EXHIBIT 4
Execution Copy
INDENTURE
among
MGM GRAND, INC., as Issuer,
The Subsidiary Guarantors Parties Hereto
and
The Bank of New York, as Trustee
Dated as of May 31, 2000
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................... 1
Section 1.1 DEFINITIONS................................................................ 1
Section 1.2 COMPLIANCE CERTIFICATES AND OPINIONS....................................... 15
Section 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE..................................... 15
ARTICLE 2 FORM OF NOTES.............................................................................. 16
Section 2.1 FORMS GENERALLY............................................................ 16
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION............................ 16
Section 2.3 NOTE IN GLOBAL FORM........................................................ 17
ARTICLE 3 THE NOTES.................................................................................. 17
Section 3.1 AMOUNT..................................................................... 17
Section 3.2 DENOMINATIONS.............................................................. 18
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING............................. 18
Section 3.4 TEMPORARY NOTES; EXCHANGE OF TEMPORARY GLOBAL NOTES FOR DEFINITIVE NOTES;
GLOBAL NOTES REPRESENTING NOTES............................................ 20
Section 3.5 REGISTRATION, TRANSFER AND EXCHANGE........................................ 22
Section 3.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES...................... 23
Section 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED............................. 23
Section 3.8 CANCELLATION............................................................... 24
Section 3.9 COMPUTATION OF INTEREST.................................................... 25
Section 3.10 EXCHANGE UPON DEFAULT...................................................... 25
Section 3.11 MANDATORY DISPOSITION OF NOTES PURSUANT TO GAMING LAWS..................... 25
Section 3.12 CUSIP NUMBERS.............................................................. 26
ARTICLE 4 SATISFACTION AND DISCHARGE................................................................. 26
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.................................... 26
Section 4.2 APPLICATION OF TRUST MONEY................................................. 27
ARTICLE 5 REMEDIES................................................................................... 28
Section 5.1 EVENTS OF DEFAULT.......................................................... 28
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT......................... 29
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE............ 30
Section 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM........................................... 31
Section 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT SECURITIES........... 31
Section 5.6 APPLICATION OF MONEY COLLECTED............................................. 31
Section 5.7 LIMITATION ON SUITS........................................................ 32
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST.. 33
Section 5.9 RESTORATION OF RIGHTS AND REMEDIES......................................... 33
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE............................................. 33
Section 5.11 DELAY OR OMISSION NOT WAIVER............................................... 33
Section 5.12 CONTROL BY HOLDERS......................................................... 33
Section 5.13 WAIVER OF PAST DEFAULTS.................................................... 34
Section 5.14 UNDERTAKING FOR COSTS...................................................... 34
Section 5.15 WAIVER OF STAY OR EXTENSION LAWS........................................... 34
Section 5.16 DISQUALIFIED HOLDERS....................................................... 35
ii
ARTICLE 6 THE TRUSTEE............................................................................... 35
Section 6.1 CERTAIN DUTIES AND RESPONSIBILITIES....................................... 35
Section 6.2 NOTICE OF DEFAULTS........................................................ 36
Section 6.3 CERTAIN RIGHTS OF TRUSTEE................................................. 37
Section 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES......................... 38
Section 6.5 MAY HOLD NOTES............................................................ 38
Section 6.6 MONEY HELD IN TRUST....................................................... 38
Section 6.7 COMPENSATION AND REIMBURSEMENT............................................ 38
Section 6.8 DISQUALIFICATION; CONFLICTING INTERESTS................................... 39
Section 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY................................... 39
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR......................... 39
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.................................... 41
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS............... 41
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY......................... 42
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT....................................... 42
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY......................................... 44
Section 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS................. 44
Section 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS..................... 44
Section 7.3 REPORTS BY TRUSTEE........................................................ 46
Section 7.4 REPORTS BY COMPANY........................................................ 47
ARTICLE 8 CONCERNING THE HOLDERS.................................................................... 48
Section 8.1 ACTS OF HOLDERS........................................................... 48
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Section 8.2 PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS BY HOLDER........... 48
Section 8.3 PERSONS DEEMED OWNERS..................................................... 49
Section 8.4 REVOCATION OF CONSENTS; FUTURE
HOLDERS BOUND............................................................. 49
ARTICLE 9 HOLDERS' MEETINGS......................................................................... 49
Section 9.1 PURPOSES OF MEETINGS...................................................... 49
Section 9.2 CALL OF MEETINGS BY TRUSTEE............................................... 50
Section 9.3 CALL OF MEETINGS BY COMPANY OR HOLDERS.................................... 50
Section 9.4 QUALIFICATIONS FOR VOTING................................................. 50
Section 9.5 REGULATIONS............................................................... 50
Section 9.6 VOTING.................................................................... 51
Section 9.7 NO DELAY OF RIGHTS BY MEETING............................................. 51
ARTICLE 10 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...................................... 52
Section 10.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS...................... 52
Section 10.2 SUCCESSOR CORPORATION SUBSTITUTED......................................... 52
ARTICLE 11 SUPPLEMENTAL INDENTURES.................................................................... 52
Section 11.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS........................ 52
Section 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS........................... 54
Section 11.3 EXECUTION OF SUPPLEMENTAL INDENTURES...................................... 55
Section 11.4 EFFECT OF SUPPLEMENTAL INDENTURES......................................... 55
Section 11.5 CONFORMITY WITH TRUST INDENTURE ACT....................................... 55
Section 11.6 REFERENCE IN NOTES TO SUPPLEMENTAL
INDENTURES................................................................ 55
ARTICLE 12 COVENANTS................................................................................. 55
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Section 12.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST................................ 55
Section 12.2 OFFICER'S CERTIFICATE AS TO COMPLIANCE.................................... 56
Section 12.3 MAINTENANCE OF OFFICE OR AGENCY........................................... 56
Section 12.4 MONEY FOR NOTES; PAYMENTS TO BE HELD IN TRUST............................. 56
Section 12.5 CORPORATE EXISTENCE....................................................... 58
Section 12.6 WAIVER OF CERTAIN COVENANTS............................................... 58
Section 12.7 GUARANTEES................................................................ 58
Section 12.8 LIMITATIONS ON LIENS...................................................... 59
Section 12.9 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS............................. 61
Section 12.10 LIMITATION ON SENIOR SUBORDINATED INDEBTEDNESS............................ 61
Section 12.11 REPURCHASE AT THE OPTION OF THE HOLDERS UPON A CHANGE OF CONTROL.......... 61
ARTICLE 13 REDEMPTION OF NOTES....................................................................... 62
Section 13.1 OPTIONAL REDEMPTION....................................................... 62
Section 13.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE..................................... 63
Section 13.3 INTENTIONALLY OMITTED..................................................... 63
Section 13.4 NOTICE OF REDEMPTION...................................................... 63
Section 13.5 DEPOSIT OF REDEMPTION PRICE............................................... 63
Section 13.6 NOTES PAYABLE ON REDEMPTION DATE.......................................... 64
ARTICLE 14 DEFEASANCE................................................................................ 64
Section 14.1 APPLICABILITY OF ARTICLE.................................................. 64
Section 14.2 DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT OBLIGATIONS.......... 64
Section 14.3 DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST...... 66
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Section 14.4 REPAYMENT TO COMPANY...................................................... 66
ARTICLE 15 GUARANTEE................................................................................. 67
Section 15.1 GUARANTEE................................................................. 67
Section 15.2 EXECUTION AND DELIVERY OF GUARANTEE....................................... 68
Section 15.3 LIMITATION OF GUARANTOR'S LIABILITY....................................... 68
Section 15.4 CONTRIBUTION.............................................................. 69
Section 15.5 RIGHTS UNDER THE GUARANTEE................................................ 69
Section 15.6 PRIMARY OBLIGATIONS....................................................... 69
Section 15.7 WAIVERS................................................................... 70
Section 15.8 RELEASES.................................................................. 70
Section 15.9 NO ELECTION............................................................... 71
Section 15.10 FINANCIAL CONDITION OF THE COMPANY........................................ 71
Section 15.11 CONSOLIDATION, MERGER, ETC., ONLY ON CERTAIN TERMS........................ 71
Section 15.12 SUBORDINATION OF SUBSIDIARY GUARANTEES.................................... 72
ARTICLE 16 SUBORDINATION............................................................................. 73
Section 16.1 NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.................................. 73
Section 16.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC............................ 73
Section 16.3 SUSPENSION OF PAYMENT WHEN DESIGNATED SENIOR INDEBTEDNESS IN DEFAULT...... 74
Section 16.4 PAYMENT PERMITTED IF NO DEFAULT........................................... 75
Section 16.5 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS................... 75
Section 16.6 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS............................... 75
Section 16.7 TRUSTEE TO EFFECTUATE SUBORDINATION....................................... 76
Section 16.8 NO WAIVER OF SUBORDINATION PROVISIONS..................................... 76
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Section 16.9 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.................................. 76
Section 16.10 NOTICE TO TRUSTEE......................................................... 77
Section 16.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT............ 77
Section 16.12 RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR DEBT; PRESERVATION OF TRUSTEE'S
RIGHTS.................................................................... 78
Section 16.13 ARTICLE APPLICABLE TO PAYING AGENTS....................................... 78
Section 16.14 NO SUSPENSION OF REMEDIES................................................. 78
Section 16.15 TRUST MONEYS NOT SUBORDINATED............................................. 78
Section 16.16 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.................. 78
ARTICLE 17 MISCELLANEOUS............................................................................. 79
Section 17.1 NOTICES, ETC.............................................................. 79
Section 17.2 NOTICE TO HOLDERS; WAIVER................................................. 79
Section 17.3 CONFLICT WITH TRUST INDENTURE ACT......................................... 80
Section 17.4 COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS.................... 80
Section 17.5 SUCCESSORS AND ASSIGNS.................................................... 80
Section 17.6 SEPARABILITY CLAUSE....................................................... 80
Section 17.7 BENEFITS OF INDENTURE..................................................... 80
Section 17.8 GOVERNING LAW............................................................. 81
Section 17.9 LEGAL HOLIDAYS............................................................ 81
Section 17.10 NO RECOURSE AGAINST OTHERS................................................ 81
Section 17.11 GAMING LAWS............................................................... 81
Section 17.12 NO PARENT LIABILITY....................................................... 81
vii
Reconciliation between Trust Indenture Act of 1939 and Indenture, dated as of
May 31, 2000.
Trust Indenture
Act Section Indenture Section
- ----------- -----------------
Section 310
- -----------
(a)(1)...............................................6.9
(a)(2)...............................................6.9
(a)(3)...............................................6.15
(a)(4)...............................................Not Applicable
(a)(5)...............................................6.9
(b)..................................................6.8, 6.10
(c)..................................................Not Applicable
Section 311
- -----------
(a)..................................................6.13(a)
(b)..................................................6.13(b)
(c)..................................................Not Applicable
Section 312
- -----------
(a)..................................................7.1, 7.2(a)
(b)..................................................7.2(b)
(c)..................................................7.2(c)
Section 313
- -----------
(a)..................................................7.3(a)
(b)..................................................7.3(b)
(c)..................................................7.3(a), 7.3(c)
(d)..................................................7.3(d)
Section 314
- -----------
(a)..................................................7.4, 12.2
(b)..................................................Not Applicable
(c)(1)...............................................1.2
(c)(2)...............................................1.2
(c)(3)...............................................Not Applicable
(d)..................................................Not Applicable
(e)..................................................1.2
Section 315
- -----------
(a).................................................6.1(a), 6.1(c)
(b).................................................6.2, 7.3(a)(7)
(c).................................................6.1(b)
(d).................................................6.1(c)
(d)(1)..............................................6.1(c)(1)
(d)(2)..............................................6.1(c)(2)
(d)(3)..............................................6.1(c)(3)
(e).................................................5.14
Section 316
- -----------
(a)(1)(A)...........................................5.12
(a)(1)(B)...........................................5.13
(a)(2)..............................................Not Applicable
(b).................................................5.8
(c).................................................Not Applicable
Section 317
- -----------
(a)(1)..............................................5.3
(a)(2)..............................................5.4
(b).................................................12.4
Section 318.........................................1.6
- -----------
Note: This reconciliation shall not, for any purpose, be deemed to be a part of
the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), which provides that the
provisions of Sections 310 to and including 317 of the Trust Indenture Act are a
part of and govern every qualified indenture, whether or not physically
contained therein.
INDENTURE dated as of May 31, 2000, by and among MGM GRAND, INC., a
Delaware corporation (the "Company"), having its principal executive office at
3799 Las Vegas Boulevard South, Las Vegas, Nevada 89109, the Subsidiary
Guarantors party hereto and THE BANK OF NEW YORK, a New York banking corporation
(the "Trustee"), having its Corporate Trust Office at 101 Barclay Street, Floor
21 West, New York, New York 10286.
RECITALS OF THE COMPANY
-----------------------
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 9 3/4% Senior Subordinated Notes
due 2007 (the "Notes"), to be issued as provided in this Indenture.
The Subsidiary Guarantors have duly authorized the execution and
delivery of this Indenture to provide for the guarantee of the Notes by the
Subsidiary Guarantors as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed incorporated into this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary have been done to make the Notes, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture, when
executed by the Company and each Subsidiary Guarantor, a valid agreement of the
Company and each such Subsidiary Guarantor, in each case in accordance with the
terms of the Notes and this Indenture, respectively.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Notes by
the holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all holders of Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles or as provided with respect to any Notes, and, except as otherwise
herein provided or as provided with respect to any Notes, the term "generally
accepted accounting principles" or "GAAP" with respect to any computation
required or permitted hereunder with respect to any Notes, shall mean such as
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 have been approved by a significant segment
of the accounting profession which are in effect as of the date of
determination;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision and the word "including" when used herein
means "including without limitation" except when expressly stated to the
contrary;
(e) certain terms, used principally in Article 3 or Article 6, are
defined in those respective Articles; and
(f) "Act" when used with respect to any holder, has the meaning
specified in Section 8.1.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") as used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
agreement or otherwise.
"Attributable Debt" with respect to any Sale and Lease-Back transaction
that is subject to the restrictions under Section 12.9 below, means the present
value of the minimum rental payments called for during the term of the lease
(including any period for which such lease has been extended), determined in
accordance with generally accepted accounting principles, discounted at a rate
that, at the inception of the lease, the lessee would have incurred to borrow
over a similar term the funds necessary to purchase the leased assets.
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication (which in the case of the United States of America shall
be deemed to be English) customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in
2
different newspapers in the same city meeting the foregoing requirements and in
each case on any Business Day in such city.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal,
state or foreign law for the relief of debtors.
"Beneficiaries" means the holders of the Notes and the Trustee.
"Board of Directors" means either the board of directors of the Company
or any committee of that board or any other committee of the Company, duly
authorized by the board of directors of the Company to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day which is not a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies in
Nevada or New York are authorized or obligated by law to close.
"Change of Control" means the occurrence of any of the following events:
(a) if any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act or any successor provisions to either of the
foregoing), other than any Permitted Holders, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act, except that a person will 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 50% of the total
voting power of the Voting Stock of the Company (for purposes of this clause
(a), such person or group shall be deemed to beneficially own any Voting Stock
of a corporation held by any other corporation (the "parent corporation") so
long as such person or group beneficially owns, directly or indirectly, in the
aggregate a majority of the total voting power of the Voting Stock of such
parent corporation); or
(b) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially all the assets of
the Company and its Subsidiaries, considered as a whole, to another person
(other than a disposition of such assets as an entirety or virtually as an
entirety to one or more Wholly Owned Subsidiary Guarantors) shall have occurred,
or the Company merges, consolidates or amalgamates with or into any other Person
or any other Person merges, consolidates or amalgamates with or into the
Company, in any 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:
(1) the outstanding Voting Stock of the Company is reclassified
into or exchanged for other Voting Stock of the Company or for Voting
Stock of the surviving corporation, and
3
(2) the holders of the Voting Stock of MGM Grand immediately
prior to such transaction own, directly or indirectly, not less than a
majority of the Voting Stock of MGM Grand or the surviving corporation
immediately after such transaction; or
(c) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, the President or an Executive or Senior Vice President and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets
(including investments in Joint Ventures) of the Company and its Subsidiaries
(less applicable depreciation, amortization and other valuation reserves) after
deducting therefrom (a) all current liabilities of the Company and its
Subsidiaries (excluding (i) the current portion of long-term Indebtedness, (ii)
intercompany liabilities and (iii) any liabilities which are by their terms
renewable or extendible at the option of the obligor thereon to a time more than
12 months from the time as of which the amount thereof is being computed) and
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and any other like intangibles, all as set forth on the consolidated balance
sheet of the Company for the most recently completed fiscal quarter for which
financial statements are available and computed in accordance with generally
accepted accounting principles.
"Continuing Director" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of that Board of
Directors on the date of the indenture, (ii) had been a member of that Board of
Directors for the two years immediately preceding such date of determination or
(iii) was nominated for election or elected to that Board of Directors with the
affirmative vote of the greater of (x) a majority of Continuing Directors who
were members of that Board at the time of such nomination or election or (y) at
least three Continuing Directors.
"Corporate Trust Office" means the corporate trust office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of
4
execution of this instrument is located at 101 Barclay Street, Floor 21 West,
New York, New York 10286.
"corporation" means a corporation, association, company or business
trust.
"Credit Facilities" means, collectively: (i) the Second Amended and
Restated Loan Agreement, dated as of April 10, 2000, among MGM Grand, as
Borrower, MGM Grand Atlantic City, Inc. and MGM Grand Detroit, LLC, as Co-
Borrowers, the Banks, Syndication Agent, Documentation Agents and Co-
Documentation Agents therein named, and Bank of America, N.A., as Administrative
Agent (and their successors and assigns from time to time party thereto),
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case as amended, modified,
renewed, extended, refunded, replaced or refinanced from time to time; (ii) the
364-Day Loan Agreement, dated as of April 10, 2000, among MGM Grand, as
Borrower, MGM Grand Atlantic City, Inc. and MGM Grand Detroit, LLC, as Co-
Borrowers, the Banks, Syndication Agent, Documentation Agents and Co-
Documentation Agents therein named, and Bank of America, N.A., as Administrative
Agent (and their successors and assigns from time to time party thereto),
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case as amended, modified,
renewed, extended, refunded, replaced or refinanced from time to time; and (iii)
the Term Loan Agreement, dated as of April 7, 2000, among MGM Grand, as
Borrower, MGM Grand Atlantic City, Inc. and MGM Grand Detroit, LLC, as Co-
Borrowers, the Banks, Syndication Agent, Documentation Agents and Co-
Documentation Agents therein named, and Bank of America, N.A., as Administrative
Agent (and their successors and assigns from time to time party thereto),
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case as amended, modified,
renewed, extended, refunded, replaced or refinanced from time to time.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Designated Senior Indebtedness" means (i) Indebtedness under the Credit
Facilities, (ii) Indebtedness under the Senior Notes and (iii) any other Senior
Indebtedness the principal amount of which is $100,000,000 or more and that has
been designated by the Company as "Designated Senior Indebtedness" in the
documentation with respect thereto.
"Default" means any event that after notice or lapse of time, or both,
would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7(b).
"Detroit" means MGM Grand Detroit, LLC, a Delaware limited liability
company.
"Detroit II" means MGM Grand Detroit II, LLC, a Delaware limited
liability company.
"Discharged" has the meaning specified in Section 14.2.
5
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States that, at the time of payment, is legal tender for
the payment of public and private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Excluded Subsidiary" means The MGM Grand Bally's Monorail, LLC,
Detroit, Detroit II, MGM Grand Diamond, Inc. and the Company's non-U.S.
Subsidiaries whose only tangible assets are located in foreign nations and their
U.S. holding companies, provided such holding companies have no other assets or
operations and provided that except for Detroit to the extent it guarantees any
amount of proceeds of borrowings under the Credit Facilities made available to
Detroit, if any Excluded Subsidiary becomes subject to the covenants in the
Credit Facilities applicable to the Subsidiary Guarantors or grants any Liens to
secure the Credit Facilities, such Excluded Subsidiary will thereafter not be an
Excluded Subsidiary.
"Funded Debt" means all Indebtedness of the Company or any Subsidiary
Guarantor which (i) matures by its terms on, or is renewable at the option of
any obligor thereon to, a date more than one year after the date of original
issuance of such Indebtedness and (ii) ranks at least pari passu with the notes
or the applicable Guarantee.
"Gaming Authority" means the Nevada Gaming Commission, the Nevada State
Gaming Control Board, the New Jersey Casino Control Commission, the New Jersey
Division of Gaming Enforcement, the Michigan Gaming Control Board, the Detroit
City Council, the Mississippi Gaming Commission or any similar commission or
agency which has, or may at any time after the date of this Indenture have,
jurisdiction over the gaming activities of the Company or a Subsidiary (other
than an Excluded Subsidiary) of the Company or any successor thereto.
"Gaming Laws" means the gaming laws of a jurisdiction or jurisdictions
to which the Company or a Subsidiary of the Company is, or may at any time after
the date of this Indenture be, subject.
"Gaming Licenses" means every material license, permit, franchise,
registration or other material approval held by, or issued at any time after the
date of this indenture, to the Company or any of its Subsidiaries authorizing
the Company or any of its Subsidiaries to own, lease, operate or otherwise
conduct or manage gaming in any state or jurisdiction.
"Global Note" means a registered Note evidencing all or part of the
Notes, including, without limitation, any temporary or permanent Global Note.
"Guarantee" has the meaning specified in Section 15.1.
"Guaranteed Obligations" has the meaning specified in Section 15.1.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness; provided that the accrual of interest shall not be considered an
Incurrence of Indebtedness.
6
"Indebtedness" of any person means (i) any indebtedness of such Person,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by notes, bonds, debentures or similar
instruments or letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such indebtedness
Incurred in connection with the acquisition by such person or any of its
Subsidiaries of any other business or entity, if and to the extent such
indebtedness would appear as a liability upon a balance sheet of such Person
prepared in accordance with generally accepted accounting principles, including
for such purpose Obligations under capitalized leases, and (ii) any guarantee,
endorsement (other than for collection or deposit in the ordinary course of
business), discount with recourse, or any agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire or to supply or advance funds with
respect to, or to become liable with respect to (directly or indirectly) any
indebtedness, obligation, liability or dividend of any Person, but shall not
include indebtedness or amounts owed for compensation to employees, or for goods
or materials purchased, or services utilized, in the ordinary course of business
of such Person. For purposes of this definition of Indebtedness, a "capitalized
lease" shall be deemed to mean a lease of real or personal property which, in
accordance with generally accepted accounting principles, is required to be
capitalized.
"Interest Rate Agreement" means any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement, option or future contract or other similar
agreement or arrangement.
"Indenture" means this instrument as originally executed, or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including the provisions relating to the Guarantees from time to time contained
herein and, unless the context otherwise requires, shall include the terms of
the Notes.
"Interest Payment Date" with respect to any Note means June 1 and
December 1 of each year, commencing December 1, 2000, provided that if such
Interest Payment Date is not a Business Day, interest due on such Interest
Payment Date shall be payable on the next succeeding Business Day.
"Issue Date" means May 31, 2000 or any other date as the Company and the
Trustee may mutually agree.
"Joint Venture" means any partnership, corporation or other entity, in
which up to and including 50% of the partnership interests, outstanding voting
stock or other equity interests is owned, directly or indirectly, by the Company
and/or one or more of its Subsidiaries.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit,
arrangement, encumbrance, security interest, lien (statutory or otherwise), or
preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
7
"Make-Whole Premium" means, with respect to any Note at any redemption
date, the excess, if any, of (i) the present value of the sum of the principal
amount and premium, if any, that would be payable on such Note on its maturity
date and all remaining interest payments (not including any portion of such
payments of interest accrued as of the redemption date) to and including such
maturity date, discounted on a semi-annual bond equivalent basis from such
maturity date to the redemption date at a per annum interest rate equal to the
sum of the Treasury Yield (determined on the business day immediately preceding
the date of such redemption), plus 50 basis points, over (ii) the principal
amount of the Note being redeemed.
"Maturity" when used with respect to any Note means the date on which
the principal of such Note or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment or otherwise.
"Merger" means the merger of Mirage with and into a wholly owned
Subsidiary of the Company pursuant to that certain Agreement and Plan of Merger
dated as of March 6, 2000 among Mirage, the Company and a wholly owned
Subsidiary of the Company.
"Mirage" means Mirage Resorts, Incorporated, a Nevada corporation.
"Mirage Notes" means (i) Mirage's 6-5/8% notes due 2005 in the original
aggregate principal amount of $200 million, (ii) Mirage's 7-1/4% notes due 2006
in the original aggregate principal amount of $250 million, (iii) Mirage's 6-
3/4% notes due 2007 in the original principal amount of $200 million, (iv)
Mirage's 6-3/4% notes due 2008 in the original principal amount of $200 million
and (v) Mirage's 7-1/4% debentures due 2017 in the original principal amount of
$100 million.
"Moody's" means Moody's Investor Service, Inc.
"Non-recourse Indebtedness" means Indebtedness the terms of which
provide that the lender's claim for repayment of such Indebtedness is limited
solely to a claim against the property which secures such Indebtedness.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 3.5(a).
"Notes" has the meaning stated in the first recital of this Indenture
and includes any Notes (including any Global Note) authenticated and delivered
under this Indenture.
"Obligations" means any principal, interest, premium, if any, penalties,
fees, indemnifications, reimbursements, expenses, damages or other liabilities
or amounts payable under the documentation governing or otherwise in respect of
any Indebtedness.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company to each holder of a Note at his address appearing in the Note Register
on the date of the Offer offering to purchase up to the principal amount of
Notes specified in such Offer at the purchase price specified in such Offer (as
determined pursuant to this Indenture). The Company shall notify the Trustee at
least 15 Business Days (or such shorter period as is acceptable to the Trustee)
prior to
8
the mailing of the Offer of the Company's obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. The Offer
shall contain all instructions and materials necessary to enable holders of
Notes to tender Notes pursuant to the Offer to Purchase. The Offer shall also
state:
(1) that a Change of Control has occurred and a Change of
Control Offer is being made pursuant to Section 12.11 and that all Notes
timely tendered will be accepted for payment;
(2) the Change of Control Purchase Price and the purchase date,
which shall be, subject to any contrary requirements of applicable law,
a Business Day no earlier than 20 Business Days after the date such
notice is mailed (the "Purchase Date");
(3) the aggregate principal amount of the Outstanding Notes
offered to be purchased by the Company pursuant to the Offer to Purchase
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(5) that the holder may tender all or any portion of the Notes
registered in the name of such holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that on the Purchase Date the Purchase Price will become due
and payable upon each Note accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(8) that each holder electing to tender a Note pursuant to the
Offer to Purchase will be required to surrender such Note at the place
or places specified in the Offer prior to the close of business on the
Purchase Date (such Note being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the holder thereof or his attorney duly authorized in
writing);
(9) that holders will be entitled to withdraw all or any portion
of Notes tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the Purchase Date, a facsimile
transmission or letter setting forth the name of the holder, the
principal amount of the Note the holder tendered, the certificate number
of the Note the holder tendered and a statement that such holder is
withdrawing all or a portion of his tender; and
(10) that in case of any holder whose Note is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the holder of
9
such Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such holder, in an aggregate principal
amount equal to and in exchange for the unpurchased portion of the Note
so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or an Executive or Senior Vice President
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Company (including an employee of the Company).
"Outstanding" when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the holders of
such Notes; provided, however, that if such Notes are to be redeemed, then
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made and the date for
such redemption has passed;
(iii) Notes, except to the extent provided in Section 14.2, with
respect to which the Company has effected defeasance as provided in Article 14;
and
(iv) Notes paid pursuant to Section 3.6 and Notes in exchange for
or in lieu of which other Notes have been authenticated and delivered pursuant
to this Indenture, other than any such Notes in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Notes are
held by a bona fide purchaser in whose hands such Notes are valid obligations of
the Company;
provided, however, that in determining whether the holders of the
requisite principal amount of Notes Outstanding have performed any Act
hereunder, Notes owned by the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding (provided, that in connection with any offer by the
Company or any obligor to purchase Notes, Notes rendered by a holder shall be
Outstanding until the date of purchase), except that, in determining whether the
Trustee shall be protected in relying upon any such Act, only Notes which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Notes and that the
10
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.
"Permitted Holders" means (i) an employee stock ownership plan or other
employee benefit plan covering employees of the Company and its Subsidiaries and
(ii) Tracinda Corporation, its Affiliates and, with respect to any natural
Person that is an Affiliate, any Related Persons of such Person.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" when used with respect to the Notes means the
Corporate Trust Office of the Trustee or such other location as may be
established under Section 12.3.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.6 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Property" means any real estate or other physical facility or
depreciable asset or securities the net book value of which on the date of
determination exceeds the greater of $25 million or 2% of Consolidated Net
Tangible Assets.
"Purchase Date" has the meaning specified in the definition of Offer to
Purchase.
"Redemption Date" means the date fixed for redemption of any Note
pursuant to this Indenture.
"Redemption Price" has the meaning specified in Section 13.1.
"Regular Record Date" for the interest payable on the Notes on any
Interest Payment Date means the May 15 or November 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Related Persons" means, with respect to any natural Person, (i) such
Person's spouse, former spouses, parents and descendants (whether by blood or
adoption, and including stepchildren) and the spouses of any such natural
Persons, (ii) the estate of such natural Person and (iii) any corporation,
partnership, trust or other Person controlled by, and in which at least 50% of
the interests therein are owned by, one or more of any of such natural Person,
such spouse, former spouses, parents and descendants (whether by blood or
adoption, and including stepchildren) and the spouses of any such natural
Persons.
11
"Responsible Officer" when used with respect to the Trustee means any
vice president, any assistant secretary, any assistant treasurer or any
assistant vice president or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Designated Senior Indebtedness; provided that
if, and for so long as, any Designated Senior Indebtedness lacks such a
representative, then the Representative for such Designated Senior Indebtedness
shall at all times be the holders of a majority in outstanding principal amount
of such Designated Senior Indebtedness in respect of any Designated Senior
Indebtedness.
"Sale and Lease-Back Transaction" means any arrangement with a person
(other than the Company or any of its Subsidiaries), or to which any such person
is a party, providing for the leasing to the Company or any of its Subsidiaries
for a period of more than three years of any Principal Property which has been
or is to be sold or transferred by the Company or any of its Subsidiaries to
such person or to any other person (other than the Company of any of its
Subsidiaries), to which funds have been or are to be advanced by such person on
the security of the leased property.
"Senior Indebtedness" means the following Obligations of the Company or
any Subsidiary Guarantor, as the case may be, whether outstanding on the date of
the offering or thereafter Incurred, unless such Obligation is Indebtedness that
is expressly made equal or subordinate in right of payment to the Notes or the
Subsidiary Guarantees, by its terms or the terms of any issuing agreement or
instrument:
(i) all Indebtedness and all other Obligations of the Company or
any Subsidiary Guarantor, as the case may be, under (or in respect of)
the Credit Facilities and all Interest Rate Agreements and Currency
Agreements with respect thereto;
(ii) all Indebtedness and all other obligations of the Company or
any Subsidiary Guarantor, as the case may be, under (or in respect of)
the Senior Notes;
(iii) all interest accruing subsequent to events of bankruptcy of
the Company or any Subsidiary Guarantor at the rate provided for in the
document governing any Senior Indebtedness, whether or not such interest
is an allowed claim enforceable against the debtor in a bankruptcy case
under bankruptcy law, and
(iv) all other Indebtedness and all other Obligations of the
Company or any Subsidiary Guarantor, unless it is expressly stated in
the governing terms or in the assumption thereof that such Indebtedness
in not "Senior Indebtedness."
Notwithstanding the foregoing, the term "Senior Indebtedness" shall not include:
(a) any Indebtedness of the Company to any of its Subsidiaries,
or to a joint venture in which the Company or any of its
Subsidiaries has an interest;
12
(b) any Indebtedness of any Subsidiary of the Company to the
Company or any other Subsidiary of the Company, or to a
joint venture in which the Company or any of its
Subsidiaries has an interest;
(c) any Indebtedness that was Non-recourse Indebtedness when
Incurred by either the Company or any Subsidiary Guarantor;
(d) any Indebtedness of the Company or any Subsidiary Guarantor,
as the case may be, to the extent not permitted by Section
12.10;
(e) any Indebtedness to any employee of either the Company or
any of its Subsidiaries;
(f) any liability for taxes owed or owing by either the Company
or any of its Subsidiaries; or
(g) any trade payables.
"Senior Notes" means (i) the Company's 6.95% senior collateralized notes
due 2005 in the original aggregate principal amount of $300 million, (ii) the
Company's 6.875% senior collateralized notes due 2008 in the original aggregate
principal amount of $200 million and (iii) the Mirage Notes.
"Significant Subsidiary" means, with respect to any Person, any
Subsidiary of that Person that would be a "significant subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Notes Act of
1933, as amended, as such Regulation is in effect on the date hereof.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7(b).
"Stated Maturity" when used with respect to any Note or any payment of
principal thereof or premium thereon or interest thereon means the date
specified in such Note or in this Indenture, as the date on which the principal
of such Note or such payment of principal, premium or interest is due and
payable.
"Subsidiary" of any specified Person means any corporation, partnership
or limited liability companies of which at least a majority of the outstanding
stock having by the terms thereof ordinary voting power for the election of
directors of such corporation (irrespective of whether or not at the time stock
of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned by such Person, or by one or more other
Subsidiaries, or by such Person and one or more other Subsidiaries.
"Subsidiary Guarantor" means (i) each Subsidiary of the Company
identified as a Subsidiary Guarantor on the signature pages hereof, (ii) each
Subsidiary of the Company that executes a supplemental indenture immediately
following the consummation of the Merger and (iii) each other Subsidiary of the
Company that becomes a Subsidiary Guarantor in accordance
13
with Section 12.7 or by executing a supplemental indenture in which such
Subsidiary agrees to be bound by the terms of this Indenture as a Subsidiary
Guarantor, together with their permitted successors and assigns provided that if
the Guarantee of a Subsidiary Guarantor is withdrawn or cancelled pursuant to
Section 12.7(c), such Person shall no longer be a Subsidiary Guarantor
hereunder.
"S&P" means Standard & Poor's Ratings Group (a division of McGraw Hill,
Inc.).
"Treasury Securities" mean any investment in obligations issued or
guaranteed by the United States government or any agency thereof.
"Treasury Yield" means the yield to maturity at the time of computation
of Treasury Securities with a constant maturity (as compiled by and published in
the most recent Federal Reserve Statistical Release H.15 (519) which has become
publicly available at least two business days prior to the date fixed for
redemption (or, if such Statistical Release is no longer published, any publicly
available source of similar data)) most nearly equal to the then remaining
average life of the Notes, provided that if the average life of the Notes is not
equal to the constant maturity of a Treasury Security for which a weekly average
yield is given, the Treasury Yield shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of Treasury Securities for which such yields are given, except that if the
average life of the Notes is less than one year, the weekly average yield on
actually traded Treasury Securities adjusted to a constant maturity of one year
shall be used.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder. Except where the context
otherwise requires, "Trustee" shall include the Trustee in its capacity as
Paying Agent and Note Registrar.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as it may
be amended from time to time.
"United States" means the United States of America (including the States
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto, which
shall in either case be the U.S. Depositary designated in the form of Note
attached as Exhibit A hereto until a successor U.S. Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"U.S. Depositary" shall mean or include each Person who is then a U.S.
Depositary hereunder.
"U.S. Government Obligations" has the meaning specified in Section 14.2.
"Vice President" includes, with respect to the Company, any Executive or
Senior Vice President and includes, with respect to the Trustee, any Vice
President, whether or not designated by a number or word or words added before
or after the title "Vice President."
14
"Voting Stock" of any Person means all classes of capital stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary Guarantor" means, at any time, a Subsidiary
Guarantor all the Voting Stock of which (except directors' qualifying shares) is
at such time owned, directly or indirectly, by the Company and its other Wholly
Owned Subsidiary Guarantors.
Section 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than certificates provided
pursuant to Section 12.2) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to enable
that individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
provided, however, that with respect to matters of law, an Officers' Certificate
may be based upon an Opinion of Counsel, unless the signers know, or in the
exercise of reasonable care should know, that such Opinion of Counsel is
erroneous, and provided, further, that with respect to matters of fact an
Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials, unless the signer knows, or in the exercise of reasonable care
should know, that any such document is erroneous.
Section 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or
15
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
ARTICLE 2
FORM OF NOTES
Section 2.1 FORMS GENERALLY.
The Notes shall be substantially in the form of Exhibit A hereto or in
such other form as shall be established in or pursuant to a Board Resolution or
one or more indentures supplemental hereto, and shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which any of the Notes may be listed, or to
conform to usage, all as determined by the officers executing such Notes as
conclusively evidenced by their execution of such Notes. If the form of Notes
(or any Global Note) is established in or pursuant to a Board Resolution, a copy
of such Board Resolution shall be delivered to the Trustee, together with an
Officers' Certificate setting forth the form of such Notes, at or prior to the
delivery of the Company Order contemplated by Section 3.3 for the authentication
and delivery of such Notes (or any such Global Note).
Subject to Section 3.4, the definitive Notes shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Notes, as conclusively evidenced by their
execution of such Notes.
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be borne by
the Notes shall be substantially as follows:
16
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within
mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
Authorized Signatory
Section 2.3 NOTE IN GLOBAL FORM.
If any Note is issued as a Global Note, such Global Note may provide
that it shall represent the aggregate amount of Outstanding Notes from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Notes represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Global Note to reflect the amount, or
any increase or decrease in the amount, of Outstanding Notes represented thereby
shall be made by the Trustee and in such manner as shall be specified in such
Global Note. Any instructions by the Company with respect to a Global Note,
after its initial issuance, shall be in writing but need not comply with Section
1.2.
Global Notes will be issued in registered form and in either temporary
or permanent form. Permanent Global Notes will be issued in definitive form.
Every Global Note authenticated and delivered hereunder shall bear a
legend in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE
REGISTERED, AND NO TRANSFER OF THE NOTE IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
ARTICLE 3
THE NOTES
Section 3.1 AMOUNT.
The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is limited to $710,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.3, 3.3, 3.4, 3.6, 11.6 or
13.7, or in connection with an Offer to Purchase pursuant to Section 12.11.
17
The Notes shall be known and designated as the "9 3/4% Senior
Subordinated Notes due 2007" of the Company. Their Stated Maturity shall be June
1, 2007, and they shall bear interest at a rate per annum equal to 9 3/4%,
accruing from the Issue Date or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable in cash semi-annually
on each Interest Payment Date, commencing December 1, 2000, until the principal
thereof is paid or duly provided for.
The principal of (and premium, if any) and interest on the Notes shall
be payable at such office or agency of the Company as may be maintained for such
purpose under Section 12.3, which initially shall be the Place of Payment.
The payment of the Notes is guaranteed pursuant to the Guarantees in
favor of the Beneficiaries.
The Notes shall be subject to repurchase by the Company pursuant to an
Offer to Purchase as provided in Section 12.11.
The Notes shall be redeemable as provided in Article 13.
All Notes shall be substantially identical except as to denomination.
All securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided herein, or in any
such indenture supplemental hereto. All securities of any one series need not be
issued at the same time, and unless otherwise provided, a series may be reopened
for issuance of additional securities of such series.
Section 3.2 DENOMINATIONS.
The Notes shall be issuable only as Notes in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its Chairman of
the Board of Directors, its President, one of its Executive or Senior Vice
Presidents or its Treasurer, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers may be manual or
facsimile.
Notes bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes, executed by the Company, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes and the Trustee in accordance with the Company Order
shall authenticate and deliver such Notes. If any Note shall be represented by a
permanent Global Note, then, for purposes of this Section and
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Section 3.4, the notation of a beneficial owner's interest therein upon original
issuance of such Note or upon exchange of a portion of a temporary Global Note
shall be deemed to be delivery in connection with the original issuance of such
beneficial owner's interest in such permanent Global Note.
The Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Notes, (i) a Company Order for such authentication, (ii) the
Board Resolution by or pursuant to which the form and terms of such Notes have
been approved, (iii) an Officers' Certificate stating that all conditions
precedent provided for in the Indenture have been complied with and that, to the
best knowledge of the signers of such certificates, no Event of Default with
respect to any of the Notes shall have occurred and be continuing and (iv) an
Opinion of Counsel substantially to the effect that:
(a) the forms and terms of such Notes, have been established in
conformity with the provisions of this Indenture; and
(b) such Notes, when completed by appropriate insertions and executed
and delivered by the Company to the Trustee in accordance with the Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and binding obligations of
the Company (and the Guarantees with respect thereto will constitute legal,
valid and binding obligations of each Subsidiary Guarantor), enforceable against
the Company (and each respective Subsidiary Guarantor) in accordance with their
terms, subject to applicable bankruptcy, insolvency, fraudulent transfer and
similar laws affecting creditors' rights generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
The Trustee shall not be required to authenticate such Notes if the
issuance of such Notes pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Notes and this Indenture in a manner
which is not reasonably acceptable to the Trustee.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in one of the forms provided for
herein duly executed by the Trustee or by an Authenticating Agent, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Note shall have been duly authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Note to the
Trustee for cancellation as provided in Section 3.8 together with a written
statement (which need not comply with Section 1.2) stating that such Note has
never been issued and sold by the Company, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
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Section 3.4 TEMPORARY NOTES; EXCHANGE OF TEMPORARY GLOBAL NOTES FOR DEFINITIVE
NOTES; GLOBAL NOTES REPRESENTING NOTES.
(a) Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination for Notes, substantially of
the tenor of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as conclusively evidenced by their
execution of such Notes. Every such temporary Note shall be executed by the
Company and shall be authenticated and delivered by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes in lieu of which they are issued.
Except in the case of temporary Global Notes (which shall be exchanged in
accordance with the provisions of the following paragraphs), if temporary Notes
are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes, of a like Stated Maturity and
with like terms and provisions, upon surrender of the temporary Notes at the
office or agency of the Company in a Place of Payment, without charge to the
holder, except as provided in Section 3.5 in connection with a transfer. Upon
surrender for cancellation of any one or more temporary Notes, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Notes of authorized denominations and of a
like Stated Maturity and like terms and provisions. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes.
(b) The Notes are initially to be issued in the form of one or more
Global Notes. The Company shall execute and the Trustee shall, in accordance
with Section 3.3 and the Company Order, authenticate and deliver one or more
Global Notes in temporary or permanent form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
Outstanding Notes to be represented by such Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially as
set forth in Section 2.3.
Notwithstanding any other provision of this Section or Section 3.5,
unless and until it is exchanged in whole or in part for Notes in definitive
form, a Global Note representing the Notes may not be transferred except as a
whole by the U.S. Depositary to a nominee of such depositary or by a nominee of
such depositary to such depositary or another nominee of such depositary or by
such depositary or any such nominee to a successor U.S. Depositary or a nominee
of such successor depositary.
If at any time the U.S. Depositary for the Notes notifies the Company
that it is unwilling or unable to continue as U.S. Depositary for the Notes or
if at any time the U.S. Depositary for Notes shall no longer be a clearing
agency registered and in good standing under the Notes Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Notes. If a successor U.S.
Depositary for
20
the Notes is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Notes, will authenticate and deliver, Notes in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Note or Notes in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that the
Notes issued in the form of one or more Global Notes shall no longer be
represented by such Global Note or Notes. In such event, the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Notes, will authenticate and deliver, Notes in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes in exchange for such Global Note or Notes.
If the Notes shall have been issued in the form of one or more Global
Notes and if an Event of Default with respect to the Notes shall have occurred
and be continuing, upon request by the Trustee (which shall be made upon request
of any Person or Persons having a beneficial interest in at least 25% in
principal amount of the Global Notes or, if Section 3.10 is applicable, any
Person having a beneficial interest in the Global Notes), the Company will
promptly execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Notes, will authenticate and deliver,
Notes in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Note or Notes (or such lesser principal amount as
the Trustee may request with respect to a specified Person's beneficial interest
in the Global Note, in which case the Trustee will authenticate and deliver a
new Global Note or Notes in a denomination equal to the difference between the
principal amount of the surrendered Global Note or Notes and the such lesser
principal amount requested by the Trustee), in exchange for such Global Note or
Notes.
The U.S. Depositary for the Notes may surrender a Global Note for the
Notes in exchange in whole or in part for the Notes in definitive form on such
terms as are acceptable to the Company and such depositary. Thereupon, the
Company shall execute and the Trustee shall authenticate and deliver, without
charge:
(i) to each Person specified by the U.S. Depositary a new Note or
Notes, of any authorized denomination as requested by such Person in an
aggregate principal amount equal to and in exchange for such Person's beneficial
interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Notes delivered to holders
thereof.
Upon the exchange of a Global Note for Notes in definitive form, such
Global Note shall be cancelled by the Trustee. Notes issued in exchange for a
Global Note pursuant to this subsection (c) shall be registered in such names
and in such authorized denominations as the U.S. Depositary for such Global
Note, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Notes to
the Persons in whose names such Notes are so registered.
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Section 3.5 REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust Office of
the Trustee (or at the appropriate office of any other Note Registrar appointed
hereunder) a register (the registers maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers and exchanges of Notes. Pursuant to
Section 6.15, the Company shall appoint a "Note Registrar" for the purpose of
registering Notes and registering transfers and exchanges of Notes as herein
provided.
Upon surrender for registration of transfer of any Note at the office or
agency of the Company maintained for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee, one or more new Notes of like aggregate principal amount of such
denominations as are authorized for Notes and of a like Stated Maturity and with
like terms and conditions.
Except as otherwise provided in Section 3.4 and this Section 3.5, at the
option of the holder, Notes may be exchanged for other Notes of like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Notes which the
holder making the exchange is entitled to receive.
(b) All Notes issued upon any transfer or exchange of Notes shall be
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Notes surrendered for such transfer
or exchange.
Every Note presented or surrendered for transfer or exchange shall (if so
required by the Company or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the Note
Registrar, duly executed, by the holder thereof or his or her attorney duly
authorized in writing.
No service charge will be made for any transfer or exchange of Notes
except as provided in Section 3.6. The Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration, transfer or exchange of Notes, other than
exchanges pursuant to Section 12.11 not involving any transfer and other than
those expressly provided in this Indenture to be made at the Company's own
expense or without expense or without charge to the holders.
The Company, the Trustee and the Note Registrar shall not be required (i)
to register, transfer or exchange Notes during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Notes selected for redemption under Section 13.3 and ending at the close of
business on the day of such transmission, or (ii) to register, transfer or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
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Section 3.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If (i) any mutilated Note is surrendered to the Trustee at its Corporate
Trust Office, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent harmless, and neither
the Company nor the Trustee receives notice that such Note has been acquired by
a bona fide purchaser, then the Company shall execute and upon Company Request,
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Note, a new Note of like Stated
Maturity and with like terms and conditions and like principal amount, bearing a
number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Note, pay the amount due on such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in respect thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) The Company shall duly and punctually pay the interest on the Notes
in accordance with the terms of the Notes and this Indenture. Payments in
respect of the Notes represented by a Global Note will be made by wire transfer
of immediately available funds to the accounts specified by the Global Note
holder. With respect to Notes that are not represented by Global Notes, the
Company will make all payments of interest by wire transfer of immediately
available funds to the accounts specified in writing by holders thereof prior to
10:00 a.m., New York City time, on the relevant Regular Record Date or, if no
such account is specified, by mailing a check to each such holder's address in
the Note Register.
(b) Any interest on any Note which is payable but is not punctually
paid or duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered holder on the
relevant Regular Record Date by virtue of his having been such registered
holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Notes (or their respective
Predecessor Note) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each such Note and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee prior to 10:00 a.m., New York City time, an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to the holders of such Notes at their addresses as they appear in the Note
Register, not less than 15 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Notes (or their respective Predecessor Note) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Notes in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Notes may be listed, and upon such notice as
may be required by such exchange, if, after notice is given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon transfer of, in exchange for, or in lieu of,
any other Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
Section 3.8 CANCELLATION.
All Notes surrendered for payment, redemption, purchase under Section
12.11, transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee at its Corporate Trust Office. All Notes
so delivered shall be promptly cancelled by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Notes previously authenticated hereunder
which the Company has not issued, and all Notes so delivered shall be promptly
cancelled by the Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Notes held by the Trustee
shall be delivered to the Company upon Company Request. The acquisition of any
Notes by the Company shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Notes are surrendered to
the Trustee for cancellation. Permanent
24
Global Notes shall not be disposed of until exchanged in full for definitive
Notes or until payment thereon is made in full.
Section 3.9 COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 3.10 EXCHANGE UPON DEFAULT.
If default is made in the payments referred to in Section 12.1, then the
Company hereby undertakes that, upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof, the Company will issue and the Trustee will authenticate
and deliver to the bearer of such permanent Global Note duly executed and
authenticated definitive Notes with the same issue date and maturity date as set
out in such permanent Global Note.
Section 3.11 MANDATORY DISPOSITION OF NOTES PURSUANT TO GAMING LAWS.
Each holder and beneficial owner, by accepting or otherwise acquiring an
interest in the Notes, shall be deemed to have agreed that if the Gaming
Authority of any jurisdiction in which the Company or any of its Subsidiaries
conducts or proposes to conduct gaming requires that a Person who is a holder or
beneficial owner must be licensed, qualified or found suitable under the
applicable Gaming Laws, such holder or beneficial owner shall apply for a
license, qualification or a finding of suitability within the required time
period. If such Person fails to apply or become licensed or qualified or is
found unsuitable (a "Disqualified Holder"), then the Company shall have the
right, at its option, notwithstanding any other provision of this Indenture:
(i) to require such Person to dispose of its Notes or beneficial
interest therein within 30 days of receipt of notice of the Company's election
or such earlier date as may be requested or prescribed by such Gaming Authority;
or
(ii) to redeem such Notes, which may be less than 30 days following the
notice of redemption if so requested or prescribed by the Gaming Authority, at a
redemption price equal to:
(1) the lesser of:
(a) the Person's cost, plus accrued and unpaid interest, if
any, to the earlier of the redemption date or the date of the
finding of unsuitability or failure to comply; and
(b) 100% of the principal amount thereof, plus accrued and
unpaid interest to the earlier of the redemption date and the date
of the finding of unsuitability; or
25
(2) such lesser amount as may be required by applicable Gaming Laws
or by order of any Gaming Authority.
The Company shall notify the Trustee in writing of any such Disqualified
Holder status or redemption as soon as practicable. The Company shall not be
responsible for any costs or expenses any such holder or beneficial owner may
incur in connection with its application for a license, qualification or a
finding of suitability. Notwithstanding any other provision of this Indenture,
immediately upon the imposition of a requirement to dispose of Notes by a Gaming
Authority, such Person shall, to the extent required by applicable Gaming Laws,
have no further right (i) to exercise, directly or indirectly, through any
trustee, nominee or any other person or entity, any right conferred by the Notes
or (ii) to receive any interest, dividends or any other distributions or
payments with respect to the Notes or any remuneration in any form with respect
to the Notes from the Company or the Trustee, except the redemption price.
Section 3.12 CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to holders of Notes, provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the "CUSIP" numbers.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to the Notes (except as to any surviving rights of
registration of transfer or exchange of such Notes herein expressly provided for
and rights to receive payments of principal (and premium, if any) and interest
on such Notes) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when:
(a) either
(1) all Notes theretofore authenticated and delivered (other than
(i) Notes which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6, and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 12.4) have been delivered to the Trustee for cancellation;
or
(2) all Notes not theretofore delivered to the Trustee for
cancellation,
26
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice by the
Trustee in the name, and at the expense, of the Company;
(b) the Company, in the case of subclause (i), (ii) or (iii) of clause
(a)(2) of this Section, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an amount sufficient to pay
and discharge the entire indebtedness on such Notes for principal (and premium,
if any) and interest to the date of such deposit (in the case of Notes which
have become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be; provided, however, in the event a petition for relief under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, is
filed with respect to the Company within 91 days after the deposit and the
Trustee is required to return the deposited money to the Company, the
obligations of the Company under this Indenture with respect to such Notes shall
not be deemed terminated or discharged;
(c) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(d) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with; and
(e) the Company has delivered to the Trustee an Opinion of Counsel or
a ruling by the Internal Revenue Service to the effect that holders of the Notes
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.1, and, if money shall have been deposited with the
Trustee pursuant to clause (b) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 12.4, shall survive.
Section 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 12.4, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Notes, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
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ARTICLE 5
REMEDIES
Section 5.1 EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to the Notes means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law, pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Note when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal of (and premium, if any,
on) any Note at its Maturity (upon acceleration, optional or mandatory
redemption or otherwise); or
(c) failure to make timely any Offer to Purchase required to be made
pursuant to Section 12.11 or, on the applicable Purchase Date, to purchase Notes
required to be purchased by the Company pursuant to Section 12.11; or
(d) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the holders of at least 25% in
principal amount of the Outstanding Notes, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(e) the acceleration or maturity of any Indebtedness of the Company or
any Subsidiary Guarantor (other than Non-recourse Indebtedness), at any time, in
an amount in excess of the greater of (i) $25,000,000 and (ii) 5% of Consolidate
Net Tangible Assets, if such acceleration is not annulled within 30 days after
written notice to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in principal amount of the Outstanding Notes; or
(f) entry of final judgments against the Company or any Subsidiary
Guarantor which remain undischarged for a period of 60 days, provided that the
aggregate of all such judgments exceeds $25,000,000 and judgments exceeding
$25,000,000 remain undischarged for 60 days after written notice to the Company
by the Trustee or to the Company and the Trustee by the holders of at least 25%
in principal amount of the Outstanding Notes; or
(g) the entry of a decree or order for relief in respect of the
Company or any Significant Subsidiary by a court having jurisdiction in the
premises in an involuntary case under the federal Bankruptcy Laws, as now or
hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or a decree or order adjudging the Company or
28
any Significant Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Significant Subsidiary under any
applicable federal or state law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the Company or
any Significant Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90 consecutive
days; or
(h) the commencement by the Company or any Significant Subsidiary of a
voluntary case under the federal Bankruptcy Laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, or the consent by it to the entry of an order for relief in
an involuntary case under any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any substantial
part of its property, or the making by it of an assignment for the benefit of
its creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action.
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default described in
clause (g) or (h) of Section 5.1) with respect to Notes at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the holders of
not less than 25% in principal amount of the Outstanding Notes may declare the
principal amount of all the Notes to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by holders), and upon any
such declaration such principal amount (or specified amount) plus accrued and
unpaid interest (and premium, if payable) shall become immediately due and
payable. Upon payment of such amount all obligations of the Company in respect
of the payment of principal of the Notes shall terminate.
At any time after such a declaration of acceleration with respect to
Notes has been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the
holders of at least a majority in principal amount of the Outstanding Notes, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue installments of interest on all Notes,
(2) the principal of (and premium, if any, on) any Notes which
have become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Notes,
(3) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Note at the rate or rates
prescribed therefor in such Notes, and
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(4) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all Events of Default with respect to Notes, other than the
nonpayment of the principal of Notes which has become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
If an Event of Default described in clause (g) or (h) of Section 5.1
occurs with respect to the Company or any Significant Subsidiary, the principal
of, premium, if any, and accrued interest on the Notes shall be due and payable
immediately without any further action or notice.
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that, if:
(a) default is made in the payment of any installment of interest on
any Note when such interest or payment becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of principal of (or premium, if
any, on) any Note at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to it, for the benefit of
the holders of such Notes, the amount then due and payable on such Notes for the
principal (and premium, if any) and interest, if any, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Notes wherever situated.
If an Event of Default with respect to Notes occurs and is continuing,
then the Trustee may, in its discretion, proceed to protect and enforce its
rights and the rights of the holders of Notes by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
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Section 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the federal
Bankruptcy Laws, as now or hereafter constituted, relative to the Company or any
Subsidiary Guarantor, or the property of the Company or of any Subsidiary
Guarantor or their creditors, the Trustee (irrespective of whether the principal
of such Notes shall then be due and payable as therein expressed or by
declaration of acceleration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company or any Subsidiary Guarantor for the
payment of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the holders of such Notes allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any holder thereof, or to authorize the Trustee to vote in respect
of the claim of any holder in any such proceeding.
Section 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT SECURITIES.
All rights of action and claims under this Indenture or the Notes or
Guarantees may be prosecuted and enforced by the Trustee without the possession
of any of such Notes or Guarantees or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name, as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the holders of the Notes in respect of which such
judgment has been recovered.
Section 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such
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money on account of principal (and premium, if any) or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Notes ratably, without preference
or priority of any kind, according to the amounts due and payable on such Notes
for principal (and premium, if any) and interest, respectively;
THIRD: without duplication, to holders of Notes for any other
obligations owing to the holders of Notes under the Notes or this Indenture; and
FOURTH: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7 LIMITATION ON SUITS.
No holder of any Note shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or the Guarantees, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such holder has previously given written notice to the Trustee of
a continuing Event of Default;
(b) the holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such holder or holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the holders of at least a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or the Guarantees to affect, disturb or prejudice the rights
of any other such holders, or to obtain or to seek to obtain priority or
preference over any other of such holders or to enforce any right under this
Indenture or the Guarantees, except in the manner herein provided and for the
equal and ratable benefit of all of such holders. For the protection and
enforcement of the provisions of this Section 5.7, each and every holder of
Notes and the Trustee shall be entitled to such relief as can be given at law or
in equity.
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Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, except for
restrictions imposed by Gaming Laws or Gaming Authorities on payments by
entities holding Gaming Licenses, the holder of any Note shall have the right,
which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.7 and Section 3.11) interest on such
Note on the respective Stated Maturity or Maturities expressed in such Note (or,
in the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment and interest thereon, and such right shall not
be impaired without the consent of such holder.
Section 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such holder, then and in every such case 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 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law (including Gaming Laws),
be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the holders, as the case
may be.
Section 5.12 CONTROL BY HOLDERS.
The holders of at least a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Notes, provided
that:
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(a) such direction shall not be in conflict with any rule of law
(including Gaming Laws) or with this Indenture;
(b) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would be unjustly prejudicial to the
holders of Notes not joining in any such direction; and
(c) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5.13 WAIVER OF PAST DEFAULTS.
The holders of not less than a majority in aggregate principal amount of
the Outstanding Notes, by notice to the Trustee, may, on behalf of the holders
of all the Notes, waive any past default hereunder and its consequences, except
a default:
(a) in the payment of the principal of (or premium, if any) or
interest on any Note, or
(b) in respect of a covenant or provision hereof which, pursuant to
Article 11, cannot be modified or amended without the consent of the holder of
each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of the Notes under this Indenture, but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
Section 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, 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,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit other than the Trustee of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant, but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any holder or
group of holders holding in the aggregate more than 10% in principal amount of
the Outstanding Notes, or to any suit instituted by any holder of a Note for the
enforcement of the payment of the principal of (or premium, if any) or interest
on such Note on or after the respective Stated Maturity or Maturities expressed
in such Note (or, in the case of redemption, on or after the Redemption Date).
Section 5.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may
34
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and 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 5.16 DISQUALIFIED HOLDERS.
To the extent required by applicable Gaming Laws, Notes held by a
Disqualified Holder shall, so long as held by such Person, be disregarded for
purposes of providing notices, directions, waivers or other actions and
determining the sufficiency of such notices, directions, waivers or actions
under this Article 5.
ARTICLE 6
THE TRUSTEE
Section 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to the Notes,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to Notes has occurred and
is continuing, the Trustee shall, with respect to the Notes, exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
35
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Notes in good faith
in accordance with the direction of the holders of at least a majority in
principal amount of the Outstanding Notes relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;
and
(4) the Trustee shall not be required 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.
(5) the Trustee shall cooperate and comply with any order or
directive of a Gaming Authority in connection with this Indenture, including
that the Trustee submit an application for any license, finding of suitability
or other approval pursuant to any Gaming Laws (unless the Trustee shall have
submitted its resignation) and will cooperate fully and completely in any
proceeding related to such application; provided the Company agrees to prepare
(or cause the Subsidiary Guarantors to prepare) all documentation in connection
with any such order, directive, application and proceeding and to reimburse the
Trustee for all costs and expenses incurred by it in connection therewith.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to Notes, the Trustee shall give notice to all holders of Notes of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Note, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the holders of Notes; and
provided, further, that in the case of any default of the character specified in
Section 5.1(d) with respect to Notes, no such notice to holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Notes.
Notice given pursuant to this Section 6.2 shall be transmitted by mail:
(a) to all registered holders, as the names and addresses of the
registered holders appear in the Note Register; and
(b) to each holder of a Note whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a) of this Indenture.
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Section 6.3 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.1:
(a) the Trustee may conclusively rely, and shall be protected in
acting or refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the holders of Notes pursuant to this Indenture, unless such holders
shall have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) except with respect to Section 12.1, the Trustee shall have no
duty to inquire as to the performance of the Company's covenants in Article 12
hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Default or Event of Default occurring
pursuant to Section 5.1(a) or (b) or (ii) any Default or Event of
37
Default of which the Trustee shall have received written notification or
obtained actual knowledge;
(i) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture; and
(j) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture,
the Guarantees or of the Notes. The Trustee shall not be accountable for the
use or application by the Company of any Notes or the proceeds thereof.
Section 6.5 MAY HOLD NOTES.
The Trustee, any Paying Agent, the Note Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 6.8 and 6.13, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Note Registrar or such other agent.
Section 6.6 MONEY HELD IN TRUST.
Money in any Currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
Section 6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee in Dollars for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including costs incurred in connection with applications to any
Gaming Authority and including the reasonable
38
compensation and the reasonable expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify in Dollars the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder, including
the costs and expenses of defending itself against any claim (whether asserted
by the Company, a holder of Notes or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Notes, upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of amounts due on the Notes.
The obligations of the Company under this Section 6.7 to compensate and
indemnify the Trustee for reasonable expenses, disbursements and advances shall
constitute additional indebtedness under this Indenture and shall survive the
satisfaction and discharge of this Indenture and any rejection or termination of
this Indenture under any Bankruptcy Law. When the Trustee incurs expenses or
renders services after an Event of Default specified in Section 5.1(g) or (h)
occurs, the expenses and the compensation for the services of the Trustee are
intended to constitute expenses of administration under any Bankruptcy Law.
Section 6.8 DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall comply with the relevant provisions of the Trust
Indenture Act with respect to conflicts of interest and disqualification. If
such provisions require the Trustee to resign with respect to the Notes, the
Company shall take prompt steps to have a successor appointed, in the manner and
with the effect hereinafter specified in this Article.
Section 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000, subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any Affiliate of the Company
shall serve as Trustee upon any Notes.
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
Subject to compliance with applicable Gaming Laws:
39
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Notes by
giving written notice thereof to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes
and a successor Trustee appointed by Act of the holders of at least a majority
in principal amount of the Outstanding Notes, delivered to the Trustee and to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 with
respect to the Notes after written request therefor by the Company or by any
holder who has been a bona fide holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
with respect to the Notes and shall fail to resign after written request
therefor by the Company or by any such holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Notes, or (ii) subject to Section 5.14, any holder
who has been a bona fide holder of a Note for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Notes.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Notes, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Notes and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Notes shall be appointed by Act of the
holders of at least a majority in principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Notes and, to that extent, supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
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to the Notes shall have been so appointed by the Company or the holders and
accepted appointment in the manner hereinafter provided, any holder who has been
a bona fide holder of a Note for at least six months may, subject to Section
5.7, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Notes.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Notes and each appointment of a
successor Trustee with respect to the Notes in the manner and to the extent
provided in Section 17.2 to the holders of Notes. Each notice shall include the
name of the successor Trustee with respect to the Notes and the address of its
Corporate Trust Office.
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Subject to compliance with applicable Gaming Laws:
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Notes, each such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee, but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.7.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) of this Section, as the case may be.
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes shall have been
41
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case any
Notes shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Notes, in either its own
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
other obligor under the Notes), the Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Company or any Subsidiary Guarantor (or any such other obligor). A Trustee who
has resigned or been removed shall be subject to Trust Indenture Act Section
311(a) to the extent indicated therein.
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Notes remain Outstanding, upon a Company Request, there
shall be an authenticating agent (the "Authenticating Agent") appointed, for
such period as the Company shall elect, by the Trustee to act as its agent on
its behalf and subject to its direction in connection with the authentication
and delivery of the Notes. Notes authenticated by such Authenticating Agent
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by such Trustee. Wherever
reference is made in this Indenture to the authentication and delivery of Notes
by the Trustee or to the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on
behalf of such Trustee by such Authenticating Agent, except that only the
Trustee may authenticate Notes upon original issuance and pursuant to Section
3.6 hereof. Such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any state, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $100,000,000 and subject to
supervision or examination by federal or state authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of any Authenticating Agent,
shall continue to be the Authenticating Agent with respect to the Notes for
which it served as Authenticating Agent without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the applicable
Trustee and to the Company.
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Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to the Notes,
the Trustee shall, upon Company Request, appoint a successor Authenticating
Agent, and the Company shall provide notice of such appointment to all holders
of Notes in the manner and to the extent provided in Section 17.2. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein. The Company agrees to pay to the Authenticating Agent from time to time
reasonable compensation for its services. The Authenticating Agent for the Notes
shall have no responsibility or liability for any action taken by it as such at
the direction of the Trustee, except arising out of its negligence or willful
misconduct.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the within
mentioned Indenture.
THE BANK OF NEW YORK As Trustee
By: ____________________________________
As Authenticating Agent
By: ____________________________________
Authorized Signatory
Section 6.15. PAYING AGENT; NOTE REGISTRAR.
(a) Each Paying Agent or Note Registrar (other than the Company)
shall be a corporation organized and doing business under the laws of the United
States of America or of any State and having a combined capital and surplus of
at least $500,000,000.
(b) Each Paying Agent or Note Registrar may resign at any time
by giving written notice thereof to the Company. The Company, by a Board
Resolution and upon giving written notice thereof to the Paying Agent or Note
Registrar, may remove such Paying Agent or Note Registrar at any time.
(c) If any Paying Agent or Note Registrar shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the office
of any Paying Agent or Note Registrar for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Paying Agent or Note Registrar.
(d) The Company shall give notice of each resignation and each
removal of any Paying Agent or Note Registrar and each appointment of a
successor Paying Agent or Note Registrar by mailing written notice of such event
by first-class mail, postage prepaid, to the
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Trustee. Each notice shall include the name and address of the successor Paying
Agent or Note Registrar.
(e) The Trustee is hereby initially appointed Paying Agent and
Note Registrar.
(f) The Company shall enter into an appropriate written agency
agreement with any Paying Agent or Note Registrar not a party to this Indenture,
which agreement shall implement the provisions of this Indenture that relate to
such Paying Agent or Note Registrar, including the provisions of Section
6.1(c)(5). The Company shall notify the Trustee in writing of the name and
address of any such Paying Agent or Note Registrar.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the Notes, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the registered holders as of the date 15 days next preceding each
such Regular Record Date (or such semi-annual dates, as the case may be); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Note
Registrar, no such list need be furnished.
Section 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.3(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself
44
as Trustee which was compiled from information received by it as Paying Agent
(if so acting) hereunder upon the receipt of a new list so delivered, and
destroy, not earlier than two years after filing, any information filed with it
pursuant to Section 7.3(c)(2).
(b) If three or more holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of Notes
with respect to their rights under this Indenture or under the Notes and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of
holders of all Notes, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a), and as
to the approximate cost of mailing to such holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon written request of such applicants,
mail to the holders of Notes, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a), a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five Business Days after such
tender, the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the holders of Notes, or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the holders in accordance with Section 7.2(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing of any material
pursuant to a request made under Section 7.2(b).
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Section 7.3 REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the issuance of the Notes, the Trustee, if so required under
the Trust Indenture Act, shall transmit by mail to all holders of Notes, in the
manner and to the extent provided in Trust Indenture Act Section 313(c), a brief
report dated as of such May 15 in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(a). The Trustee shall also
transmit by mail to all holders of Notes, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), a brief report in accordance
with and with respect to the matters required by Trust Indenture Act Section
313(b)(2).
(b) A copy of each report transmitted to holders of Notes pursuant to
this Section 7.3 shall, at the time of such transmission, be mailed to the
Company and filed with each stock exchange, if any, upon which the Notes are
listed and also with the Commission. The Company will notify the Trustee
promptly if the Securities are listed on any stock exchange or of any delisting
thereof.
(c) Gaming License Requirements. To the extent required by Gaming
Laws, the Trustee will provide any applicable Gaming Authority upon its or the
Company's request with:
(1) copies of all notices, reports and other written
communications which the Trustee gives to holders of Notes;
(2) a list of holders of Notes promptly after the original
issuance of the Notes, eight months and two months prior to the expiration date
of each then-current Gaming License held by the Company or its Subsidiaries, and
upon demand;
(3) notice of any Event of Default under this Indenture or of
any Default, any acceleration of the indebtedness evidenced or secured hereby,
the institution of any legal actions or proceedings before any court or
governmental authority in respect of this Indenture and any rescission,
annulment or waiver in respect of an Event of Default;
(4) notice of the removal or resignation of the Trustee within
five Business Days thereof;
(5) notice of any transfer or assignment of rights under this
Indenture (but no transfers or assignments of the Notes) within five Business
Days thereof; and
(6) a copy of any amendment to the Notes or this Indenture
within five Business Days of the effectiveness thereof.
The notice specified in clause (3) above shall be in writing and, except as set
forth below, shall be given within five Business Days after the Trustee has
transmitted the notice required by Section 6.2. In the case of any notice in
respect of any Event of Default, such Notice shall be accompanied by a copy of
any notice from the holders of the Notes, or a representative thereof or the
Trustee, to the Company and, if accompanied by any such notice to the Company,
shall be given simultaneously with the giving of any such notice to the Company.
In the case of any
46
legal actions or proceedings, such notice shall be accompanied by a copy of the
complaint or other initial pleading or document.
The Trustee shall in accordance with the limitations set forth herein
cooperate with any applicable Gaming Authority in order to provide such Gaming
Authority with information and documentation relevant to compliance with clause
(3) above and as otherwise required by any applicable Gaming Laws.
The Company will advise the Trustee in writing of the expiration date of
any then-current Gaming License held by the Company or its subsidiaries at least
nine months prior to the expiration thereof and the Trustee until so advised may
assume that such Gaming License has not expired.
(d) Reports pursuant to this Section 7.3 shall be transmitted by
mail:
(1) to all holders of Notes, as the names and addresses of such
holders of Notes appear in the Note Register; and
(2) except in the cases of reports pursuant to subsection (b) of
this Section 7.3, to each holder of a Note whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a).
A copy of each such report shall, at the time of such
transmission to holders, be filed by the Trustee with each stock exchange upon
which any Notes are listed, with the Commission and also with the Company. The
Company will notify the Trustee promptly when any of the Notes are listed on any
stock exchange or of any delisting thereof.
Section 7.4 REPORTS BY COMPANY.
So long as any Notes are outstanding, the Company will file with the
Trustee, within 15 days after the Company is required to file the same with the
Commission, copies of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, with respect to securities listed
and registered on a national securities exchange as such rules and regulations
may require.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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ARTICLE 8
CONCERNING THE HOLDERS
Section 8.1 ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by holders of
Notes may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such holders in person or by an agent or
proxy duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee, and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the holders
signing such instrument or instruments. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Outstanding Notes may take any Act, the fact that the holders of
such specified percentage have joined therein may be evidenced (a) by the
instrument or instruments executed by holders in person or by agent or proxy
appointed in writing, or (b) by the record of holders voting in favor thereof at
any meeting of such holders duly called and held in accordance with the
provisions of Article 9, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of holders.
Section 8.2 PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS BY HOLDER.
The ownership of Notes shall be proved by the Note Register or by a
certificate of the Note Registrar.
Subject to the provisions of Sections 6.1, 6.3 and 9.5, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a holder or his agent or proxy shall be sufficient and conclusive
in favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any instrument
may be proved by the certificate of any notary public or other officer
authorized to take acknowledgments of deeds, that the Person executing such
instrument acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other such officer.
Where such execution is by an officer of a corporation or association or a
member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other Person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any holders' meeting shall be proved in the manner
provided in Section 9.6.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
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Section 8.3 PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Note is registered as the owner of such Note
for the purpose of receiving payment of the principal of (and premium, if any)
and (subject to Section 3.7) interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any holder, or upon
his order, shall be valid, and, to the extent of the sum or sums paid, effectual
to satisfy and discharge the liability for moneys payable upon such Note.
Section 8.4 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any Act by the holders of the
percentage in aggregate principal amount of the Outstanding Notes specified in
this Indenture in connection with such Act, any holder of a Note the number,
letter or other distinguishing symbol of which is shown by the evidence to be
included in the Notes the holders of which have consented to such Act may, by
filing written notice with the Trustee at the Corporate Trust Office and upon
proof of ownership as provided in Section 8.2, revoke such Act so far as it
concerns such Note. Except as aforesaid, any such Act taken by the holder of
any Note shall be conclusive and binding upon such holder and, subject to the
provisions of Section 5.8, upon all future holders of such Note and of any Notes
issued on transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Note or such other Notes.
ARTICLE 9
HOLDERS' MEETINGS
Section 9.1 PURPOSES OF MEETINGS.
A meeting of holders of Notes may be called at any time and from time to
time pursuant to the provisions of this Article 9 for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by holders pursuant to any of the provisions of Article 5;
(b) to remove the Trustee and appoint a successor Trustee pursuant to
the provisions of Article 6;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
49
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of the Outstanding
Notes, under any other provision of this Indenture or under applicable law.
Section 9.2 CALL OF MEETINGS BY TRUSTEE.
The Trustee may at any time call a meeting of holders of Notes to take
any action specified in Section 9.1, to be held at such time or times and at
such place or places as the Trustee shall determine. Notice of every meeting of
the holders of Notes, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be given
to holders of the Notes in the manner and to the extent provided in Section
17.2. Such notice shall be given not less than 10 days nor more than 90 days
prior to the date fixed for the meeting.
Section 9.3 CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
holders of at least 10% in aggregate principal amount of the Outstanding Notes
shall have requested the Trustee to call a meeting of holders of Notes by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have given the notice of such
meeting within 10 days after the receipt of such request, then the Company or
such holders may determine the time or times and the place or places for such
meetings and may call such meetings to take any action authorized in Section
9.1, by giving notice thereof as provided in Section 9.2.
Section 9.4 QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of holders, a Person shall be (a)
a holder of a Note that is not a Disqualified Holder or (b) a Person appointed
by an instrument in writing as agent or proxy by such holder. The only Persons
who shall be entitled to be present or to speak at any meeting of holders shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 9.5 REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
holders of Notes, in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by holders of Notes as provided in Section 9.3, in which case the
Company or the holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by at least a majority vote of the
meeting.
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Subject to the provisos in the definition of "Outstanding," at any
meeting each holder of a Note or proxy therefor shall be entitled to one vote
for each $1,000 principal amount of Notes held or represented by such holder;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Outstanding Notes held by him or her or
instruments in writing duly designating him or her as the person to vote on
behalf of holders of Notes. Any meeting of holders with respect to which a
meeting was duly called pursuant to the provisions of Section 9.2 or 9.3 may be
adjourned from time to time by at least a majority of such holders present and
the meeting may be held as so adjourned without further notice.
Section 9.6 VOTING.
The vote upon any resolution submitted to any meeting of holders of
Notes with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the Notes held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of holders shall be taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.2. The record shall show the serial numbers of the Notes voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.7 NO DELAY OF RIGHTS BY MEETING.
Nothing contained in this Article 9 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any holder under any of the provisions of this Indenture or of the
Notes.
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ARTICLE 10
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with, merge with or into, or sell,
assign, convey, transfer or lease its properties and assets substantially in
their entirety (computed on a consolidated basis) to any Person, unless:
(a) either (i) the Company is the surviving entity or (ii) the
successor or transferee (the "successor corporation") is a corporation organized
and existing under the laws of the United States, any State thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, all of the obligations of the
Company under the Notes and this Indenture;
(b) immediately after giving effect to such transaction, no Event of
Default or Default shall exist; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel conforming to the provisions of Section 1.2 hereof and
each stating that such consolidation, merger, conveyance, transfer or lease and
such supplemental indenture comply with this provision and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
Section 10.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially in their entirety in accordance with Section 10.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
ARTICLE 11
SUPPLEMENTAL INDENTURES
Section 11.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more
52
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another corporation to the rights
of the Company or any Subsidiary Guarantor and the assumption by such successor
of the covenants and obligations of the Company or any Subsidiary Guarantor
contained herein and in the Notes; or
(b) to add to the covenants of the Company and the Subsidiary
Guarantors, for the benefit of the holders of Notes, or to surrender any right
or power herein conferred upon the Company or the Subsidiary Guarantors; or
(c) to add any additional Events of Default; or
(d) to secure the Notes and Guarantees, to provide for additional
collateral for the Notes or the Guarantees or to provide that any of the
Company's obligations under any of the Notes or this Indenture shall be
guaranteed (including adding additional Subsidiary Guarantors as contemplated by
Article 15) and the terms and conditions for the release or substitution of such
security or guarantee; provided that any such action as to any Guarantee shall
not modify the provisions of Article 15 in a manner that would adversely affect
the interests of the holders of Notes in any material respect; or
(e) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of Notes pursuant to Article 4 or 14, provided that any such action
shall not adversely affect the interests of the holders of Notes in any material
respect; or
(f) to establish the form or terms of the Notes as permitted by this
Indenture; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes, and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee; or
(h) to comply with the requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act; or
(i) to cure any ambiguity; or
(j) to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or
(k) to eliminate any conflict between the terms of this Indenture and
the Notes and the Trust Indenture Act; or
(l) to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with any provision
of this Indenture; provided such other provisions shall not adversely affect the
interests of the holders of Outstanding Notes.
53
The terms of any document entered into pursuant to this Section shall be
subject to prior approval, if required, of any applicable Gaming Authority.
Section 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the holders of not less than at least a
majority in principal amount of the Outstanding Notes, by Act of said holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto, or amendments to the Guarantees for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or the Guarantees or of modifying in any manner the rights of
the holders of the Notes under this Indenture or the Guarantees; provided,
however, that no such supplemental indenture shall, without the consent of the
holder of each Outstanding Note affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Note, or reduce the principal
amount thereof or the rate (or extend the time for payment) of interest thereon
or any premium payable upon redemption thereof, or change the Currency or
Currencies in which the principal of (and premium, if any) or interest on such
Note is denominated or payable, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or alter any redemption
provisions in a manner adverse to the holders of Notes or release any Subsidiary
Guarantor under any Guarantee (except in accordance with the terms of the
Indenture or the Guarantees); or
(b) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose holders is required for any supplemental indenture,
or the consent of whose holders is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(c) modify any of the provisions of this Section, Section 5.13, or
Section 12.6, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the holder of each Outstanding Note affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11 and 11.1(h); or
(d) modify any of the provisions of this Indenture which by their
terms expressly require the consent of each affected holder of Notes to modify;
or
(e) at any time after a Change of Control has occurred, change the
time at which the Offer to Purchase related thereto must be made under Section
12.11 or change the time or price at which the Notes must be repurchased
pursuant to such Offer to Purchase.
It shall not be necessary for any Act of holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
54
The terms of any document entered into pursuant to this Section shall be
subject to prior approval, if required, of any applicable Gaming Authority. To
the extent required by applicable Gaming Laws, Notes held by a Disqualified
Holder shall, so long as held by such a Person, be disregarded for purposes of
providing consents and determining the sufficiency of consents under this
Section 11.2.
Section 11.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which adversely affects
the Trustee's own rights, duties or immunities under this Indenture or otherwise
in a material way.
Section 11.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section 11.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 11.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the Board
of Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE 12
COVENANTS
Section 12.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Notes, that it
will duly and punctually pay the principal of (and premium, if any) and interest
on the Notes in accordance with the terms of the Notes and this Indenture.
55
Section 12.2 OFFICER'S CERTIFICATE AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a certificate of the principal executive officer, principal
financial officer or principal accounting officer of the Company stating whether
or not, to the knowledge of the signer thereof, the Company is in compliance
with all covenants and conditions under this Indenture, and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof
of which such signer may have knowledge. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
Section 12.3 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange, where Notes that are
convertible may be surrendered for conversion, if applicable, and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. If the Notes are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Notes in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Notes are listed on such exchange, and subject to
any laws or regulations applicable thereto, in a Place of Payment located
outside the United States an office or agency where any Notes may be surrendered
for registration of transfer, where Notes may be surrendered for exchange or
redemption and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will give prompt
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 Corporate Trust Office of the Trustee and the Company hereby
appoints the Trustee as its agent to receive all presentations, surrenders,
notices and demands.
The Company may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph.
The Company will give prompt written notice to the Trustee of any such
additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 12.4 MONEY FOR NOTES; PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to the Notes, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Notes, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be
56
paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
the Notes, it will, by or on each due date of the principal (and premium, if
any) or interest on any Notes, deposit with any such Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due (in same day funds and, if a Global Note is Outstanding, by 10:00 a.m., New
York City time, in order for the Trustee to make payment to the U.S. Depositary
for such Note in accordance with rules of such U.S. Depositary), such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless any
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent with respect to the Notes other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Notes) in the making of any payment of principal (and premium,
if any) or interest on the Notes; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company upon Company Request, or (if then held by the Company) shall
be discharged from such trust; and the holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense of the Company cause
to be transmitted in the manner and to the extent provided by Section 17.2,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not
57
be less than 30 days from the date of such notification, any unclaimed balance
of such money then remaining will be repaid to the Company upon Company Request.
Section 12.5 CORPORATE EXISTENCE.
Subject to Article 10, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company.
Section 12.6 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 12.3 through 12.5 or 12.7 through
12.11 if before the time for such compliance the holders of at least a majority
in principal amount of the Outstanding Notes shall, by Act of such holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent expressly so waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect; provided that no waiver of any requirement to
provide a Guarantee, or of time or price of any requirement to make an Offer to
Purchase after a Change of Control has occurred, shall be effective without the
Act of the holder of each Outstanding Note affected thereby.
Section 12.7. GUARANTEES.
(a) The Company shall from time to time (i) cause each Subsidiary of the
Company that is not an Excluded Subsidiary to become, on the Issue Date or, if
such Subsidiary is acquired or created after the Issue Date or such Subsidiary
was an Excluded Subsidiary but thereafter is not an Excluded Subsidiary, at the
later of (A) the time of the acquisition, creation or change in status of such
Subsidiary and (B) the time at which such Subsidiary Incurs Indebtedness or such
Subsidiary guarantees any Senior Indebtedness of the Company, a guarantor of the
obligations of the Company under this Indenture and the Notes by executing this
Indenture (directly or by supplemental indenture) as a Subsidiary Guarantor or
by executing a Guarantee in substantially the form of Article 15 (provided that
the provision of a Guaranty by a Subsidiary after the Issue Date shall be
subject to compliance with any applicable Gaming Laws and the Company agrees
that (subject to Section 12.7(b)) it shall not have any such Subsidiary that is
not an Excluded Subsidiary unless it is permitted to give such Guarantee under
applicable Gaming Laws) and (ii) deliver to the Trustee an Opinion of Counsel,
in form reasonably satisfactory to the Trustee, that such Guarantee is the
valid, binding and enforceable obligation of such Subsidiary Guarantor, subject
to customary exceptions for bankruptcy, fraudulent transfer and equitable
principles.
(b) The actions set forth in Section 12.7(a) shall be taken within 10 days
of the time on which any Person is required to become a Subsidiary Guarantor,
provided that (i) if such Person is not permitted to give a Guarantee under
applicable Gaming Laws, then, unless such
58
Person has become a guarantor of the Credit Facilities or any Senior Notes, such
period shall be extended as long as the Company continues to use best efforts to
obtain the requisite consents for such Guarantee from the applicable Gaming
Authority and (ii) each of Mirage and its wholly owned Subsidiaries (other than
Mirage's non-U.S. Subsidiaries whose only tangible assets are located in foreign
nations and their U.S. holding companies, provided such holding companies have
no other assets or operations) shall comply with Section 12.7(a) immediately
upon consummation of the Merger. Each Note issued after the date of execution by
any additional Subsidiary Guarantor of a Guarantee shall be endorsed with a form
of Guarantee that has been executed by such Subsidiary Guarantor. However, the
failure of any Note to have endorsed thereon a Guarantee executed by such
Subsidiary Guarantor shall not affect the validity or enforceability of such
Guarantee. In the case of a Subsidiary that becomes a Subsidiary Guarantor after
the Issue Date as a result of its guarantee of Senior Indebtedness of the
Company (and not as a result of its Incurrence of Indebtedness), if such
Subsidiary thereafter does not guarantee any Senior Indebtedness and has not
Incurred any Indebtedness, then, upon delivery by the Company to the Trustee of
an Officers' Certificate and an Opinion of Counsel, to the effect that such
conditions to release of the Subsidiary Guarantee by such Subsidiary have been
satisfied, the Trustee shall execute any documents reasonably required in order
to evidence the release of such Subsidiary Guarantor from its Guarantee
Obligations under its Subsidiary Guarantee.
Section 12.8 LIMITATION ON LIENS.
(a) Other than as provided in Sections 12.8(b) and (c) below, neither the
Company nor any Subsidiary Guarantor will, directly or indirectly, issue, assume
or guarantee any Indebtedness secured by a Lien upon any Principal Property or
on any evidences of Indebtedness or shares of capital stock of, or other
ownership interests in, any Subsidiaries (regardless of whether the Principal
Property, Indebtedness, capital stock or ownership interests were acquired
before or after the date hereof) without effectively providing that the Notes
shall be secured equally and ratably with (or prior to) the Indebtedness so long
as such Indebtedness shall be so secured, except that this restriction will not
apply to:
(i) Liens existing on the date of original issuance of the notes;
(ii) Liens affecting property of a corporation or other entity
existing at the time it becomes a Subsidiary Guarantor or at the time it is
merged into or consolidated with the Company or a Subsidiary Guarantor
(provided that such Liens are not incurred in connection with, or in
contemplation of, such entity becoming a Subsidiary Guarantor or such
merger or consolidation and do not extend to or cover property of the
Company or any Subsidiary Guarantor other than property of the entity so
acquired or which becomes a Subsidiary Guarantor);
(iii) Liens (including purchase money Liens) on property existing at
the time of acquisition thereof or to secure Indebtedness Incurred prior
to, at the time of, or within 24 months after the acquisition for the
purpose of financing all or part of the purchase price thereof (provided
that such Liens do not extend to or cover any property of the Company or
any Subsidiary Guarantor other than the property so acquired);
59
(iv) Liens on any property to secure all or part of the cost of
improvements or construction thereon or Indebtedness Incurred to provide
funds for such purpose in a principal amount not exceeding the cost of such
improvements or construction;
(v) Liens which secure Indebtedness of a Subsidiary of the Company
to the Company or to a Subsidiary Guarantor or which secure Indebtedness of
the Company to a Subsidiary Guarantor;
(vi) Liens on the stock, partnership or other equity interest of the
Company or Subsidiary Guarantor in any Joint Venture or any Subsidiary
which owns an equity interest in such Joint Venture to secure Indebtedness,
provided the amount of such Indebtedness is contributed and/or advanced
solely to such Joint Venture;
(vii) Liens securing Senior Indebtedness;
(viii) certain Liens to government entities, including pollution
control or industrial revenue bond financing;
(ix) Liens required by any contract or statute in order to permit
the Company or a Subsidiary of the Company to perform any contract or
subcontract made by it with or at the request of a governmental entity;
(x) mechanic's, materialman's, carrier's or other like Liens,
arising in the ordinary course of business;
(xi) certain Liens for taxes or assessments and similar charges;
(xii) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property and certain other
minor irregularities of title; and
(xiii) any extension, renewal, replacement or refinancing of any
Indebtedness secured by a Lien permitted by any of the foregoing clauses
(i) through (vii).
(b) Notwithstanding the foregoing, Section 12.8(a) shall not be effective
to the extent it constitutes an agreement not to encumber the equity securities
issued by any Subsidiary of the Company (except for equity securities issued by
any Subsidiary that is a Subsidiary Guarantor on the Issue Date or a Subsidiary
of Mirage on the Issue Date), unless and until such agreement is approved by the
applicable Gaming Authority, to the extent the Gaming Laws of the applicable
jurisdiction require such approval; provided that, the Company and the
Subsidiary Guarantors shall use best efforts to obtain the requisite approvals
for such agreement not to encumber equity securities from the applicable Gaming
Authorities.
(c) Notwithstanding the foregoing, the Company or any Subsidiary Guarantor
may create, assume or suffer to exist Liens not otherwise permitted as described
above, provided that at the time of such incurrence, assumption or sufferance,
after giving effect to such Lien, the sum of outstanding Indebtedness secured by
such Liens (not including Liens permitted under Section 12.8(a) above) plus all
Attributable Debt in respect of Sale and Lease-Back Transactions entered into
(not including Sale and Lease-Back Transactions expressly permitted under
Section 12.9(a)
60
below), measured, in each case, at the time the Lien is incurred, does not
exceed 15% of Consolidated Net Tangible Assets.
Section 12.9 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
(a) Other than as provided in Section 12.9(b) below, neither the Company
nor any Subsidiary Guarantor will enter into any Sale and Lease-Back
Transaction, unless either:
(i) the Company or such Subsidiary Guarantor would be entitled,
pursuant to the provisions described in clauses (i) through (xiii) of
Section 12.8(a) above, to create, assume or suffer to exist a Lien on the
property to be leased without equally and ratably securing the Notes; or
(ii) an amount equal to the greater of the net cash proceeds of such
sale or the fair market value of such property (in the good faith opinion
of the Board of Directors) is applied within 120 days to the retirement or
other discharge of its Funded Debt.
(b) Notwithstanding the foregoing, the Company or any Subsidiary Guarantor
may enter into Sale and Lease-Back Transactions not otherwise permitted as
described above, provided that at the time of entering into such Sale and Lease-
Back Transaction, after giving effect to such Sale and Lease-Back Transaction,
the sum of outstanding Indebtedness secured by such Liens (not including Liens
permitted under Section 12.8) plus all Attributable Debt in respect of Sale and
Lease-Back Transactions entered into (not including Sale and Lease-Back
Transactions permitted under Section 12.(a) above), measured, in each case, at
the time any such Sale and Lease-Back Transaction is entered into, does not
exceed 15% of Consolidated Net Tangible Assets.
Section 12.10 LIMITATION ON SENIOR SUBORDINATED INDEBTEDNESS.
The Company will not Incur any Indebtedness that is subordinate in right of
payment to any Senior Indebtedness unless such Indebtedness is pari passu with,
or subordinate in right of payment to, the Notes. No Subsidiary Guarantor will
Incur any Indebtedness that is subordinate in right of payment to any Senior
Indebtedness unless such Indebtedness is pari passu with, or subordinate in
right of payment to, the Subsidiary Guarantee executed by such Subsidiary
Guarantor.
Section 12.11 REPURCHASE AT THE OPTION OF THE HOLDERS UPON A CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each holder of a Note shall
have the right to require the Company to repurchase all or any part of such
holder's Notes pursuant to this Section 12.11 and this Indenture. Within 30
days following any Change of Control, the Company or, at the Company's request,
the Trustee will mail to each holder of Notes an Offer to Purchase all
Outstanding Notes at a purchase price (the "Change of Control Purchase Price")
equal to 101% of the aggregate principal amount of thereof plus accrued and
unpaid interest, if any, to the Purchase Date (a "Change of Control Offer"). A
Change of Control Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law. On the Purchase Date, the
61
Company shall purchase all Notes tendered in response to the Change of Control
Offer. Payment for any Notes so purchased shall be made in the same manner as
interest payments are made.
(b) If the Purchase Date is on or after a Regular Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest will
be paid to the Person in whose name a Note is registered at the close of
business on such Regular Record Date, and no additional interest will be payable
to holders of Notes who tender Notes pursuant to the Change of Control Offer.
(c) On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment all Notes or portions thereof tendered, and will deliver to
the Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this
Section 12.11. The Company, the U.S. Depositary or the Paying Agent, as the
case may be, will promptly (but in any case not later than five (5) days after
the Purchase Date) mail or deliver to each tendering holder an amount equal to
the purchase price of the Notes tendered by such holder and accepted by the
Company for purchase, and the Company will promptly issue a new Note, and the
Trustee, upon written request from the Company will authenticate and mail or
deliver such new Note to such holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted will be
promptly mailed or delivered by the Company to the holder thereof. The Company
will publicly announce the results of the Change of Control Offer on the
Purchase Date.
(d) Prior to complying with the provisions of this Section 12.11, but in
any event within 30 days following a Change of Control, the Company will either
repay all outstanding Senior Indebtedness or obtain the requisite consents, if
any, under all agreements governing outstanding Senior Indebtedness, to permit
the repurchase of the Notes under this Section 12.11.
(e) The Company will 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 of Notes pursuant to this
Section 12.11. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 12.11, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations hereunder by virtue of such compliance.
ARTICLE 13
REDEMPTION OF NOTES
Section 13.1 OPTIONAL REDEMPTION.
The Notes are redeemable at any time, at the option of the Company, in
whole but not in part, at a redemption price (the "Redemption Price") equal to
100% of the principal amount thereof plus the Make-Whole Premium, together with
accrued and unpaid interest thereon, if any, to the Redemption Date.
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Section 13.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem the Notes shall be evidenced by a
Board Resolution. The Company shall, not less than 45 nor more than 60 days
before the Redemption Date fixed by the Company, notify the Trustee of such
Redemption Date, the Redemption Price, the CUSIP numbers and the principal
amount of Notes to be redeemed.
Section 13.3 INTENTIONALLY OMITTED.
Section 13.4 NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or at the Company's
written request, by the Trustee in the name and at the expense of the Company,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the holders of the Notes to be redeemed pursuant to this Article 13, in the
manner provided in Section 17.2. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice. Failure to give such notice, or any defect in such notice to the holder
of any Note, in whole or in part, shall not affect the sufficiency of any notice
of redemption with respect to the holder of any other Note.
All notices of redemption shall identify the Notes to be redeemed
(including CUSIP number) and shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) that Notes are being redeemed by the Company pursuant to provisions
contained in this Indenture or the terms of the Notes, together with a brief
statement of the facts permitting such redemption,
(d) that all Outstanding Notes are to be redeemed,
(e) that on the Redemption Date the Redemption Price will become due and
payable upon each such Note to be redeemed, and that interest thereon, if any,
shall cease to accrue on and after said date, and
(f) the Place or Places of Payment where such Notes are to be surrendered
for payment of the Redemption Price.
Section 13.5 DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m., New York City time, on the Redemption Date for
any Notes, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 12.4) an amount of money in the Currency or
Currencies in which such Notes are denominated sufficient to pay the Redemption
Price of such Notes which are to be redeemed on that date.
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Section 13.6 NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, any Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price in the Currency in which the Notes are payable, and from and after such
date (unless the Company shall default in the payment of the Redemption Price)
such Notes shall cease to bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the
Company at the Redemption Price; provided, however, that installments of
interest on Notes which have a Stated Maturity on or prior to the Redemption
Date for such Notes shall be payable according to the terms of such Notes and
the provisions of Section 3.7.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Note.
ARTICLE 14
DEFEASANCE
Section 14.1 APPLICABILITY OF ARTICLE.
Except as otherwise provided in Section 14.2, the Company may terminate its
obligations under the Notes and this Indenture as set forth in Section 14.2.
Section 14.2 DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S.
GOVERNMENT OBLIGATIONS.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Notes
and the Subsidiary Guarantors shall be deemed to have been discharged from their
obligations under their Guarantees ("legal defeasance option") or (b) the
Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Sections 10.1, 12.2, 12.7, 12.8, 12.9, 12.10
and 12.11 with respect to Notes and the Subsidiary Guarantors shall cease to be
under any obligation to comply with any term, provision or condition set forth
in Section 15.11 (or comparable provisions of its Guarantee if not set forth in
Article 15) with respect to their Guarantees ("covenant defeasance option") at
any time after the applicable conditions set forth below have been satisfied:
(a) The Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the Notes (i) money in an
amount, or (ii) U.S. Government Obligations (as defined below) which through the
payment of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient, in the
opinion (with respect to (i) and (ii)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of and premium, if
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any, and interest on, the Outstanding Notes on the dates such installments of
interest or principal and premium are due;
(b) Such deposit shall not cause the Trustee to have a conflicting interest
as defined in Section 6.8 and for purposes of the Trust Indenture Act;
(c) Such deposit will not result in a breach or violation of, or constitute
a default under, this Indenture or any other agreement or instrument to which
the Company or any Subsidiary Guarantor is a party or by which it is bound;
(d) If the Notes are then listed on any national securities exchange, the
Company shall have delivered to the Trustee an Opinion of Counsel or a letter or
other document from such exchange to the effect that the Company's exercise of
its option under this Section would not cause such Notes to be delisted;
(e) No Event of Default or Default shall have occurred and be continuing on
the date of such deposit and, with respect to the legal defeasance option only,
no Event of Default under Section 5.1(g) or Section 5.1(h) or event which with
the giving of notice or lapse of time, or both, would become an Event of Default
under Section 5.1(g) or Section 5.1(h) shall have occurred and be continuing on
the 91st day after such date;
(f) The Company shall have delivered to the Trustee an Opinion of Counsel
or a ruling from the Internal Revenue Service to the effect that the holders of
the Notes will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.1(g) or Section 5.1(h) or event
which, with the giving of notice or lapse of time, or both, would become an
Event of Default under Section 5.1(g) or Section 5.1(h) shall have occurred and
be continuing on the 91st day after the date of such deposit, the obligations of
the Company and the Subsidiary Guarantors referred to under the definition of
covenant defeasance option with respect to such Notes shall be reinstated; and
(g) The Company shall have delivered to the Trustee an Officers'
Certificate certifying the conditions set forth in clauses (a) through (f) of
this Section 14.2 have been satisfied.
"Discharged" means that the Company and the Subsidiary Guarantors shall be
deemed to have paid and discharged the entire indebtedness represented by, and
obligations under, the Notes and the Guarantees and to have satisfied all the
obligations under this Indenture (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except (i)
the rights of holders of Notes to receive, from the trust fund described in
clause (a) above, payment of the principal of (and premium, if any) and interest
on such Notes when such payments are due, (ii) the Company's obligations with
respect to the Notes under Sections 3.4, 3.5, 3.6, 12.3 and 14.3 and (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a
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Person controlled or supervised by and acting as an agency or instrumentality of
the United States the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States, which, in either case under
clauses (i) or (ii), are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
Section 14.3 DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 14.2 in respect of Notes shall be held in trust and applied
by it, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the holders of
such Notes, of all sums due and to become due thereon for principal (and
premium, if any) and interest, if any, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 14.2 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.
Section 14.4 REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Notes for which money or U.S. Government
Obligations have been deposited pursuant to Section 14.2.
The provisions of the last paragraph of Section 12.4 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any Notes for which money or U.S.
Government Obligations have been deposited pursuant to Section 14.2.
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ARTICLE 15
GUARANTEE
Section 15.1 GUARANTEE.
(a) In consideration of good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each of the Subsidiary Guarantors,
jointly and severally, hereby unconditionally guarantees (each such guarantee,
together with any future guarantees executed pursuant to Section 12.7 hereof,
being a "Guarantee"), to each holder of a Note authenticated and delivered by
the Trustee and to the Trustee, irrespective of the validity and enforceability
of this Indenture, the Note or the obligations of the Company under this
Indenture or the Note, that: (i) the principal of and interest on the Note will
be paid in full when due, whether at the maturity or interest payment date, by
acceleration, call for redemption, upon a purchase offer or otherwise, and
interest on the overdue principal and interest, if any, of the Note, if lawful,
and all other obligations of the Company to the holders or the Trustee under
this Indenture or the Note will be promptly paid in full or performed, all in
accordance with the terms of this Indenture and the Note; and (ii) in case of
any extension of time of payment or renewal of any securities or any of such
other obligations, they will be paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at maturity, by
acceleration, call for redemption, upon a purchase offer or otherwise
(collectively, the "Guaranteed Obligations"). The Guarantee is a guarantee of
payment and not of collection.
Failing payment when due of any amount so guaranteed for whatever reason,
the Subsidiary Guarantors shall be jointly and severally obligated to pay the
same before failure to so pay becomes an Event of Default.
(b) Each Subsidiary Guarantor agrees that (i) its obligations with regard
to this Guarantee shall be unconditional, irrespective of the validity,
regularity or enforceability of the Note or this Indenture, any amendments to
the Indenture or the Notes (other than this Article 15), the absence of any
action to enforce the same, any delays in obtaining or realizing upon (or
failures to obtain or realize upon) the recovery of any judgment against the
Company, any action to enforce the same or any other circumstances that might
otherwise constitute a legal or equitable discharge or defense of a guarantor
and (ii) this Guarantee will not be discharged except by complete performance of
the obligations contained in the Note and this Indenture. Each of the
Subsidiary Guarantors hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company or right to
require the prior disposition of the assets of the company to meet its
obligations, protest, notice and all demands whatsoever. Without limiting the
generality of the foregoing, each of the Subsidiary Guarantors hereby waives, to
the extent permitted under Nev. Rev. Stat. 40.495, any rights arising out of
Nev. Rev. Stat. 40.430.
(c) If any holder or the Trustee is required by any court or otherwise to
return to either the Company or any Subsidiary Guarantor, or any Custodian,
Trustee, or similar official acting in relation to either the Company or any
Subsidiary Guarantor, any amount paid by either the Company or any of the
Subsidiary Guarantors to the Trustee or such holder, this Guarantee,
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to the extent theretofore discharged, shall be reinstated in full force and
effect. Each of the Subsidiary Guarantors agrees that it will not be entitled to
any right of subrogation in relation to the holders in respect of any
obligations guaranteed hereby except as set forth in Section 15.5 hereof.
(d) Each of the Subsidiary Guarantors agrees that (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 5.2
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration as to the Company of the
obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of those obligations as provided in Section 5.2, those obligations
(whether or not due and payable) will forthwith become due and payable by each
of the Subsidiary Guarantors for the purpose of this Guarantee.
Section 15.2. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 15.1, each of the Subsidiary
Guarantors agrees that a notation of such Guarantee substantially in the form of
the notation included in the Note annexed hereto as Exhibit A shall be endorsed
on each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Subsidiary Guarantor by a duly authorized
officer.
Each of the Subsidiary Guarantors agrees that its Guarantee set forth in
Section 15.1 shall remain in full force and effect and apply to all the Notes
notwithstanding any failure to endorse on each Note a notation of such
Guarantee.
If an Officer whose facsimile signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note on which a Guarantee is
endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Subsidiary Guarantors.
Section 15.3. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.
Each Subsidiary Guarantor and by its acceptance hereof each holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Subsidiary Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any federal or state law. To effectuate
the foregoing intention, the holders and each Subsidiary Guarantor hereby
irrevocably agree that the obligations of each such Subsidiary Guarantor under
the Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Subsidiary Guarantor in respect of the obligations of
such other Subsidiary Guarantor under its Guarantee or pursuant to Section 15.4,
result in the obligations of such Subsidiary Guarantor under the Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. This Section 15.3 is for the benefit of the creditors of each
Subsidiary Guarantor.
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Section 15.4. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
----- --
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Guarantee, such Funding Guarantor shall be
entitled to a contribution from each other Subsidiary Guarantor in a pro rata
--- ----
amount based on the net worth of each Subsidiary Guarantor (including the
Funding Guarantor) for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Notes or any other Subsidiary Guarantor's obligations with respect to the
Guarantee.
Section 15.5. RIGHTS UNDER THE GUARANTEE.
(a) Each of the Subsidiary Guarantors waives notice of the issuance, sale
and purchase of the Note and notice from the Trustee or the holders from time to
time of any of the Note of their acceptance and reliance on this Guarantee.
(b) Notwithstanding any payment or payments made by the Subsidiary
Guarantors by reason of this Guarantee, the Subsidiary Guarantors shall not be
subrogated to any rights of the Trustee or any holder against the Company until
all the Notes shall have been paid or deemed to have been paid within the
meaning of the Indenture. Any payment made by the Subsidiary Guarantors by
reason of this Guarantee shall be in all respects subordinated to the full and
complete payment or discharge under this Indenture of all obligations guaranteed
hereby, and no payment by the Subsidiary Guarantors by reason of this Guarantee
shall give rise to any claim of the Subsidiary Guarantors against the Trustee or
any holder of the Notes. Unless and until the Notes shall have been paid or
deemed to have been paid within the meaning of the Indenture, neither the
Subsidiary Guarantors nor any of them will assign or otherwise transfer any such
claim against the Company to any other person.
(c) No set-off, counterclaim, reduction or diminution of any obligation or
any defense of any kind or nature (other than performance by the Subsidiary
Guarantors of their obligations hereunder) which any Subsidiary Guarantor may
have or assert against the Trustee or any holder of any Note shall be available
hereunder to such Subsidiary Guarantor against the Trustee.
(d) Each Subsidiary Guarantor agrees to pay all costs, expenses and fees,
including all reasonable attorneys' fees and expenses, which may be incurred by
the Trustee in enforcing or attempting to enforce the Guarantee or protecting
the rights of the Trustee or the holders of the Notes, if any, in accordance
with this Indenture.
Section 15.6. PRIMARY OBLIGATIONS.
Each Subsidiary Guarantor agrees that it is directly liable to each holder
hereunder, that the obligations of each Subsidiary Guarantor hereunder are
independent of the obligations of the Company or any other guarantor, and that a
separate action may be brought against each Subsidiary Guarantor, whether such
action is brought against the Company or any other Subsidiary Guarantor or
whether the Company or any other guarantor is joined in such action. Each
Subsidiary Guarantor agrees that its liability hereunder shall be immediate and
shall not be contingent upon the exercise or enforcement by the Trustee or the
holders of the Notes of
69
whatever remedies they may have against the Company or any other guarantor. Each
Subsidiary Guarantor agrees that any release which may be given by the Trustee
or the holders of the Notes to the Company or any other guarantor shall not
release such Subsidiary Guarantor. Each Subsidiary Guarantor consents and agrees
that the Trustee shall be under no obligation to marshal any property or assets
of the Company or any other guarantor in favor of such Subsidiary Guarantor, or
against or in payment of any or all of the Guaranteed Obligations.
Section 15.7. WAIVERS.
(a) Each Subsidiary Guarantor hereby waives any right to receive, or any
claim or defense based on failure to receive: (i) notice of the amount of the
Guaranteed Obligations; (ii) notice of any adverse change in the financial
condition of the Company or of any other fact that might increase such
Subsidiary Guarantor's risk hereunder; (iii) notice of a Default or Event of
Default; and (iv) all other notices (except if such notice is specifically
required to be given to such Subsidiary Guarantor under this Indenture) and
demands to which such Subsidiary Guarantor might otherwise be entitled.
(b) Each Subsidiary Guarantor hereby waives the right by statute or
otherwise to require the Trustee or the holders to institute suit against the
Company (or against any other Person) or to exhaust any rights and remedies
which the Trustee or the holders have or may have against the Company (or
against any other Person). In this regard, each Subsidiary Guarantor agrees
that it is bound to the payment of each and all of the Guaranteed Obligations,
whether now existing or hereafter arising, as fully as if such Guaranteed
Obligations were directly owing to Guaranteed Party by such Subsidiary
Guarantor. Each Subsidiary Guarantor further waives any defense arising by
reason of any disability or other defense (other than the defense that the
Guaranteed Obligations shall have been fully and finally performed and
indefeasibly paid) of the Company or by reason of the cessation from any cause
whatsoever of the liability of the Company in respect thereof.
(c) Each Subsidiary Guarantor hereby waives: (i) any claim or defense
directly or indirectly arising from or caused by any election of remedies by the
Trustee or holders of the Notes, whether or not such election of remedies
directly or indirectly results in impairment or loss of rights or claims of such
Subsidiary Guarantor against the Company or other Persons; and (ii) any defenses
based on suretyship law or impairment of collateral.
Section 15.8. RELEASES.
Each Subsidiary Guarantor consents and agrees that, without notice to or by
such Subsidiary Guarantor and without affecting or impairing the obligations of
such Subsidiary Guarantor hereunder, the Trustee may, by action or inaction,
compromise or settle, extend the period of duration or the time for the payment,
or discharge the performance of, or may refuse to, or otherwise not enforce, or
may, by action or inaction, release all or any one or more parties to, any one
or more of the terms and provisions of this Indenture or may grant other
indulgences to the Company in respect thereof, or may, by action or inaction,
release or substitute any other guarantor, if any, of the Guaranteed
Obligations, or may enforce, exchange, release, or waive, by action or inaction,
any security for the Guaranteed Obligations or any other guaranty of the
Guaranteed Obligations, or any portion thereof.
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Section 15.9. NO ELECTION.
The Trustee shall have the right to seek recourse against each Subsidiary
Guarantor to the fullest extent provided for herein and no election by the
Trustee to proceed in one form of action or proceeding, or against any party, or
on any obligation, shall constitute a waiver of Trustee's right to proceed in
any other form of action or proceeding, or against other parties unless the
Trustee has expressly waived such right in writing.
Section 15.10. FINANCIAL CONDITION OF THE COMPANY.
Each Subsidiary Guarantor represents and warrants to the Trustee and
holders that it is currently informed of the financial condition of the Company
and, of all other circumstances which a diligent inquiry would reveal and which
bear upon the risk of nonpayment of the Guaranteed Obligations. Each Subsidiary
Guarantor further represents and warrants to the Trustee and holders that it has
read and understands the terms and conditions of this Indenture. Each
Subsidiary Guarantor hereby covenants that it will continue to keep itself
informed of the Company's financial condition, the financial condition of other
guarantors, if any, and of all other circumstances which bear upon the risk of
nonpayment or nonperformance of the Guaranteed Obligations.
Section 15.11. CONSOLIDATION, MERGER, ETC., ONLY ON CERTAIN TERMS.
No Subsidiary Guarantor shall consolidate with, merge with or into, or
sell, assign, convey, transfer or lease its properties and assets substantially
in their entirety (computed on a consolidated basis) to any Person, unless:
(i) subject to the following paragraph, the Person formed by or
surviving any such consolidation or merger (if other than the Subsidiary
Guarantor) is a corporation organized and existing under the laws of the
United States, any State thereof or the District of Columbia and assumes,
by supplemental indenture hereto, all of the obligations of such Subsidiary
Guarantor under the Guarantee and this Indenture;
(ii) immediately after giving effect to such transaction, no Event of
Default or Default shall exist; and
(iii) such Person executing the supplemental indenture required
pursuant to clause (i) above, has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel conforming to the provisions of
Section 1.2 hereof and each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this provision and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Notwithstanding the preceding paragraph, in the event of (a) a sale or
other disposition of all of the assets of any Subsidiary Guarantor, by way of
merger, consolidation or otherwise or (b) a sale or other disposition of all of
the capital stock of any Subsidiary Guarantor, then the Subsidiary Guarantor (in
the event of a sale or other disposition, by way of such a merger, consolidation
or otherwise, of all of the capital stock of such Subsidiary Guarantor) or the
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corporation acquiring the property (in the event of a sale or other disposition
of all of the assets of the Subsidiary Guarantor) will be released and relieved
of any obligations under its Subsidiary Guarantee, except in the event of a sale
or other disposition to the Company, any other Subsidiary Guarantor or any
Affiliate thereof. Upon delivery by the Company to the Trustee of an Officers'
Certificate and Opinion of Counsel conforming to the provisions of Section 1.2
hereof, to the effect that such sale or other disposition was made by the
Company or such Subsidiary Guarantor in accordance with the provisions of this
Indenture, the Trustee shall execute any documents reasonably required in order
to evidence the release of any such Subsidiary Guarantor from its Guarantee
Obligations under its Subsidiary Guarantee.
Section 15.12. SUBORDINATION OF SUBSIDIARY GUARANTEES.
The obligations of each Subsidiary Guarantor under its Subsidiary Guarantee
pursuant to this Indenture or any supplemental indenture executed by such
Subsidiary Guarantor are subordinated in right of payment to the prior payment
in full in cash of all Senior Indebtedness of such Subsidiary Guarantor on the
same basis as the Notes are subordinated to Senior Indebtedness of the Company.
For the purposes of the foregoing sentence, (a) the Trustee and the holders of
the Notes shall have the right to receive and/or retain payments by any of the
Subsidiary Guarantors only at such times as they may receive and/or retain
payments in respect of Notes pursuant to this Indenture, including Article 16
hereof and (b) Section 16.2 shall apply as to each Subsidiary Guarantor and its
Guarantee on the same basis as it applies to the Company and the Notes (except
that, as to any Subsidiary Guarantor, the clauses in the last paragraph of
Section 16.2 that read "the terms and conditions set forth in Article 10" and
"comply with the conditions set forth in Article 10" shall be deemed to read,
respectively, "the terms and conditions set forth in Section 15.11" and "comply
with the conditions set forth in, or be released pursuant to the provisions set
forth in, Section 15.11"). In the event that the Trustee receives any
Subsidiary Guarantor payment at a time when the Trustee has actual knowledge
that such payment is prohibited by the foregoing sentence, such Subsidiary
Guarantor payment shall be paid over and delivered to the holders of the Senior
Indebtedness of such Subsidiary Guarantor remaining unpaid, to the extent
necessary to pay in full all such Senior Indebtedness. In the event that any
holder of a Note receives any Subsidiary Guarantor payment at a time when such
payment is prohibited by this Section 15.12, such Subsidiary Guarantor payment
shall be paid over and delivered to the holders of the Senior Indebtedness of
such Subsidiary Guarantor remaining unpaid, to the extent necessary to pay in
full all such Senior Indebtedness.
Each holder of a Note by its acceptance thereof (a) agrees to and shall be
bound by the provisions of this Section 15.12, (b) authorizes and directs the
Trustee on the holder's behalf to take such action as may be necessary and
appropriate to effectuate the subordination so provided and (c) appoints the
Trustee as such holder's attorney-in-fact for any and all such payments.
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ARTICLE 16
SUBORDINATION
Section 16.1 NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each holder of a Note, by its
acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Notes and the payment of the principal of (and premium, if any) and
interest on each and all of the Notes are hereby expressly made subordinate and
subject in right of payment as provided in this Article to the prior payment in
full in cash or cash equivalents of all Senior Indebtedness.
Section 16.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relating to the Company or to its assets, or (b) any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c) any
assignment for the benefit of creditors or other marshaling of assets or
liabilities of the Company (except in connection with the consolidation or
merger of the Company or its liquidation or dissolution following the
conveyance, transfer or lease of its properties and assets substantially as an
entirety upon the terms and conditions described under Article 10), then and in
any such event:
(i) the holders of Senior Indebtedness will be entitled to receive payment
in full in cash or cash equivalents of all Senior Indebtedness (including
interest after the commencement of any bankruptcy, insolvency or similar
proceeding at the rate specified in the applicable Senior Indebtedness, whether
or not such interest is an allowed claim in any such proceeding), or provision
shall be made for such payment in full, before the holders of Notes will be
entitled to receive any payment or distribution of any kind or character (other
than any payment made pursuant to Article 14 from monies or U.S. Government
Obligations previously deposited with the Trustee) on account of principal of,
or premium, if any, or interest on or with respect to the Notes; and
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than payments made
pursuant to Article 14 from monies or U.S. Government Obligations previously
deposited with the Trustee), by set-off or otherwise, to which the holders of
the Notes or the Trustee would be entitled but for the provisions of this
Indenture shall be paid by the liquidating trustee or agent or other Person
making such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness to the
extent necessary to make payment in full of all Senior Indebtedness
73
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance, transfer or lease of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in Article 10
shall not be deemed a dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshaling of assets and liabilities
of the Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer or lease such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance, transfer or lease, comply with the conditions set forth in Article
10.
Section 16.3. SUSPENSION OF PAYMENT WHEN DESIGNATED SENIOR INDEBTEDNESS IN
DEFAULT.
Unless Section 16.2 shall be applicable if (i) a default in the payment of
the principal of, premium, if any, or interest on Designated Senior Indebtedness
occurs and is continuing beyond any applicable grace period or (ii) any other
default occurs and is continuing with respect to any Designated Senior
Indebtedness that permits the holders of such Designated Senior Indebtedness as
to which such default relates to accelerate its maturity and the Trustee
receives a notice of such default from the Representative of such Designated
Senior Indebtedness (a "Payment Blockage Notice"), then no payment or
distribution of any assets of the Company of any kind or character, whether in
cash, property or securities (other than payments made pursuant to Article 14
from monies or U.S. Government Obligations previously deposited with the
Trustee), may be made by or on behalf of the Company on account of principal of,
premium, if any, or interest on the Notes or on account of the purchase,
redemption or other acquisition of Notes for a period (a "Payment Blockage
Period") commencing on the date of receipt by the Trustee of a Payment Blockage
Notice. Payments on or with respect to the Notes may and shall be resumed (a)
in the case of a payment default, upon the date on which such payment default is
cured or waived in writing and (b) in the case of a non-payment default, upon
the earlier of the date on which such non-payment default is cured or waived in
writing (so long as no other non-payment default exists) or 179 days after the
date on which the applicable Payment Blockage Notice is received, unless the
maturity of any Designated Senior Indebtedness has been accelerated. In any
event, no new Payment Blockage Notice may be delivered unless and until 360 days
have elapsed since the effectiveness of the immediately prior Payment Blockage
Notice. No non-payment default that existed or was continuing on the date of
the delivery of any Payment Blockage Notice to the Trustee shall be, or can be
made, the basis for the commencement of a subsequent Payment Blockage Notice,
unless such default has been cured or waived for a period of not less than 180
consecutive days subsequent to the commencement of such initial Payment Blockage
Period.
In the event that, notwithstanding the foregoing and the provisions of
Section 16.2, any payments or distribution shall be made to the Trustee which is
prohibited by the foregoing provisions of this Section and the provisions of
Section 16.2, then and in such event such payment shall be paid over and
delivered forthwith by the Trustee to any Representative of
74
Designated Senior Indebtedness, as their interests may appear, for application
to Designated Senior Indebtedness.
Section 16.4. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Notes shall prevent the Company, at any time except during the pendency
of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 16.2 or under the conditions
described in Section 16.3, from making payments at any time of principal of, and
premium, if any, or interest on or with respect to the Notes.
Section 16.5. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the holders of
the Notes shall be subrogated (equally and ratably with the holders of all
Indebtedness of the Company that is pari passu in right of payment with the
Notes) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness to the extent that distributions otherwise payable to the
holders of the Notes have been applied to the payment of Senior Indebtedness.
For purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the holders of
the Notes or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by holders of the Notes or on their behalf or by
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the holders of the Notes, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness; it
being understood that the provisions of this Article are intended solely for the
purpose of determining the relative rights of the holders of Notes, on the one
hand, and the holders of Senior Indebtedness, on the other hand.
Section 16.6. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the holders on the one hand and the holders
of Senior Indebtedness on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Notes is intended to or shall (a) impair,
as between the Company and the holders, the obligation of the Company, which is
absolute and unconditional, to pay to the holders the principal of, and premium,
if any, and interest on the Notes as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Company of the holders and creditors of the Company other than the
holders of Senior Indebtedness; or (c) prevent the Trustee or any holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness.
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Section 16.7. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of a Note by its acceptance thereof authorizes and directs the
Trustee on its behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
Section 16.8. NO WAIVER OF SUBORDINATION PROVISIONS.
(a) 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 by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a) of this
Section, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the holders, without
incurring responsibility to the holders and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of the
holders to the holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
Section 16.9. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to the
Representative of such Senior Indebtedness.
Upon any payment or distribution of assets of the Company referred to in
this Article 16, the Trustee and the holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other acts pertinent thereto or to this Article
16.
The Company must promptly notify holders of Senior Indebtedness if payment
of the Notes is accelerated because of an Event of Default.
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Section 16.10. NOTICE TO TRUSTEE.
(a) The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Notes. Notwithstanding the provisions of this Article
or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Notes, unless and until the
Trustee shall have received written notice thereof from the Company, a holder of
Senior Indebtedness or from any trustee, fiduciary or agent therefor; and, prior
to the receipt of any such written notice, the Trustee, subject to Sections
315(a) through 315(d) of the Trust Indenture Act, shall be entitled in all
respects to assume that no such facts exist; provided, however, that, if the
Trustee shall not have received the notice provided for in this Section at least
three Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the payment
of the principal of, and premium, if any, or interest on any Note), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
(b) Subject to Sections 315(a) through 315(d) of the Trust Indenture Act,
the Trustee shall be entitled to rely on the delivery to it of a written notice
by a Person representing itself to be a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee, fiduciary or agent
therefor). 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, 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 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 16.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to Sections 315(a) through 315(d) of the
Trust Indenture Act, and the holders of the Notes shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the holders of Notes, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article;
provided that such court, trustee, receiver,
77
custodian, assignee, agent or other Person has been apprised of, or the order,
decree or certificate makes reference to, the provisions of this Article.
Section 16.12. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Section 16.13. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
Section 16.12 shall not apply to the Company or any Affiliate of the Company if
it or such Affiliate acts as Paying Agent.
Section 16.14. NO SUSPENSION OF REMEDIES.
If the Company fails to make any payments on the Notes when due or within
any applicable grace period, whether or not on account of the subordination
provisions referred to in this Article 16, such failure would constitute an
Event of Default under this Indenture and would enable the holders of the Notes
to accelerate the maturity thereof pursuant to Article 5.
Nothing contained in this Article shall limit the right of the Trustee or
the holders of Notes to take any action to accelerate the maturity of the Notes
pursuant to Article 5 or to pursue any rights or remedies hereunder or under
applicable law, except as provided in Article 5.
Section 16.15. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments from
cash or the proceeds of U.S. Government Notes held in trust under Article 14
hereof by the Trustee (or other qualifying trustee) and which were deposited in
accordance with the terms of Article 14 hereof and not in violation of Section
16.3 hereof for the payment of principal of (and premium, if any) and interest
on the Notes shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article 16, and
none of the holders shall be obligated to pay over any such amount to the
Company or any holder of Senior Indebtedness or any other creditor of the
Company.
Section 16.16. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall mistakenly, in the
78
absence of gross negligence or willful misconduct, pay over or distribute to
holders of Notes or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Indebtedness
shall be read into this Indenture against the Trustee.
ARTICLE 17
MISCELLANEOUS
Section 17.1 NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of holders of Notes or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Note holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Finance Group, or
(b) the Company by the Trustee or by any Note holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid or airmail postage prepaid if
sent from outside the United States, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument, to the attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language, except
that any published notice may be in an official language of the country of
publication.
Section 17.2 NOTICE TO HOLDERS; WAIVER.
When this Indenture provides for notice to holders of Notes of any event,
such notice shall be sufficiently given to holders (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid (or
via certified or registered mail, facsimile or overnight delivery service), to
such holders as their names and addresses appear in the Note Register, within
the time prescribed.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers or
by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall
79
be given with the approval of the Trustee shall constitute sufficient notice for
every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular holder shall affect the sufficiency of such notice with
respect to other holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to holders is given by publication, any defect in any notice so
published as to any particular holder shall not affect the sufficiency of such
notice with respect to other holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Section 17.3 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
Section 17.4 COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS.
This Indenture may be executed in any number of counterparts, each of which
when executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture. The Article and Section
headings herein and in the Table of Contents are for convenience only and shall
not affect the construction hereof.
Section 17.5 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the parties hereto shall
bind their respective successors and assigns and inure to the benefit of their
permitted successors and assigns, whether so expressed or not.
Section 17.6 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 17.7 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall give
to any Person, other than the parties hereto, any Note Registrar, any Paying
Agent and their successors hereunder, and the holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
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Section 17.8 GOVERNING LAW.
This Indenture and the Notes shall be deemed to be contracts made and to be
performed entirely in the State of Nevada, and for all purposes shall be
governed by and construed in accordance with the internal laws of said State
without regard to the conflicts of law rules of said State.
Section 17.9 LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.1 or in any Note, in any
case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Note shall not be a Business Day at any Place of Payment for the Notes, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of principal (and premium, if any) or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date or at the Stated Maturity, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day if such payment is made or duly provided for on such Business Day.
Section 17.10 NO RECOURSE AGAINST OTHERS.
No direct or indirect incorporator, employee, stockholder, director or
officer, as such, past, present or future of the Company or any successor
corporation or any of the Company's Affiliates, shall have any personal
liability in respect of the obligations of the Company under the Notes or this
Indenture, either directly or through the Company, by reason of his, her or its
status as such incorporator, stockholder, employee, director or officer. Each
holder 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 17.11 GAMING LAWS.
If the Company becomes the holding company of a New Jersey casino licensee,
this Indenture and the Notes will be subject to the Casino Control Act of the
State of New Jersey and the rules and regulations promulgated thereunder.
Section 17.12 NO PARENT LIABILITY.
In the event (a) there is any Default, Event of Default or other default or
alleged default by the Company, any Subsidiary Guarantor or any Affiliate of any
thereof under this Indenture, the Notes, any Guarantee or any other document,
instrument or agreement arising out of or relating to any of the foregoing
(collectively, the "Transaction Documents") or (b) the Trustee, any holder of
any Note, any other Beneficiary or any Affiliate of any of the foregoing has or
may have any claim arising from or relating to the terms of any Transaction
Document, neither the Trustee, such holder, such other Beneficiary or such
Affiliate shall commence any lawsuit or otherwise seek to impose any liability
whatsoever in respect thereof against Tracinda Corporation or its shareholder
(hereinafter collectively referred to as "Tracinda"). Tracinda shall not have
any liability whatsoever with respect to any Transaction Document or any matters
81
relating to or arising from any Transaction Document. None of the Trustee, any
holder of any Note, any other Beneficiary or any Affiliate of any of the
foregoing shall assert or permit any Person claiming through any of them to
assert a claim or impose any liability against Tracinda as to any matter or
thing arising out of or relating to any Transaction Document or any alleged
breach or default of any Transaction Document by the Company, any Subsidiary
Guarantor or any Affiliate thereof. Tracinda is not a party to any Transaction
Document and is not liable for any alleged breach or default of any Transaction
Document by the Company, any Subsidiary Guarantor or any Affiliate of any
thereof. The terms of this Section 17.12 shall control, notwithstanding anything
to the contrary appearing in any Transaction Document.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and delivered all as of the day and year first above written.
MGM GRAND, INC.
By: /s/ James J. Murren
-----------------------------------------
Name: James J. Murren
Title: President and Chief Financial Officer
By: /s/ Scott Langsner
-----------------------------------------
Name: Scott Langsner
Title: Secretary and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Annette L. Kos
-----------------------------------------
Name: Annette L. Kos
Title: Assistant Vice President
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SUBSIDIARY GUARANTORS:
MGM Grand Hotel, Inc., a Nevada corporation
MGM Grand Movieworld, Inc., a Nevada corporation
Grand Laundry, Inc., a Nevada corporation
MGM Grand Advertising, Inc., a Nevada corporation
MGM Grand Entertainment, Inc., a Nevada corporation
MGM Grand Monorail, Inc., a Nevada corporation
MGM Dist., Inc., a Nevada corporation
Destron, Inc., a Nevada corporation
Destron Marketing, Inc., a Nevada corporation
MGM Grand Merchandising, Inc., a Nevada corporation
MGM Grand Atlantic City, Inc., a New Jersey corporation
MGM Grand Development, Inc., a Nevada corporation
MGM Grand Detroit, Inc., a Delaware corporation
New PRMA Las Vegas, Inc., a Nevada corporation
New York-New York Hotel and Casino, LLC,
a Nevada limited liability company
Metropolitan Marketing, LLC, a Nevada limited liability
company
The Primadonna Company, LLC, a Nevada limited liability
company
PRMA, LLC, a Nevada limited liability company
PRMA Land Development Company, a Nevada corporation
PRMA-MS, Inc., a Mississippi corporation
MGMGMR Acquisition, Inc., a Nevada corporation
By: /s/ Scott Langsner
--------------------------
Name: Scott Langsner
Title: Secretary and Treasurer
84
MGM Acquisition Co. #1, a Nevada corporation
MGM Acquisition Co. #2, a Nevada corporation
MGM Acquisition Co. #3, a Nevada corporation
MGM Acquisition Co. #4, a Nevada corporation
MGM Acquisition Co. #5, a Nevada corporation
MGM Acquisition Co. #6, a Nevada corporation
MGM Acquisition Co. #7, a Nevada corporation
MGM Acquisition Co. #8, a Nevada corporation
MGM Acquisition Co. #9, a Nevada corporation
MGM Acquisition Co. #10, a Nevada corporation
MGM Acquisition Co. #11, a Nevada corporation
MGM Acquisition Co. #12, a Nevada corporation
MGM Acquisition Co. #13, a Nevada corporation
MGM Acquisition Co. #14, a Nevada corporation
MGM Acquisition Co. #15, a Nevada corporation
MGM Acquisition Co. #16, a Nevada corporation
MGM Acquisition Co. #17, a Nevada corporation
MGM Acquisition Co. #18, a Nevada corporation
MGM Acquisition Co. #19, a Nevada corporation
MGM Acquisition Co. #20, a Nevada corporation
MGM Acquisition Co. #21, a Nevada corporation
MGM Acquisition Co. #22, a Nevada corporation
MGM Acquisition Co. #23, a Nevada corporation
MGM Acquisition Co. #24, a Nevada corporation
MGM Acquisition Co. #25, a Nevada corporation
MGM Acquisition Co. #26, a Nevada corporation
MGM Acquisition Co. #27, a Nevada corporation
MGM Acquisition Co. #28, a Nevada corporation
MGM Acquisition Co. #29, a Nevada corporation
MGM Acquisition Co. #30, a Nevada corporation
MGM Acquisition Co. #31, a Nevada corporation
MGM Acquisition Co. #32, a Nevada corporation
MGM Acquisition Co. #33, a Nevada corporation
By: /s/ Scott Langsner
---------------------------------
Name: Scott Langsner
Title: President, Secretary and Treasurer
85
MGM Acquisition Co. #34, a Nevada corporation
MGM Acquisition Co. #35, a Nevada corporation
MGM Acquisition Co. #36, a Nevada corporation
MGM Acquisition Co. #37, a Nevada corporation
MGM Acquisition Co. #38, a Nevada corporation
MGM Acquisition Co. #39, a Nevada corporation
MGM Acquisition Co. #40, a Nevada corporation
MGM Acquisition Co. #41, a Nevada corporation
MGM Acquisition Co. #42, a Nevada corporation
MGM Acquisition Co. #43, a Nevada corporation
MGM Acquisition Co. #44, a Nevada corporation
MGM Acquisition Co. #45, a Nevada corporation
MGM Acquisition Co. #46, a Nevada corporation
MGM Acquisition Co. #47, a Nevada corporation
MGM Acquisition Co. #48, a Nevada corporation
MGM Acquisition Co. #49, a Nevada corporation
MGM Acquisition Co. #50, a Nevada corporation
MGM Acquisition Co. #51, a Nevada corporation
MGM Acquisition Co. #52, a Nevada corporation
MGM Acquisition Co. #53, a Nevada corporation
MGM Acquisition Co. #54, a Nevada corporation
MGM Acquisition Co. #55, a Nevada corporation
MGM Acquisition Co. #56, a Nevada corporation
By: /s/ Scott Langsner
---------------------------------
Name: Scott Langsner
Title: President, Secretary and Treasurer
86