EXHIBIT 4.3
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__________________
INDENTURE
MARCH 27, 2002
BY AND AMONG
STATE STREET BANK AND TRUST COMPANY
TRUSTEE,
ISLE OF CAPRI CASINOS, INC.
AND
THE SUBSIDIARY GUARANTORS
LISTED ON THE SIGNATURE PAGES HEREOF
__________________
$200,000,000
9% SENIOR SUBORDINATED NOTES DUE 2012
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TABLE OF CONTENTS
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ARTICLE ONE: DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION ........... 2
SECTION 1.01. Definitions .................................................... 2
SECTION 1.02. Compliance Certificates and Opinions ........................... 28
SECTION 1.03. Form of Documents Delivered to Trustee ......................... 29
SECTION 1.04. Acts of Holders ................................................ 29
SECTION 1.05. Notices, etc. to Trustee and Company ........................... 31
SECTION 1.06. Notice to Holders; Waiver ...................................... 31
SECTION 1.07. Effect of Headings and Table of Contents ....................... 31
SECTION 1.08. Successors and Assigns ......................................... 32
SECTION 1.09. Separability Clause ............................................ 32
SECTION 1.10. Benefits of Indenture .......................................... 32
SECTION 1.11. Governing Law .................................................. 32
SECTION 1.12. Legal Holidays ................................................. 32
SECTION 1.13. Incorporation by Reference of Trust Indenture Act .............. 32
SECTION 1.14. Rules of Construction .......................................... 33
ARTICLE TWO: NOTE FORMS ........................................................ 33
SECTION 2.01. Forms Generally ................................................ 33
SECTION 2.02. Temporary Notes ................................................ 35
ARTICLE THREE: THE NOTES ......................................................... 35
SECTION 3.01. Title and Terms ................................................ 35
SECTION 3.02. Denominations .................................................. 35
SECTION 3.03. Execution, Authentication, Delivery and Dating ................. 36
SECTION 3.04. Note Registrar; Paying Agent; Depositary; Global Note
Holder ......................................................... 37
SECTION 3.05. Noteholder Lists 37
SECTION 3.06. Transfer and Exchange .......................................... 37
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Notes .................... 43
SECTION 3.08. Payment of Interest; Interest Rights Preserved ................. 44
SECTION 3.09. Persons Deemed Owners .......................................... 45
SECTION 3.10. Cancellation ................................................... 45
SECTION 3.11. Computation of Interest ........................................ 45
SECTION 3.12. Cusip Number ................................................... 46
ARTICLE FOUR: SATISFACTION AND DISCHARGE ........................................ 46
SECTION 4.01. Satisfaction and Discharge of Indenture ........................ 46
SECTION 4.02. Application of Trust Money ..................................... 47
ARTICLE FIVE: REMEDIES .......................................................... 47
SECTION 5.01. Events of Default .............................................. 47
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment ............. 49
SECTION 5.03. Collection Of Indebtedness And Suits For Enforcement By
Trustee ........................................................ 50
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SECTION 5.04. Trustee May File Proofs of Claim ............................ 51
SECTION 5.05. Trustee May Enforce Claims without Possession of Notes ...... 51
SECTION 5.06. Application of Money Collected .............................. 52
SECTION 5.07. Limitation on Suits ......................................... 52
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium, Interest ........................................... 53
SECTION 5.09. Restoration of Rights and Remedies .......................... 53
SECTION 5.10. Rights and Remedies Cumulative .............................. 53
SECTION 5.11. Delay or Omission not Waiver ................................ 54
SECTION 5.12. Control by Holders .......................................... 54
SECTION 5.13. Waiver of Past Defaults ..................................... 54
SECTION 5.14. Waiver of Stay or Extension Laws ............................ 54
ARTICLE SIX: THE TRUSTEE ....................................................... 55
SECTION 6.01. Notice of Defaults .......................................... 55
SECTION 6.02. Certain Rights of Trustee ................................... 55
SECTION 6.03. Trustee Not Responsible for Recitals or Issuance of Notes ... 56
SECTION 6.04. May Hold Notes .............................................. 57
SECTION 6.05. Money Held in Trust ......................................... 57
SECTION 6.06. Compensation And Reimbursement .............................. 57
SECTION 6.07. Corporate Trustee Required; Eligibility ..................... 58
SECTION 6.08. Resignation and Removal; Appointment of Successor ........... 58
SECTION 6.09. Acceptance of Appointment by Successor ...................... 59
SECTION 6.10. Merger or Conversion, Consolidation or Succession
to Business ................................................. 60
SECTION 6.11. Preferential Collection of Claims Against Company ........... 60
SECTION 6.12. Paying Agent, Registrar ..................................... 60
ARTICLE SEVEN: HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY ................. 61
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders ..................................................... 61
SECTION 7.02. Preservation of Information; Communications to Holders ...... 62
SECTION 7.03. Disclosure of Names and Addresses of Holders ................ 63
SECTION 7.04. Reports by Trustee .......................................... 63
SECTION 7.05. Reports by Company .......................................... 63
ARTICLE EIGHT: CONSOLIDATION, MERGER OR CONVEYANCE, TRANSFER OR LEASE ............ 64
SECTION 8.01. Company and Restricted Subsidiaries May Consolidate,
Merge, Transfer or Lease only on Certain Terms .............. 64
SECTION 8.02. Successor Substituted ....................................... 65
ARTICLE NINE: SUPPLEMENTAL INDENTURES AND AMENDMENTS ............................ 66
SECTION 9.01. Supplemental Indentures without the Consent of Holders ...... 66
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SECTION 9.02. Supplemental Indentures with the Consent of Holders ........... 67
SECTION 9.03. Execution of Supplemental Indentures .......................... 68
SECTION 9.04. Effect of Supplemental Indenture .............................. 69
SECTION 9.05. Conformity with Trust Indenture Act ........................... 69
SECTION 9.06. Reference in Notes to Supplemental Indentures ................. 69
SECTION 9.07. Notice of Supplemental Indentures ............................. 69
ARTICLE TEN: CERTAIN COVENANTS ................................................. 70
SECTION 10.01. Payment of Principal, Premium, if any, Interest ............... 70
SECTION 10.02. Maintenance of Office or Agency ............................... 70
SECTION 10.03. Agency for Note Payments to Be Held in Trust .................. 70
SECTION 10.04. Corporate Existence ........................................... 72
SECTION 10.05. Payment of Taxes and other Claims ............................. 72
SECTION 10.06. Maintenance of Properties ..................................... 72
SECTION 10.07. Maintenance of Insurance ...................................... 72
SECTION 10.08. Statement by Officers as to Default ........................... 73
SECTION 10.09. Reports to Holders of Notes ................................... 73
SECTION 10.10. Limitation on Indebtedness .................................... 74
SECTION 10.11. Limitation on Liens ........................................... 76
SECTION 10.12. Limitation on Restricted Payments ............................. 78
SECTION 10.13. Limitation on Dividends and other Payment Restrictions
Affecting Restricted Subsidiaries ............................. 80
SECTION 10.14. Limitation on Asset Sales and Events of Loss .................. 81
SECTION 10.15. Limitation on Disposition of Stock of Restricted
Subsidiaries .................................................. 81
SECTION 10.16. Limitation on Transactions with Affiliates .................... 82
SECTION 10.17. Change in Nature of Business .................................. 83
SECTION 10.18. Restricted and Unrestricted Subsidiaries; Subsidiary
Guarantors .................................................... 83
SECTION 10.19. Stay, Extension and Usury Laws ................................ 85
SECTION 10.20. Limitation on Other Senior Subordinated Indebtedness .......... 85
ARTICLE ELEVEN: REDEMPTION OF AND REPURCHASE OF SECURITIES ........................ 86
SECTION 11.01. Right of Redemption ........................................... 86
SECTION 11.02. Applicability of Article ...................................... 87
SECTION 11.03. Election to Redeem; Notice to Trustee ......................... 87
SECTION 11.04. Selection by Trustee of Notes to Be Redeemed or Repurchased ... 87
SECTION 11.05. Notice of Redemption .......................................... 88
SECTION 11.06. Deposit of Redemption Price ................................... 88
SECTION 11.07. Notes Payable on Redemption Date .............................. 88
SECTION 11.08. Notes Redeemed in Part ........................................ 89
SECTION 11.09. Change of Control Repurchase Offer ............................ 89
SECTION 11.10. Asset Sale/Loss Proceeds Repurchase Offer ..................... 89
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SECTION 11.11. Procedures for Offers to Repurchase Notes .................. 90
SECTION 11.12. Effect of Repurchase Notice ................................ 92
SECTION 11.13. Deposit of Repurchase Price ................................ 93
SECTION 11.14. Covenant to Comply with Securities Laws upon
Repurchase of Notes ........................................ 93
SECTION 11.15. Repayment to the Company ................................... 93
ARTICLE TWELVE: GUARANTEES ................................................... 93
SECTION 12.01. Subsidiary Guarantees ...................................... 93
SECTION 12.02. Nature of Subsidiary Guarantees ............................ 94
SECTION 12.03. Authorization .............................................. 94
SECTION 12.04. Certain Waivers ............................................ 95
SECTION 12.05. No Subrogation; Certain Agreements ......................... 96
SECTION 12.06. Bankruptcy; No Discharge ................................... 97
SECTION 12.07. Severability of Void Obligations under Subsidiary
Guarantees ................................................. 97
SECTION 12.08. Right of Contribution ...................................... 98
SECTION 12.09. Additional Subsidiary Guarantors ........................... 98
SECTION 12.10. Release of a Subsidiary Guarantor .......................... 99
ARTICLE THIRTEEN: DEFEASANCE AND COVENANT DEFEASANCE ........................... 99
SECTION 13.01. Company's Option to Effect Defeasance or Covenant
Defeasance ................................................. 99
SECTION 13.02. Defeasance and Discharge ................................... 99
SECTION 13.03. Covenant Defeasance ........................................ 100
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance ............ 100
SECTION 13.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions .............. 102
SECTION 13.06. Reinstatement .............................................. 102
SECTION 13.07. Counterparts ............................................... 103
ARTICLE FOURTEEN: SUBORDINATION ................................................ 103
SECTION 14.01. Agreement to Subordinate ................................... 103
SECTION 14.02. Liquidation; Dissolution; Bankruptcy ....................... 103
SECTION 14.03. Default on Designated Senior Indebtedness .................. 104
SECTION 14.04. Acceleration of the Notes .................................. 106
SECTION 14.05. When Distribution Must Be Paid Over ........................ 106
SECTION 14.06. Notice by the Company and Subsidiary Guarantors ............ 107
SECTION 14.07. Subrogation ................................................ 107
SECTION 14.08. Relative Rights ............................................ 107
SECTION 14.09. Subordination May Not Be Impaired by the Company and
Subsidiary Guarantors ...................................... 108
SECTION 14.10. Distribution or Notice to Representative ................... 108
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SECTION 14.11. Rights of Trustee and Paying Agent ............. 108
SECTION 14.12. Authorization to Effect Subordination .......... 109
SECTION 14.13. Modification of terms of Senior Indebtedness ... 109
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Isle of Capri Casinos, Inc.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of March 27, 2002
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Trust Indenture
Act Section Indenture Section
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310(a)(1) ................. 6.07
310(a)(2) ................. 6.07
310(b) .................... 6.04; 6.08
311 ....................... 6.04; 6.11
312(a) .................... 3.05; 7.03
312(b) .................... 7.03
312(c) .................... 7.03
313(a) .................... 7.04
313(b) .................... 7.04
313(c) .................... 6.01; 7.04; 7.05
314(a) .................... 7.05; 10.09
314(a)(4) ................. 10.08(a)
314(c)(1) ................. 1.02
314(c)(2) ................. 1.02
314(d) .................... N/A
314(e) .................... 1.02
315(a) .................... 6.02
315(b) .................... 6.01
315(c) .................... 6.02
315(d) .................... 6.02
315(e) .................... 6.08
316(a)(last sentence) ..... 1.01 ("Outstanding")
316(a)(1)(A) .............. 5.02, 5.12
316(a)(1)(B) .............. 5.13
316(b) .................... 5.08
316(c) .................... 1.04(d)
317(a)(1) ................. 5.03
317(a)(2) ................. 5.04
317(b) .................... 10.03
318(a) .................... 1.11
318(c) .................... 1.11
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
INDENTURE, dated as of March 27, 2002, by and among:
(1) Isle of Capri Casinos, Inc., a Delaware corporation (the "Company") the
principal office of which is located at 1641 Popps Ferry Road, Biloxi,
Mississippi 39532,
(2) Riverboat Corporation of Mississippi, a Mississippi corporation,
Riverboat Corporation of Mississippi-Vicksburg, a Mississippi corporation,
Riverboat Services Incorporated, an Iowa corporation, CSNO, L.L.C., a Louisiana
limited liability company, Louisiana Riverboat Gaming Partnership, a Louisiana
general partnership, St. Charles Gaming Company, Inc., a Louisiana corporation,
IOC Holdings, L.L.C., a Louisiana limited liability company, Grand Palais
Riverboat, Inc., a Louisiana corporation, LRGP Holdings, L.L.C., a Louisiana
limited liability company, PPI, Inc., a Florida corporation, Isle of Capri
Casino Colorado, Inc., a Colorado corporation, Isle of Capri Casino-Tunica,
Inc., a Mississippi corporation, and IOC-Coahoma, Inc., a Mississippi
corporation, IOC-Natchez, Inc., a Mississippi corporation, IOC-Lula, Inc., a
Mississippi corporation, IOC-Boonville, Inc., a Nevada corporation, IOC-Kansas
City, Inc., a Missouri corporation, Isle of Capri Bettendorf, L.C., an Iowa
limited liability company, Isle of Capri Marquette, Inc., an Iowa corporation,
IOC-Davenport, Inc., an Iowa corporation, LL Holding Corporation, a Nevada
corporation and Gemini, Inc., a Nevada corporation (collectively, the
"Subsidiary Guarantors"),
(3) any other person that may from time to time become a party hereto as a
Subsidiary Guarantor by executing and delivering to the Trustee an Addendum to
Subsidiary Guarantee, and
(4) State Street Bank and Trust Company, as trustee (the "Trustee").
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
A. The Company has duly authorized the creation of an issue of 9% Senior
Subordinated Notes Due 2012 (the "Transfer Restricted Notes") and the Company's
9% Senior Subordinated Notes due 2012 to be issued in exchange for the Transfer
Restricted Notes pursuant to the terms of the Registration Rights Agreement (as
defined below) (the "Exchange Notes" and, together with the Transfer Restricted
Notes, the "Notes"), of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
B. Each of the Subsidiary Guarantors listed in clause (2) above has duly
authorized its guarantee of the Notes and certain other obligations of the
Company as set forth in Article Twelve hereof and endorsed on the Notes
(together with any Addendum to Subsidiary Guarantees collectively, the
"Subsidiary Guarantees"), and to provide therefor, has duly authorized the
execution and delivery of this Indenture.
C. This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended (as defined below), that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
D. 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
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valid obligations of the Company and to make this Indenture a valid agreement of
the Company, in accordance with their and its terms.
E. All things necessary have been done to make the Subsidiary Guarantees,
when executed by the Subsidiary Guarantors and endorsed on the Notes
authenticated and delivered hereunder and duly issued by the Company, the valid
obligations of the Subsidiary Guarantors and to make this Indenture a valid
agreement of the Subsidiary Guarantors, in accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE: DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. 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, and the terms "cash transaction" and
"self-liquidating paper," as used in TIA Section 311, shall have the meanings
assigned to them in the rules of the Commission adopted under the Trust
Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (as defined below), and,
except as otherwise herein expressly provided, any computation required or
permitted hereunder shall be made in accordance with GAAP; and
(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.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Subsidiary of the Company or that is assumed in
connection with an Asset Acquisition by such Person, but not Indebtedness
incurred in connection with, or in anticipation of, such Person becoming a
Subsidiary of the Company or such acquisition.
"Act" when used with respect to any Holder, has the meaning specified in
Section 1.04.
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"Additional Interest" means all additional interest owed pursuant to
Section 2.5 of the Registration Rights Agreement
"Affiliate" of any Person means any other Person that, directly or
indirectly, controls, is controlled by or is under direct or indirect common
control with, such Person and with respect to any natural Person, any other
immediate family member of such natural Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Stock or other equity interests, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing; provided that, in any event, any Person
that owns directly or indirectly 10% or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation or 10% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person.
"Affiliate Transaction" has the meaning specified in Section 10.16.
"Agent" means any Registrar, Paying Agent, co-registrar, co-paying agent or
other agent appointed pursuant to Section 1002.
"Airplane" means the King Air 200 airplane owned by the Company on the
Issue Date.
"Asset Acquisition" means (a) any capital contribution (including, without
limitation, transfers of cash or other property to others or payments for
property or services for the account or use of others, or otherwise), or
purchase or acquisition of Capital Stock or other similar ownership or profit
interest, by the Company or any of its Subsidiaries in any other Person, in
either case pursuant to which such Person shall become a Subsidiary of the
Company or any of its Subsidiaries or shall be merged with or into the Company
or any of its Subsidiaries or (b) any acquisition by the Company or any of its
Subsidiaries of the assets of any Person which constitute substantially all of
an operating unit or business of such Person.
"Assets Held for Sale or Development" means:
(a) the FFC Preferred Stock,
(b) the Airplane,
(c) the Real Estate Options,
(d) the Cripple Creek Land, and
(e) the Discontinued Assets.
"Asset Sale" means any direct or indirect sale, conveyance, transfer, lease
(other than an operating lease relating to assets, the fair market value of
which, determined in the good faith judgment of the Board of Directors, does not
exceed $2.0 million), assignment, issuance or other disposition (including,
without limitation, by means of a sale-leaseback transaction) by the
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Company or any Restricted Subsidiary to any Person (other than the Company or a
wholly owned Restricted Subsidiary), in one transaction or a series of related
transactions, of
(a) any Capital Stock of any Restricted Subsidiary or other similar
equity interest or
(b) any other property or asset of the Company or any Restricted
Subsidiary other than
(i) Assets Held for Sale or Development,
(ii) any Excess Land,
(iii) current assets, as defined in accordance with GAAP, in the
ordinary course of business,
(iv) damaged, worn out or other obsolete property in the ordinary
course of business if such property is no longer necessary for the proper
conduct of such business,
(v) property no longer used or useful in the ordinary course of
business or property replaced with similar property of similar utility in
the ordinary course of business,
(vi) each other disposition (or series of related dispositions)
that results in Net Cash Proceeds to the Company and its Restricted
Subsidiaries of less than or equal to $1.0 million and
(vii) an Investment permitted under Section 10.12 or a disposition
made in accordance with Section 8.01.
"Average Life" means, as of the date of determination, with respect to
any debt security, the quotient obtained by dividing (i) the sum of the product
of the numbers of years from the date of determination to the dates of each
successive scheduled principal payment of such debt security multiplied by the
amount of such principal payment by (ii) the sum of all such principal payments.
"Bank Credit Facility" means that certain Amended and Restated Credit
Agreement dated as of March 2, 2000 among the Company, the lenders and agents
named therein and Canadian Imperial Bank of Commerce, as administrative agent
and issuing lender, including any notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended (including any amendment and restatement thereof), modified, extended,
deferred, refunded, substituted, replaced or refinanced from time to time,
including any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring (including increasing the amount of available borrowings
thereunder or adding Subsidiaries of the Company as additional borrowers or
guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, creditor, lender or group of agents, creditors or lenders.
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"Beneficiaries" means the Holders and the Trustee.
"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 of the Company, or any duly authorized committee thereof, and to be
in full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York, The
City of Hartford, Connecticut or in the city in which the principal corporate
trust office of the Trustee is located are authorized or obligated by law or
executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests (including partnership and other equity interests), participations,
rights in, or other equivalents (however designated and whether voting or
nonvoting) of, such Person's capital stock, whether Outstanding on the Issue
Date or issued after such date, and any and all rights, warrants or options
exchangeable for or convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) any
property (whether real, personal or mixed) that is required to be classified and
accounted for as a capital lease obligation under GAAP, and, for the purpose of
this Indenture, the amount of such obligation at any date of determination shall
be the capitalized amount thereof at such date, determined in accordance with
GAAP.
"Cash Equivalents" means any of the following, to the extent owned by the
Company or any of its Restricted Subsidiaries free and clear of all Liens and
having a maturity of not greater than 270 days from the date of acquisition:
(a) any evidence of Indebtedness issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof),
(b) insured certificates of deposit or acceptances of any commercial
bank that is a member of the Federal Reserve System, that issues (or the
parent of which issues) commercial paper rated as described in clause
below and that has combined capital and surplus and undivided profits of not
less than $500.0 million,
(c) commercial paper issued by a corporation (except an Affiliate of
the Company) organized under the laws of any state of the United States or
the District of Columbia and rated at least A-1 (or the then equivalent
grade) by Standard & Poor's Corporation or at least Prime-1 (or the then
equivalent grade) by Moody's Investors Service, Inc., and
(d) repurchase agreements and reverse repurchase agreements relating to
marketable direct obligations issued or unconditionally guaranteed by the
United States government or any agency or other instrumentality thereof
(provided that the full
5
faith and credit of the United States of America is pledged in support
thereof), provided that the terms of such repurchase and reverse repurchase
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others,
as adopted by the Comptroller of the Currency.
"Casino" means a gaming establishment owned by the Company or a
Restricted Subsidiary and containing at least 600 slot machines and 10,000
square feet of space dedicated to the operation of games of chance.
"Casino Hotel" means any hotel or similar hospitality facility with at
least 100 rooms owned by the Company or a Restricted Subsidiary and serving a
Casino.
"Casino Related Facility" means any building, restaurant, theater,
amusement park or other entertainment facility, parking or recreational vehicle
facility or retail shops located at or adjacent to, and directly ancillary to, a
Casino and used or to be used in connection with such Casino, other than a
Casino Hotel.
"Change of Control" means after the Issue Date, an event or series of
events by which:
(a) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act) (other than the Permitted Equity
Holders) is or becomes the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a person or group shall be
deemed to have "beneficial ownership" of all shares that any such person or
group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
securities representing the greater of
(i) that percentage of the combined voting power of the
Company's Outstanding Voting Stock held by Permitted Equity Holders
(including shares as to which the Company or a Permitted Equity Holder
holds an effective proxy to vote) or
(ii) 35% or more of the combined voting power of the
Company's Outstanding Voting Stock,
but excluding in each case from the percentage of voting power held by any
group, the voting power of shares owned by the Permitted Equity Holders who are
deemed to be members of the group provided that such Permitted Equity Holders
beneficially own a majority of the voting power of the Voting Stock held by such
group, and at such time the Permitted Equity Holders together shall fail to
beneficially own, directly or indirectly, securities representing at least the
same percentage of voting power of such Voting Stock as the percentage
"beneficially owned" by such person or group;
(b) during any period of 24 consecutive months, individuals who
at the beginning of such period constituted the Board of Directors
(together with any new or replacement directors whose election by the Board
of Directors, or whose nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of
6
the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the directors then in office;
(c) the Company consolidates with or merges with or into any
Person or conveys, transfers or leases all or substantially all of its
assets to any Person, pursuant to a transaction in which the Outstanding
Voting Stock of the Company is changed into or exchanged for cash,
securities or other property (other than any such transaction where the
Outstanding Voting Stock of the Company is (a) changed only to the extent
necessary to reflect a change in the jurisdiction of incorporation of the
Company or (b) is exchanged for (x) Voting Stock of the surviving
corporation which is not Disqualified Stock or (y) cash, securities and
other property (other than Capital Stock of the surviving corporation) in
an amount which could be paid by the Company as a Restricted Payment under
Section 10.12 (and such amount shall be treated as a Restricted Payment)
and no person or group, other than Permitted Equity Holders (including any
Permitted Equity Holders who are part of a group where such Permitted
Equity Holders beneficially own a majority of the voting power of the
Voting Stock held by such group), owns immediately after such transaction,
directly or indirectly, more than 35% of the combined voting power of the
Outstanding Voting Stock of the surviving corporation; or
(d) the Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution other than in a transaction which complies with
the provisions described under Section 8.01.
"Change of Control Offer" has the meaning specified in Section 11.09.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations and other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, and includes, without limitation, all
series and classes of such common stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Obligations" has the meaning set forth in Section 12.01.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its chairman, its president, any vice
president, its treasurer or an assistant treasurer, and delivered to the
Trustee.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
7
"Consolidated Cash Flow" means, for any period, the sum of
(a) the Consolidated Net Income of the Company and its
Restricted Subsidiaries for such period, plus
(b) the sum of the following items (to the extent deducted in
determining Consolidated Net Income in accordance with GAAP and without
duplication):
(i) all Consolidated Interest Expense,
(ii) Consolidated Non-cash Charges,
(iii) Consolidated Income Tax Expense, and
(iv) any pre-opening expenses.
"Consolidated Coverage Ratio" means the ratio of
(a) Consolidated Cash Flow of the Company and its Restricted
Subsidiaries for the period (the "Reference Period") consisting of the four
full fiscal quarters for which financial statements are available that
immediately precede the date of the transaction or other circumstances
giving rise to the need to calculate the Consolidated Coverage Ratio (the
"Transaction Date") to
(b) the Consolidated Interest Expense for such Reference Period
(based upon the pro forma amount of Indebtedness of the Company and its
Restricted Subsidiaries outstanding on the Transaction Date and after
giving effect to the transaction in question, unless otherwise provided in
this Indenture).
For purposes of this definition, if the Transaction Date occurs before
the date on which the Company's consolidated financial statements for the four
full fiscal quarters after the Issue Date are available, Consolidated Cash Flow
and Consolidated Interest Expense shall be calculated, in the case of the
Company and its Restricted Subsidiaries, after giving effect on a pro forma
basis as if the Notes Outstanding on the Transaction Date were issued on the
first day of such four full fiscal quarter period.
In addition, Consolidated Cash Flow and Consolidated Interest Expense
shall be calculated after giving effect on a pro forma basis for the period of
such calculation to
(a) the incurrence or retirement of any Indebtedness of the
Company and its Restricted Subsidiaries at any time during the Reference
Period or subsequent to such Reference Period but prior to the Transaction
Date, including, without limitation, the incurrence of the Indebtedness
giving rise to the need to make such calculation (unless otherwise provided
in this Indenture), as if such Indebtedness were incurred or retired on the
first day of the Reference Period; provided that if the Company or any of
its Restricted Subsidiaries directly or indirectly guarantees Indebtedness
of a third Person, the above clause shall give effect to the incurrence of
such guaranteed Indebtedness as if
8
the Company or such Restricted Subsidiary had directly incurred such
guaranteed Indebtedness, and
(b) any Asset Sale, Event of Loss or Asset Acquisition
(including, without limitation, any Asset Acquisition giving rise to the
need to make such calculation as a result of the Company or any of its
Restricted Subsidiaries (including any Person who becomes a Subsidiary as a
result of the Asset Acquisition) incurring Acquired Indebtedness) occurring
during the Reference Period or subsequent to such Reference Period but
prior to the Transaction Date, and any permanent prepayment, repayment,
redemption, purchase or retirement of Indebtedness in connection with such
Asset Sale, Event of Loss or Asset Acquisition, as if such Asset Sale,
Event of Loss or Asset Acquisition and/or retirement occurred on the first
day of the Reference Period,
Furthermore, in calculating Consolidated Interest Expense for purposes
of this "Consolidated Coverage Ratio," interest on Indebtedness determined on a
fluctuating basis shall be deemed to accrue at the rate in effect on the
Transaction Date for such entire period.
"Consolidated Income Tax Expense" means, as applied to any Person for
any period, federal, state, local and foreign income taxes (including franchise
taxes imposed in lieu of or as additional income tax) of such Person and its
Restricted Subsidiaries for such period, determined in accordance with GAAP;
provided, that for purposes hereof, "income taxes" shall specifically exclude
any taxes paid to or imposed by a Gaming Authority.
"Consolidated Interest Expense" means as applied to any Person for any
period the sum of the following items (without duplication):
(a) the aggregate amount of interest recognized by such Person
and its Restricted Subsidiaries in respect of their Consolidated
Indebtedness (including all interest capitalized by such Person and its
Restricted Subsidiaries during such period and all commissions, discounts
and other similar fees and charges owed by such Person or any of its
Restricted Subsidiaries for letters of credit and bankers' acceptance
financing and the net costs associated with Interest Rate and Currency
Protection Obligations of such Person and its Restricted Subsidiaries, but
excluding other financing costs, amortization of deferred financing cost
and debt discount or premium),
(b) the aggregate amount of the interest component of rentals in
respect of Capitalized Lease Obligations recognized by such Person and its
Restricted Subsidiaries,
(c) to the extent any Indebtedness of any other Person is
guaranteed by such Person or any of its Restricted Subsidiaries, the
aggregate amount of interest paid or accrued by such other Person during
such period attributable to any such guaranteed Indebtedness,
(d) the interest portion of any deferred payment obligation,
9
(e) an amount equal to 1/3 of the base rental expense (i.e., not
any rent expense paid as a percentage of revenues) attributable to such
Person and its Restricted Subsidiaries, and
(f) the amount of dividends payable by such Person and its
Restricted Subsidiaries in respect of Disqualified Stock (other than such
dividends payable to such Restricted Subsidiaries).
"Consolidated Net Income" means, for any period, the aggregate of the
consolidated Net Income (or net loss) of the Company and its Restricted
Subsidiaries (determined in accordance with GAAP), excluding (to the extent
included in such consolidated Net Income)
(a) the Net Income (or net loss) of any Person (the "other
Person")
(i) other than a Restricted Subsidiary, except in each
such case such Net Income shall be included to the extent of the
amount of management fees or cash dividends or other cash
distributions in respect of Capital Stock or other interest owned
actually paid (out of funds legally available therefor) to and
received by the Company or its Restricted Subsidiaries, other than
dividends, if applicable, or other distributions to pay obligations of
or with respect to such Unrestricted Subsidiary, such as income taxes,
or
(ii) in which the Company or any of its Restricted
Subsidiaries has a joint interest with a third party (which interest
of a third party causes the Net Income (or net loss) of such other
Person not to be consolidated into the Net Income (or net loss) of the
Company and its Restricted Subsidiaries in accordance with GAAP),
except in each such case such Net Income shall be included to the
extent of the amount of management fees or cash dividends or other
cash distributions in respect of Capital Stock or other interest owned
actually paid (out of funds legally available therefor) to and
received by the Company or its Restricted Subsidiaries, other than
dividends, if applicable, or other distributions to pay obligations of
or with respect to such Unrestricted Subsidiary, such as income taxes,
(b) items classified as extraordinary or any non-cash item
classified as non-recurring (other than the tax benefit of the utilization
of net operating loss carry forwards or alternative minimum tax credits),
(c) except to the extent includable in clause (a) above, the Net
Income (or loss) of any other Person accrued or attributable to any period
before the date on which it becomes a Restricted Subsidiary or is merged
into or consolidated with the Company or any of its Restricted Subsidiaries
or such other Person's property or Capital Stock (or a portion thereof) is
acquired by the Company or any of its Restricted Subsidiaries, and
(d) the Net Income of any Restricted Subsidiary to the extent
that the declaration of dividends or similar distributions by such
Restricted Subsidiary of that
10
income is not at the time permitted, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, law, rule or governmental regulations applicable to that
Restricted Subsidiary or its stockholders.
"Consolidated Net Worth" means, at any date of determination, the sum
of
(a) the consolidated equity of the common stockholders of such
Person and its Restricted Subsidiaries on such date, plus
(b) the respective amounts reported on such Person's most recent
balance sheet with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only
to the extent of any cash received by such Person upon issuance of such
preferred stock, less
(i) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of tangible assets of a
going concern business made within 12 months after the acquisition of
such business) subsequent to the date of this Indenture in the book
value of any asset owned by such Person or a Restricted Subsidiary of
such Person,
(ii) all investments in Persons that are not Restricted
Subsidiaries, and
(iii) all unamortized debt discount and expense and
unamortized deferred charges, all of the foregoing determined in
accordance with GAAP.
"Consolidated Non-cash Charges" of any Person means, for any period,
the aggregate depreciation, amortization and other non-cash charges of such
Person and its Restricted Subsidiaries on a Consolidated basis for such period,
as determined in accordance with GAAP (excluding any non-cash charge which
requires an accrual or reserve for cash charges for any future period).
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at 2 Avenue de LaFayette, Boston, Massachusetts, except that with
respect to presentation of Notes for payment or for registration of transfer or
exchange, such term shall also mean the office or agency of the Trustee at 61
Broadway, 15/th/ Floor, New York, New York.
"Credit Facility" means one or more debt or commercial paper
facilities with banks or other institutional lenders (including the Bank Credit
Facility) providing for revolving credit loans, term loans or letters of credit,
in each case together with any amendments, supplements, modifications (including
by any extension of the maturity thereof), substitutions, refinancings or
replacements thereof by a lender or a syndicate of lenders in one or more
successive transactions (including any such transaction that changes the amount
available thereunder, replaces such agreement or document or provides for other
agents or lenders).
11
"Cripple Creek Land" means the real estate owned or leased by the
Company in Cripple Creek, Colorado.
"Default" means any Event of Default or an event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Defaulted Interest" has the meaning specified in Section 3.08.
"Defeasance" and "Covenant Defeasance" have the meanings specified in
Sections 13.02 and 13.03, respectively.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 3.04 hereof as
the Depositary with respect to the Notes, and any successor thereto.
"Designated Senior Indebtedness" shall mean (i) Indebtedness incurred
under the Bank Credit Facility and (ii) any other Senior Indebtedness in a
principal amount of at least $25.0 million outstanding which, at the time of
determination, is specifically designated in the instrument governing such
Senior Indebtedness as "Designated Senior Indebtedness" by the Company and is
otherwise permitted to be "Designated Senior Indebtedness" under the Bank Credit
Facility.
"Discontinued Assets" means the following assets held for sale by the
Company or its Subsidiaries as of the Issue Date:
(a) the Diamond Lady riverboat;
(b) the Lucky Seven barge and other unused marine equipment;
and
(c) gaming equipment held for sale.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock or other similar ownership or profit interest that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
exchangeable for Indebtedness, or is redeemable at the option of the holder
thereof, in whole or in part, on or before the Maturity Date of the Notes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" has the meaning specified in Section 5.01.
"Event of Loss" means, with respect to any property or asset (tangible
or intangible, real or personal) that has a Fair Market Value of $5.0 million or
more, any of the following:
(a) any loss, destruction or damage of such property or asset;
12
(b) any institution of any proceedings for the condemnation or
seizure of such property or asset or for the exercise of any right of
eminent domain or navigational servitude; or
(c) any actual condemnation, seizure or taking, by exercise of
the power of eminent domain or otherwise, of such property or asset, or
confiscation of such property or asset or the requisition of the use of
such property or asset.
"Excess Land" means approximately 12 acres of land owned by the Company
or its Restricted Subsidiaries as of the Issue Date adjacent to the Isle-Bossier
City.
"Excess Sale/Loss Proceeds" and "Excess Sale/Loss Proceeds Offer" have
the meanings set forth in Section 10.14 and Section 11.10, respectively.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" or "fair value" means, with respect to any asset or
property, the price which could be reasonably expected to be negotiated in an
arm's-length free market transaction, for cash, between a willing seller and a
willing buyer, neither of whom is under undue pressure or compulsion to complete
the transaction. Unless otherwise specified by this Indenture, Fair Market Value
shall be determined by the Board of Directors of the Company acting in good
faith and shall be evidenced by a Board Resolution delivered to the Trustee.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"FFC Preferred Stock" means the shares of preferred stock, $100 par
value, of Freedom Financial Corporation owned by the Company.
"FF&E" means furniture, fixtures and equipment used in the ordinary
course of business in the operation of a Permitted Line of Business.
"FF&E Financing" means Indebtedness, the proceeds of which will be used
solely to finance or refinance the acquisition or lease by the Company or a
Restricted Subsidiary of FF&E.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board that are applicable from time to time.
"Gaming Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States federal or any foreign government, any state, province or any
city or other political subdivision or otherwise and whether now or hereafter in
existence, or any officer or official thereof, with authority to regulate any
gaming operation (or proposed gaming operation) owned, managed, or operated by
the Company or any of its Subsidiaries.
13
"Governmental Authority" means any government (federal, state or local),
any governmental agency, bureau or board or any governmental office, officer or
official (including environmental) having jurisdiction over the Company or any
of its Subsidiaries.
"Holder" or "Noteholder" means a Person in whose name a Note is registered
in the Note Register.
"Indebtedness" of any Person means
(a) any liability, contingent or otherwise, of such Person
(i) for borrowed money (whether or not the recourse of the lender
is to the whole of the assets of such Person or only to a portion thereof),
(ii) evidenced by a note, bond, debenture or similar instrument,
letters of credit, bankers' acceptances or other similar facilities, other
than a trade payable or other than a current liability incurred in the
ordinary course of business, or
(iii) for the payment of money relating to a Capitalized Lease
Obligation or other obligation relating to the deferred purchase price of
property or services (including a purchase money obligation but not
including any docking fees payable to Louisiana Downs, Inc. or guarantees
thereof),
(b) any liability of others of the kind described in the
preceding clause (a) which such Person has guaranteed or which is otherwise
its legal liability, including, without limitation, any obligation,
(i) to pay or purchase such liability,
(ii) to supply funds to or in any other manner invest in the
debtor (including an agreement to pay for property or services irrespective
of whether such property is received or such services are rendered), and
(iii) to purchase or lease (other than pursuant to an operating
lease of hotel rooms or similar lodging facilities entered into for the
principal purpose of providing lodging at or near the site of a Casino,
which facilities are reasonably expected to be beneficial to the Company's
operating results) property or to purchase services,
in each such case primarily for the purpose of enabling a debtor to make a
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss,
(c) any obligation secured by a Lien to which the property or assets of
such Person are subject, whether or not the obligations secured thereby shall
have been assumed by or shall otherwise be such Person's legal liability,
(d) all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Capital Stock of or other
ownership or
14
profit interest in such Person or any of its Affiliates or any warrants,
rights or options to acquire such Capital Stock, valued, in the case of
Disqualified Stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends,
(e) all Interest Rate and Currency Protection Obligations, and
(f) any and all deferrals, renewals, extensions and refundings of,
or amendments, modifications or supplements to, any liability of the kind
described in any of the preceding clauses.
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
All references to this Indenture shall include the Subsidiary Guarantees as set
forth in Article Twelve.
"Independent", when used with respect to any Person, means such
other Person who (a) is in fact independent, (b) does not have any direct
financial interest or any material indirect financial interest in the Company or
in any Affiliate of the Company, and (c) is not an officer, employee, promoter,
underwriter, trustee, partner or person performing similar functions for the
Company or a spouse, family member or other relative of any such Person.
Whenever it is provided in this Indenture that any Independent Person's opinion
or certificate shall be furnished to the Trustee, such Person shall be appointed
by the Company and reasonably acceptable to the Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within the meaning
thereof.
"Initial Purchasers" means Dresdner Kleinwort Wasserstein -
Grantchester, Inc., CIBC World Markets Corp., Deutsche Banc Alex. Brown Inc. and
Credit Lyonnais Securities (USA) Inc., as the initial purchasers of the Notes
pursuant to the Purchase Agreement, dated as of March 21, 2002, between the
Company, the Subsidiary Guarantors and the Initial Purchasers named therein.
"Interest Payment Date" means September 15, 2002 and each March 15
and September 15 thereafter.
"Interest Rate and Currency Protection Obligations" means the
obligations of any Person pursuant to any interest rate swap, cap or collar
agreement, interest rate future or option contract, currency swap agreement,
currency future or option contract and other similar agreement designed to hedge
against fluctuations in interest rates or foreign exchange rates.
"Investment" in any Person means any direct or indirect loan,
advance, guarantee or other extension of credit or capital contribution to (by
means of transfers of cash or other property to others or payments for property
or services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, warrants, rights, options, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, such
Person or Indebtedness of any other Person secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness. The amount of any Investment
15
shall be the original cost of such Investment, plus the cost of all additions
thereto, and minus the amount of any portion of such Investment repaid to the
Person making such Investment in cash as a repayment of principal or a return of
capital, as the case may be, but without any other adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment. In determining the amount of any Investment involving a transfer of
any property other than cash, such property shall be valued at its fair value at
the time of such transfer, as determined in good faith by the Board of Directors
of the person making such transfer, whose determination will be conclusive
absent manifest error.
"Isle-Bettendorf" means the Isle of Capri Casino located in
Bettendorf, Iowa.
"Isle-Biloxi" means the Isle of Capri Casino located in
Biloxi, Mississippi.
"Isle-Boonville" means the Isle of Capri Casino located in
Boonville, Missouri.
"Isle-Bossier City" means the Isle of Capri Casino located in
Bossier City, Louisiana.
"Isle-Kansas City" means the Isle of Capri Casino located in
Kansas City, Missouri.
"Isle-Lake Charles" means the Isle of Capri Casino located in
Lake Charles, Louisiana.
"Isle-Lula" means the Isle of Capri Casino located in Lula,
Mississippi.
"Isle-Vicksburg" means the Isle of Capri Casino located in
Vicksburg, Mississippi.
"Issue Date" means March 27, 2002.
"Legended Note" means any Note required to contain the legend
set forth in Section 3.06(h) hereof.
"Lien" means any mortgage, lien (statutory or other), pledge,
security interest, encumbrance, claim, hypothecation, assignment for security,
deposit arrangement or preference or other security agreement of any kind or
nature whatsoever. For purposes of this Indenture, a Person shall be deemed to
own subject to a Lien any property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Person.
"Marketable Securities" means Cash Equivalents or any fund
investing primarily in Cash Equivalents.
"Material Operations" means assets or operations of the
Company or its Subsidiaries that (a) exceed 5% of the assets of the Company and
its Consolidated Subsidiaries or (b) contributed more than 5% of the income from
continuing operations of the Company and its Consolidated Subsidiaries (before
income taxes, extraordinary items and intercompany
16
management or similar fees) for the most recently completed four fiscal quarters
of the Company for which financial statements are available.
"Maturity" or "Maturity Date" when used with respect to any
Note, means the date specified in such Note as the fixed date on which the last
installment of principal of such Notes is due and payable.
"Net Cash Proceeds" means, with respect to any Asset Sale,
Event of Loss, issuance or sale by the Company of its Capital Stock or
incurrence of Indebtedness, as the case may be, the proceeds thereof in the form
of cash or Cash Equivalents received by the Company or any of its Restricted
Subsidiaries (whether as initial consideration, through the payment or
disposition of deferred compensation or the release of reserves), after
deducting therefrom (without duplication) (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees, finders fees and other
similar fees and expenses incurred in connection with such Asset Sale or Event
of Loss, (b) provisions for all taxes payable as a result of such Asset Sale or
Event of Loss, (c) payments made to retire and permanently reduce any commitment
with respect to any Indebtedness (other than payments on the Notes) secured by
the assets subject to such Asset Sale or Event of Loss to the extent required
pursuant to the terms of such Indebtedness, and (d) appropriate amounts to be
provided by the Company or any of its Restricted Subsidiaries, as the case may
be, as a reserve, in accordance with GAAP, against any liabilities associated
with such Asset Sale or Event of Loss and retained by the Company or any of its
Restricted Subsidiaries, as the case may be, after such Asset Sale or Event of
Loss, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale or Event of
Loss, in each case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash or Cash Equivalents, actually
paid to a Person that is not an Affiliate of the Company or, in the case of
reserves, are actually established and, in each case, are properly attributable
to such Asset Sale or Event of Loss.
"Net Income" means, with respect to any Person for any period,
the net income (or loss) of such Person determined in accordance with GAAP.
"Net Worth" and "Maximum Net Worth" have the meanings
specified in Section 12.08.
"Non-Recourse Indebtedness" means Indebtedness (a) as to which
none of the Company or any of its Restricted Subsidiaries provides any credit
support or is directly or indirectly liable for the payment of principal or
interest thereof and a default with respect to which would not entitle any party
to cause any other Indebtedness of the Company or a Restricted Subsidiary to be
accelerated or (b) incurred by the Company or a Restricted Subsidiary to
purchase one or more assets from the lending source, provided that the lender's
only remedy against the obligor in the event of a default with respect to such
Indebtedness, whether as a result of the failure to pay principal or interest
when due or any other reason, is limited to foreclosure or repossession of such
assets purchased.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture.
17
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 3.04.
"Notice of Default" has the meaning specified in Section 5.01.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, including an employee of the Company, and who
shall be acceptable to the Trustee.
"Outstanding" when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except: (a) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; (b) Notes, or portions thereof, for
whose payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Notes; provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has been
made; (c) Notes, except to the extent provided in Sections 13.02 and 13.03, with
respect to which the Company has effected defeasance and/or covenant defeasance
as provided in Article Thirteen; and (d) Notes which have been paid pursuant to
Section 3.05 or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in whose
hands the Notes are valid obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal amount of Outstanding
Notes have given any request, demand, authorization, direction, consent, notice
or waiver hereunder, and for the purpose of making the calculations required by
TIA Section 313, Notes owned by the Company or any other obligor upon the Notes
or any Affiliate of the Company or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company, any other obligor upon the Notes or any Affiliate of
the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (and premium,
if any, on) or interest (including any Additional Interest), on any Notes on
behalf of the Company and at the office of which the Notes may be presented for
such payment.
18
"Permitted Equity Holders" means Bernard Goldstein, Irene
Goldstein and their lineal descendants (including adopted children and their
lineal descendants) and any entity the equity interests of which are owned by
only such persons or which was established for the exclusive benefit of, or the
estate of, any of the foregoing.
"Permitted Investments" means
(a) Investments in Marketable Securities,
(b) loans or advances to employees not to exceed an
aggregate of $250,000 in any fiscal year of the Company and $1.0
million in the aggregate at any one time outstanding, and
(c) Investments in a Permitted Line of Business by the
Company or a Restricted Subsidiary made in one or more persons in an
aggregate amount not to exceed $50.0 million at any one time
outstanding.
"Permitted Liens" means:
(a) Liens on property acquired by the Company or any
Restricted Subsidiary (including an indirect acquisition of property
by way of a merger of a Person with or into the Company or any
Restricted Subsidiary or the acquisition of a Person), provided that
such Liens were in existence prior to the contemplation of such
acquisition, merger or consolidation, and were not created in
connection therewith or in anticipation thereof, and provided that
such Liens do not extend to any additional property or assets of the
Company or any Restricted Subsidiary;
(b) statutory Liens (other than those arising under
ERISA) to secure the performance of obligations, surety or appeal
bonds, performance bonds or other obligations of a like nature,
maritime Liens for crew wages, salvage, suppliers and providers of
services, incurred in the ordinary course of business (exclusive of
obligations in respect of the payment of borrowed money), or for
taxes, assessments or governmental charges or claims, provided that
in each case the obligations are not yet delinquent or are being
contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and any reserve or other
adequate provision as shall be required in conformity with GAAP
shall have been made therefor;
(c) leases or subleases granted to others not
interfering in any material respect with the business of the Company
or any Restricted Subsidiary;
(d) any charter of a Vessel, provided that (i) in the
good faith judgment of the Board of Directors of the Company such
Vessel is not necessary for the conduct of the business of the
Company or any of its Restricted Subsidiaries as conducted
immediately prior thereto; (ii) the terms of the charter are
commercially reasonable and represent the Fair Market Value of
the charter; and (iii) the Person chartering the assets agrees to
maintain the Vessel and evidences such agreement by delivering
such an undertaking to the Trustee;
19
(e) with respect to the property involved, easements,
rights-of-way, navigational servitudes, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances which do
not interfere in any material respect with the ordinary conduct of business
of the Company and its Subsidiaries as now conducted or as contemplated
herein;
(f) Liens arising in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other
types of social security (other than those arising under ERISA);
(g) any interest or title of a lessor in property subject to any
Capitalized Lease Obligation or an operating lease;
(h) Liens arising from the filing of Uniform Commercial Code
financing statements with respect to leases;
(i) Liens arising from any final judgment or order not
constituting an Event of Default;
(j) Liens on documents or property under or in connection with
letters of credit in the ordinary course of business, if and to the extent
that the related Indebtedness is permitted under clause (b)(v) of Section
10.10; and
(k) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods in the ordinary
course of business.
"Permitted Line of Business" means, with respect to any Person, any
casino gaming or pari-mutuel wagering business of such Person or any business
that is related to, ancillary or supportive of, connected with or arising out of
the casino gaming or pari-mutuel wagering business of such Person (including,
without limitation, developing and operating lodging, dining, amusement, sports
or entertainment facilities, transportation services or other related activities
or enterprises and any additions or improvements thereto).
"Permitted Related Investment" means the acquisition of property or
assets by a Person to be used in connection with a Permitted Line of Business of
such Person.
"Permitted Vessel Lien" means a Lien on a Vessel to secure FF&E
Financing or Capitalized Lease Obligations where the holder or holders (or an
agent, trustee or other representative for such holder or holders)
(a) agrees to release such Lien upon satisfaction of such FF&E
Financing,
(b) agrees to release such Lien upon payment (or promise of
payment) to such holder or holders (or such representative) of that portion
of the proceeds of the sale of such Vessel attributable to the related
FF&E, and
20
(c) acknowledges that such Lien does not create rights on
the hull and other equipment constituting such Vessel (other than the
related FF&E).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, limited liability company,trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"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 3.05 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends on or to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Qualified Guarantee" means a guarantee by the Company or any of its
Restricted Subsidiaries of Indebtedness of any entity primarily engaged
or preparing to engage in a Permitted Line of Business, provided that
(1) unless such Indebtedness was incurred by a Native American
tribe or any agency or instrumentality thereof, the Company and its Restricted
Subsidiaries at the time of the incurrence, creation or assumption of the
guarantee (A) own in the aggregate at least 35% of the outstanding Voting Stock
of such entity and (B) control the day to day gaming operation of such entity
pursuant to a written management agreement,
(2) the primary purpose for which such Indebtedness was incurred
was to finance the development, construction or acquisition of a facility that
(A) is located in a jurisdiction in which the conduct of gaming using electronic
gaming devices is permitted pursuant to applicable law and (B) conducts or,
following such development, construction or acquisition, will conduct gaming
utilizing electronic gaming devices or that is related to, ancillary or
supportive of, connected with or arising out of such gaming business,
(3) the pro forma Consolidated Coverage Ratio of the Company on
the date of the guarantee would have been greater than 2.50 to 1.00,
(4) none of the Permitted Equity Holders or any Affiliate of such
Persons, other than the Company or its Restricted Subsidiaries, is a direct or
indirect obligor, contingently or otherwise, of such Indebtedness or a direct or
indirect holder of any Capital Stock of such entity, other than through their
respective ownership interests in the Company,
(5) at the time of the incurrence, creation or assumption of the
guarantee, the Notes shall be rated at least a "B2" by Moody's Investor's
Services, Inc. and "B" by Standard & Poor's Corporation or their respective
successors (or, if either such entity or both shall not make
21
a rating of the Notes publicly available, a nationally recognized securities
rating agency or agencies, as the case may be, selected by the Company), and
(6) if such Indebtedness is incurred by a Native American tribe or any
agency or instrumentality thereof, including any tribal authority, for so long
as such guarantee is outstanding such tribe and the Company or one of its
Restricted Subsidiaries will have in effect a written agreement which has been
approved by all required Governmental Authorities pursuant to which the Company
or one of its Restricted Subsidiaries will manage such tribe's gaming activities
at the facility or facilities with respect to which the Indebtedness was in
exchange for customary fees and reimbursements.
"Qualified Institutional Buyer" shall have the meaning specified in
Rule 144A under the Securities Act.
"Qualified Public Equity Offering" means a firm commitment
underwritten public offering of Common Stock of the Company for which the
Company receives net proceeds of at least $30.0 million, and after which the
Common Stock is traded on a national securities exchange or quoted on The NASDAQ
National Market.
"Real Estate Options" means
(a) all options held by the Company or its Restricted
Subsidiaries, directly or indirectly, on April 23, 1999 for an amount, in
each case, not exceeding $1.0 million, to purchase or lease land, and
(b) all options acquired by the Company, directly or indirectly,
after April 23, 1999 for an amount, in each case, not exceeding $2.0
million, to purchase or lease land.
"Redeemable Capital Stock" means any class or series of Capital Stock
to the extent that, either by its terms, by the terms of any security into which
it is convertible or exchangeable, or by contract or otherwise, is, or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the final Stated Maturity of the Notes or is redeemable at the option of the
holder thereof at any time prior to such Stated Maturity, or is convertible into
or exchangeable for debt securities at any time prior to such Stated Maturity.
"Redemption Date" when used with respect to any Note to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price" when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means that certain Registration Rights
Agreement among the Company, the Subsidiary Guarantors and the Initial
Purchasers, dated as of the date hereof.
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"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 1 or September1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Repurchase Date" has the meaning set forth in Section 11.11.
"Repurchase Notice" has the meaning set forth in Section 11.11.
"Repurchase Offer" has the meaning set forth in Section 11.11.
"Responsible Officer" when used with respect to the Trustee, means any
officer in the Trustee's "Corporate Trust Department" or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Payment" means any of
(a) the declaration or payment of any dividend or any other
distribution on Capital Stock of the Company or any Subsidiary or any
payment made to the direct or indirect holders (in their capacities as
such) of Capital Stock of the Company or any Subsidiary (other than (i)
dividends or distributions payable solely in Capital Stock (other than
Disqualified Stock) otherwise permitted by this Indenture and (iii) in the
case of a Subsidiary, dividends or distributions payable to the Company or
to a Restricted Subsidiary of the Company);
(b) the purchase, defeasance, redemption or other acquisition
or retirement for value of any Capital Stock of the Company or any
Subsidiary (other than Capital Stock of such Subsidiary held by the Company
or any of its Restricted Subsidiaries);
(c) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for
value, before any scheduled maturity, scheduled repayment or scheduled
sinking fund payment, of any Indebtedness which is subordinated in any
manner in right of payment to the Notes (other than Indebtedness acquired
in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date
of acquisition); and
(d) the making of any Investment or guarantee of any Investment
by the Company or any Subsidiary in any Person other than
(i) in a Person that would be, directly or indirectly, a
Restricted Subsidiary of the Company immediately after giving effect
to such Investment, or
(ii) under a plan of reorganization or similar proceeding
under applicable bankruptcy law or in connection with a workout
involving creditors of
23
such Person in exchange for Indebtedness owing by such Person that did
not violate the limitations set forth under Section 10.12.
"Restricted Subsidiary" means any Subsidiary of the Company that has
not been designated as an Unrestricted Subsidiary pursuant to and in compliance
with the provisions described under Section 10.18, or a Subsidiary that has been
designated as a Restricted Subsidiary pursuant to and in compliance with the
provisions described in Section 10.18.
"Rhythm City-Davenport" means the Rhythm City Casino located in
Davenport, Iowa.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means (a) principal of, premium, if any, and
interest (including post-petition interest) on, and all fees, costs, expenses
and other amounts payable with respect to the Indebtedness under the Bank Credit
Facility, and (b) the principal of, premium, if any, and interest on any
Indebtedness of the Company or the Subsidiary Guarantors, whether outstanding on
the Issue Date or thereafter created, incurred or assumed, unless, in the case
of any particular Indebtedness, the instrument creating or evidencing the same
or pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to any Indebtedness of the
Company or the Subsidiary Guarantors, as applicable. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include, to the extent constituting
Indebtedness,
(a) Indebtedness evidenced by the Notes or the Subsidiary
Guarantees,
(b) Indebtedness that is subordinate or junior in right of
payment to any Indebtedness of the Company or the Subsidiary Guarantors,
(c) Indebtedness which, when incurred and without respect to
any election under Section 1111(b) of Title 11, U.S. Code, is without
recourse to the Company or the Subsidiary Guarantors,
(d) Indebtedness which is represented by Redeemable Capital
Stock,
(e) Indebtedness for goods, materials or services purchased in
the ordinary course of business or Indebtedness consisting of trade
payables or other current liabilities (other than any current liabilities
owing under the Bank Credit Facility or the current portion of any
long-term Indebtedness which would constitute Senior Indebtedness but for
the operation of this clause (e)),
(f) Indebtedness of or amounts owed by the Company or the
Subsidiary Guarantors for compensation to employees or for services
rendered to the Company or the Subsidiary Guarantors,
(g) Indebtedness of or amounts owed by the Company or a
Restricted Subsidiary to the Company or another Restricted Subsidiary,
24
(h) any liability for Federal, state, local or other taxes owed
or owing by the Company or the Subsidiary Guarantors,
(i) Indebtedness of the Company or a Subsidiary Guarantor to
any other Subsidiary of the Company, and
(j) that portion of any Indebtedness which at the time of
issuance is issued in violation of this Indenture.
"Significant Restricted Subsidiary" means any Restricted Subsidiary
that is a guarantor of the Company's obligations under the Bank Credit Facility
or any other Credit Facility.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity" means, with respect to any security or Indebtedness,
the date specified in such security or Indebtedness as the fixed date on which
the principal of such security or Indebtedness is due and payable, including
pursuant to any mandatory redemption or repayment provision (but excluding any
provision providing for the repurchase of such security or repayment of such
Indebtedness, as applicable, at the option of the holder thereof).
"Subordinated Indebtedness" means Indebtedness that is subordinated in
right of payment to the Notes in all respects, matures at a date later than the
Maturity Date of the Notes and has an Average Life longer than that applicable
to the Notes.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the issued
and outstanding Capital Stock having ordinary voting power to elect a majority
of the Board of Directors or similar governing body of such corporation or other
entity (irrespective of whether at the time Capital Stock of any other class or
classes of such corporation shall or might have voting power upon the occurrence
of any contingency), (b) the interest in the capital or profits of such
partnership or joint venture or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such Person.
"Subsidiary Guarantees" means the guarantees of the Subsidiary
Guarantors with respect to the Company's obligations under the Notes and this
Indenture.
"Subsidiary Guarantors" means each existing and future Significant
Restricted Subsidiary of the Company and any other Subsidiary that executes a
Subsidiary Guarantee.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
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"United States Government Obligations" means, securities that are
(a) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged, or
(b) obligations of a Person, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America.
"Unrestricted Subsidiary" means any Subsidiary of the Company that
(a) the Company has designated, pursuant to the provisions
described under Section 10.18 as an Unrestricted Subsidiary and that has
not been redesignated as a Restricted Subsidiary pursuant to such
paragraph, and
(b) any Subsidiary of any such Unrestricted Subsidiary.
"Vessel" means any riverboat or barge, whether now owned or hereafter
acquired by the Company or any Restricted Subsidiary, useful for gaming,
administrative, entertainment or any other purpose whatsoever.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only as long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned" with respect to a Subsidiary of any person means (a)
with respect to a Subsidiary that is a partnership, limited liability company or
similar entity, a Subsidiary whose capital or other equity interest is 99% or
greater beneficially owned by such person, and (b) with respect to a Subsidiary
that is other than a partnership, limited liability company or similar entity, a
Subsidiary whose capital stock or other equity interest is 100% beneficially
owned by such person.
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 10.08(a)) shall include:
26
(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,
he has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or with the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing; and, except as therein 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
27
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same may also be proved in any other manner which the Trustee
deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Note
Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to Board Resolution,
fix in advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution which shall be a
date not earlier than the date thirty (30) days prior to the first
solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Notes
shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after the record
date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such action
is made upon such Note.
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SECTION 1.05. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at Goodwin Square, 225 Asylum Street,
23/rd/ Floor, Hartford, Connecticut 06103, or at such other address as the
Trustee shall notify the Holders and the Company, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by
the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
SECTION 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
29
SECTION 1.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.09. 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 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any
Notes Registrar and their successors hereunder, and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.11. Governing Law.
This Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York. This Indenture is subject to
the provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 1.12. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity or Maturity of any Note shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Notes) payment of interest (including any Additional Interest) or principal
(and premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Repurchase Date, or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, Repurchase Date, Stated
Maturity or Maturity, as the case may be.
SECTION 1.13. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Noteholder or Holder;
30
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and Subsidiary Guarantors or
any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.14. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect at the date hereof;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular; and
(e) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE TWO: NOTE FORMS
SECTION 2.01. Forms Generally.
The Transfer Restricted Notes, including the Trustee's certificate of
authentication, shall be in substantially the form set forth in Exhibit A, with
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 and such legends or endorsements placed thereon
as may be required by this Indenture and as may be required to comply with law
or the rules of the Commission or any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Each Note shall include provisions
relating to the Subsidiary Guarantees in substantially the form set forth in
Exhibit C. Any portion of the text of any Note may be set forth on the reverse
- ---------
thereof, with an appropriate reference thereto on the face of the Note.
Transfer Restricted Notes will be initially issued in global form,
substantially in the form of Exhibit A (including footnotes 1 and 2 thereto) and
---------
the Exchange Notes, if any, in exchange for Transfer Restricted Notes will be
initially issued in global form, substantially in the form of Exhibit B
---------
(including footnotes 1 and 2 thereto) (each of Exhibit A and Exhibit B,
--------- ---------
31
including such footnotes, hereinafter referred to as a "Global Note", and with
any Transfer Restricted Notes issued in exchange therefor, the "Global Notes").
Each Global Note will represent such of the Outstanding Notes as shall be
specified therein and will provide that it represents the aggregate amount of
Outstanding Notes from time to time endorsed thereon and that the aggregate
amount of Outstanding Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect transfers, exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the amount of Outstanding Notes represented thereby shall be made by
the Trustee or the Global Note Holder, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof.
Holders of Transfer Restricted Notes who elect to take physical
delivery of their certificates (collectively, the "Non-Global Purchasers") will
be issued certificates in the registered form of certificated Notes,
substantially in the form of Exhibit A (excluding footnotes 1 and 2 thereto) and
---------
Exchange Notes that are issued to Non-Global Purchasers in exchange for Transfer
Restricted Notes will initially be issued in the form of certificated Notes,
substantially in the form of Exhibit B (excluding footnotes 1 and 2 thereto)
---------
(collectively, the "Certificated Notes").
Payment of the principal of, premium, interest (including any
Additional Interest) on any Certificated Note shall be made to the Holder
thereof by wire transfer of immediately available funds to the accounts
specified by the Holders thereof, or if no such account is specified, by mailing
a check to each Holder's registered address.
Payment of the principal of, premium, interest (including any
Additional Interest) on the Global Note will be made by wire transfer of
immediately available funds to the accounts specified by the Global Note Holder.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.02. Temporary Notes.
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, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as conclusively evidenced by their execution
of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 10.02, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
32
Company shall execute and the Trustee shall authenticate and deliver in exchange
a like principal amount of definitive Notes of authorized denominations. Until
so exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.
ARTICLE THREE: THE NOTES
SECTION 3.01. Title and Terms.
The Notes shall be known and designated as the "9% Senior Subordinated
Notes due 2012" of the Company. Their Stated Maturity shall be March 15, 2012,
and they shall accrue interest at the rate of 9% per annum from the date of
issuance thereof, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable September 15, 2002 and
semiannually on March 15 and September 15 in each year, beginning on September
15, 2002 in the case of Notes issued on the Issue Date and at said Stated
Maturity, until the principal thereof is paid or duly provided for.
The principal of (and premium, if any, on) and interest (including any
Additional Interest) on the Notes shall be payable at the office or agency of
the Company maintained for such purpose in the City of New York, or at such
other office or agency of the Company as may be maintained for such purpose;
provided, however, that, at the option of the Company, interest may be paid by
check mailed to addresses of the Persons entitled thereto as such addresses
shall appear on the Note Register or as otherwise provided in Section 2.01. As
used herein with respect to the payment of interest, from a specified date shall
not include such specified date and to a specified date shall include such
specified date.
The Notes shall be redeemable as provided in Article Eleven.
SECTION 3.02. Denominations.
The Notes shall be issueable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its Chairman,
its President or a Vice President and attested by its Secretary or an Assistant
Secretary. The signature of any of these officers on the Notes may be manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Notes.
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
33
authentication, together with a Company Order for the authentication and
delivery of such Notes, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Notes.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
If the Company or any Subsidiary Guarantor, pursuant to Article Eight,
shall be consolidated or merged with or into any other Person or shall convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company or Subsidiary
Guarantor shall have been merged, or the Person which shall have received a
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
Eight, any of the Notes authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to time,
at the request of the successor Person, be exchanged for other Notes executed in
the name of the successor Person and all other obligors thereon with such
changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Notes surrendered for such exchange and of like
principal amount; and the Trustee, upon Company Request of the successor Person,
shall authenticate and deliver Notes as specified in such request for the
purpose of such exchange. If Notes shall at any time be authenticated and
delivered in any new name of a successor Person pursuant to this Section in
exchange or substitution for or upon registration of transfer of any Notes, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Notes at the time Outstanding for Notes
authenticated and delivered in such new name.
SECTION 3.04. Note Registrar; Paying Agent; Depositary; Global Note
Holder.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.02 being herein sometimes
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 of Notes ("Registrar) and an office or agency where
the notes may presented for payment. The Note Register shall be in written form
or any other form capable of being converted into written form within a
reasonable time. At all reasonable times, the Note Register shall be open to
inspection by the Trustee. The Company initially appoints The Depositary Trust
Company to act as Depositary with respect to the Global Notes and the Trustee is
hereby initially appointed as note registrar (the "Note Registrar").
34
SECTION 3.05. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Noteholders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Note Registrar, the Company shall furnish to the Trustee on
or at least five (5) Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of
all Noteholders, including the aggregate principal amount of Notes held by each
thereof, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 3.06. Transfer and Exchange.
(a) Transfer and Exchange of Certificated Notes. When
-------------------------------------------
Certificated Notes are presented to the Note Registrar with a request to
register the transfer of the Certificated Notes or to exchange such
Certificated Notes for an equal principal amount of Certificated Notes of
other authorized denominations, the Note Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met; provided, however, that the Certificated Notes
-------- -------
presented or surrendered for registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar, duly
executed by the Holder thereof or by such Holder's attorney, duly
authorized in writing; and
(ii) in the case of Legended Notes that are Certificated
Notes, shall be accompanied by the following additional information
and documents, as applicable:
(1) if such Legended Note is being delivered to the
Registrar by a Noteholder for registration in the name of
such Noteholder, without transfer, a certification from such
Noteholder to that effect; or
(2) if such Legended Note is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A
under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or a transaction meeting the requirements of
Rule 904 under the Securities Act ("Regulation S") or
------------
pursuant to an effective registration statement under the
Securities Act, a certification to that effect; or
(3) if such Legended Note is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act or in a transaction
exempt from the registration requirements of the Securities
Act, a certification to that effect and an Opinion of
Counsel to the effect that such transfer does not require
registration under the Securities Act.
35
(b) Restrictions on Transfer of a Certificated Note for a Beneficial
----------------------------------------------------------------
Interest in a Global Note. A Certificated Note may not be exchanged for a
-------------------------
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Certificated
Note, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with:
(i) if such Certificated Note is a Legended Note, certification
that such Certificated Note is being transferred (w) to a Qualified
Institutional Buyer in accordance with Rule 144A under the Securities
Act, (x) in a transaction meeting the requirements of Regulation S,
(y) pursuant to an effective registration statement under the
Securities Act or (z) in reliance on another exemption from the
registration requirements of the Securities Act or in a transaction
exempt from the registration requirements of the Securities Act, in
either case based on an Opinion of Counsel to the effect that such
transfer does not require registration under the Securities Act; and
(ii) whether or not such Certificated Note is a Legended Note,
written instructions directing the Trustee to make, or to direct the
Global Note Holder to make, an endorsement on the Global Notes to
reflect an increase in the aggregate principal amount of the Notes
represented by the Global Notes;
then the Trustee shall cancel such Certificated Note in accordance with Section
3.10 hereof and cause, or direct the Global Note Holder to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Global Note Holder, the aggregate principal amount of Notes represented
by the Global Notes to be increased accordingly. If no Global Notes are then
Outstanding, the Issuer shall issue and, upon receipt of an authentication order
in accordance with Section 3.03 hereof, the Trustee shall authenticate a new
Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and exchange
-------------------------------------
of Global Notes or beneficial interests therein shall be effected through
the Depositary, in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the
Depositary therefor, which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the
Securities Act.
(d) Transfer and Exchange of a Beneficial Interest in a Global Note
---------------------------------------------------------------
for a Certificated Note. Any Person having a beneficial interest in a
-----------------------
Global Note may upon request exchange such beneficial interest for a
Certificated Note. Upon receipt by the Trustee of written instructions
including registration instructions from the Depositary or its nominee on
behalf of any Person having a beneficial interest in a Global Note, and, in
the case of a beneficial interest in a Legended Note only, the following
additional information and documents:
(i) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner, a
certification from such Person to that effect;
36
(ii) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from registration in
accordance with Rule 144 or in a transaction meeting the requirements
of Regulation S or pursuant to an effective registration statement
under the Securities Act, a certification to that effect from the
transferee or transferor; or
(iii) if such beneficial interest is being transferred in
reliance on an exemption from the registration requirements of the
Securities Act other than set forth in clauses (i) and (ii) of this
Section 3.06(d), a certification to that effect from the transferee or
transferor and an Opinion of Counsel to the effect that such transfer
does not require registration under the Securities Act;
then the Trustee, or the Global Note Holder at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Global Note Holder, the aggregate principal
amount of the Global Note to be reduced and, following such reduction, the
Company will execute and the Trustee will authenticate and deliver a
Certificated Note to the transferee. Certificated Notes issued in exchange for a
beneficial interest in a Global Note pursuant to this Section 3.06 shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect Participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Certificated Notes to
the Persons in whose names such Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
-----------------------------------------------------
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in Section 3.06(f)), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Certificated Notes in Absence of Depositary or
----------------------------------------------------------------
at the Issuer's Election. If at any time (i) the Depositary for a Global
------------------------
Note notifies the Company that the Depositary is unwilling or unable to
continue as Depositary for the Global Note and a successor Depositary for
the Global Note is not appointed by the Company within ninety (90) days
after delivery of such notice, or (ii) the Company, at its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
Certificated Notes under this Indenture, then, the Company will execute,
and the Trustee, upon receipt of an Officers' Certificate requesting the
authentication and delivery of Certificated Notes, shall authenticate and
deliver Certificated Notes, in an aggregate principal amount equal to the
principal amount of the Global Note, in exchange for such Global Note.
(g) Cancellation and/or Adjustment of Global Note. At such time as
---------------------------------------------
all beneficial interests in a Global Note have either been exchanged for
Certificated Notes, redeemed, converted, repurchased, or canceled or, with
respect to a Global Note that is a Transfer Restricted Note, exchanged for
beneficial interests in Exchange Notes, such Global Note shall be returned
to or retained by and canceled by the Trustee in
37
accordance with the provisions of this Indenture. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
Certificated Notes, redeemed, converted, repurchased, canceled or, with
respect to a Global Note that is a Transfer Restricted Note, exchanged for
beneficial interests in Exchange Notes, the aggregate principal amount of
Notes represented by such Global Note shall be reduced and an endorsement
shall be made on such Global Note, by the Trustee or the Global Note Holder
at the direction of the Trustee, to reflect such reduction.
(h) Legends.
-------
(i) Except as otherwise provided by the following paragraphs
(ii) and (iii), each certificate evidencing the Global Notes and the
Certificated Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the
following form:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER OF THE SECURITY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A
PERSON WHO THE SELLER BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (c) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT OR (d)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT PROVIDED THAT THE ISSUER SHALL HAVE THE RIGHT PRIOR TO ANY SUCH
OFFER, RESALE, ASSIGNMENT, PLEDGE OR TRANSFER PURSUANT TO CLAUSES (c) OR (d)
ABOVE TO REQUIRE THE DELIVERY OF AN OPINION (IN FORM AND SUBSTANCE SATISFACTORY
TO THE ISSUER) OF COUNSEL SATISFACTORY TO THE ISSUER, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO THE ISSUER, (2) TO THE ISSUER OR ITS SUBSIDIARIES.
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
38
(ii) Upon any sale or transfer of a Legended Note, (including
any Legended Note represented by a Global Note) pursuant to Rule 144 under
the Securities Act, pursuant to an effective registration statement under
the Securities Act or in connection with which the Trustee receives an
Opinion of Counsel to the effect that such Note will no longer be subject
to resale restrictions under federal and state securities laws:
(1) in the case of any Legended Note that is a Certificated
Note, the Registrar shall permit the Holder thereof to exchange
such Legended Note for a Certificated Note that does not bear the
legend set forth in (i) above and rescind any restriction on the
transfer of such Legended Note; and
(2) in the case of any Legended Note represented by a
Global Note, such Legended Note shall not be required to bear the
legend set forth in (i) above, but shall continue to be subject
to the provisions of Section 3.06(c) hereof; provided, however,
-------------- -------- -------
that with respect to any request for an exchange of a Legended
Note that is represented by a Global Note for a Certificated Note
that does not bear the legend set forth in (i) above, which
request is made in reliance upon Rule 144, the Holder thereof
shall certify in writing to the Registrar that such request is
being made pursuant to Rule 144 (such certification to be
substantially in the form of Exhibit C hereto).
---------
(iii) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 3.03 hereof, the Trustee
shall authenticate Exchange Notes in exchange for Transfer Restricted Notes
accepted for exchange pursuant to the Registration Rights Agreement, which
Exchange Notes shall not bear the legend set forth in (i) above, and the
Registrar shall rescind any restriction on the transfer of such Notes, in
each case unless the Holder of such Transfer Restricted Notes is (A) a
broker-dealer who purchased such Transfer Restricted Notes directly from
the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act, (B) a Person participating in the
distribution (within the meaning of the Securities Act) of the Transfer
Restricted Notes or (C) a Person who is an affiliate (as defined in Rule
144 under the Securities Act) of the Company or any Subsidiary Guarantor.
(i) Obligations with respect to Transfers and Exchanges of
Certificated Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Certificated Notes
and Global Notes at the Registrar's request.
39
(ii) No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 2.02, 9.06, 11.08, 11.09, 11.10 or 11.11 not
involving any transfer.
(iii) All Certificated Notes and Global Notes issued upon any
registration of transfer or exchange of Certificated Notes or Global
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Certificated Notes or Global Notes surrendered upon such
registration of transfer or exchange.
(iv) The Company shall not be required (A) to issue, register
the transfer of or exchange any Note during a period beginning at the
opening of business fifteen (15) days before the mailing of a notice
of redemption or Repurchase Offer and ending at the close of business
on the day of such mailing, (B) to register the transfer of or
exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part, or
(C) to register the transfer of or exchange any Note in respect of
which a Repurchase Notice has been given to any Paying Agent until the
earlier of the withdrawal of such Repurchase Notice or the Repurchase
Date.
(v) Prior to due presentment for registration of transfer of
any Note, the Trustee, any Agent and the Company shall deem and treat
the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of,
premium, interest (including any Additional Interest) on such Note,
and for all other purposes whatsoever, whether or not such Note is
overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vi) The Trustee shall authenticate Certificated Notes and the
Global Notes in accordance with the provisions of Section 3.03 hereof.
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee or 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 harmless,
then, in the absence of notice to the Company or the Trustee that such Note has
been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in exchange for any
such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new
Note of like tenor and principal amount, bearing a number not contemporaneously
Outstanding.
40
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 3.08. Payment of Interest; Interest Rights Preserved.
Interest (including Additional Interest) on any Note which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name such Note (or one or more Predecessor Notes)
is registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided, however, that each installment of interest
(including Additional Interest) may at the Company's option be paid by mailing a
check for such interest, payable to or upon the written order of the Person
entitled thereto pursuant to Section 3.10, to the address of such Person as it
appears in the Note Register, in the manner provided in Section 2.01.
Any interest (including Additional Interest) on any Note which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the Regular
Record Date by virtue of having been such Holder, and such defaulted interest
and (to the extent lawful) interest on such defaulted interest at the rate borne
by the Notes (such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") shall be paid by the Company to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at
the close of business on 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 Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee in immediately available funds 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 in immediately available funds prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon, the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be
41
not more than fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment and not less than ten (10) days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given in the
manner provided for in Section 1.06, not less than ten (10) days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business on such
Special Record Date.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
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 3.09. Persons Deemed Owners
Prior to the due presentment of a Note for registration of transfer,
the Company, the Subsidiary Guarantors, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Note is registered as the
owner of such Note for the purpose of receiving payment of principal of (and
premium, if any, on) and (subject to Sections 3.04 and 3.08) interest (including
any Additional Interest) on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and none of the Company, the Subsidiary
Guarantors, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.10. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold, and all Notes so delivered
shall be promptly canceled by the Trustee. If the Company shall so acquire any
of the Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures and, upon request, certification of their disposal
delivered to the Company.
SECTION 3.11. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
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SECTION 3.12. Cusip Number.
The Company in issuing the Notes may use one or more CUSIP numbers to
identify the Notes, and if so, such CUSIP number shall be included in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
-------- -------
such notice may state that no representation is made as to the correctness or
accuracy of such CUSIP number printed in the notice or on the Notes and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee of any change in the CUSIP
number.
ARTICLE FOUR: SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for) and the Trustee, upon Company Request, and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(a) either
(i) all Notes theretofore authenticated and delivered (other
than (x) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.07 and (y) Notes
for whose payment money has theretofore been deposited in trust with
the Trustee or any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or
(ii) all such Notes not theretofore delivered to the Trustee
for cancellation (1) have become due and payable, or (2) will become
due and payable at their Stated Maturity within one year, or (3) are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company, and the
Company or the Subsidiary Guarantors, in the case of clauses (1), (2)
or (3), have irrevocably deposited or caused to be deposited with the
Trustee as trust funds, in trust (and subject to a first priority Lien
in favor of the Trustee and the Holders) for such purpose, United
States Dollars in an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in
the case of Notes which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company, including, without limitation, all
sums due to the Trustee; and
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(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.06 and, if money shall
have been deposited with the Trustee pursuant to clause (a)(ii) of this Section,
the obligations of the Trustee under Section 4.02 and the last paragraph of
Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 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 (including any Additional Interest) for whose payment such
money has been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
ARTICLE FIVE: REMEDIES
SECTION 5.01. Events of Default.
"Event of Default" wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any interest (including any
Additional Interest) on the Notes when it becomes due and payable, and
continuance of such default for a period of thirty (30) days; or
(b) default in the payment of the principal of or premium, if
any, on the Notes when due at Maturity, upon acceleration, optional
redemption, required repurchase or otherwise; or
(c) default by the Company or any Subsidiary Guarantor in the
performance, or breach, of any term, covenant or agreement in this
Indenture (other than default specified in paragraphs (a), (b) or (d) of
this Section), and the continuance of such default or breach for a period
of thirty (30) days after written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder has been given to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Notes; or
(d) the default by the Company or any Subsidiary Guarantor in the
performance, or breach, of the covenant described under Section 8.01; the
failure of the
44
Company to make or consummate an Excess Sale/Loss Proceeds Offer in
accordance with Section 11.10; or the failure of the Company to make or
consummate a Change of Control Offer in accordance with Section 11.09; or
(e) the failure by the Company or any Restricted Subsidiary,
after any applicable grace period, to make any payment when due of
principal of, premium in respect of or interest on any other Indebtedness,
other than Non-Recourse Indebtedness, in an aggregate principal amount of
$10.0 million or more, which failure has not been cured or waived, or the
acceleration of the maturity of other Indebtedness, other than Non-Recourse
Indebtedness, in an aggregate principal amount of $10.0 million or more for
any other reason; or
(f) one or more final judgments, orders or decrees for the
payment of money not covered by insurance in excess of $10.0 million,
either individually or in an aggregate amount, shall be entered against the
Company or any Restricted Subsidiary or any of their respective properties
and not discharged or waived, and there shall have been a period of 60
consecutive days during which a stay of enforcement of such judgment or
order, by reason of pending appeal or otherwise, shall not be in effect; or
(g) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company or any Significant Restricted
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 Restricted Subsidiary under
the Federal Bankruptcy Code or any other applicable federal or state law,
or appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any Significant Restricted
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 institution by the Company or any Significant Restricted
Subsidiary of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any
Significant Restricted Subsidiary or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due; or
(i) the revocation, termination, suspension or cessation to be
effective of any gaming license or other right to conduct lawful gaming
operations at any Casino in any jurisdiction of the Company or any
Subsidiary which shall continue for more than ninety (90) consecutive days
(other than the voluntary relinquishment of any such gaming license or
right if, in the reasonable opinion of the Company (as evidenced by an
Officers' Certificate) such relinquishment (1) is in the best interest of
the Company and
45
its Subsidiaries, taken as a whole, (2) does not adversely affect the
holders of the Notes in any material respect and (3) is not reasonably
expected to have, nor are the reasons therefor reasonably expected to have,
any material adverse effect on the effectiveness of any gaming license or
similar right, or any right to renewal thereof, or on the prospective
receipt of any such license or right, in each case, in Mississippi,
Louisiana or such other jurisdiction in which any Material Operations of
the Company or its Subsidiaries are located); or
(j) any of (1) a default or material breach by any Restricted
Subsidiary of its obligations under any Subsidiary Guarantee which
continues for a period of thirty (30) days after written notice to the
Company by the Trustee or to the Company and the Trustee by Holders of at
least 25% in aggregate principal amount of the Outstanding Notes, (2) the
repudiation by any Restricted Subsidiary of its obligations under the
Subsidiary Guarantees or (3) a judgment or decree by a court or
Governmental Agency of competent jurisdiction declaring the
unenforceability of the payment obligations under the Subsidiary
Guarantees.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
clause (g) or (h) of Section 5.01) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Notes may, by written notice, and the Trustee upon the request
of the Holders of not less than 25% in aggregate principal amount of the
Outstanding Notes is obligated to, declare the principal amount of and accrued
interest on all the Notes to be due and payable immediately provided that so
long as the Bank Credit Facility is in effect, such acceleration shall not be
effective until the earlier of (a) five (5) Business Days following the delivery
of notice of acceleration to the agent under the Bank Credit Facility and (b)
the acceleration of any Indebtedness under the Bank Credit Facility. If an Event
of Default specified in clause (g) or (h) of Section 5.01 occurs and is
continuing, then the principal amount of and accrued interest on all the Notes
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Notes, by written notice to the Trustee,
may rescind and annul such declaration and its consequences if all existing
Events of Default, other than the non-payment of amounts of principal of and
accrued interest on Notes that has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13 and if such
recession of acceleration would not conflict with any judgment or decree.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Notes because of an Event of Default specified
in clause (e) of
46
Section 5.01 shall have occurred and be continuing, such declaration of
acceleration shall be automatically annulled if the Indebtedness that is the
subject of such Event of Default has been discharged or the holders thereof have
rescinded their declaration of acceleration in respect of such Indebtedness, and
written notice of such discharge or rescission, as the case may be, shall have
been given to the Trustee by the Company and countersigned by the holders of
such Indebtedness or a trustee, fiduciary or agent for such holders, within
thirty (30) days after such declaration of acceleration in respect of the Notes,
and no other Event of Default has occurred during such 30-day period which has
not been cured or waived during such period.
SECTION 5.03. 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
(including any Additional Interest) on any Note when such interest becomes
due and payable and such default continues for a period of thirty (30)
days, or
(b) default is made in the payment of the principal of, or
premium, if any, on, any Note at its Maturity,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Notes, the whole amount then due and payable on such
Notes for principal (and premium, if any) and interest (including any Additional
Interest) and interest on any overdue principal and premium, if any, and, to the
extent that payment of such interest (including any Additional Interest) shall
be legally enforceable, upon any overdue installment of interest, at the rate
borne by the Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, 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.
SECTION 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property of the Company or of such other
47
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest (including any Additional 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 (including any Additional Interest)
owing and unpaid in respect of the Notes and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
6.06.
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 5.05. Trustee May Enforce Claims without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes in respect of which such judgment has been recovered.
SECTION 5.06. 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 money on account of principal (or premium,
if any) or interest (including any Additional 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
6.06;
48
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest (including any
Additional Interest) on the Notes in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Notes for principal (and premium, if any) and interest (including any
Additional Interest) respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.07. Limitation on Suits.
No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(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 reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for fifteen (15) 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 15-day period by the Holders of a majority
or more in principal amount of the Outstanding Notes; it being understood
and intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium, Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Twelve) and in
such Note of the principal of (and premium, if any, on) and (subject to Section
3.09) interest (including any Additional Interest) on, such Note on the
respective Stated Maturity 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 such rights shall not be impaired without the consent of
such Holder.
49
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 3.07, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article 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 not less than a majority in aggregate principal amount
of the Outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that (a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction and (c) the Trustee need not take any
action which might involve it in personal liability or be unjustly prejudicial
to the Holders not consenting.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default hereunder and its consequences, except a default (a) in respect of the
payment of the principal of (or premium, if any, on) or interest (including any
Additional Interest) on any Note or (b) in respect of a covenant or provision
hereof which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Note affected.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.14. Waiver of Stay or Extension Laws.
Each of the Company and the Subsidiary Guarantors covenants (to the
extent that each 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 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.
ARTICLE SIX: THE TRUSTEE
SECTION 6.01. Notice of Defaults.
Within forty-five (45) days after the occurrence of any Default
hereunder, the Trustee shall transmit in the manner and to the extent provided
in TIA Section 313(c), notice 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, on) or interest (including any Additional 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 determines that the
withholding of such notice is in the interest of the Holders; and provided
further that in the case of any Default of the character specified in clause (e)
of Section 5.01 no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. The provisions of the proviso to Section 315(b) of
the Trust Indenture Act is hereby excluded from this Indenture.
SECTION 6.02. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
51
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith 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 pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(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) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture; and
(i) the Trustee shall reasonably cooperate with any gaming
authority of any jurisdiction in which the Company or any of its
subsidiaries conducts or proposes to conduct gaming and shall produce any
document or information in its possession as any of them may request.
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.
SECTION 6.03. Trustee Not Responsible for Recitals or Issuance of
Notes.
The recitals contained in this Indenture and in the Notes, except for
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee
52
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes, except that the Trustee represents that it is duly authorized to execute
and deliver this Indenture, authenticate the Notes and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility and
Qualification of Form T-1 to be supplied to the Company prior to registration of
the Notes under the Securities Act will be true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be accountable for the
use or application by the Company of Notes or the proceeds thereof.
SECTION 6.04. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar or any other agent
of the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Notes and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 6.05. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.06. Compensation And Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder as shall be agreed
by the Company and the Trustee (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the
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satisfaction and discharge of this Indenture. As security for the performance of
such obligations of the Company, 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 principal of (and premium, if any,
on) or interest (including any Additional Interest) on particular Notes.
SECTION 6.07. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $500.0 million. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article Six.
SECTION 6.08. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article Six shall become effective
until the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 6.09.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.09 shall not have been delivered to the
Trustee within thirty (30) days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of not less than a majority in principal amount of the Outstanding Notes,
delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with the provisions of
TIA Section 310(b), or
(ii) the Trustee shall cease to be eligible under Section
6.07 and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Note for
at least six months, or
(iii) 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,
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then, in any such case, (x) the Company, by a Board Resolution, may remove the
Trustee, or (y) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of
a Note for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Notes in the manner provided for in Section 1.06. Each notice
shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 6.09. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article Six. Both the retiring Trustee and the successor Trustee shall be
entitled to receive an Opinion of Counsel stating that all conditions precedent
have been complied with and that the appointment of such successor Trustee is
enforceable against the Company, subject to bankruptcy, insolvency,
reorganization, moratorium, arrangement or other similar laws relating to
creditors' rights generally, and general principles of equity (regardless
whether considered in a proceeding at law or in equity), including concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or other equitable relief.
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SECTION 6.10. Merger or 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
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; and in case at
that time any of the Notes shall not have been authenticated, any successor
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
SECTION 6.12. Paying Agent, Registrar.
(a) Each Paying Agent or 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 $500.0 million.
(b) Each Agent may resign at any time by giving written notice
thereof to the Company. The Company, by a Board Resolution and upon giving
written notice thereof to the Agent, may remove each Agent at any time.
(c) If any Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of any Agent for any
case, the Company, by a Board Resolution, shall promptly appoint a
successor Agent.
(d) The Company shall give notice of each resignation and each
removal of any Agent and each appointment of a successor Agent by mailing
written notice of such event by first-class mail, postage prepaid, to the
Trustee. Each notice shall include the name and address of the successor
Agent.
(e) The Trustee is hereby appointed Paying Agent and Registrar,
unless and until a successor Agent is appointed pursuant to the provisions
of this Indenture.
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(f) The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement
shall implement the provisions of this Indenture that relate to such Agent.
The Company shall notify the Trustee in writing of the name and address of
any such Agent.
ARTICLE SEVEN: HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders.
(a) The Company will furnish or cause to be furnished to the
Trustee
(i) semiannually, not more than five (5) Business Days after
each Regular Record Date pertaining to the Notes, a list, in such form
as the Trustee may reasonably require, of the names and addresses of
the Holders of Notes as of such Regular Record Date, and
(ii) at such other times as the Trustee may request in
writing, within thirty (30) days after receipt by the Company of any
such request, a list of similar form and content as of a date not more
than fifteen (15) days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Registrar, no
such list need be furnished.
(b) If and whenever the Company or any Affiliate of the Company
acquires any Notes, the Company shall within ten (10) Business Days after
such acquisition by the Company and within ten (10) Business Days after the
date on which it obtains knowledge of any such acquisition by an Affiliate,
provide the Trustee with written notice of such acquisition, the aggregate
principal amount acquired (to the extent known by the Company), the Holder
from whom such Note was acquired and the date of such acquisition.
SECTION 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and
the names and addresses of Holders received by the Trustee in its capacity
as Registrar. The Trustee may destroy any list furnished to it as provided
in Section 7.01 upon receipt of a new list so furnished.
(b) If three or more Holders (referred to as "applicants" in this
paragraph) 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 (6) months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Holders with respect to their rights under this Indenture or under the
Notes and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five (5) Business Days after the receipt of such application,
at its election, either: (x) afford to such
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applicants access to the information preserved at the time by the Trustee
in accordance with the provisions of paragraph (a) of this Section; or (y)
inform such applicants as to the approximate number of Holders whose names
and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of paragraph (a) of this
Section, and as to the approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in such application.
(c) If the Trustee shall elect not to afford to such applicants
access to such information the Trustee shall, upon the written request of
such applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of paragraph (a) of this Section, 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 (5) Business Days after such tender the Trustee
shall mail to such applicants and file with the Commission, together with a
copy of the material to be mailed, a written statement to the effect that,
in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Notes or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objection specified in
the written statement so filed, shall enter an order refusing to sustain
any of such objections or if, after the entry of any order sustaining one
or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all of the objections so sustained have been
met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting
their application.
SECTION 7.03. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent
of either of them 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
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 7.04. Reports by Trustee.
(a) If required by TIA Section 313(a), within sixty (60) days
after March 15 of each year commencing March 15, 2003, the Trustee shall
transmit to the Holders, in the manner and to the extent provided in TIA
Section 313(c), a brief report dated as of the preceding April 15. The
Trustee shall also comply with TIA Section 313(b).
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SECTION 7.05. Reports by Company.
The Company shall:
(a) file with the Trustee copies of all Exchange Act reports as
required under Section 10.09;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), within thirty (30) days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT: CONSOLIDATION, MERGER OR CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company and Restricted Subsidiaries May Consolidate,
Merge, Transfer or Lease only on Certain Terms.
Neither the Company nor any Restricted Subsidiary shall consolidate
with or merge with or into or sell, assign, convey, lease or transfer all or
substantially all of its properties and assets to any Person or group of
affiliated Persons in a single transaction or through a series of transactions,
except that:
(a) the Company may consolidate with or merge with or into or
sell, assign, convey, lease or transfer all or substantially all of its
properties and assets to any Person or group of affiliated Persons in a
single transaction or through a series of transactions if
(i) the Company shall be the continuing Person or the
resulting, surviving or transferee Person (the "surviving entity")
shall be a corporation organized and existing under the laws of the
United States or any State thereof or the District of Columbia;
(ii) the surviving entity shall expressly assume, by a
supplemental indenture (or similar instrument) executed and delivered
to the Trustee, in form and substance reasonably satisfactory to the
Trustee, all of the obligations of the Company under the Notes and
this Indenture;
(iii) immediately before and immediately after giving pro
forma effect to such transaction, or series of transactions
(including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in
59
respect of such transaction or series of transactions), no Default or
Event of Default shall have occurred and be continuing;
(iv) the Company or the surviving entity (if the
transaction or series of transactions involves the Company) shall
immediately before and after giving effect to such transaction or
series of transactions (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with
or in respect of the transaction or series of transactions) have a
Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Company immediately prior to such transaction or series
of transactions;
(v) immediately after giving effect to such transaction or
series of transactions on a pro forma basis, the Company or the
surviving entity (if the transaction or series of transactions
involves the Company) could incur at least $1.00 of additional
Indebtedness pursuant to Section 10.10 (other than under clauses
(b)(i) through (b)(viii) thereof);
(vi) the Company or the surviving entity shall have
delivered to the Trustee an Officers' Certificate stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction
or series of transactions, such supplemental indenture complies with
this covenant and that all conditions precedent in this Indenture
relating to the transaction or series of transactions have been
satisfied;
(vii) such transaction will not result in the loss of any
gaming or other license necessary for the continued operation of any
Restricted Subsidiary as conducted immediately prior to such
consolidation, merger, conveyance, transfer or lease; and
(viii) if any property of the Company or any Restricted
Subsidiary would thereupon become subject to any Lien, the provisions
of Section 10.11 are complied with; and
(b) a Restricted Subsidiary may consolidate with or merge into or
sell, assign, convey, lease or transfer all or substantially all of its
properties and assets to the Company or to any Restricted Subsidiary if
(i) the surviving entity shall be the Company or a
Restricted Subsidiary;
(ii) the surviving entity shall expressly assume, by a
supplemental indenture (or similar instrument) executed and delivered
to the Trustee, in form and substance reasonably satisfactory to the
Trustee, all of the obligations of such Restricted Subsidiary under
the Notes, the Subsidiary Guarantees (if applicable) and this
Indenture; and
(iii) such transaction will not result in the loss of any
gaming or other license necessary for the continued operation of any
Restricted Subsidiary
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as conducted immediately prior to such sale, assignment, conveyance,
transfer or lease; provided, that in each such case the Company has
delivered to the Trustee an Opinion of Counsel that all conditions
precedent in this Indenture relating to any such consolidation,
merger, sale, assignment, transfer, conveyance or lease have been
complied with.
SECTION 8.02. Successor Substituted.
(a) Upon any consolidation of the Company with or merger of the
Company with or into any other corporation or any conveyance, transfer or
lease of the properties and assets of the Company substantially as an
entirety to any Person in accordance with Section 8.01, the successor
Person 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, the Notes and the Subsidiary Guarantees (if
applicable) with the same effect as if such successor Person had been named
as the Company herein and therein, and in the event of any such conveyance
or transfer, the Company (which term shall for this purpose mean the Person
named as the "Company" in the first paragraph of this Indenture or any
successor Person which shall theretofore become such in the manner
described in Section 8.01), except in the case of a lease, shall be
discharged of all obligations and covenants under this Indenture, the Notes
and the Subsidiary Guarantees (if applicable) and may be dissolved and
liquidated.
(b) Upon any consolidation of a Restricted Subsidiary that is a
Subsidiary Guarantor with or merger of a Restricted Subsidiary that is a
Subsidiary Guarantor with or into any other corporation or any conveyance,
transfer or lease of the properties and assets of a Restricted Subsidiary
that is a Subsidiary Guarantor substantially as an entirety to any Person
in accordance with Section 8.01, the successor Person formed by such
consolidation or into which such Restricted Subsidiary 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, such Restricted
Subsidiary under this Indenture, the Notes and the Subsidiary Guarantees
with the same effect as if such successor Person had been named as such
Restricted Subsidiary therein, and in the event of any such conveyance or
transfer, such Restricted Subsidiary, except in the case of a lease, shall
be discharged of all obligations and covenants under this Indenture, the
Notes and the Subsidiary Guarantees and may be dissolved and liquidated.
ARTICLE NINE: SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01. Supplemental Indentures without the Consent of Holders.
Without the consent of any Holders, the Company and the Subsidiary
Guarantors, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental hereto
(which term shall include any Addendum to Subsidiary Guarantees), in form
satisfactory to the Trustee, for any of the following purposes:
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(a) to evidence the succession of another Person to the Company
or a Subsidiary Guarantor and the assumption by any such successor of the
covenants of the Company or Subsidiary Guarantor contained herein, in the
Notes and in the Subsidiary Guarantees; or
(b) to add to the covenants of the Company or a Subsidiary
Guarantor for the benefit of the Holders or to surrender any right or power
herein conferred upon the Company or a Subsidiary Guarantor; or
(c) to add any additional Events of Default; or
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section
6.09; or
(e) to cure any ambiguity, to correct or supplement any
provision herein or in the Subsidiary Guarantees which may be inconsistent
with any other provision herein or therein, or to make any other provisions
with respect to matters or questions arising under this Indenture or the
Subsidiary Guarantees; provided that such action shall not adversely affect
the interests of the Holders in any material respect; or
(f) to add or release a Subsidiary Guarantor to or from the
Subsidiary Guarantees as permitted by this Indenture;
(g) to comply with any requirement of the Commission or state
securities regulators in connection with the qualification of this
Indenture under the TIA or any registration or qualification of the Notes
(including the Subsidiary Guarantees) under the Securities Act or state
securities laws; or
(h) to make any other change that does not adversely affect the
rights of any Holder.
SECTION 9.02. Supplemental Indentures with the Consent of Holders.
(a) With the consent of the Holders of not less than 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 for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders hereunder; provided,
however, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Note affected thereby,
(i) reduce the principal amount outstanding of, change the
Stated Maturity of, or alter the redemption provisions of the Notes,
or
(ii) change the currency in which any Notes or any premium
or the accrued interest thereon is payable, or
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(iii) reduce the percentage in principal amount
Outstanding of Notes whose Holders must consent to an amendment,
supplement or waiver or consent to take any action under this
Indenture or the Notes, or
(iv) impair the right to institute suit for the
enforcement of any payment on or with respect to the Notes, or
(v) modify the ability to waive defaults or specified
covenants, except to increase the percentage of Notes required to
effect a waiver, or
(vi) reduce the rate of or change the time for, payment
of interest on the Notes, or
(vii) modify or change any provision of this Indenture or
the related definitions affecting the subordination or ranking of the
Notes or any Subsidiary Guarantee in any manner that materially and
adversely affects the Holders, or
(viii) amend, change or modify the obligation of the
Company to make and consummate a Change of Control Offer in the event
of a Change of Control or make and consummate an Excess Sale/Loss
Proceeds Offer with respect to any Asset Sale or Event of Loss or
modify any of the provisions or definitions with respect thereto.
(b) In addition to the foregoing, no modification or amendment
may, without the consent of at least 66 2/3 % of the aggregate principal
amount of the Outstanding Notes, modify the terms of or release any of the
Subsidiary Guarantees except as otherwise provided in Article Twelve or
Section 10.18.
(c) 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.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and 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 and that this Indenture, as amended by any such
supplemental indenture, constitutes the legal, valid and binding obligation of
each of the Company and the Subsidiary Guarantors enforceable against each of
them in accordance with its terms. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.04. Effect of Supplemental Indenture.
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 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. 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
Company, 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. Without limitation of Section 9.04, (x) in the case of any
Addendum to Subsidiary Guarantees, whether or not any or all new Notes are so
executed, authenticated and exchanged for previously Outstanding Notes, the
Subsidiary Guarantor added by such Addendum shall be obligated with respect to
its Subsidiary Guarantees as if all Outstanding Notes had been exchanged for
Notes executed by such new Subsidiary Guarantor, or (y) in the case of the
release of a Subsidiary Guarantor pursuant to the terms hereof, whether or not
any or all new Notes are so executed, authenticated and exchanged for previously
Outstanding Notes, such Subsidiary Guarantor shall be released from its
Subsidiary Guarantee as if all Outstanding Notes had been exchanged for Notes
not executed by such Subsidiary Guarantor.
SECTION 9.07. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.02, the Company
shall give notice thereof to the Holders of each Outstanding Note affected, in
the manner provided for in Section 1.06, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN: CERTAIN COVENANTS
SECTION 10.01. Payment of Principal, Premium, if any, Interest.
The Company covenants and agrees for the benefit of the Holders that
it will duly and punctually pay the principal of (and premium, if any, on) and
any interest (including any Additional Interest) on the Notes in accordance with
the terms of the Notes and this Indenture.
SECTION 10.02. Maintenance of Office or Agency.
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The Company will maintain in the City of New York, an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. State Street Bank and Trust Company, 61 Broadway, 15/th/ Floor, New
York, New York, 10006 shall be such office or agency of the Company, unless the
Company shall designate and maintain some other office or agency for one or more
of such purposes. The Company will give prompt written notice to the Trustee of
any change in the location of any 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
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of the City of New York) where the Notes may
be presented or surrendered for any or all such purposes and may from time to
time rescind any such designation; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the City of New York for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such other office or agency.
SECTION 10.03. Agency for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any, on) or
interest (including any Additional 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 (including any Additional
Interest) so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, on or before each due date of the principal of (and premium, if
any, on) or interest (including any Additional Interest) on, any Notes, deposit
with a Paying Agent in immediately available funds a sum sufficient to pay the
principal (and premium, if any) or interest (including any Additional Interest)
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest (including any Additional
Interest) and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of such action or any failure so to act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of
(and premium, if any, on) or interest (including any Additional Interest)
on Notes in trust for
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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 (including any Additional Interest); 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 sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any, on) or interest (including any Additional Interest) on any Note and
remaining unclaimed for two years after such principal (and premium, if any) or
interest (including any Additional Interest) has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, the City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than (thirty) 30
days from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 10.04. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Restricted Subsidiary; provided, however, that the Company shall not be required
to preserve any such right or franchise if the Board of Directors shall in good
faith determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted Subsidiaries as a
whole and that the loss thereof is not disadvantageous in any material respect
to the Holders.
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SECTION 10.05. Payment of Taxes and other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a lien upon the property of the
Company or any Restricted Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 10.06. Maintenance of Properties.
The Company will cause all properties owned by the Company or any
Restricted Subsidiary or used or held for use in the conduct of its business or
the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the maintenance of any of such properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of its business or
the business of any Restricted Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 10.07. Maintenance of Insurance.
The Company will, and will cause its Restricted Subsidiaries to,
maintain customary insurance for general liabilities, casualty and property
damage, and other risks, including business interruption coverage where
available on commercially reasonable terms, on terms and in amounts as are
customarily carried by similar business conducting gaming in the jurisdictions
of the gaming operations of the Company and its Restricted Subsidiaries and
reasonably sufficient to avoid a material adverse change in the financial
condition or results of operation of the Company and its Restricted Subsidiaries
taken as a whole. All insurance shall name the Trustee as additional insured or
loss payee, as applicable.
SECTION 10.08. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a certificate from the principal
executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of the compliance by the Company and the
Subsidiary Guarantors with all conditions and covenants under this
Indenture and the Notes. For purposes of this paragraph, such compliance
shall be determined without regard to any period of grace or requirement of
notice under this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the
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Company or any Restricted Subsidiary gives any notice or takes any other
action with respect to a claimed default, the Company shall deliver to the
Trustee by registered or certified mail or by telegram, telex or facsimile
transmission an Officers' Certificate specifying such event, notice or
other action within five (5) Business Days of its occurrence.
SECTION 10.09. Reports to Holders of Notes.
Whether or not the Company is subject to the reporting requirements of
the Exchange Act, the Company shall deliver to the Trustee and each Holder of
Notes (i) all quarterly and annual financial information that would be required
to be contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" that describes
the financial condition and results of operations of the Company and its
Consolidated Subsidiaries (provided that, such reports shall show in reasonable
detail, either on the face of the financial statements or in the footnotes
thereto, the financial condition and results of operations of the Company and
its Significant Restricted Subsidiaries separate from the financial condition
and results of operations of the Unrestricted Subsidiaries and other
Subsidiaries of the Company that are not Subsidiary Guarantors with such
reasonable detail as required by the Commission or as would be required by the
Commission if the Company were subject to the periodic reporting requirements of
the Exchange Act) and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants and (ii) all current
reports that would be required to be filed with the Commission on Form 8-K if
the Company were required to file such reports, in each case within the time
periods specified in the Commission's rules and regulations. In addition,
following the consummation of the exchange offer contemplated by the
Registration Rights Agreement, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. In addition, the
Company has agreed that for so long as any Notes remain Outstanding, the Company
will furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
SECTION 10.10. Limitation on Indebtedness.
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume,
suffer to exist, guarantee or in any manner become liable for the payment
of ("Incur"), any Indebtedness (including any Acquired Indebtedness) or any
Disqualified Stock unless
(i) such Indebtedness or Disqualified Stock is incurred by
the Company or a Subsidiary Guarantor,
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(ii) no Default or Event of Default shall have occurred and
be continuing at the time of, or would occur after giving pro forma
effect to, such incurrence of Indebtedness or Disqualified Stock, and
(iii) on the date of such incurrence (the "Incurrence
Date"), the Consolidated Coverage Ratio of the Company, after giving
pro forma effect to such incurrence of such Indebtedness, would be at
least 2.0 to 1.0
(b) Notwithstanding the foregoing provisions of this Section
10.10, the Company and its Restricted Subsidiaries may incur
(i) Indebtedness and Disqualified Stock issued to and held
by the Company or a wholly owned Restricted Subsidiary of the Company,
provided that (a) any subsequent issuance or transfer of any Capital
Stock that results in any such wholly owned Restricted Subsidiary
ceasing to be a wholly owned Restricted Subsidiary or (b) any transfer
of such Indebtedness to a Person other than the Company or a wholly
owned Restricted Subsidiary of the Company, will be deemed to be the
incurrence of such Indebtedness or issuance of Disqualified Stock by
the issuer thereof;
(ii) Indebtedness under the Notes, the Subsidiary
Guarantees and this Indenture;
(iii) Indebtedness outstanding on the Issue Date;
(iv) FF&E Financing and Capitalized Lease Obligations to
acquire or refinance furniture, fixtures and equipment incident to and
useful in the operation of Casinos, Casino Hotels or any Casino
Related Facility, provided that the sum of the aggregate principal
amount of FF&E Financing and Capitalized Lease Obligations does not
exceed, in the aggregate at any time outstanding, the sum of
(1) the principal amount of FF&E Financing and
Capitalized Lease Obligations outstanding on April 23, 1999,
plus
(2) $15.0 million, plus
(3) $10.0 million times the number of Casinos
acquired or developed by the Company and its Restricted
Subsidiaries after April 23, 1999, plus
(4) $7.5 million times the number of Casino Hotels
acquired or developed by the Company or its Restricted
Subsidiaries after April 23, 1999;
(v) Indebtedness in respect of performance bonds, letters
of credit, bankers' acceptances and surety and appeal bonds in the
ordinary course of business, other than such Indebtedness outstanding
on the Issue Date (or
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refinancings thereof permitted under clause (vi) of this Section), in
an amount not to exceed $15.0 million in the aggregate at any time
outstanding; Interest Rate and Currency Protection Obligations entered
into in connection with the incurrence of Indebtedness otherwise
permitted under this Indenture; and Indebtedness arising under
agreements providing for indemnification, adjustment of purchase price
and similar obligations in connection with the disposition of property
or assets.
(vi) Indebtedness issued in exchange for or to repay,
prepay, repurchase, redeem, defease, retire or refinance ("refinance")
any Indebtedness (x) incurred pursuant to the provisions of Section
(a) above or (y) permitted by clauses (ii) or (iii) above or this
clause (vi) of this Section (b), provided that
(1) if the principal amount of the Indebtedness so
issued shall exceed the sum of the principal amount of the
Indebtedness so exchanged or refinanced plus any prepayment
premium and costs reasonably incurred to effect the exchange
or refinancing, then such excess shall be permitted only to
the extent that it is otherwise permitted to be incurred
under this covenant, and
(2) the Indebtedness so issued
(A) has a Stated Maturity not earlier than the
Stated Maturity of the Indebtedness so exchanged or
refinanced,
(B) has an Average Life to Stated Maturity
equal to or greater than the remaining Average Life to
Stated Maturity of the Indebtedness so exchanged or
refinanced, and
(C) is subordinated to the Notes to at least
the same extent as the Indebtedness so exchanged or
refinanced if such Indebtedness that is being
exchanged or refinanced is subordinated to the Notes.
(vii) Indebtedness incurred by the Company and its
Restricted Subsidiaries under one or more Credit Facilities in an
aggregate principal amount at any one time outstanding not to exceed
the greater of (1) $400.0 million and (2) 1.5 times the Consolidated
Cash Flow of the Company and its Restricted Subsidiaries for the
period consisting of the four full fiscal quarters for which financial
statements are available that immediately precede the date on which
the Indebtedness is incurred (less any Indebtedness incurred pursuant
to this clause (vii) that is permanently prepaid, repaid, redeemed,
purchased or retired with Net Cash Proceeds from any Asset Sale or
Event of Loss pursuant to the terms of the covenant described in
Section 10.14; and
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(viii) Indebtedness, other than Indebtedness permitted by
clauses (i) through (vii) of this Section, which does not exceed $25.0
million (less any Indebtedness incurred pursuant to this clause (viii)
that is permanently prepaid, repaid, redeemed, purchased or retired
with Net Cash Proceeds from any Asset Sale or Event of Loss pursuant
to the terms of the covenant described in Section 10.14) in the
aggregate at any time outstanding.
SECTION 10.11. Limitation on Liens.
The Company shall not and shall not cause or permit any Restricted
Subsidiary, directly or indirectly, to, create, incur, assume or suffer to exist
any Lien of any kind upon any of its property or assets (including, without
limitation, any income or profits) now owned or acquired by it after April 23,
1999 or any proceeds therefrom, unless the Notes are equally and ratably secured
(except that Liens securing Subordinated Indebtedness shall be expressly
subordinate to the Liens securing the Notes to the same extent such Subordinated
Indebtedness is subordinate to the Notes), other than:
(a) Liens existing on April 23, 1999;
(b) Liens securing Senior Indebtedness of the Company and the
Subsidiary Guarantors permitted to be incurred under this Indenture;
(c) Liens securing FF&E Financing or Capitalized Lease
Obligations permitted pursuant to clause (b)(iv) of Section 10.10; provided
that
(i) the amount of such Indebtedness incurred in any
individual case secured by such a Lien, at the time such Indebtedness
is incurred, does not exceed the lesser of (x) the cost and (y) the
Fair Market Value of the property or assets purchased or acquired with
the proceeds of such FF&E Financing or Capitalized Lease Obligation,
(ii) the Indebtedness secured by such Lien shall have
otherwise been permitted to be incurred under this Indenture,
(iii) such Lien shall attach to such property or assets upon
their acquisition, and
(iv) such Lien (other than a Permitted Vessel Lien) shall
not encumber or attach to any other assets or property of the Company
or any of its other Restricted Subsidiaries;
(d) Liens securing Indebtedness incurred pursuant to clause
(b)(viii) of Section 10.10;
(e) the replacement, extension or renewal of any Lien permitted
by clauses (a) through (iv) of this Section upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the principal amount (other than to pay any prepayment
premium and costs reasonably incurred to
71
effect the replacement, extension or renewal, or change in any direct or
contingent obligor) of the Indebtedness secured thereby; and
(f) Permitted Liens.
SECTION 10.12. Limitation on Restricted Payments.
The Company shall not make, directly or indirectly, and shall not permit
any Restricted Subsidiary to make, directly or indirectly, any Restricted
Payment from and after the Issue Date, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving pro forma effect to such
Restricted Payment;
(b) immediately after giving effect to such Restricted Payment,
the Company could incur at least $1.00 of Indebtedness pursuant to Section
10.10 (other than under clauses (b)(i) through (b)(viii) thereof); and
(c) the aggregate amount of all Restricted Payments declared or
made after the Issue Date does not exceed the sum of the following amounts
(without duplication)
(i) 50% of Consolidated Net Income (or in the event such
Consolidated Net Income shall be a deficit, minus 100% of such deficit)
accrued during the period (treated as one accounting period) beginning
on January 25, 1999 and ending on the last day of the Company's last
fiscal quarter ending before the date of such proposed Restricted
Payment, plus
(ii) an amount equal to the aggregate Net Cash Proceeds
received by the Company from the issuance or sale (other than to a
Subsidiary) of its Capital Stock (excluding Disqualified Stock, but
including Capital Stock issued upon conversion of convertible
Indebtedness and from the exercise of options, warrants or rights to
purchase Capital Stock (other than Disqualified Stock) of the Company)
on or after April 23, 1999, plus
(iii) to the extent not otherwise included in the Company's
Consolidated Net Income, 100% of cash dividends, if applicable, or
distributions or the amount of the cash principal and interest payments
received since April 23, 1999 by the Company or any Restricted
Subsidiary from any Unrestricted Subsidiary or in respect of any
Investment constituting a Restricted Payment (other than dividends, if
applicable, or distributions to pay obligations owed to a person other
than the Company or any Restricted Subsidiary by or with respect to such
Unrestricted Subsidiary, such as income taxes) until the entire amount
of the Investment in such Unrestricted Subsidiary has been received or
the entire amount of such Investment constituting a Restricted Payment
has been returned, as the case may be, and 50% of such amounts
thereafter;
72
provided that, if no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Restricted Payment,
the foregoing provisions will not prohibit
(d) the payment of any dividend within sixty (60) days after the
date of its declaration if, at the date of declaration, such payment
would be permitted by such provisions;
(e) the redemption or repurchase of any Capital Stock or
Indebtedness of the Company, including the Notes, if required by any
Gaming Authority or if determined, in the good faith judgment of the
Board of Directors, to be necessary to prevent the loss or to secure
the grant or reinstatement of any gaming license or other right to
conduct lawful gaming operations,
(f) the repurchase of Capital Stock from directors, officers and
employees (or their respective estates or beneficiaries) upon death,
disability, retirement or termination of employment up to an amount not
to exceed an aggregate of $2.0 million in any fiscal year of the
Company, and
(g) Permitted Investments; and
(h) the incurrence, creation, assumption, suffering to exist of,
or payment with respect to any Qualified Guarantee.
The full amount of any Restricted Payment made pursuant to the
foregoing clause (1) or clause (2) or clause (b) of the definition of Permitted
Investments, however, will be included in the calculation of the aggregate
amount of Restricted Payments available to be made pursuant to clause (c) of
this Section.
With respect to any Qualified Guarantee:
(1) if at any time the Company or its Restricted Subsidiaries cease
to control the day-to-day gaming operations of the entity that issued the
guaranteed Indebtedness, the aggregate principal amount of such Indebtedness
that is guaranteed pursuant to such Qualified Guarantee shall thereafter be
included in the calculation of the aggregate amount of Restricted Payments
available to be made pursuant to clause (c) of this Section; and
(2) if the Company or its Restricted Subsidiaries retain control of
the day-to-day gaming operations of the entity that issued the guaranteed
Indebtedness, (x) any amounts actually paid by the Company or its Restricted
Subsidiaries with respect to such Qualified Guarantee shall thereafter be
included in the calculation of the aggregate amount of Restricted Payments
available to be made pursuant to clause (c) of this Section and (y) if and for
so long as an event of default occurs and is continuing with respect to such
guaranteed Indebtedness, the aggregate principal amount of such Indebtedness
that is guaranteed pursuant to the Qualified Guarantee shall be included in the
calculation of the aggregate amount of Restricted Payments available to be made
pursuant to clause (c) of this Section.
SECTION 10.13. Limitation on Dividends and other Payment
Restrictions Affecting Restricted Subsidiaries.
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The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or enter
into any agreement with any Person that would cause any consensual encumbrance
or restriction of any kind on the ability of any Restricted Subsidiary to
(a) pay dividends, in cash or otherwise, or make any other
distributions on its Capital Stock or any other interest or participation
in, or measured by, its profits owned by, or pay any Indebtedness owed to,
the Company or a Restricted Subsidiary,
(b) make any loans or advances to the Company or any Restricted
Subsidiary, or
(c) transfer any of its properties or assets to the Company or any
Restricted Subsidiary,
except, in each case, for
(i) restrictions imposed by the Notes, this Indenture and the
Subsidiary Guarantees,
(ii) customary non-assignment provisions restricting subletting
or assignment of any lease entered into in the ordinary course of
business, consistent with industry practices,
(iii) restrictions imposed by applicable gaming laws or any
applicable Gaming Authority,
(iv) restrictions under any agreement relating to any property,
assets or business acquired by the Company or its Restricted
Subsidiaries, which restrictions existed at the time of acquisition,
were not put in place in anticipation of such acquisition and are not
applicable to any Person, other than the Person acquired, or to any
property, assets or business other than the property, assets and
business of the Person acquired,
(v) any such contractual encumbrance in existence as of the
Issue Date or imposed by or in connection with the incurrence of any
FF&E Financing or Capitalized Lease Obligations permitted pursuant to
clause (b)(iv) of Section 10.10, provided such encumbrance does not
have the effect of restricting the payment of dividends to the
Company or any Restricted Subsidiary or the payment of Indebtedness
owed to the Company or any Restricted Subsidiary or reducing the
amount of any such dividends or payments,
(vi) any restrictions with respect to Capital Stock or assets,
respectively, of a Restricted Subsidiary of the Company imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or
assets of such Restricted Subsidiary,
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(vii) restrictions imposed by the Bank Credit Facility,
and
(viii) replacements of restrictions imposed pursuant to
clauses (i) through (vii) that are no more restrictive than
those being replaced.
SECTION 10.14. Limitation on Asset Sales and Events of Loss.
The Company shall not, directly or indirectly, and shall not
permit any Restricted Subsidiary to, directly or indirectly, make any Asset Sale
unless
(a) at the time of such Asset Sale the Company or such
Restricted Subsidiary, as the case may be, receives consideration at
least equal to the Fair Market Value of the assets sold or otherwise
disposed of,
(b) the proceeds therefrom consist of at least 75% cash or
Cash Equivalents, and
(c) no Default or Event of Default shall have occurred and
be continuing at the time of or after giving pro forma effect to such
Asset Sale.
The Company and any Restricted Subsidiary may, on or before the
180th day after the date on which the Company or such Restricted Subsidiary
consummates an Asset Sale or suffers an Event of Loss, apply 100% of the Net
Cash Proceeds therefrom to either (x) prepay, repay, redeem or purchase (and
permanently reduce the commitments under) any Senior Indebtedness or (y) make a
Permitted Related Investment (or enter into a binding agreement to make a
Permitted Related Investment). The amount of such Net Cash Proceeds not so
applied either to prepay, repay, redeem or purchase any Senior Indebtedness or
make a Permitted Related Investment will constitute "Excess Sale/Loss Proceeds"
for purposes of the Repurchase Offer required by Section 11.10 (until used to
pay for Notes being repurchased pursuant to such Repurchase Offer or released
and retained by the Company pursuant to Section 11.10).
SECTION 10.15. Limitation on Disposition of Stock of Restricted
Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, issue, transfer, convey, sell, lease or
otherwise dispose of any shares of Capital Stock of a Restricted Subsidiary to
any Person (other than to the Company or a wholly owned Subsidiary), unless (a)
(i) such transfer, conveyance, sale, lease or other disposition is of all of the
Capital Stock of such Restricted Subsidiary or (ii) after giving effect to such
transfer, conveyance, sale, lease or other disposition, the Company or the
applicable Subsidiary Guarantor remains the owner of a majority of the Capital
Stock of such Restricted Subsidiary and (b) the Net Cash Proceeds for such
transfer, conveyance, sale, lease or other disposition are applied in accordance
with Section 10.14 herein. The Company shall not permit any Restricted
Subsidiary to issue any Preferred Stock or other Capital Stock having a
preference as to dividends, upon liquidation or otherwise over the Capital Stock
of such Restricted Subsidiary owned, directly or indirectly by the Company.
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SECTION 10.16. Limitation on Transactions with Affiliates.
The Company shall not, and the Company shall not permit, cause
or suffer any Restricted Subsidiary to, conduct any business or enter into any
transaction or series of transactions (including, without limitation, the sale,
transfer, disposition, purchase, exchange, lease or use of assets, property or
services) or enter into any contract, agreement, understanding, loan, advance or
guarantee with or for the benefit of any of their respective Affiliates,
including, without limitation, any Unrestricted Subsidiary, other than the
Company or another Restricted Subsidiary (each, an "Affiliate Transaction"),
except
(a) such transactions that are set forth in writing and
are entered into in good faith and on terms that are no less favorable
to the Company or such Restricted Subsidiary, as the case may be, than
those that could have been obtained in a comparable transaction on an
arm's-length basis from a Person not an Affiliate of the Company or
such Restricted Subsidiary or, if in the reasonable opinion of a
majority of the Independent directors of the Company, such standard is
inapplicable to the subject Affiliate Transaction, then that such
Affiliate Transaction is fair to the Company or the Restricted
Subsidiary, as the case may be (or to the stockholders as a group in
the case of a pro rata dividend or other distribution to stockholders
permitted pursuant to Section 10.12), from a financial point of view,
(b) such transactions that are existing on the Issue
Date, and
(c) reasonable and customary compensation and
indemnification of directors, officers and employees.
In addition, the Company and its Restricted Subsidiaries may
not enter into any Affiliate Transaction (or series of related Affiliate
Transactions that are part of a common plan) under clause (a) above involving
aggregate payments or other Fair Market Value
(a) in excess of $5.0 million unless, prior to the
consummation thereof, the transaction is approved by the Board of
Directors of the Company, including a majority of the disinterested
directors, such approval to be evidenced by a Board Resolution
delivered to the Trustee with an Officers' Certificate stating that
such Board of Directors has determined that Affiliate Transaction
complies with clause (a) above, and
(b) in excess of $15.0 million unless, prior to the
consummation thereof, the Company shall have received an opinion, from
an independent nationally recognized firm experienced in the appraisal
or similar review of similar types of transactions, that such
transaction or series of related transactions is on terms which are
fair, from a financial point of view, to the Company or such Restricted
Subsidiary.
SECTION 10.17. Change in Nature of Business.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, own, manage or conduct any operation other than a
Permitted Line of Business.
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SECTION 10.18. Restricted and Unrestricted Subsidiaries; Subsidiary
Guarantors.
(a) Subject to the exceptions described below, from and after the
Issue Date, each of the Company's Subsidiaries in existence on the Issue
Date, other than Casino America of Colorado, Inc. and Isle of Capri Black
Hawk LLC and any entity that becomes a direct or indirect Subsidiary of the
Company after the Issue Date shall be a Restricted Subsidiary unless the
Company designates such Subsidiary to be an Unrestricted Subsidiary. Except
as provided below, the Company may designate any existing or future
Subsidiary of the Company as an Unrestricted Subsidiary, provided that
(i) such Subsidiary does not own any Indebtedness or
Capital Stock or own or hold any Lien on any asset or property of the
Company or any other Restricted Subsidiary,
(ii) either (x) the Subsidiary to be so designated has total
assets of $100,000 or less (y) or immediately before and after giving
pro forma effect to such designation,
(1) the Company could incur $1.00 of Indebtedness
pursuant to Section 10.10 (other than under clauses (b)(i)
through (b)(viii) thereof),
(2) no Default or Event of Default shall have occurred
and be continuing, and
(3) the Company could make, pursuant to the covenant
described under Section 10.12, the Restricted Payment arising
from the designation as described in the paragraph below and
(iii) all transactions between the Subsidiary to be so
designated and its Affiliates remaining in effect are permitted
pursuant to Section 10.16.
Notwithstanding the foregoing, the Company may not designate any
existing or future Subsidiary that holds, owns or operates, directly or
indirectly, any assets or function directly relating to or necessary for the
conduct of casino gaming at the Isle-Biloxi, the Isle-Vicksburg, the
Isle-Bossier City, the Isle-Lake Charles, the Isle-Lula, the Isle-Boonville, the
Isle-Kansas City, the Isle-Bettendorf and Rhythm City-Davenport, as an
Unrestricted Subsidiary.
(b) Any Investment made by the Company or any Restricted
Subsidiary in a Restricted Subsidiary which is redesignated an Unrestricted
Subsidiary shall thereafter be considered as having been a Restricted
Payment (to the extent not previously included as a Restricted Payment)
made on the day such Subsidiary is designated an Unrestricted Subsidiary in
the amount of the greater of
(i) the sum of the Fair Market Value of the interest of the
Company and any of its Restricted Subsidiaries in such Subsidiary on
such date as determined in accordance with GAAP and the amount of any
obligation of such
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Subsidiary which the Company or any Restricted Subsidiary has
guaranteed or for which it is in any other manner liable, and
(ii) the amount of the Investments made by the Company and
any of its Restricted Subsidiaries in such Subsidiary.
(c) Any Subsidiary Guarantee entered into by a Restricted
Subsidiary which is subsequently redesignated an Unrestricted Subsidiary
shall be automatically released at such time as the Restricted Subsidiary
becomes an Unrestricted Subsidiary. Unless so designated as an Unrestricted
Subsidiary, any Subsidiary of the Company (whether or not a Subsidiary on
the Issue Date) shall be classified as a Restricted Subsidiary.
(d) An Unrestricted Subsidiary may be redesignated a Restricted
Subsidiary, provided that such designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if,
(i) such Indebtedness is permitted to be incurred under
Section 10.10 (other than under clauses (b)(i) through (b)(vii)
thereof), and
(ii) no Default or Event of Default shall have occurred and
be continuing.
(e) The designation of an Unrestricted Subsidiary or the removal
of such designation is required to be made by the Board of Directors of the
Company, such designation to be evidenced by a Board Resolution stating
that the Board of Directors has made such designation in accordance with
this Indenture, and the Company is required to deliver to the Trustee such
Board Resolution together with an Officers' Certificate certifying that the
designation complies with this Indenture. Such designation will be
effective as of the date specified in the applicable Board Resolution,
which may not be before the date the applicable Officers' Certificate is
delivered to the Trustee.
(f) On the Issue Date, the Subsidiary Guarantors include the
Persons listed as parties to this Indenture in clause (ii) preceding the
recitals herein. In addition, each Person which becomes a Significant
Restricted Subsidiary of the Company after the Issue Date shall be a
Subsidiary Guarantor and the Company shall cause such Person to promptly
execute an Addendum to Subsidiary Guarantees to evidence its Subsidiary
Guarantee. Each Person which is a Subsidiary Guarantor on the Issue Date or
which later becomes a Subsidiary Guarantor shall remain bound by its
Subsidiary Guarantee until released as set forth in paragraph (a) above or
in Section 1210.
SECTION 10.19. Stay, Extension and Usury Laws.
Each of the Company and the Subsidiary Guarantors covenants (to the
extent permissible under applicable law) that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law, wherever enacted,
now or at any time hereafter in force, that would prohibit or
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forgive the Company or the Subsidiary Guarantors from paying all or any portion
of the principal of, premium, if any, or interest (including any Additional
Interest) on the Notes and amounts from time to time payable under the
Subsidiary Guarantees, in each case as contemplated herein, or that may
materially affect the covenants or the performance of this Indenture or the
Subsidiary Guarantees in a manner inconsistent with the provisions of this
Indenture or the Subsidiary Guarantees.
SECTION 10.20. Limitation on Other Senior Subordinated Indebtedness.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, create, incur, assume, guarantee or in any other manner become
liable with respect to any Indebtedness (other than the Notes and the Subsidiary
Guarantees) that is subordinate in right of payment to any Senior Indebtedness
of the Company or such Restricted Subsidiary, as applicable, unless such
Indebtedness is either
(a) pari passu in right of payment with the Notes or the
Subsidiary Guarantees, as applicable, or
(b) subordinate in right of payment to the Notes or the
Subsidiary Guarantees, as applicable, in the same manner and at least to
the same extent as the Notes are subordinated to Senior Indebtedness of the
Company or as such Subsidiary Guarantees are subordinated to Senior
Indebtedness of such Subsidiary Guarantor, as applicable.
ARTICLE ELEVEN: REDEMPTION OF AND REPURCHASE OF SECURITIES
SECTION 11.01. Right of Redemption.
(a) The Notes may be redeemed, at the election of the Company, as
a whole or from time to time in part, at any time on or after March 15,
2007, subject to the conditions and at the Redemption Prices specified in
the form of Note, together with accrued interest to the Redemption Date.
(b) In the event that the Company consummates a Qualified Public
Equity Offering on or before March 15, 2005, the Company may redeem, at its
option, up to 35% of the Outstanding Notes at a Redemption Price of 109.0%
of the principal amount of the Notes so redeemed plus accrued and unpaid
interest to the redemption date, provided that, after any such redemption,
at least $130.0 million in principal amount of the Notes remains
outstanding.
(c) Notwithstanding any other provision hereof, if any Gaming
Authority requires that a Holder of Notes must be licensed, qualified or
found suitable under any applicable gaming law and the Holder fails to
apply for a license, qualification or a finding of suitability within
thirty (30) days after being requested to do so in such circumstances by
the Gaming Authority or by the Company pursuant to an order of the Gaming
Authority, or if such Holder is not so licensed, qualified or found
suitable, the Company shall have the right, at its option,
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(i) to require such Holder to dispose of such Holder's Notes
within thirty (30) days of receipt of such notice of such finding by
the applicable Gaming Authority or such earlier date as may be ordered
by such Gaming Authority, or
(ii) to redeem the Notes of such Holder a redemption price equal
to the lesser of
(1) the principal amount thereof, and
(2) the price at which such Holder acquired the Notes,
together with, in either case, accrued and unpaid interest, if any, to the
earlier of the date of redemption or the date of the finding of
unsuitability, if any, by such Gaming Authority, which may be less than
thirty (30) days following the notice of redemption, if so ordered by such
Gaming Authority. The Company shall notify the Trustee in writing of any
such redemption as soon as practicable. The Holder of Notes applying for a
license, qualification or a finding of suitability is obligated to pay all
costs of the licensure or investigation for such qualification or finding
of suitability. All references in this paragraph (c) to this Section 11.01
to a "Holder" shall include any beneficial owner of Notes.
SECTION 11.02. Applicability of Article.
Redemption of Notes at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture shall be made in
accordance with such provision and this Article Eleven.
SECTION 11.03. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to Section
11.01 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least sixty (60) days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the Notes
to be redeemed pursuant to Section 11.04.
SECTION 11.04. Selection by Trustee of Notes to Be Redeemed or
Repurchased.
Except as contemplated by paragraph (c) of Section 11.01, if less than
all of the Outstanding Notes are to be redeemed or repurchased, the particular
Notes or portions thereof to be redeemed or repurchased shall be determined by
the Trustee on a pro rata basis, by lot or by such other method as the Trustee
shall deem to be fair and appropriate (subject to compliance with the
requirements of any securities exchange or trading system on which the Notes are
then listed or approved for trading) in principal amounts of $1,000 or integral
multiples thereof from the Outstanding Notes not previously called for
redemption or repurchase.
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The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
SECTION 11.05. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in
Section 1.06 not less than thirty (30) nor more than sixty (60) days prior to
the Redemption Date, to each Holder of Notes to be redeemed. All notices of
redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(d) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date payable as provided
in Section 11.07) will become due and payable upon each such Note, or the
portion thereof, to be redeemed, and that interest thereon will cease to
accrue on and after said date, and
(e) the place or places where such Notes are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.06. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) in immediately
available funds an amount of money sufficient to pay the Redemption Price of,
and accrued interest on, all the Notes which are to be redeemed on that date.
SECTION 11.07. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date or the earlier date
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provided in paragraph (c) of Section 11.01), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) 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, together with accrued interest, if any,
to the Redemption Date (or the earlier date provided in paragraph (c) of Section
11.01); provided, however, that installments of interest whose Interest Payment
Date is on or prior to the Redemption Date shall be payable to the Holders of
such Notes, or one or more Predecessor Notes registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.09.
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 borne by the Notes.
SECTION 11.08. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for such purpose pursuant to
Section 10.02 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Note so surrendered.
SECTION 11.09. Change of Control Repurchase Offer.
If a Change of Control of the Company shall occur, the Company shall
offer to repurchase (a "Change of Control Repurchase Offer") from all Holders of
the Notes in accordance with the procedures set forth in Section 11.11, and
shall purchase from Holders accepting such offer, Notes, at a purchase price
(payable in cash) equal to 101% of the aggregate principal amount of the Notes,
plus accrued and unpaid interest to the Repurchase Date (as defined below),
subject to satisfaction by or on behalf of the Holder of the requirements set
forth in paragraph (c) of Section 11.11.
SECTION 11.10. Asset Sale/Loss Proceeds Repurchase Offer.
At each such time as the aggregate amount of Excess Sale/Loss Proceeds
equals $10.0 million, the Company shall offer to repurchase (an "Excess
Sale/Loss Proceeds Offer") from all Holders of the Notes in accordance with the
procedures set forth in Section 11.11, and shall purchase from Holders accepting
such offer, Notes up to a maximum principal amount (expressed as a multiple of
$1,000) equal to such Excess Sale/Loss Proceeds, less the accrued and unpaid
interest on such Notes, at a purchase price (payable in cash) equal to 100% of
the principal amount of the Notes plus accrued and unpaid interest, if any, to
the Repurchase Date, subject to satisfaction by or on behalf of the Holder of
the requirements set forth in paragraph (c) of Section 11.11. Each Excess
Sale/Loss Proceeds Offer shall remain open for a period of at
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least twenty (20) Business Days. To the extent an Excess Sale/Loss Proceeds
Offer is not fully subscribed to by the Holders of the Notes, the Company may
retain such unutilized portion of the Excess Sale/Loss Proceeds for any
application or use not prohibited by the terms of this Indenture. All funds
applied to repurchase Notes tendered pursuant to an Excess Sale/Loss Proceeds
Offer or withdrawn and retained by the Company as permitted herein shall no
longer constitute Excess Sale/Loss Proceeds.
SECTION 11.11. Procedures for Offers to Repurchase Notes.
(a) Within five (5) days after (i) the occurrence of a Change of
Control or (ii) each time the Excess Sale/Loss Proceeds aggregate $10.0
million, as the case may be, the Company shall give written notice thereof
to the Trustee. Within fifteen (15) days after the Company shall deliver
such written notice to the Trustee, the Company will, or will cause the
Trustee to, send to each Holder of Notes whose Notes have been selected by
the Trustee to be offered to be repurchased by the Company, at its address
appearing in the register, by registered or certified mail, telegraph,
telefax, telex, cable or overnight delivery, a Change of Control Offer or
Asset Sale/Loss Proceeds Offer, as applicable (each, a "Repurchase Offer"),
to repurchase such Notes or a portion thereof determined in accordance with
Section 11.04. The Trustee shall be under no obligation to ascertain the
occurrence of any event obligating the Company to make a Repurchase Offer
or to give notice with respect thereto other than as provided above upon
receipt of written notice from the Company.
(b) Any notice to Holders given pursuant to paragraph (a) of
this Section shall include a form of Purchase Notice (as defined below) and
shall state:
(i) that the Company thereby offers to repurchase at the
applicable purchase price such of the Holder's Notes as shall be
specified therein (or, in the case of a Change of Control Offer, all
Notes of such Holder);
(ii) the event causing the Repurchase Offer to be required
and the date on which such event is deemed to have occurred for
purposes of this Section;
(iii) the date by which the Repurchase Notice must be given;
(iv) the date as of which Notes will be purchased pursuant
to the Purchase Offer (the "Repurchase Date"), which shall be no
earlier than twenty (20) Business Days (or, if longer, as required by
applicable law) after the date on which the notice to the Holders is
sent pursuant to paragraph (a) of this Section;
(v) the name and address of the Paying Agent;
(vi) that Notes must be surrendered to the Paying Agent at
the office of the Paying Agent to collect payment;
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(vii) that the repurchase price for any Notes as to which a
Repurchase Notice has been duly given and not withdrawn will be paid
on the later of (x) the Repurchase Date and (y) the first Business Day
following the date of surrender of such Notes as described in clause
(vi);
(viii) the procedures the Holder must follow to have its
Notes repurchased pursuant to the Repurchase Offer; and
(ix) the procedures for withdrawing a Repurchase Notice.
If any such notice is given by the Trustee at the Company's request, the text of
such Notice shall be determined by the Company.
(c) A Holder may exercise its rights under Section 11.09 or
11.10, as applicable, and this Section by delivering to the Paying Agent at
the office of the Paying Agent a written notice of purchase (a "Repurchase
Notice") at any time prior to the close of business on the third Business
Day prior to the Purchase Date, stating:
(i) the certificate numbers of the Notes that the Holder
will deliver to be repurchased; and
(ii) the portion of the principal amount of the Notes that
the Holder will deliver to be repurchased, which portion must be
$1,000 or an integral multiple thereof.
(d) The delivery of such Notes (together with all necessary
endorsements) to the Paying Agent at the office of the Paying Agent prior
to, on or after the Repurchase Date shall be a condition to the receipt by
the Holder of the repurchase price therefor; provided that such repurchase
price shall be so paid pursuant to this Section only if the Notes so
delivered shall conform in all respects to the description thereof set
forth in the related Repurchase Notice.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent at the office of the Paying Agent the Repurchase
Notice contemplated by this Section shall have the right to withdraw such
Repurchase Notice in accordance with Section 11.12.
The Paying Agent shall promptly notify the Company by telecopier of
the receipt by the former of any Repurchase Notice or written notice of
withdrawal thereof.
The Company shall repurchase from the Holder thereof, pursuant to
this Section, all or a portion of a Note if the principal amount of such portion
is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the repurchase of all of a Note also apply to the repurchase of a
portion of such Note.
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SECTION 11.12. Effect of Repurchase Notice.
(a) Upon receipt by the Company or the Paying Agent of any
Repurchase Notice, the Holder of the Note in respect of which such
Repurchase Notice was given shall (unless such Repurchase Notice is
withdrawn as specified in the following two paragraphs of this Section)
thereafter be entitled to receive solely the applicable repurchase price
with respect to such Note. Such repurchase price shall be paid to such
Holder on the later of (x) the applicable Repurchase Date with respect to
such Note (provided that the conditions of paragraph (c) of Section 11.11
have been satisfied) and (y) the first Business Day following the date of
delivery of such Note to the Paying Agent at the office of the Paying Agent
by the Holder thereof in the manner required by paragraph (c) of Section
11.11.
(b) A Repurchase Notice may be withdrawn before or after
delivery by the Holder to the Paying Agent at the office of the Paying
Agent of the Note to which such Repurchase Notice relates, by means of a
written notice of withdrawal delivered by the Holder to the Paying Agent at
the office of the Paying Agent at any time prior to the close of business
on the third Business Day prior to the Repurchase Date, specifying, as
applicable:
(i) the certificate number and series of the Note in
respect of which such notice of withdrawal is being submitted,
(ii) the principal amount of the Note with respect to which
such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that
remains subject to the Original Repurchase Notice, and that has been
or will be delivered for purchase by the Company.
(c) The Paying Agent will promptly return to the respective
Holders thereof any Notes with respect to which a Repurchase Notice has
been withdrawn in compliance with this Indenture.
SECTION 11.13. Deposit of Repurchase Price.
No later than 10:00 a.m. (local time at the office of the Paying
Agent) on the Business Day immediately preceding the Repurchase Date, the
Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of the Company is acting as the Paying
Agent, shall segregate and hold in trust, or cause to be segregated and held in
trust, as provided in Section 10.03) an amount of cash sufficient to pay the
aggregate repurchase price of all the Notes of portions thereof that are to be
purchased as of the Repurchase Date. Upon such deposit or segregation, all Notes
of portions thereof that are to be purchased shall cease to bear interest after
the Repurchase Date.
SECTION 11.14. Covenant to Comply with Securities Laws upon Repurchase
of Notes.
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In connection with any offer to repurchase or repurchase of Notes
under Section 11.09 or 11.10, the Company shall comply with all applicable
federal and state securities laws (including, without limitation, Exchange Act
Rule 14e-1) so as to permit the rights and obligations under Sections 11.09 and
11.10 to be exercised to the greatest extent practicable in the time and in the
manner specified in such Sections.
SECTION 11.15. Repayment to the Company.
The Trustee and the Paying Agent shall return to the Company upon
written Order any cash that remains unclaimed, together with interest, if any,
accrued thereon, held by them for the payment of the repurchase price two years
after the related Repurchase Date.
ARTICLE TWELVE: GUARANTEES
SECTION 12.01. Subsidiary Guarantees.
Subject to the provisions of Article Fourteen of this Indenture, the
Subsidiary Guarantors unconditionally and jointly and severally guarantee and
promise to pay to each Beneficiary, at any time while an Event of Default
exists, in lawful money of the United States of America, any and all Company
Obligations from time to time owed to the Beneficiaries, provided that the
Holders and the Trustee shall have the same remedies against the Subsidiary
Guarantors under the Subsidiary Guarantees as they have against the Company
under the Notes pursuant to Article Five. The term "Company Obligations" means
any and all present and future obligations and liabilities of the Company of
every type and description to the Beneficiaries under this Indenture and the
Notes, whether for principal, premium (if any) or interest (including any
Additional Interest), expenses, indemnities or other amounts, in each case
whether due or not due, absolute or contingent, voluntary or involuntary,
liquidated or unliquidated, determined or undetermined, now or hereafter
existing, renewed or restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, whether or not arising
after the commencement of a proceeding under the Federal Bankruptcy Code
(including post-petition interest) and whether or not allowed or allowable as a
claim in any such proceeding, and whether or not recovery of any such obligation
or liability may be barred by a statute of limitations or such obligation or
liability may otherwise be unenforceable. All Company Obligations shall be
conclusively presumed to have been created in reliance on the Subsidiary
Guarantees. Each Subsidiary Guarantee is a continuing guaranty of the Company
Obligations and, except as otherwise provided in Section 10.18 or Section 12.01,
may not be revoked and shall not otherwise terminate unless and until any and
all Company Obligations have been indefeasibly paid and performed in full.
SECTION 12.02. Nature of Subsidiary Guarantees.
The liability of each Subsidiary Guarantor under its Subsidiary
Guarantee is independent of and not in consideration of or contingent upon the
liability of the Company or any other Subsidiary Guarantor and a separate action
or actions may be brought and prosecuted against any Subsidiary Guarantor,
whether or not any action is brought or prosecuted against the Company or any
other Subsidiary Guarantor or whether the Company or any other Subsidiary
Guarantor is joined in any such action or actions. The Subsidiary Guarantee
given by each
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Subsidiary Guarantor shall be construed as a continuing, absolute and
unconditional guaranty of payment (and not merely of collection) without regard
to (a) the legality, validity or enforceability of the Notes, this Indenture,
any of the Company Obligations, or the Subsidiary Guarantee given by any other
Subsidiary Guarantor, (b) any defense (other than payment), set-off or
counterclaim that may at any time be available to the Company or any Subsidiary
Guarantor against, and any right of setoff at any time held by, any Beneficiary
or (c) any other circumstance whatsoever (with or without notice to or knowledge
of the Company or any Subsidiary Guarantor), whether or not similar to any of
the foregoing, that constitutes, or might be construed to constitute, an
equitable or legal discharge of the Company or any Subsidiary Guarantor, in
bankruptcy or in any other instance. Any payment by any Subsidiary Guarantor or
other circumstance that operates to toll any statute of limitations applicable
to such Subsidiary Guarantor shall also operate to toll the statute of
limitations applicable to each other Subsidiary Guarantor.
SECTION 12.03. Authorization.
Each Subsidiary Guarantor authorizes each Beneficiary, without notice
to or further assent by such Subsidiary Guarantor, and without affecting any
Subsidiary Guarantor's liability hereunder (regardless of whether any
subrogation or similar right that such Subsidiary Guarantor may have or any
other right or remedy of such Subsidiary Guarantor is extinguished or impaired),
from time to time to do any or all of the following:
(a) permit the Company to increase or create Company
Obligations, or terminate, release, compromise, subordinate, extend,
accelerate or otherwise change the amount or time, manner or place of
payment of, or rescind any demand for payment or acceleration of, the
Company Obligations or any part thereof, consent or enter into supplemental
indentures or otherwise amend the terms and conditions of this Indenture
and the Notes or any provision thereof,
(b) exercise in such manner and order as it elects in its sole
discretion, fail to exercise, waive, suspend, terminate or suffer
expiration of, any of the remedies or rights of such Beneficiary against
the Company or any Subsidiary Guarantor in respect of any Company
Obligations;
(c) release, add or settle with any Subsidiary Guarantor in
respect of its Subsidiary Guarantee or the Company Obligations;
(d) accept partial payments on the Company Obligations and apply
any and such payments or recoveries to such of the Company Obligations as
any Beneficiary may elect in its sole discretion, whether or not such
Company Obligations are secured or guaranteed;
(e) refund at any time, at such Beneficiary's sole discretion,
any payments or recoveries received by such Beneficiary in respect of any
Company Obligations; and
(f) otherwise deal with the Company and any Subsidiary Guarantor
as such Beneficiary may elect in its sole discretion.
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SECTION 12.04. Certain Waivers.
Each Subsidiary Guarantor waives:
(a) the right to require the Beneficiaries to proceed against
the Company or any other Subsidiary Guarantor, or to pursue any other
remedy in any Beneficiary's power whatsoever and the right to have the
property of the Company or any other Subsidiary Guarantor first applied to
the discharge of the Company Obligations;
(b) all rights and benefits under applicable law purporting to
reduce a guarantor's obligations in proportion to the obligation of the
principal or providing that the obligation of a surety or guarantor must
neither be larger nor in other respects more burdensome than that of the
principal;
(c) the benefit of any statute of limitations affecting the
Company Obligations or any Subsidiary Guarantor's liability hereunder,
(d) any requirement of marshaling or any other principle of
election of remedies;
(e) any right to assert against any Beneficiary any defense
(legal or equitable), set-off, counterclaim and other right that any
Subsidiary Guarantor may now or any time hereafter have against the Company
or any other Subsidiary Guarantor,
(f) presentment, demand for payment or performance (including
diligence in making demands hereunder), notice of dishonor or
nonperformance, protest, acceptance and notice of acceptance of its
Subsidiary Guarantee, and, except to the extent expressly required by this
Indenture or the Notes, all other notices of any kind, including (i) notice
of any action taken or omitted by the Beneficiaries in reliance hereon,
(ii) notice of any default by the Company or any Subsidiary Guarantor,
(iii) notice that any portion of the Company Obligations is due, (iv)
notice of any action against the Company or any Subsidiary Guarantor, or
the assertion of any right of any Beneficiary hereunder;
(g) all defenses that at any time may be available to such
Subsidiary Guarantor by virtue of any valuation, stay, moratorium or other
law now or hereafter in effect; and
(h) all applicable laws of the States of Mississippi, Louisiana,
Iowa, Florida and Colorado.
SECTION 12.05. No Subrogation; Certain Agreements.
(a) EACH SUBSIDIARY GUARANTOR WAIVES ANY AND ALL RIGHTS OF
SUBROGATION, INDEMNITY OR REIMBURSEMENT, AND ANY AND ALL BENEFITS OF AND
RIGHTS TO ENFORCE ANY POWER, RIGHT OR REMEDY THAT ANY BENEFICIARY MAY NOW
OR HEREAFTER HAVE IN RESPECT OF THE OBLIGATIONS AGAINST THE COMPANY OR ANY
OTHER SUBSIDIARY GUARANTOR (OTHER THAN RIGHTS OF CONTRIBUTION FROM
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OTHER SUBSIDIARY GUARANTORS), AND ANY AND ALL OTHER RIGHTS AND CLAIMS (AS
DEFINED IN THE FEDERAL BANKRUPTCY CODE) ANY SUBSIDIARY GUARANTOR MAY HAVE
AGAINST THE COMPANY, UNDER APPLICABLE LAW OR OTHERWISE, AT LAW OR IN
EQUITY, BY REASON OF ANY PAYMENT UNDER ITS SUBSIDIARY GUARANTEE, UNLESS AND
UNTIL THE OBLIGATIONS SHALL HAVE BEEN PAID IN FULL.
(b) Each Subsidiary Guarantor assumes the responsibility for
being and keeping itself informed of the financial condition of the Company
and each other Subsidiary Guarantor and of all other circumstances bearing
upon the risk of nonpayment of the Company Obligations or the Subsidiary
Guarantee of any other Subsidiary Guarantor that diligent inquiry would
reveal, and agrees that the Beneficiaries shall have no duty to advise any
Subsidiary Guarantor of information regarding such condition or any such
circumstances.
SECTION 12.06. Bankruptcy; No Discharge.
(a) Without limiting Section 12.02, no Subsidiary Guarantee
shall be discharged or otherwise affected by any bankruptcy, reorganization
or similar proceeding commenced by or against the Company or any Subsidiary
Guarantor, including (i) any discharge of, or bar or stay against
collecting, all or any part of the Company Obligations in or as a result of
any such proceeding, whether or not assented to by any Beneficiary, (ii)
any disallowance of all or any portion of any Beneficiary's claim for
repayment of the Company Obligations, (iii) any use of cash or other
collateral in any such proceeding, (iv) any agreement or stipulation as to
adequate protection in any such proceeding, (v) any failure by any
Beneficiary to file or enforce a claim against the Company or any other
obligor or its estate in any bankruptcy or reorganization case, (vi) any
amendment, modification, stay or cure of any Beneficiary's rights that may
occur in any such proceeding, (vii) any election by any Beneficiary under
Section 1112(b)(2) of the Federal Bankruptcy Code, or (viii) any borrowing
or grant of a Lien under Section 364 of the Federal Bankruptcy Code. Each
Subsidiary Guarantor understands and acknowledges that by virtue of its
Subsidiary Guarantee, it has specifically assumed any and all risks of any
such proceeding with respect to the Company and each other Subsidiary
Guarantor.
(b) Notwithstanding anything in this Article Twelve to the
contrary, any Event of Default under clause (g) or (h) of Section 5.01 of
this Indenture shall render all Company Obligations automatically due and
payable for purposes of the Subsidiary Guarantees, without demand on the
part of the Trustee or any Holder.
(c) Notwithstanding anything to the contrary herein contained,
the Subsidiary Guarantees shall continue to be effective or be reinstated,
as the case may be, if at any time any payment, or any part thereof, of any
or all of the Company Obligations is rescinded, invalidated, declared to be
fraudulent or preferential or otherwise required to be restored or returned
by any Beneficiary in connection with any bankruptcy, reorganization or
similar proceeding involving the Company, any Subsidiary Guarantor or
otherwise, or if any Beneficiary elects to return any such payment or
proceeds or any
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part thereof in its sole discretion, all as though such payment had not
been made or such proceeds not been received.
SECTION 12.07. Severability of Void Obligations under Subsidiary
Guarantees.
The obligations of any Subsidiary Guarantor hereunder shall be limited
to the maximum amount that would not render its obligations hereunder subject to
avoidance under Section 548 of the Federal Bankruptcy Code or any applicable
provisions of comparable state law.
SECTION 12.08. Right of Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors in connection with the Subsidiary Guarantees, the
Subsidiary Guarantors have agreed among themselves that if any Subsidiary
Guarantor satisfies some or all of the Company Obligations (a "Funding
Subsidiary Guarantor"), the Funding Subsidiary Guarantor shall be entitled to
contribution from the other Subsidiary Guarantors that have positive Maximum Net
Worth (as defined below) for all payments made by the Funding Subsidiary
Guarantor in satisfying the Company Obligations, so that each Subsidiary
Guarantor that remains obligated under its Subsidiary Guarantee at the time that
a Funding Subsidiary Guarantor makes such payment (a "Remaining Subsidiary
Guarantor") and has a positive Maximum Net Worth shall bear a portion of such
payment equal to the percentage that such Remaining Subsidiary Guarantor's
Maximum Net Worth bears to the aggregate Maximum Net Worth of all Remaining
Subsidiary Guarantors that have positive Maximum Net Worth.
As used in this Section, "Net Worth" means, with respect to any
Subsidiary Guarantor, the amount, as of any date of calculation by which the sum
of a Person's assets (including subrogation indemnity, contribution
reimbursement and similar rights that such Subsidiary Guarantor may have),
determined on the basis of a "fair valuation" or their "fair salable value"
(whichever is the applicable test under Section 548 and other relevant
provisions of the Federal Bankruptcy Code and the relevant state fraudulent
conveyance or transfer laws) is greater than the amount that will be required to
pay all of such Person's debts, in each case matured or unmatured, contingent or
otherwise, as of the date of calculation but excluding liabilities arising under
the Subsidiary Guarantee and excluding, to the maximum extent permitted by
Applicable Law with the objective of avoiding rendering such Person insolvent,
liabilities subordinated to the Company Obligations arising out of loans or
advances made to such Person by any other Person. "Maximum Net Worth" means,
with respect to any Subsidiary Guarantor, the greatest of the Net Worth
calculated as of the following dates: (A) the date on which the Subsidiary
Guarantor becomes a Subsidiary Guarantor hereunder, (B) the date on which such
Subsidiary Guarantor expressly reaffirms the Subsidiary Guarantee, (C) the date
on which demand for payment is made on such Subsidiary Guarantor hereunder, (D)
the date on which payment is made by such Subsidiary Guarantor hereunder or (E)
the date on which any judgment, order or decree is entered requiring such
Subsidiary Guarantor to make payment hereunder or in respect hereof. The meaning
of the terms "fair valuation" and "fair salable value" and the calculation of
assets and liabilities shall be determined and made in accordance with the
relevant provisions of the Federal Bankruptcy Code and applicable state
fraudulent conveyance or transfer laws.
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SECTION 12.09. Additional Subsidiary Guarantors.
Each Subsidiary that executes and delivers to the Trustee from time to
time after the Issue Date a Subsidiary Guarantee in the form attached as Exhibit
C shall be a Subsidiary Guarantor as if such Subsidiary had been a signatory to
this Indenture. Each Subsidiary Guarantor hereby consents to any such additional
Subsidiary Guarantee, whether or not it receives notice thereof.
SECTION 12.10. Release of a Subsidiary Guarantor.
(a) In the event of (i) a sale or other disposition of all or
substantially all of the assets of any Subsidiary Guarantor or the sale of
a Subsidiary Guarantor by way of merger, consolidation or otherwise, that,
in each case, complies with the provisions set forth in Section 10.14 of
this Indenture, (ii) a Subsidiary Guarantor becoming an Unrestricted
Subsidiary pursuant to the terms of this Indenture or (iii) a sale or other
disposition of all of the Capital Stock of any Subsidiary Guarantor that
complies with the provisions set forth in Section 10.14 of this Indenture,
then such Subsidiary Guarantor or the Person acquiring such assets, as
applicable, shall be immediately released and relieved of any obligations
under its Subsidiary Guarantee without any further action, provided that
the Company complies with the provisions of the covenant described in
Section 10.14 of this Indenture. Upon release of any Subsidiary Guarantor
from its Subsidiary Guarantee pursuant to the terms of this Indenture, each
other Subsidiary Guarantor not so released shall remain liable for the full
amount of principal of, and interest on, the Notes as and to the extent
provided in this Indenture.
(b) The Trustee shall deliver an appropriate instrument
evidencing the release of a Subsidiary Guarantor upon receipt of a request
of the Company accompanied by an Officers' Certificate and an opinion of
counsel as to the compliance with this Section 1210. Any Subsidiary
Guarantor not so released or the entity surviving such Subsidiary
Guarantor, as applicable, will remain or be liable under its Subsidiary
Guarantee as provided in this Article Twelve.
ARTICLE THIRTEEN: DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the Notes, elect to have either Section 13.02 or Section 13.03 be
applied to all Outstanding Notes upon compliance with the conditions set forth
below in this Article Thirteen.
SECTION 13.02. Defeasance and Discharge.
Upon the Company's exercise under Section 13.01 of the option
applicable to this Section 13.02, the Company shall be deemed to have been
immediately discharged from its obligations with respect to all Outstanding
Notes, subject to satisfaction of the conditions set forth in Section 13.04
(hereinafter, "Defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by
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the Outstanding Notes, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 13.05 and the other Sections of this Indenture
referred to in clauses (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Outstanding Notes to receive, solely from the trust fund described in
Section 13.04 and as more fully set forth in such Section, payments in respect
of the principal of (and premium, if any, on) and interest (including any
Additional Interest) on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Sections 3.04, 3.05, 3.06, 10.02
and 10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (d) this Article Thirteen. Subject to compliance with this Article
Thirteen, the Company may exercise its option under this Section 13.02
notwithstanding the prior exercise of its option under Section 13.03 with
respect to the Notes.
SECTION 13.03. Covenant Defeasance.
Upon the Company's exercise under Section 13.01 of the option
applicable to this Section 13.03, the Company shall be immediately released from
its obligations under any covenant or obligation contained in Section 8.01 and
Sections 10.05 through 10.20 with respect to the Outstanding Notes, subject to
the satisfaction of the conditions set forth below (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not to be "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such covenants
or obligation, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such Covenant Defeasance means that, with
respect to the Outstanding Notes, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant or obligation, whether directly or indirectly, by reason of
any reference elsewhere this Indenture or the Notes to any such covenant or
obligation or by reason of any reference in any such covenant or obligation in
any other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 5.01(c), (d), (e), (f), (i) and (j), but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby.
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
13.02 or Section 13.03 to the Outstanding Notes:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.07 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (i) money in
an amount, or (ii) United States Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one (1) day before
the due date of any payment, money
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in an amount, or (iii) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of (and premium, if any, on)
and interest (including any Additional Interest) on the Outstanding Notes
on the Stated Maturity (or Redemption Date, if applicable) of such
principal (and premium, if any) or Interest Payment Date of such
installment of interest; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such United
States Government Obligations to said payments of principal (premium, if
any) and interest (including any Additional Interest) with respect to the
Notes. Before such a deposit, the Company may give to the Trustee, in
accordance with Section 11.03 hereof, a notice of its election to redeem
all of the Outstanding Notes at a future date in accordance with Article
Eleven hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the
foregoing.
(b) No Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit.
(c) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(d) In the case of an election under Section 13.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 13.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Defeasance under Section
13.02 or the Covenant Defeasance under Section 13.03 (as the case may be)
have been complied with.
SECTION 13.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
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Subject to the provisions of the last paragraph of Section 10.03, all
money and United States Government Obligations (including the proceeds thereof)
deposited with the Trustee, collectively with any other qualifying trustee, for
purposes of this Section 13.05, the "Trustee") pursuant to Section 13.04 in
respect of the Outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest (including any Additional Interest) but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 13.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Notes.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or United States Government Obligations held by it as provided
in Section 13.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Defeasance or Covenant
Defeasance, as applicable, in accordance with this Article Thirteen.
SECTION 13.06. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 13.05 by reason of any order or judgment of any court or
Governmental Authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 13.02 or 13.03, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
13.05; provided, however, that if the Company makes any payment of principal of
(or premium, if any, on) or interest (including any Additional Interest) on any
Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
SECTION 13.07. Counterparts.
This Indenture may be signed in any number of counterparts each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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ARTICLE FOURTEEN: SUBORDINATION
SECTION 14.01. Agreement to Subordinate
The Company and the Subsidiary Guarantors agree for themselves and for
their successors, and each Holder by accepting a Note agrees, that the payment
of principal of, and premium, interest (including any Additional Interest) on
and any other amounts owing by the Company and the Subsidiary Guarantors with
respect to, the Notes is subordinated in right of payment, to the extent and in
the manner provided in this Article Fourteen, to the prior payment in full of
all Senior Indebtedness (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Indebtedness. This Article Fourteen shall
constitute a continuing offer to all persons or entities who become holders of,
or continue to hold, Senior Indebtedness. Notwithstanding anything to the
contrary in this Indenture or the Notes, the provisions of this Article Fourteen
are made for the benefit of the holders of Senior Indebtedness, each of whom is
an obligee hereunder and is entitled to enforce such holder's rights hereunder,
without any act or notice of acceptance hereof or reliance hereon. No amendment,
modification or discharge of any provision of this Article Fourteen shall be
effective against any holder of Senior Indebtedness unless expressly consented
to in writing by such holder. The provisions of this Article Fourteen apply
notwithstanding anything to the contrary contained in the Notes or this
Indenture. Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all principal thereof and interest thereon and other
amounts due in connection therewith shall first be paid in full, or such payment
duly provided for in Cash or in manner satisfactory to the holders of such
Senior Indebtedness, before any payment is made on account of the Notes or this
Indenture.
SECTION 14.02. Liquidation; Dissolution; Bankruptcy
(a) In the event of any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization, dissolution
or other winding-up of the Company, whether voluntary or involuntary, or
any assignment for the benefit of creditors or other marshalling of assets
or liabilities of the Company:
(i) all Senior Indebtedness of the Company must be paid in
full in cash or as otherwise may be acceptable to the holders of such
Senior Indebtedness before any payment or distribution (excluding any
payment or distribution provided for by a plan of reorganization
giving effect to these subordination provisions of certain permitted
equity securities or securities that are subordinated to the Senior
Indebtedness or securities exchanged for Senior Indebtedness pursuant
to a plan of reorganization to at least the same extent as the Notes
and which have a term which exceeds the term of such Senior
Indebtedness and other than payments from trusts previously created
pursuant to the provisions described in Article Thirteen) is made to
the Holders on account of the principal of, premium, if any, or
interest (including Additional Interest) on or any amounts payable
with respect to the Notes, and,
(ii) until Senior Indebtedness is paid in full, any
distribution to which Holders of Notes would be entitled but for this
provision shall be made to
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the holders of Senior Indebtedness as their interests may appear,
except that holders of the Notes may receive Capital Stock or any
securities described in paragraph (a)(i) above.
(b) In the event of any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization, dissolution
or other winding-up of a Subsidiary Guarantor, whether voluntary or
involuntary, or any assignment for the benefit of creditors or other
marshalling of assets or liabilities of such Subsidiary Guarantor:
(i) all Senior Indebtedness of such Subsidiary Guarantor
must be paid in full in cash or as otherwise may be acceptable to the
holders of such Senior Indebtedness before any payment or distribution
(excluding any payment or distribution of certain permitted equity or
securities that are subordinated to the Senior Indebtedness or
securities exchanged for Senior Indebtedness pursuant to a plan of
reorganization to at least the same extent as the Subsidiary
Guarantees and which have a term which exceeds the term of such Senior
Indebtedness) is made to the Holders on account of the Subsidiary
Guarantee of such Subsidiary Guarantor, and,
(ii) until Senior Indebtedness of such Subsidiary Guarantor
is paid in full, any distribution to which holders of Notes would be
entitled but for this provision shall be made to the holders of Senior
Indebtedness as their interests may appear, except that holders of the
Notes may receive Capital Stock or any securities described in
paragraph (b)(i) above.
SECTION 14.03. Default on Designated Senior Indebtedness
During the continuance of any default in the payment of the Designated
Senior Indebtedness of the Company or a Subsidiary Guarantor at maturity or
pursuant to which the maturity thereof may immediately be accelerated beyond the
applicable grace period, no payment or distribution of any assets of the Company
or such Subsidiary Guarantor of any kind or character (excluding any payment or
distribution provided for by a plan of reorganization giving effect to these
subordination provisions of certain permitted equity or securities that are
subordinated to the Senior Indebtedness or securities exchanged for Senior
Indebtedness pursuant to a plan of reorganization to at least the same extent as
the Notes and which have a term which exceeds the term of such Senior
Indebtedness and other than payments from trusts previously created pursuant to
the provisions described in Article Thirteen) shall be made to the Holders on
account of the principal of, premium, if any, or interest (including Additional
Interest) on or any other amounts payable with respect thereto, or the purchase,
redemption or other acquisition of, the Notes or such Subsidiary Guarantee,
respectively, unless and until such default has been cured or waived or has
ceased to exist or such Designated Senior Indebtedness shall have been
discharged or paid in full.
During the continuance of any non-payment default with respect to any
Designated Senior Indebtedness of the Company or a Subsidiary Guarantor pursuant
to which the maturity thereof may be accelerated (in accordance with its terms a
"Non-payment
96
Default") and after receipt by the Trustee from the representatives of holders
of such Designated Senior Indebtedness of a written notice of such Non-Payment
Default, no payment or distribution of any assets of the Company or such
Subsidiary Guarantor, respectively, of any kind or character (excluding any
payment or distribution provided for by a plan of reorganization giving effect
to these subordination provisions of certain permitted equity or securities that
are subordinated to Senior Indebtedness or securities exchanged for Senior
Indebtedness pursuant to a plan of reorganization to at least the same extent as
the Notes and which have a term which exceeds the term of such Senior
Indebtedness and other than payments from trusts previously created pursuant to
the provisions described in Article Thirteen) may be made by the Company or such
Subsidiary Guarantor, respectively, to the Holders on account of the principal
of, premium, if any, or interest (including Additional Interest) on or any
amounts payable with respect to, or the purchase, redemption or other
acquisition of, the Notes or such Subsidiary Guarantee, respectively, for the
period specified hereinbelow (the "Payment Blockage Period").
The Payment Blockage Period will commence upon the receipt of written
notice of a Non-payment Default by the Trustee from the representatives of
holders of Designated Senior Indebtedness specifying an election to effect a
Payment Blockage Period and will end on the earlier to occur of the following
events:
(a) 179 days shall have elapsed since the receipt of such notice
of a Non-payment Default (provided that such Designated Senior Indebtedness
shall not theretofore have been accelerated)
(b) such default is cured or waived or ceases to exist or such
Designated Senior Indebtedness is discharged or
(c) such Payment Blockage Period shall have been terminated by
written notice to the Company or the Trustee from the representatives of
holders of Designated Senior Indebtedness initiating such Payment Blockage
Period.
After the end of any Payment Blockage Period, the Company shall
promptly resume making any and all required payments in respect of the Notes,
including any missed payments. Notwithstanding anything in this Article Fourteen
or the Notes to the contrary,
(a) in no event shall a Payment Blockage Period extend beyond
179 days from the date of the receipt by the Trustee of the notice
initiating such Payment Blockage Period,
(b) there shall be a period of at least 186 consecutive days in
each 365-day period when no Payment Blockage Period is in effect, and
(c) not more than one Payment Blockage Period with respect to
the Notes may be commenced within any period of 365 consecutive days.
A Non-payment Default with respect to Designated Senior Indebtedness
that existed or was continuing on the date of commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall not give rise to the commencement of a second
Payment Blockage Period, whether or not within a
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period of 365 consecutive days, unless such Non-payment Default has been cured
or waived for a period of not less than 90 consecutive days and subsequently
recurs.
SECTION 14.04. Acceleration of the Notes
The Company, the Subsidiary Guarantors and the Trustee shall promptly
notify holders of Senior Indebtedness of the issuance by the Trustee or the
receipt of an acceleration notice following an Event of Default, whereupon the
Trustee shall promptly notify the holders of Designated Senior Indebtedness of
such acceleration notice, provided that failure to give such notice shall not
affect the subordination of the Notes to the Senior Indebtedness as provided in
this Article Fourteen.
SECTION 14.05. When Distribution Must Be Paid Over
In the event that the Trustee or any Holder receives any payment of
any principal of, (premium, if any) or interest (including any Additional
Interest) on the Notes or the Subsidiary Guarantees, in violation of this
Article Fourteen, such payment shall be held by the Trustee or such Holder, in
trust for the benefit of and shall be paid forthwith over and delivered to, the
holders of Senior Indebtedness as their interests may appear or their
representative under the Bank Credit Facility, indenture or any other agreement
pursuant to which Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all obligations with
respect to Senior Indebtedness remaining unpaid to the extent necessary to pay
such obligations in full in accordance with their terms, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article Fourteen, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
Fourteen, except if such payment is made as a result of the willful misconduct
or gross negligence of the Trustee.
SECTION 14.06. Notice by the Company and Subsidiary Guarantors
The Company and the Subsidiary Guarantors shall promptly notify the
Trustee and the Paying Agent of any facts known to them that would cause a
payment of any obligations with respect to the Notes to violate this Article
Fourteen, but failure to give such notice shall not affect the subordination of
the Notes to the Senior Indebtedness as provided in this Article Fourteen.
--------
SECTION 14.07. Subrogation
After all Senior Indebtedness is irrevocably paid in full in cash or
cash equivalents satisfactory to the holders thereof and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the
---- -----
98
rights of holders of Senior Indebtedness to receive distributions applicable to
Senior Indebtedness to the extent that distributions otherwise payable to the
Holders have been applied to the payment of Senior Indebtedness. A distribution
made under this Article Fourteen to holders of Senior Indebtedness that
otherwise would have been made to Holders is not, as between the Company and
Holders, a payment by the Company on the Notes.
SECTION 14.08. Relative Rights
This Article Fourteen defines the relative rights of Holders and
holders of Senior Indebtedness. Nothing in this in this Indenture shall:
(a) impair, as between the Company, the Subsidiary Guarantors
and Holders, the obligation of the Company and the Subsidiary Guarantors,
which are absolute and unconditional, to pay principal of (premium, if any)
and interest (including any Additional Interest) on the Notes in accordance
with their terms;
(b) affect the relative rights of Holders and creditors of the
Company and Subsidiary Guarantors other than their rights in relation to
holders of Senior Indebtedness; or
(c) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders.
If the Company or the Subsidiary Guarantors fail because of this
Article Fourteen to pay principal of (premium, if any) or interest (including
any Additional Interest) on a Note on the due date, the failure shall
nonetheless constitute a Default or Event of Default.
SECTION 14.09. Subordination May Not Be Impaired by the Company and
Subsidiary Guarantors
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company, the Subsidiary Guarantors or any
Holder or by the failure of the Company, the Subsidiary Guarantors or any Holder
to comply with this Indenture.
SECTION 14.10. 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 their
representative.
Upon any payment or distribution of assets of the Company referred to
in this Article Fourteen, 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 Senior Indebtedness and other Indebtedness of the
Company or Subsidiary
99
Guarantors, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Fourteen.
SECTION 14.11. Rights of Trustee and Paying Agent
Notwithstanding the provisions of this Article Fourteen or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office prior to the date of such payment written notice of facts
that would cause the payment of any obligations with respect to the Notes to
violate this Article Fourteen. Nothing in this Article Fourteen shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 6.06 hereof.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a person representing himself to be a holder of Senior
Indebtedness (or a Representative of such holder) to establish that such notice
has been given by a holder of Senior Indebtedness (or a Representative of any
such holder). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Fourteen, 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 Fourteen, and if such evidence is not
furnished, the Trustee may defer any payment which it may be required to make
for the benefit of such person pursuant to the terms of this Indenture pending
judicial determination as to the rights of such Person to receive such payment.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
SECTION 14.12. Authorization to Effect Subordination
Each Holder of a Note by the Holder's acceptance thereof authorizes
and directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article Fourteen, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 5.04 hereof at least 30 days before the expiration of the
time to file such claim, the agents of the lenders under the Bank Credit
Facility are hereby authorized to file an appropriate claim for and on behalf of
the Holders of the Notes.
SECTION 14.13. Modification of terms of Senior Indebtedness
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including without limitation the waiver of default
100
thereunder, may be made or done all without notice to or assent from the holders
of the Notes or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action (including any sale,
exchange or release of property pledged, mortgaged or otherwise securing Senior
Indebtedness or the release of any person liable in any manner for the
collection of Senior Indebtedness) (collectively, an "Action") in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such Action is in accordance with the provisions of any applicable document,
shall in any way alter or affect any of the provisions of this Article Thirteen
or of the Notes relating to the subordination hereof.
101
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
ISLE OF CAPRI CASINOS, INC.
By: /s/ Allan B. Solomon
------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
STATE STREET BANK AND TRUST COMPANY, as Trustee
By: /s/ Cauna M. Silva
------------------------------------------------
Name: Cauna M. Silva
Title: Vice President
RIVERBOAT CORPORATION OF MISSISSIPPI
By: /s/ Allan B. Solomon
------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
RIVERBOAT CORPORATION OF MISSISSIPPI-VICKSBURG
By: /s/ Allan B. Solomon
------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
RIVERBOAT SERVICES, INC.
By: /s/ Allan B. Solomon
------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
102
CSNO, L.L.C.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
LOUISIANA RIVERBOAT GAMING PARTNERSHIP
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
ST. CHARLES GAMING COMPANY, INC.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
IOC HOLDINGS, L.L.C.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
GRAND PALAIS RIVERBOAT, INC.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
LRGP HOLDINGS, L.L.C.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
103
PPI, INC.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
ISLE OF CAPRI CASINO COLORADO, INC.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
ISLE OF CAPRI CASINO-TUNICA, INC.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
IOC-COAHOMA, INC.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
IOC-NATCHEZ, INC.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
IOC-LULA, INC.
By: /s/ Allan B. Solomon
---------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
104
IOC BOONVILLE, INC.
By: /s/ Allan B. Solomon
-------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
IOC-KANSAS CITY, INC.
By: /s/ Allan B. Solomon
-------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
ISLE OF CAPRI BETTENDORF, L.C.
By: /s/ Allan B. Solomon
-------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
ISLE OF CAPRI MARQUETTE, INC.
By: /s/ Allan B. Solomon
-------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
IOC-DAVENPORT, INC.
By: /s/ Allan B. Solomon
-------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
GEMINI, INC.
By: /s/ Allan B. Solomon
-------------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
105
LL HOLDING CORPORATION
By: /s/ Allan B. Solomon
----------------------------------------------
Name: Allan B. Solomon
Title: Executive Vice President and Secretary
106
EXHIBIT A
---------
Form of Transfer Restricted Note
CUSIP No.
ISIN
(Face of Note)
9% SENIOR SUBORDINATED NOTES DUE 2012
No. __________ $___________
ISLE OF CAPRI CASINOS, INC.
as obligor, promises to pay to _________ or registered assigns, the principal
sum of $[_______] on March 15, 2012.
Interest Payment Dates: March 15 and September 15 (each an "Interest Payment
Date").
Record Dates: March 1 and September 1 (whether or not a Business Day) (each a
"Regular Record Date").
Reference is hereby made to the further provisions of this Note Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 27, 2002
ISLE OF CAPRI CASINOS, INC.
[SEAL]
By: __________________________
Name:
Title:
A-1
Trustee's Certificate of Authentication:
This is one of the Notes referred to in the within-named Indenture.
State Street Bank and Trust Company, as Trustee
By:______________________
Authorized Signatory
A-2
(Back of Note)
9% Series A Senior Subordinated Note due 2012
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OR A DEPOSITARY OR A SUCCESSOR DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN./1/
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE
SELLER BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (c) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT
______________________
/1/ This is to be included only if the Note is in global form.
A-3
PROVIDED THAT THE COMPANY SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, RESALE,
ASSIGNMENT, PLEDGE OR TRANSFER PURSUANT TO CLAUSES (c) OR (d) ABOVE TO REQUIRE
THE DELIVERY OF AN OPINION (IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY)
OF COUNSEL SATISFACTORY TO THE COMPANY, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY, (2) TO THE COMPANY OR ITS SUBSIDIARIES. OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
1. 9% SENIOR SUBORDINATED NOTE DUE 2012. This Note is one of a duly
authorized issue of securities of Isle of Capri Casinos, Inc., a Delaware
corporation (the "Company"), designated as its 9% Senior Subordinated Notes due
2012 (herein called the "Notes"), which have been issued under the Indenture (as
defined below). Capitalized terms not defined herein have the meaning given to
them in the Indenture.
2. INTEREST. The Company promises to pay interest on the principal amount
of the Notes represented by this Note Certificate at the rate per annum shown
above from March 27, 2002 until maturity and shall pay Additional Interest, if
any, payable pursuant to Section 2.5 of the Registration Rights Agreement
referred to below. The Company shall pay interest (including Additional
Interest, if any) semiannually on each Interest Payment Date commencing
September 15, 2002 to the holders of record (each a "Holder") of Outstanding
Notes on the immediately preceding Regular Record Date. Interest on the Notes
represented by this Note Certificate will accrue from the most recent date to
which interest has been paid or, if no interest has been paid on such Notes,
from the first date on which the Notes represented by this Note Certificate was
originally issued. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. To the extent lawful, the Company shall pay interest on
overdue installments of interest at the rate borne by the Notes.
3. METHOD OF PAYMENT. The Company shall pay interest on the Notes (except
Defaulted Interest, which shall be payable as specified in the Indenture) and
Additional Interest, if any, to Persons who are registered Holders of Notes at
the close of business on the Regular Record Date for the Interest Payment Date
even if Notes are canceled after the Regular Record Date and on or before the
Interest Payment Date. If the Company and a Person registered as a Holder shall
so agree, such Holder shall not be required to surrender the Notes to collect
principal payments and premium payments, if any. Payment of the principal of and
premium, if any, interest and Additional Interest, if any, on the Notes will be
made at the office or agency of the Company maintained for that purpose in the
City of New York, or at such other office or agency of the Company as may be
maintained for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company (i) by check mailed to the address of the Person entitled
thereto as such address shall appear on the Note Register or (ii) by wire
transfer to an account maintained by the payee located in the United States.
A-4
4. GUARANTEES. The payment of the Notes represented by this Note
Certificate is guaranteed pursuant to the Subsidiary Guarantees by the
Subsidiary Guarantors.
5. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
6. INDENTURE. The Company issued the Notes under an Indenture dated as of
March 27, 2002 (the "Indenture"), by and among the Company, as Issuer, Riverboat
Corporation of Mississippi ("RCM"), Riverboat Corporation of
Mississippi-Vicksburg ("RCM-Vicksburg"), Riverboat Services, Inc. ("RSI"), CSNO,
L.L.C. ("CSNO"), Louisiana Riverboat Gaming Partnership ("LRGP"), St. Charles
Gaming Company, Inc. ("SCGC"), IOC Holdings, L.L.C. ("IOCH"), Grand Palais
Riverboat, Inc. ("GPRI"), LRGP Holdings, L.L.C. ("LRGP Holdings"), P.P.I., Inc.
("PPI"), Isle of Capri Casino Colorado, Inc. ("Isle Colorado"), Isle of Capri
Casino - Tunica, Inc. ("Isle - Tunica"), IOC-Coahoma, Inc. ("IOC-Coahoma"),
IOC-Natchez, Inc. ("Isle-Natchez"), IOC-Lula, Inc. ("Isle-Lula"), IOC Boonville,
Inc. ("Isle-Boonville"), IOC-Kansas City, Inc. ("Isle-Kansas City"), Isle of
Capri Bettendorf, L.C. ("Isle-Bettendorf"), Isle of Capri Marquette, Inc.
("Isle-Marquette"), IOC-Davenport, Inc. ("Isle-Davenport"), LL Holding
Corporation ("LLHC") and Gemini, Inc. ("Gemini" and together with RCM,
RCM-Vicksburg, RSI, CSNO, LRGP, SCGC, IOCH, GPRI, LRGP Holdings, PPI, Isle -
Tunica, IOC-Coahoma, Isle-Natchez, Isle-Lula, Isle-Boonville, Isle-Kansas City,
Isle-Bettendorf, Isle-Marquette and Isle-Davenport and LLHC, the "Subsidiary
Guarantors"), and State Street Bank and Trust Company, as Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 as in effect on the
date of the Indenture. The Notes are subject to, and qualified by, all such
terms, certain of which are summarized herein, and Holders are referred to the
Indenture (and all indentures supplemental thereto) and the Trust Indenture Act
of 1939, as amended, for a statement of such terms. The Notes are unsecured
obligations of the Company.
7. OPTIONAL REDEMPTION. (a) The Company may redeem all the Notes, in whole
or in part, at any time on or after March 15, 2007 at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest to the redemption date, if redeemed during the 12-month period
beginning on March 15 of the years indicated below:
Year Percentage
---- ----------
2007 104.500%
2008 103.000%
2009 101.500%
2010 and thereafter 100.000%
(b) In the event that the Company consummates a Qualified Public Equity
Offering on or before March 15, 2005, the Company may redeem, at its option, up
to 35% of the Outstanding
A-5
Notes at a redemption price of 109.00% of the principal amount of the Notes so
redeemed plus accrued and unpaid interest to the redemption date, provided that,
after any such redemption and all redemptions earlier effected pursuant to this
Section 7(b), no more than 35% of the aggregate principal amount of Notes have
been redeemed pursuant to this Section 7(b).
(c) The Company may redeem (a "Gaming Redemption") the Notes of any Holder
if any Gaming Authority requires that a Holder or a beneficial owner of Notes
must be licensed, qualified or found suitable under any applicable gaming law
and such Holder or beneficial owner fails to apply for a license, qualification,
or a finding of suitability within 30 days after being requested to do so in
such circumstance by the Gaming Authority or by the Company pursuant to an order
of the Gaming Authority, or if such Holder or such beneficial owner is not so
licensed, qualified or found suitable, the Company shall have the right, at its
option:
(1) to require such Holder or beneficial owner to dispose of such
Holder's or beneficial owner's Notes within 30 days of receipt of such
notice or such finding by the applicable Gaming Authority or such earlier
date as may be ordered by such Gaming Authority; or
(2) to redeem the Notes of such Holder or beneficial owner at a
Redemption Price equal to the lesser of:
(a) the principal amount thereof, and
(b) the price at which such Holder or beneficial owner
acquired the Notes,
together with, in each case, plus accrued and unpaid interest, if any, to the
earlier of the Redemption Date or the date of denial of such license,
qualification or finding of unsuitability, if any, by such Gaming Authority,
which may be less than 30 days following the Notice of Redemption, if so ordered
by such Gaming Authority.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed by first class
mail not less than 30 days nor more than 60 days (or, in the case of a Gaming
Redemption, up to 30 days) before the redemption or purchase date to each Holder
of Notes at its registered address. On and after the Redemption Date, interest
shall cease to accrue on the Notes or portions thereof called for redemption
pursuant to the optional and mandatory redemption provisions and not forwarded
for redemption.
Interest installments whose Interest Payment Date is on or prior to the
Redemption Date will be payable to the Holders of such Notes, or one or more
Predecessor Notes, of record at the close of business on the relevant Record
Date referred to on the face hereof.
9. REPURCHASE OFFERS. Upon the occurrence of a Change of Control, the
Company shall be obligated to offer to repurchase this Note at a purchase price
(payable in cash) in an amount equal to 101% of the principal amount thereof
plus accrued and unpaid interest thereon to the Redemption Date.
At each such time as the amount of Excess Sale/Loss Proceeds aggregates
$10.0 million, the Company shall make an Excess Sale/Loss Proceeds Offer to
repurchase, from all Holders,
A-6
Notes up to a maximum principal amount (expressed as a multiple of $1,000) equal
to such Excess Sale/Loss Proceeds, less the accrued and unpaid interest on such
Notes, at a purchase price (payable in cash) in an amount equal to 100% of the
principal amount of the Notes plus accrued and unpaid interest to the repurchase
date.
10. SELECTION OF NOTES REDEEMED OR REPURCHASED IN PART. If less than all of
the Outstanding Notes are to be redeemed or repurchased, the particular Notes or
portions thereof to be redeemed shall be determined by the Trustee on a pro rata
basis, by lot or by any other method determined by the Trustee to be fair and
appropriate, provided that no Notes in a principal amount of $1,000 or less
shall be redeemed or repurchased in part. In the event of redemption or
repurchase of this Note in part only, a new Note or Notes for the portion not
redeemed or repurchased hereof shall be issued in the name of the Holder hereof
upon the cancellation hereof.
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. As a condition to transfer, the Note Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Note Registrar need not exchange or register the transfer of any
Note or portion of a Note selected for redemption in whole or in part, or with
respect to which a Repurchase Notice has been given. Also, it need not exchange
or register the transfer of any Notes for a period of 15 days before the mailing
of a notice of redemption or Repurchase Offer with respect to such Notes. Prior
to the time of due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
12. PERSONS DEEMED OWNERS. The registered holder of a Note may be treated
as its owner for the purpose of receiving payment and, subject to the exception
set forth under the caption "Method of Payment" above, interest and for all
other purposes.
13. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or
the Notes may be amended with the consent of the Holders of at least a majority
in principal amount of the Outstanding Notes, and any past default may be waived
with the consent of the Holders of a majority in principal amount of the
Outstanding Notes, except a default in the payment of the principal of or
interest on any Note, or in respect of a covenant or a provision which cannot be
modified without the consent of all Holders. Without the consent of any Holder
of the Notes, the Indenture, the Notes or the Subsidiary Guarantees may be
amended, waived or supplemented for certain specified purposes, including, among
other things, to cure ambiguities, defects or inconsistencies, to add to the
covenants of the Company and the Subsidiary Guarantors for the benefit of the
Holders, to surrender any right or power conferred upon Company or a Subsidiary
Guarantor, to add additional Events of Default, to appoint a successor Trustee,
to add a Subsidiary Guarantor or to release a Subsidiary Guarantor under certain
circumstances, or to comply with any requirement to effect the qualification of
the Indenture
A-7
under the Trust Indenture Act or any registration or qualification of the Notes
under securities laws.
14. DEFAULTS AND REMEDIES. Subject to certain exceptions, if an Event of
Default occurs, then the Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Notes may, by written notice, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the Outstanding Notes is obligated to, declare the principal
of and accrued interest on all the Notes to be due and payable immediately,
provided that so long as the Bank Credit Facility is in effect, such
acceleration shall not be effective until the earlier of (i) five business days
following the delivery of notice of acceleration to the agent under the Bank
Credit Facility and (ii) the acceleration of any Indebtedness under the Bank
Credit Facility. In the case of an Event of Default arising from certain events
of bankruptcy or insolvency, then the principal of and accrued interest on all
the Outstanding Notes will become due and payable without any declaration or
other act on the part of the Trustee or any Holder. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnification satisfactory to it before it enforces the Indenture or
the Notes. Subject to certain limitations, Holders of a majority in principal
amount of the Outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal (premium, if any) or interest
(or in the payment of any Note repurchase price) if it determines that
withholding notice is in their interests. The Company must furnish quarterly and
annual compliance certificates to the Trustee.
15. DEFEASANCE AND COVENANT DEFEASANCE. The Indenture contains provisions
for the defeasance at any time of (a) the entire indebtedness of the Company on
this Note and (b) certain restrictive covenants and the related Defaults and
Events of Default, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Note.
16. SUBORDINATION. The payment of principal of, premium, if any, and
interest (including Additional Interest) on the Notes will be subordinated in
right of payment to the prior payment in full of Senior Indebtedness as set
forth in Article Fourteen of the Indenture.
17. TRUSTEE DEALINGS WITH THE COMPANY. The Indenture contains certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on certain
property received in respect of any such claim as security or otherwise. The
Trustee will be permitted to engage in other transactions; however, if it
acquires any conflicting interest it must eliminate such conflict within 90 days
or resign.
18. NO RECOURSE AGAINST OTHERS. A director, officer, employee, stockholder
or incorporator, as such, of any Person party to the Indenture, the Notes or the
Subsidiary Guarantees shall not have any liability for any obligations of such
Person under such documents or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the Notes.
A-8
19. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of an authorized officer of the Trustee.
20. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and UIGIMIA (= Uniform Gifts to
Minors Act).
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Isle of Capri Casinos, Inc.
1641 Popps Ferry Road
Biloxi, Mississippi 39532
Attn: Chief Financial Officer
A-9
ASSIGNMENT FORM
---------------
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
________________________________________________________________________________
(Insert assignee's social security or tax identification number.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
________________________________________________________________________________
agent to transfer this Note on the books
of the Company. The agent may substitute
another to act for him or her.
Date: ________________________________
Signed: ______________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee:
______________________________________
NOTICE: The signature must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended.
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 1109 or Section 1110 of the Indenture and Paragraph 9 of
this Note, check the box:
[_]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 1109 or Section 1110 of the Indenture or Paragraph 9
of this Note, state the amount:
$____________________________________
(in an integral multiple of $1000)
Date: _______________________________
Signed:______________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee:
_____________________________________
NOTICE: The signature must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended.
A-11
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTE/2/
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
Signature of
Principal Amount of this authorized officer
Amount of decrease in Amount of increase in Global Note following of
Principal Amount of Principal Amount of such decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- ---------------- ---------------- ------------- ---------
_____________________
/2/ This is to be included only if the Notes is in global form.
A-12
EXHIBIT B
---------
Form of Exchange Note
CUSIP No.
ISIN
(Face of Note)
9% SENIOR SUBORDINATED NOTES DUE 2012
No. _____ $___________
ISLE OF CAPRI CASINOS, INC.
as obligor, promises to pay to __________ or registered assigns, the principal
sum of $[__________] on, March 15, 2012.
Interest Payment Dates: March 15 and September 15 (each an "Interest Payment
Date").
Record Dates: March 1 and September 1 (whether or not a Business Day) (each a
"Regular Record Date").
Reference is hereby made to the further provisions of this Note
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 27, 2002
ISLE OF CAPRI CASINOS, INC.
[SEAL]
By: ___________________________________
Name:
Title:
B-1
Trustee's Certificate of Authentication:
This is one of the Notes referred to in the
within-named Indenture.
State Street Bank and Trust Company, as Trustee
By:________________________________
Authorized Signatory
B-2
(Back of Note)
9% Series A Senior Subordinated Note due 2012
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN./3/
1. 9% SENIOR SUBORDINATED NOTE DUE 2012. This Note is one of a duly
authorized issue of securities of Isle of Capri Casinos, Inc., a Delaware
corporation (the "Company"), designated as its 9% Senior Subordinated Notes due
2012 (herein called the "Notes"), which have been issued under the Indenture (as
defined below). Capitalized terms not defined herein have the meaning given to
them in the Indenture.
2. INTEREST. The Company promises to pay interest on the principal
amount of the Notes represented by this Note Certificate at the rate per annum
shown above from March 27, 2002 until maturity and shall pay Additional
Interest, if any, payable pursuant to Section 2.5 of the Registration Rights
Agreement referred to below. The Company shall pay interest (including
Additional Interest, if any) semiannually on each Interest Payment Date
commencing September 15, 2002 to the holders of record (each a "Holder") of
Outstanding Notes on the immediately preceding Regular Record Date. Interest on
the Notes represented by this Note Certificate will accrue from the most recent
date to which interest has been paid or, if no interest has been paid on such
Notes, from the first date on which the Notes represented by this Note
Certificate was originally issued. Interest will be computed on the basis of a
360-day year of twelve 30-day months. To the extent lawful, the Company shall
pay interest on overdue installments of interest at the rate borne by the Notes.
_________________
/3/ This is to be included only if the Note is global form.
B-3
3. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except Defaulted Interest, which shall be payable as specified in the
Indenture) and Additional Interest, if any, to Persons who are registered
Holders of Notes at the close of business on the Regular Record Date for the
Interest Payment Date even if Notes are canceled after the Regular Record Date
and on or before the Interest Payment Date. If the Company and a Person
registered as a Holder shall so agree, such Holder shall not be required to
surrender the Notes to collect principal payments and premium payments, if any.
Payment of the principal of (and premium, if any,) interest and Additional
Interest, if any, on the Notes will be made at the office or agency of the
Company maintained for that purpose in the City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company (i) by check mailed
to the address of the Person entitled thereto as such address shall appear on
the Note Register or (ii) by wire transfer to an account maintained by the payee
located in the United States.
4. GUARANTEES. The payment of the Notes represented by this Note
Certificate is guaranteed pursuant to the Subsidiary Guarantees by the
Subsidiary Guarantors.
5. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
6. INDENTURE. The Company issued the Notes under an Indenture dated as
of March 27, 2002 (the "Indenture"), by and among the Company, as Issuer,
Riverboat Corporation of Mississippi ("RCM"), Riverboat Corporation of
Mississippi-Vicksburg ("RCM-Vicksburg"), Riverboat Services, Inc. ("RSI"), CSNO,
L.L.C. ("CSNO"), Louisiana Riverboat Gaming Partnership ("LRGP"), St. Charles
Gaming Company., Inc. ("SCGC"), IOC Holdings, L.L.C. ("IOCH"), Grand Palais
Riverboat, Inc. ("GPRI"), LRGP Holdings, L.L.C. ("LRGP Holdings"), P.P.I., Inc.
("PPI"), ASMI Management, Inc. ("ASMI"), Isle of Capri Casino Colorado, Inc.
("Isle Colorado"), Isle of Capri Casino - Tunica, Inc. ("Isle - Tunica"),
IOC-Coahoma, Inc. ("IOC-Coahoma"), IOC-Natchez, Inc. ("Isle-Natchez"), IOC-Lula,
Inc. ("Isle-Lula"), IOC Boonville, Inc. ("Isle-Boonville"), IOC-Kansas City,
Inc. ("Isle-Kansas City"), Isle of Capri Bettendorf, L.C. ("Isle-Bettendorf"),
Isle of Capri Marquette, Inc. ("Isle-Marquette"), IOC-Davenport, Inc.
("Isle-Davenport"), LL Holding Corporation ("LLHC") and Gemini, Inc. ("Gemini"
and together with RCM, RCM-Vicksburg, RSI, CSNO, LRGP, SCGC, IOCH, GPRI, LRGP
Holdings, PPI, Isle - Tunica, IOC-Coahoma, Isle-Natchez, Isle-Lula,
Isle-Boonville, Isle-Kansas City, Isle-Bettendorf, Isle-Marquette and
Isle-Davenport and LLHC, the "Subsidiary Guarantors"), and State Street Bank and
Trust Company, as Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 as in effect on the date of the Indenture. The Notes are
subject to, and qualified by, all such terms, certain of which are summarized
herein, and Holders are referred to the Indenture (and all indentures
supplemental thereto) and the Trust Indenture Act of 1939, as amended, for a
statement of such terms. The Notes are unsecured obligations of the Company
limited to $200.0 million in aggregate principal amount.
B-4
7. OPTIONAL REDEMPTION. (a) The Company may redeem all the Notes, in
whole or in part, at any time on or after March 15, 2007 at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest to the redemption date, if redeemed during the
12-month period beginning on March 15 of the years indicated below:
Year Percentage
---- ----------
2007 104.500%
2008 103.000%
2009 101.500%
2010 and thereafter 100.000%
(b) In the event that the Company consummates a Qualified Public
Equity Offering on or before March 15, 2005, the Company may redeem, at its
option, up to 35% of the Outstanding Notes at a redemption price of 109.00% of
the principal amount of the Notes so redeemed plus accrued and unpaid interest
to the redemption date, provided that, after any such redemption and all
redemptions earlier effected pursuant to this Section 7(b), no more than 35% of
the aggregate principal amount of Notes have been redeemed pursuant to this
Section 7(b).
(c) The Company may redeem (a "Gaming Redemption") the Notes of any
Holder if any Gaming Authority requires that a Holder or a beneficial owner of
Notes must be licensed, qualified or found suitable under any applicable gaming
law and such Holder or beneficial owner fails to apply for a license,
qualification, or a finding of suitability within 30 days after being requested
to do so in such circumstance by the Gaming Authority or by the Company pursuant
to an order of the Gaming Authority, or if such Holder or such beneficial owner
is not so licensed, qualified or found suitable, the Company shall have the
right, at its option:
(1) to require such Holder or beneficial owner to dispose of such
Holder's or beneficial owner's Notes within 30 days of receipt of such
notice or such finding by the applicable Gaming Authority or such
earlier date as may be ordered by such Gaming Authority; or
(2) to redeem the Notes of such Holder or beneficial owner at a
Redemption Price equal to the lesser of:
(a) the principal amount thereof, and
(b) the price at which such Holder or beneficial owner
acquired the Notes,
together with, in each case, plus accrued and unpaid interest, if any, to the
earlier of the Redemption Date or the date of denial of such license,
qualification or finding of unsuitability, if
B-5
any, by such Gaming Authority, which may be less than 30 days following the
Notice of Redemption, if so ordered by such Gaming Authority.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed by first class
mail not less than 30 days nor more than 60 days (or, in the case of a Gaming
Redemption, up to 30 days) before the redemption or purchase date to each Holder
of Notes at its registered address. On and after the Redemption Date, interest
shall cease to accrue on the Notes or portions thereof called for redemption
pursuant to the optional and mandatory redemption provisions and not forwarded
for redemption.
Interest installments whose Interest Payment Date is on or prior to the
Redemption Date will be payable to the Holders of such Notes, or one or more
Predecessor Notes, of record at the close of business on the relevant Record
Date referred to on the face hereof.
9. REPURCHASE OFFERS. Upon the occurrence of a Change of Control, the
Company shall be obligated to offer to repurchase this Note at a purchase price
(payable in cash) in an amount equal to 101% of the principal amount thereof
plus accrued and unpaid interest thereon to the Redemption Date.
At each such time as the amount of Excess Sale/Loss Proceeds aggregates
$10.0 million, the Company shall make an Excess Sale/Loss Proceeds Offer to
repurchase, from all Holders, Notes up to a maximum principal amount (expressed
as a multiple of $1,000) equal to such Excess Sale/Loss Proceeds, less the
accrued and unpaid interest on such Notes, at a purchase price (payable in cash)
in an amount equal to 100% of the principal amount of the Notes plus accrued and
unpaid interest to the repurchase date.
10. SELECTION OF NOTES REDEEMED OR REPURCHASED IN PART. If less than all of
the Outstanding Notes are to be redeemed or repurchased, the particular Notes or
portions thereof to be redeemed shall be determined by the Trustee on a pro rata
basis, by lot or by any other method determined by the Trustee to be fair and
appropriate, provided that no Notes in a principal amount of $1,000 or less
shall be redeemed or repurchased in part. In the event of redemption or
repurchase of this Note in part only, a new Note or Notes for the portion not
redeemed or repurchased hereof shall be issued in the name of the Holder hereof
upon the cancellation hereof.
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. As a condition to transfer, the Note Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Note Registrar need not exchange or register the transfer of any
Note or portion of a Note selected for redemption in whole or in part, or with
respect to which a Repurchase Notice has been given. Also, it need not exchange
or register the transfer of any Notes for a period of 15 days before the mailing
of a notice of redemption or Repurchase Offer with respect to such Notes. Prior
to the time of due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes,
B-6
whether or not this Note is overdue, and neither the Company, the Trustee nor
any agent shall be affected by notice to the contrary.
12. PERSONS DEEMED OWNERS. The registered holder of a Note may be treated
as its owner for the purpose of receiving payment and, subject to the exception
set forth under the caption "Method of Payment" above, interest and for all
other purposes.
13. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or
the Notes may be amended with the consent of the Holders of at least a majority
in principal amount of the Outstanding Notes, and any past default may be waived
with the consent of the Holders of a majority in principal amount of the
Outstanding Notes, except a default in the payment of the principal of or
interest on any Note, or in respect of a covenant or a provision which cannot be
modified without the consent of all Holders. Without the consent of any Holder
of the Notes, the Indenture, the Notes or the Subsidiary Guarantees may be
amended, waived or supplemented for certain specified purposes, including, among
other things, to cure ambiguities, defects or inconsistencies, to add to the
covenants of the Company and the Subsidiary Guarantors for the benefit of the
Holders, to surrender any right or power conferred upon Company or a Subsidiary
Guarantor, to add additional Events of Default, to appoint a successor Trustee,
to add a Subsidiary Guarantor or to release a Subsidiary Guarantor under certain
circumstances, or to comply with any requirement to effect the qualification of
the Indenture under the Trust Indenture Act or any registration or qualification
of the Notes under securities laws.
14. DEFAULTS AND REMEDIES. Subject to certain exceptions, if an Event of
Default occurs, then the Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Notes may, by written notice, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the Outstanding Notes is obligated to, declare the principal
of and accrued interest on all the Notes to be due and payable immediately,
provided that so long as the Bank Credit Facility is in effect, such
acceleration shall not be effective until the earlier of (i) five business days
following the delivery of notice of acceleration to the agent under the Bank
Credit Facility and (ii) the acceleration of any Indebtedness under the Bank
Credit Facility. In the case of an Event of Default arising from certain events
of bankruptcy or insolvency, then the principal of and accrued interest on all
the Outstanding Notes will become due and payable without any declaration or
other act on the part of the Trustee or any Holder. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnification satisfactory to it before it enforces the Indenture or
the Notes. Subject to certain limitations, Holders of a majority in principal
amount of the Outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal (premium, if any) or interest
(or in the payment of any Note repurchase price) if it determines that
withholding notice is in their interests. The Company must furnish quarterly and
annual compliance certificates to the Trustee.
15. DEFEASANCE AND COVENANT DEFEASANCE. The Indenture contains provisions
for the defeasance at any time of (a) the entire indebtedness of the Company on
this Note and (b) certain restrictive covenants and the related Defaults and
Events of Default, upon
B-7
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Note.
16. SUBORDINATION. The payment of principal of, premium, if any, and
interest (including Additional Interest) on the Notes will be subordinated in
right of payment to the prior payment in full of Senior Indebtedness as set
forth in Article Fourteen of the Indenture.
17. TRUSTEE DEALINGS WITH THE COMPANY. The Indenture contains certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on certain
property received in respect of any such claim as security or otherwise. The
Trustee will be permitted to engage in other transactions; however, if it
acquires any conflicting interest it must eliminate such conflict within 90 days
or resign.
18. NO RECOURSE AGAINST OTHERS. A director, officer, employee, stockholder
or incorporator, as such, of any Person party to the Indenture, the Notes or the
Subsidiary Guarantees shall not have any liability for any obligations of such
Person under such documents or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the Notes.
19. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of an authorized officer of the Trustee.
20. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and UIGIMIA (= Uniform Gifts to
Minors Act).
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Isle of Capri Casinos, Inc.
1641 Popps Ferry Road
Biloxi, Mississippi 39532
Attn: Chief Financial Officer
B-8
ASSIGNMENT FORM
---------------
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
________________________________________________________________________________
(Insert assignee's social security or tax identification number.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
________________________________________________________________________________
agent to transfer this Note on the books
of the Company. The agent may substitute
another to act for him or her.
Date: ______________________________________
Signed: ____________________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee:
____________________________________________
NOTICE: The signature must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended.
B-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 1109 or Section 1110 of the Indenture and Paragraph 9 of this Note,
check the box:
[_]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 1109 or Section 1110 of the Indenture or Paragraph 9
of this Note, state the amount:
$_______________________________________________________
(in an integral multiple of $1000)
Date:______________________________________
Signed:____________________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee:
___________________________________________
NOTICE: The signature must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended.
B-10
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTE/4/
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
Signature of
Principal Amount of this authorized officer
Amount of decrease in Amount of increase in Global Note following of
Principal Amount of Principal Amount of such decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
- ---------------- ---------------- ---------------- ------------- ---------
__________________________
/4/ This is to be included only if the Note is global from
B-11
EXHIBIT C
---------
Form of Senior Subordinated
Subsidiary Guarantee
FORM OF SENIOR SUBORDINATED
SUBSIDIARY GUARANTEE
The Subsidiary Guarantors listed below (hereinafter referred to as
"Subsidiary Guarantors," which term includes any successor or assign under the
Indenture dated as of March 27, 2002 (the "Indenture"), by and among Isle of
Capri Casinos, Inc. (the "Company") and Riverboat Corporation of Mississippi,
Riverboat Corporation of Mississippi-Vicksburg, Riverboat Services, Inc., CSNO,
L.L.C., Louisiana Riverboat Gaming Partnership, St. Charles Gaming Co., Inc.,
IOC Holdings, LLC, Grand Palais Riverboat, Inc., LRGP Holdings, L.L.C., PPI,
Inc., Isle of Capri Casino Colorado, Inc., Isle of Capri Casino-Tunica, Inc.,
IOC-Coahoma, Inc., IOC-Natchez, Inc., IOC-Lula, Inc., IOC Boonville, Inc.,
IOC-Kansas City, Inc., Isle of Capri Bettendorf, L.C., Isle of Capri Marquette,
Inc., IOC-Davenport, Inc., LL Holding Corporation and Gemini, Inc. as subsidiary
guarantors (the "Subsidiary Guarantors"), and State Street Bank and Trust
Company, as trustee (the "Trustee"), have jointly, severally, fully and
unconditionally guaranteed (i) the due and punctual payment of the principal of,
premium, if any, and interest (including Additional Interest) on the Company's
9% Senior Subordinated Notes due 2012 (the "Notes"), whether at Stated Maturity,
by acceleration or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, of the Notes, to the extent lawful, and
the due and punctual performance of all other obligations of the Company to the
Holders of Notes or the Trustee, all subject to the terms and limitations set
forth in Article Twelve and Article Fourteen of the Indenture, (ii) in case of
any extension of time of payment or renewal of any Notes or any such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise, and (iii) the payment of any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Subsidiary Guarantee
subject to Article Fourteen of the Indenture.
No director, officer, employee, stockholder or incorporator, as such,
past, present or future, of any Subsidiary Guarantor shall have any liability
under its Subsidiary Guarantee herein by reason of his, her or its status as
such director, officer, employee, stockholder or incorporator.
These Subsidiary Guarantees are continuing guarantees and, except as
otherwise provided in Section 10.18(c) or Section 12.10 of the Indenture, shall
remain in full force and effect and shall be binding upon the Subsidiary
Guarantors and their successors and assigns until full and final payment of all
of the Company's Obligations and shall inure to the benefit of the successors
and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred
C-1
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof.
The obligations of the Subsidiary Guarantors hereunder are
subordinated to all Senior Indebtedness of the Subsidiary Guarantors as set
forth in the Indenture.
These are guarantees of payment and not of collectability.
These Subsidiary Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which these
Subsidiary Guarantees are noted shall have been executed by the Trustee under
the Indenture by the manual signature of an authorized officer.
THE TERMS OF ARTICLE TWELVE AND ARTICLE FOURTEEN OF THE INDENTURE ARE
INCORPORATED HEREIN BY REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
C-2
IN WITNESS WHEREOF, the parties hereto have caused this Subsidiary
Guarantee to be executed as of the day and year first above written.
ISLE OF CAPRI CASINOS, INC.
By: ________________________________
Name:
Title:
RIVERBOAT CORPORATION OF
MISSISSIPPI
By: ________________________________
Name:
Title:
RIVERBOAT CORPORATION OF
MISSISSIPPI-VICKSBURG
By: ________________________________
Name:
Title:
RIVERBOAT SERVICES, INC.
By: ________________________________
Name:
Title:
CSNO, L.L.C
By: ________________________________
Name:
Title:
LOUISIANA RIVERBOAT GAMING
PARTNERSHIP
By: ________________________________
Name:
Title:
ST. CHARLES GAMING COMPANY, INC.
By: ________________________________
Name:
Title:
IOC HOLDINGS, L.L.C.
By: ________________________________
Name:
Title:
GRAND PALAIS RIVERBOAT, INC.
By: ________________________________
Name:
Title:
LRGP HOLDINGS, L.L.C
By: ________________________________
Name:
Title:
PPI, INC.
By: ________________________________
Name:
Title:
ISLE OF CAPRI CASINO COLORADO, INC.
By: ________________________________
Name:
Title:
ISLE OF CAPRI CASINO-TUNICA, INC.
By: ________________________________
Name:
Title:
IOC-COAHOMA, INC.
By: ________________________________
Name:
Title:
IOC - NATCHEZ, INC.
By: ________________________________
Name:
Title:
IOC - LULA, INC.
By: ________________________________
Name:
Title:
IOC - BOONVILLE, INC.
By: ________________________________
Name:
Title:
IOC - KANSAS CITY, INC.
By: ________________________________
Name:
Title:
ISLE OF CAPRI BETTENDORF, L.C.
By: ________________________________
Name:
Title:
ISLE OF CAPRI MARQUETTE, INC.
By: ________________________________
Name:
Title:
IOC - DAVENPORT, INC.
By: ________________________________
Name:
Title:
GEMINI, INC.
By: ________________________________
Name:
Title:
LL HOLDING CORPORATION
By: ________________________________
Name:
Title: