to execute and deliver this Supplemental Indenture.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto mutually covenant and
agree for the equal and ratable benefit of the Holders of the
Notes as follows:
1. Capitalized Terms. Capitalized terms used herein
without definition shall have the meanings assigned to them in
the Indenture.
2. Agreement to Guarantee. The Additional Guarantor
hereby agrees, jointly and severally with all other Guarantors,
to guarantee the Company's Obligations on the terms and subject
to the conditions set forth in Article Eleven of the Indenture
and to be bound by all other provisions of the Indenture
applicable to Guarantors, subject to the terms and conditions of
the Indenture.
3. No Recourse Against Others. A director, officer,
employee, stockholder or incorporator, as such, of any Obligor or
of the Trustee shall not have any liability for any obligations
of any Obligor under the Notes, this Supplemental Indenture or
the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Noteholder
by accepting a Note waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance
of the Notes.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE, THE NOTES
AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH
OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
5. Counterparts. This Supplemental Indenture may be
executed in any number of counterparts and by the parties hereto
in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement.
6. Effect of Headings. The Section headings herein are
for convenience only and shall not affect the construction
hereof.
7. Consent of Existing Guarantors; Status of Existing
Guarantees. By its execution hereof, each Existing Guarantor
confirms that it is a Guarantor of the Company's Obligations
pursuant to a Subsidiary Guarantee on the terms and conditions
set forth in Article Eleven of the Indenture and hereby
(i) consents to the execution of this Supplemental Indenture by
the Company and the Additional Guarantor and to the addition to
the Indenture of the Additional Guarantor, and (ii) confirms that
the Subsidiary Guarantee to which it is a party is and shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as
of the date first above written.
ADDITIONAL GUARANTOR
[ ]
By:
Name:
Title:
[Corporate Seal]
Attest:
By:
Name:
Title:
Dated:
AMERISTAR CASINOS, INC.
By:
Name:
Title:
[Corporate Seal]
Attest:
By:
Name:
Title:
Dated:
[EXISTING GUARANTORS]
By:
Name:
Title:
[Corporate Seal]
Attest:
By:
Name:
Title:
Dated:
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:_____________________________
Name:
Title:
EXHIBIT F
FORM OF SUBSIDIARY GUARANTEE
Each Guarantor listed below (hereinafter referred to as
the "Guarantors") hereby jointly and severally and
unconditionally guarantees to each Holder of a _% Senior
Subordinated Note due 2004 (the "Notes") of Ameristar Casinos,
Inc., a Nevada corporation (the "Company") authenticated and
delivered by the Trustee, irrespective of the validity or
enforceability of that certain Indenture, by and among the
Company, the Guarantors named therein, and First Trust National
Association, as Trustee, dated as of July 15, 1997, as amended or
supplemented (the "Indenture"), the Notes or the Obligations of
the Company under the Indenture or the Notes, that: (i) the
principal of, interest, premium, if any, and Liquidated Damages,
if any, on the Notes will be paid in full when due, whether at
the Maturity Date, any Interest Payment Date, any Redemption Date
or Purchase Date, by acceleration, call for redemption, offer to
purchase or otherwise, and interest on the overdue principal of
and interest and Liquidated Damages, if any, on the Notes and all
other Obligations of the Company to the Holders or the Trustee
under the Indenture or the Notes will be promptly paid in full or
performed, all in accordance with the terms of the Indenture and
the Notes; and (ii) in case of any extension of time of payment
or renewal of any Notes or any of such other Obligations, they
will be paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at maturity, by
acceleration or otherwise. Failing payment when due (including
any applicable grace periods) of any amount so guaranteed for
whatever reason, each Guarantor will be obligated to pay the same
pursuant to the preceding sentence whether or not such failure to
pay has become an Event of Default that could cause acceleration
pursuant to Section 6.02 of the Indenture. Each Guarantor agrees
that this is a guarantee of payment and not a guarantee of
collection.
The obligations of each Guarantor to the Holders of Notes
and to the Trustee pursuant to this Subsidiary Guarantee and the
Indenture are expressly set forth in Article Eleven of the
Indenture and reference is hereby made to such Indenture for the
precise terms of this Subsidiary Guarantee. THE TERMS OF ARTICLE
ELEVEN OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE. In
the case of any discrepancy between this writing and Article
Eleven of the Indenture, Article Eleven of the Indenture shall
control.
This is a continuing Subsidiary Guarantee and shall remain
in full force and effect and shall be binding upon each Guarantor
and its successors and assigns until full, final and indefeasible
payment of all of the Company's Obligations under the Notes and
the Indenture (subject to Section 11.02 of the Indenture) and
shall inure to the benefit of the successors and assigns of the
Trustee and the Holders of Notes and, in the event of any
transfer or assignment of rights by any Holder of Notes or the
Trustee, the rights and privileges herein conferred upon the
party shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions
hereof.
If the obligations of any Guarantor hereunder otherwise
would be subject to avoidance under Section 548 of the Bankruptcy
Law or any applicable state law relating to fraudulent
conveyances or fraudulent transfers, taking into consideration
such Guarantor's (i) rights of reimbursement and indemnity from
the Company with respect to amounts paid by such Guarantor and
(ii) rights of contribution from other Guarantors pursuant to
Section 11.03 of the Indenture, then such obligations hereby are
reduced to the largest amount that would make them not subject to
such avoidance. Any Person asserting that such Guarantor's
obligations are so avoidable shall have the burden (including the
burden of production and of persuasion) of proving (a) that,
without giving effect to this paragraph, such Guarantor's
obligations hereunder would be avoidable and (b) the extent to
which such obligations are reduced by operation of this
paragraph.
This Subsidiary Guarantee shall not be valid or obligatory
for any purpose until the certificate of authentication on the
Note upon which this Subsidiary Guarantee is noted shall have
been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
Capitalized terms used herein have the same meanings given
in the Indenture unless otherwise indicated.
GUARANTORS
By:_____________________________
Name:
Title:
_______________________________
1 The Initial Notes shall be marked as Series A and the
Exchange Notes shall be marked as Series B.
2 Appears only on Global Notes.
3 The Initial Notes shall be marked as Series A and the
Exchange Notes shall be marked as Series B.
4 Appears only on the Initial Notes.
5 Appears only on the Global Notes.
6 The Initial Notes shall be marked as Series A and the
Exchange Notes shall be marked as Series B.
7 Appears only on Initial Notes.
8 Appears only on Exchange Notes.
9 Appears only on Initial Notes.
10 Appears only on Global Notes.
11 Appears only on Global Note.
12 Appears only on Initial Notes.
13 Appears only on Initial Notes.
14 Appears only on Initial Notes.
15 Schedule appears only on Global Notes.