EXHIBIT 4(aa)
CIRCUS CIRCUS ENTERPRISES, INC.
AND
THE BANK OF NEW YORK
Trustee
___________________________________
FIRST SUPPLEMENTAL
INDENTURE
TO
INDENTURE
Dated as of [______ __, ____]
___________________________________
______% Subordinated Deferrable Interest Debentures
due ________ __, ____
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1. Definition of Terms. . . . . . . . . . . . . . . . . . . 2
SECTION 1.2. Interpretation. . . . . . . . . . . . . . . . . . . . 3
ARTICLE II - GENERAL TERMS AND CONDITIONS OF THE DEBENTURES. . . . . . . . . 3
SECTION 2.1. Designation and Principal Amount. . . . . . . . . . . 3
SECTION 2.2. Maturity. . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3. Form and Payment. . . . . . . . . . . . . . . . . . . 4
SECTION 2.4. Global Debenture. . . . . . . . . . . . . . . . . . . . 4
SECTION 2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.6. Denominations . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III - REDEMPTION OF THE DEBENTURES . . . . . . . . . . . . . . . . . 6
SECTION 3.1. Tax Event Redemption . . . . . . . . . . . . . . . . . 6
SECTION 3.2. Optional Redemption by Company . . . . . . . . . . . . 6
SECTION 3.3. No Sinking Fund . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV - EXTENSION OF INTEREST PAYMENT PERIOD. . . . . . . . . . . . . . 7
SECTION 4.1. Extension of Interest Payment Period. . . . . . . . . 7
SECTION 4.2. Notice of Extension . . . . . . . . . . . . . . . . . 7
ARTICLE V - EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5.1. Payment of Expenses . . . . . . . . . . . . . . . . . 8
ARTICLE VI - SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.1. Agreement to Subordinate . . . . . . . . . . . . . . . 9
SECTION 6.2. Default on Senior Indebtedness. . . . . . . . . . . . 9
SECTION 6.3. Liquidation; Dissolution; Bankruptcy. . . . . . . . .10
SECTION 6.4. Subrogation. . . . . . . . . . . . . . . . . . . . . .11
SECTION 6.5. Trustee to Effectuate Subordination . . . . . . . . .12
SECTION 6.6. Notice by the Company . . . . . . . . . . . . . . . .12
SECTION 6.7. Rights of the Trustee; Holders of Senior Indebtedness. 13
SECTION 6.8. Subordination May Not Be Impaired. . . . . . . . . . .13
ARTICLE VII - COVENANT TO LIST ON EXCHANGE . . . . . . . . . . . . . . . . .14
SECTION 7.1. Listing on Exchange. . . . . . . . . . . . . . . . . .14
ARTICLE VIII - FORM OF DEBENTURE . . . . . . . . . . . . . . . . . . . . . .14
SECTION 8.1. Form of Debenture . . . . . . . . . . . . . . . . . . .14
ARTICLE IX - ORIGINAL ISSUE OF DEBENTURES . . . . . . . . . . . . . . . . .22
SECTION 9.1. Original Issue of Debentures. . . . . . . . . . . . . .22
ARTICLE X - CERTAIN COVENANTS. . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 10.1. Limitation on Dividends and Other Payments . . . . .22
SECTION 10.2. Covenants as to the Trust . . . . . . . . . . . . . .23
ARTICLE XI - CERTAIN EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . .23
SECTION 11.1. Additional Events of Default . . . . . . . . . . . .23
SECTION 11.2. Waiver of Existing Defaults . . . . . . . . . . . . .23
ARTICLE XII - MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 12.1. Supplemental Indenture Incorporated Into Indenture .24
SECTION 12.2. Trustee Not Responsible for Recitals; Disclaimer . . .24
SECTION 12.3. Governing Law . . . . . . . . . . . . . . . . . . . .24
SECTION 12.4. Separability . . . . . . . . . . . . . . . . . . . . .24
SECTION 12.5. Counterparts . . . . . . . . . . . . . . . . . . . . .24
SECTION 12.6. Acknowledgment of Rights of Holders of
Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . .25
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of [______ __, ____] (this
"First Supplemental Indenture"), between Circus Circus Enterprises, Inc., a
Nevada corporation (the "Company"), and The Bank of New York, a New York
banking corporation, not in its individual capacity but solely as trustee
(the "Trustee"), under the Indenture dated as of [______ __, ____] between
the Company and the Trustee (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the Trustee
to provide for the future issuance of the Company's unsecured subordinated
Securities, to be issued from time to time in one or more series as might be
determined by the Company in accordance with the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered as
provided in the Indenture; and
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Securities to be known
as its _____% Subordinated Deferrable Interest Debentures due ___________,
_____ (the "Debentures"), the form and substance of such Debentures and the
terms, provisions and conditions thereof to be as set forth in the Indenture
and this First Supplemental Indenture; and
WHEREAS, Circus Finance II, a Delaware statutory business trust (the
"Trust"), has offered to the public $__________ aggregate liquidation amount
of its _____% Trust Originated Preferred Securities-SM- ("TOPrS-SM-" or the
"Preferred Securities") and has offered to the Company $_________ aggregate
liquidation amount of its common securities (the "Common Securities" and,
together with the Preferred Securities, the "Trust Securities"), such Trust
Securities representing undivided beneficial interests in the assets of the
Trust, and proposes to invest the proceeds from such offering in $___________
aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested the Trustee to execute and deliver
this First Supplemental Indenture, and all requirements necessary to make
this First Supplemental Indenture a valid instrument, in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITION OF TERMS.
Unless the context otherwise requires, (a) a term defined in the
Indenture has the same meaning when used in this First Supplemental
Indenture, (b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout and (c) the following terms have the meanings
given to them in the Declaration (including, without limitation, Annex I
thereto):
Clearing Agency
Delaware Trustee
Distribution
No Recognition Opinion
Preferred Securities Guarantee
Preferred Security Certificate
Pro Rata
Property Trustee
Purchase Agreement
Regular Trustee
Special Event
Tax Event
Tax Event Opinion
In addition, the following terms have the following respective meanings:
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
"Credit Facility" means the Amended and Restated Loan Agreement dated as
of May 23, 1997 among the Company, as Borrower, Bank of America National
Trust and Savings Association, as Administrative Agent, and the lenders which
are or become parties from time to time thereto, as amended by Amendment No.
1 thereto dated as of October 3, 1997 and Amendment No. 2 thereto dated as of
May 15, 1998, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including,
without limitation, any agreement extending the maturity of, refinancing or
otherwise restructuring (including adding guarantors) all or any portion of
the Indebtedness under such agreement or any successor agreement or
increasing the credit available thereunder.
"Declaration" means the Amended and Restated Declaration of Trust of
Circus Finance II, a Delaware statutory business trust, dated as of
[______ __, ____].
"Detroit Joint Venture" means the Michigan limited liability company
governed by an Operating Agreement, dated October 7, 1997, by and between
Circus Circus Michigan, Inc., a wholly owned subsidiary of the Company, and
Atwater Casino Group, L.L.C."
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance
with the Declaration and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities Pro Rata in accordance
with the Declaration.
"Existing and Permitted Completion Guarantees and Make-Well Agreements"
means (i) that certain Amended and Restated Make-Well Agreement by the
Company in favor of Bank of America National Trust and Savings Association
dated as of November 24, 1997 relating to the Circus and Eldorado Joint
Venture, a Nevada general partnership, as such agreement may be amended
(including any amendment and restatement thereof), supplemented or otherwise
modified from time to time, including any extension of the term thereof, (ii)
any contract providing for the completion of construction or other payment or
performance with respect to the construction, maintenance or improvement of
property or equipment of the Detroit Joint Venture, or (iii) any "make-well,"
"keep-well," or other agreement or arrangement of whatever nature providing
for the obligation to advance funds, property or services on behalf of the
Detroit Joint Venture, or given for the purpose of assuring or holding
harmless any governmental entity or agency and/or any lender against loss
with respect to any obligation of the Detroit Joint Venture.
"Indebtedness" of any person means (a) any indebtedness of such person,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such person or only
to a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such indebtedness
incurred in connection with the acquisition by such person or any of its
subsidiaries of any other business or entity, if and to the extent such
indebtedness would appear as a liability upon a balance sheet of such person
prepared in accordance with generally accepted accounting principles,
including for such purpose obligations under capitalized leases, and (b) any
guaranty, endorsement (other than for collection or deposit in the ordinary
course of business), discount with recourse, agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire or to supply or
advance funds with respect to, or to become liable with respect to (directly
or indirectly) any indebtedness, obligation, liability or dividend of any
person, but shall not include indebtedness or amounts owed (except to banks
or other financial institutions) for compensation to employees, or for goods
or materials purchased, or services utilized, in the ordinary course of
business of such person. Notwithstanding anything to the contrary in the
foregoing, "Indebtedness" shall not include (i) any contracts providing for
the completion of construction or other payment or performance with respect
to the construction, maintenance or improvement of property or equipment of
the Company or its Affiliates or (ii) any contracts providing for the
obligation to advance funds, property or services on behalf of an Affiliate
of the Company in order to maintain the financial condition of such
Affiliate, in each case, including Existing and Permitted Completion
Guarantees and Make-Well Agreements. For purposes hereof, a "capitalized
lease" shall be deemed to mean a lease of real or personal property which, in
accordance with generally accepted accounting principles, is required to be
capitalized.
"Interest Rate Protection Obligations" means, with respect to any
person, the obligations of such Person under (i) interest rate swap
agreements, and (ii) other agreements or arrangements designed to protect
such person against fluctuations in interest rates.
"Maturity Date" means the date on which the Debentures mature and on which
the principal shall be due and payable together with all accrued and unpaid
interest thereon including Additional Interest, if any.
"Senior Indebtedness" means the principal, premium, if any, and interest
on any Indebtedness of the Company, whenever created, incurred, issued,
assumed or guaranteed, 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 the Debentures. Without limiting the foregoing, Senior
Indebtedness shall include (i) any payment or payment obligation in respect
of (A) Indebtedness of the Company for money borrowed, including under the
Credit Facility, together with any other amounts due on or in connection with
the Indebtedness of the Company under the Credit Facility, and (B)
Indebtedness evidenced by securities, notes, bonds, debentures or other
similar instruments issued by the Company; (ii) all Interest Rate Protection
Obligations of the Company; (iii) all Capital Lease Obligations of the
Company; (iv) all obligations of the Company issued or assumed as the
deferred purchase price of property, all conditional sale obligations of the
Company and all obligations of such
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obligor under any title retention agreement (but excluding any obligation in
respect of any trade accounts payable incurred for the purchase of goods or
materials, or for services obtained, in the ordinary course of business); (v)
all obligations of the Company for reimbursement on any letter of credit,
banker's acceptance, security purchase facility or similar credit
transaction; (vi) the 6 3/4% Senior Subordinated Notes of the Company Due
2003 and the 7 5/8% Senior Subordinated Debentures of the Company due 2013,
the 6.45% Senior Notes of the Company Due 2006, the 7.0% Debentures of the
Company Due 2036 and the 6.70% Debentures of the Company Due 2096; (vii) all
obligations of the type referred to in clauses (i) through (iv) of other
Persons for the payment of which the Company is responsible or liable as
obligor, guarantor or otherwise; and (viii) all obligations of the type
referred to in clauses (i) through (v) of other Persons secured by any lien
on any property or asset of the Company (whether or not such obligation is
assumed by the Company), except for any such Indebtedness that is by its
terms subordinated to or pari passu with the Debentures, as the case may be.
Such Senior Indebtedness shall continue to be Senior Indebtedness and be
entitled to the benefits of Article VI hereof irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
SECTION 1.2. INTERPRETATION.
Each definition in this First Supplemental Indenture includes the
singular and the plural, and references to the neuter gender include the
masculine and feminine where appropriate. Terms which relate to accounting
matters shall be interpreted in accordance with generally accepted accounting
principles in effect from time to time. References to any statute mean such
statute as amended at the time and include any successor legislation. The
word "or" is not exclusive, and the words "herein," "hereof" and "hereunder"
refer to this First Supplemental Indenture as a whole. References to
Articles and Sections are to the Articles and Sections of this First
Supplemental Indenture. The headings to the Articles and Sections are for
convenience of reference and shall not affect the meaning or interpretation
of this First Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized a series of Securities designated the
"______% Subordinated Deferrable Interest Debentures due _______ __, _____."
The aggregate principal amount of Debentures which may be authenticated and
delivered under the Indenture is limited to $___________ (except for
Debentures authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Debentures pursuant to Sections 2.08,
2.09, 2.11, 3.07 or 9.05 of the Indenture and except for any Debentures which
pursuant to Section 2.04 of the Indenture are deemed not to have been
authenticated and delivered pursuant to the Indenture).
SECTION 2.2. MATURITY.
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The Maturity Date will be _______ __, ____.
SECTION 2.3. FORM AND PAYMENT.
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons. Principal of
and interest (including Additional Interest, if any) on the Debentures issued
in certificated form will be payable, the transfer of such Debentures will be
registrable and such Debentures will be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Trustee in New
York, New York, provided, however, that payment of interest may be made at
the option of the Company by check mailed to the registered Holder at such
address as shall appear in the security register maintained by the Registrar.
Notwithstanding the foregoing, so long as the registered Holder of any
Debentures is the Property Trustee, the payment of the principal of and
interest (including Additional Interest, if any) on such Debentures held by
the Property Trustee will be made at such place and to such account as may be
designated by the Property Trustee.
SECTION 2.4. GLOBAL DEBENTURE.
In connection with a Dissolution Event:
(a) Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a global debenture in an
aggregate principal amount equal to the aggregate principal amount of the
Debentures so presented, to be registered in the name of The Depository Trust
Company ("DTC"), as the initial Clearing Agency for the Debentures, or the
nominee of DTC, and delivered by the Trustee to DTC for crediting to the
accounts of its participants pursuant to the instructions of the Regular
Trustees. The Company, upon any such presentation, shall execute a global
debenture in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this First Supplemental Indenture. Payments on the Debentures issued as a
global debenture will be made in immediately available funds to DTC (or a
successor Clearing Agency); and
(b) If any Preferred Securities are held in certificated form
(i.e., not in book entry form), Debentures in certificated form may be
presented to the Trustee by the Property Trustee and any Preferred Security
Certificate which represents Preferred Securities (other than Preferred
Securities held by DTC (or a successor Clearing Agency) or its nominee) ("Non
Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Debentures in certificated form presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the aggregate
stated liquidation amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificates are presented to the Registrar for
transfer or reissuance, at which time such Preferred Security Certificates
will be canceled and a Debenture in certificated form, registered in the name
of the holder of such Preferred Security Certificate or the transferee of the
holder of such Preferred Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate stated liquidation amount
of the Preferred Security Certificate canceled, will be executed by the
Company and delivered to the Trustee for
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authentication and delivery in accordance with the Indenture and this First
Supplemental Indenture. Upon issuance of such Debentures, Debentures in
certificated form with an equivalent aggregate principal amount that were
presented by the Property Trustee to the Trustee will be deemed to have been
canceled.
SECTION 2.5. INTEREST
(a) Each Debenture will bear interest at the rate of _____% per
annum (the "Coupon Rate") from the original date of issuance until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date"), commencing on September 30, 1998, to the
Person in whose name such Debenture or any predecessor Debenture is
registered, at the close of business on the Regular Record Date for such
interest installment, which shall be the close of business on the Business
Day next preceding that Interest Payment Date. If pursuant to the provisions
of Section 2.08 of the Indenture the Debentures are no longer represented by
a global debenture, the Company may select a regular record date for such
interest installment which shall be any date at least fifteen days before an
Interest Payment Date.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. In the event that
any date on which interest is payable on the Debentures is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The amount of interest payable for any
period shorter than a full quarterly period for which interest is computed
will be computed on the basis of the actual number of days elapsed in such a
90-day quarter.
(c) If at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Debentures held by the Property Trustee, such
additional amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other governmental charges been imposed.
SECTION 2.6. DENOMINATIONS
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In the event Debentures are issued in certificated form, such Debentures
will be in denominations of $1,000 and integral multiples thereof.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. TAX EVENT REDEMPTION
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Tax Event Opinion, the Regular Trustees
shall have been informed by tax counsel rendering the Tax Event Opinion that
a No Recognition Opinion cannot be delivered to the Trust, then,
notwithstanding Section 3.2(a) but subject to Section 3.2(b), the Company
shall have the right, upon not less than 30 nor more than 60 days notice to
the registered Holders of the Debentures, to redeem the Debentures, in whole
or in part, for cash within 90 days following the occurrence of such Tax
Event (the "90 Day Period") at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon
to the date of such redemption (the "Special Redemption Price"), provided,
however, that if at the time there is available to the Company the
opportunity to eliminate, within the 90 Day Period, the Tax Event by taking
some ministerial action ("Ministerial Action"), such as filing a form or
making an election, or pursuing some other similar reasonable measure that
has no adverse effect on the Company, the Trust or the holders of the Trust
Securities, the Company shall pursue such Ministerial Action in lieu of
redemption; and provided further, that the Company shall have no right to
redeem the Debentures while the Trust is pursuing any Ministerial Action
pursuant to its obligations under the Declaration. The Special Redemption
Price shall be paid prior to 12:00 noon, New York City time, on the date of
such redemption or at such earlier time as the Company determines and
specifies in the notice of redemption; provided, however, the Company shall
deposit with the Trustee an amount sufficient to pay the Special Redemption
Price by 10:00 a.m., New York City time, on the date such Special Redemption
Price is to be paid.
SECTION 3.2. OPTIONAL REDEMPTION BY COMPANY
(a) Subject to the provisions of Article Three of the Indenture
and to Section 3.2(b), the Company shall have the right to redeem the
Debentures, in whole or in part, from time to time, on or after _____ __,
____, at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to
this paragraph will be made upon not less than 30 nor more than 60 days
notice to the registered Holder of the Debentures, at the Optional Redemption
Price. If the Debentures are only partially redeemed pursuant to this
Section 3.2, the Debentures will be redeemed by lot or by any other method
utilized by the
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Trustee; provided, however, that if at the time of redemption the Debentures
are registered as a global debenture, the Depositary shall determine by lot
the interest of each of its participants in such global debenture to be
redeemed. The Optional Redemption Price shall be paid prior to 12:00 noon,
New York City time, on the date of such redemption or at such earlier time as
the Company determines and specifies in the notice of redemption, provided
the Company shall deposit with the Trustee an amount sufficient to pay the
Optional Redemption Price by 10:00 a.m., New York City time, on the date such
Optional Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on or with which the Preferred
Securities are then listed, the Company shall not be permitted to effect such
partial redemption and may only redeem the Debentures in whole.
SECTION 3.3. NO SINKING FUND
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD.
The Company shall have the right, at any time and from time to time
prior to the Maturity Date, to extend the interest payment period of such
Debentures for up to twenty (20) consecutive quarters (the "Extended Interest
Payment Period"). To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest compounded
quarterly at the Coupon Rate for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Interest ("Deferred Interest"), which
shall be payable to the Holders of the Debentures in whose names the
Debentures are registered in the security register maintained by the
Registrar on the first Regular Record Date after the end of the Extended
Interest Payment Period. Before the termination of any Extended Interest
Payment Period, the Company may further extend such period, provided,
however, that such period together with all previous and such further
extensions thereof shall not exceed twenty (20) consecutive quarters or
extend beyond the Maturity Date. Upon the termination of any Extended
Interest Payment Period and upon the payment of all Deferred Interest then
due, the Company may select a new Extended Interest Payment Period, subject
to the foregoing requirements. No interest shall be due and payable during
an Extended Interest Payment Period, except at the end thereof.
SECTION 4.2. NOTICE OF EXTENSION
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(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to both the Regular Trustees
and the Property Trustee of its selection of such Extended Interest Payment
Period one Business Day before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities are payable, or (ii) the date the
Trust is required to give notice of the record or payment date for such
Distributions to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Preferred Securities, but
in any event at least one Business Day before such record date. The Regular
Trustees shall give notice of the Company's selection of such Extended
Interest Payment Period to the holders of the Preferred Securities.
(b) If the Property Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of the Debentures and the Trustee
written notice of its selection of such Extended Interest Payment Period ten
(10) Business Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to the New York Stock
Exchange or other applicable self-regulatory organization or to Holders of
the Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the
twenty quarters permitted in the maximum Extended Interest Payment Period
permitted under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1. PAYMENT OF EXPENSES
In connection with the offering, sale and issuance of the Debentures to
the Property Trustee in connection with the sale of the Trust Securities by
the Trust, and in connection with the maintenance of the Trust for so long as
the Trust Securities are outstanding, the Company shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including compensation of the Trustee under the
Indenture in accordance with the provisions of Section 7.07 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities, the fees and expenses of
the Property Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of the Trust, including without limitation, costs
and expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer
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agent(s), any Clearing Agency for the Debentures, duplicating, travel and
telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of
Trust assets), other than obligations of the Trust in respect of the Common
Securities and the Preferred Securities;
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration;
(d) pay any and all taxes, duties, assessments or governmental
charges of whatever nature (other than United States withholding taxes
attributable to the Trust or its assets) imposed on the Trust or its assets
and all liabilities, costs and expenses of the Trust with respect to such
taxes, duties, assessments or governmental charges; and
(e) pay any and all fees and expenses related to the enforcement
by the Property Trustee of the rights of the holders of the Preferred
Securities.
ARTICLE VI
SUBORDINATION
SECTION 6.1. AGREEMENT TO SUBORDINATE
The Company covenants and agrees, and each holder of Debentures issued
hereunder by such holder's acceptance thereof likewise covenants and agrees,
that all Debentures shall be issued subject to the provisions of this Article
VI; and each holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of, premium, if any,
and interest on all Debentures issued hereunder shall, to the extent and in
the manner hereinafter set forth, be subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness, whether
outstanding at the date of this First Supplemental Indenture or thereafter
incurred. This Article shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of
the holders of Senior Indebtedness and such holders are made obligees
hereunder and they and/or each of them may enforce such provisions.
No provision of this Article VI shall prevent the occurrence of any
default or Event of Default with respect to the Debentures.
SECTION 6.2. DEFAULT ON SENIOR INDEBTEDNESS.
During the continuation of any event of default by the Company in the
payment of principal, premium, interest or any other amount due on any Senior
Indebtedness entitling the holders thereof to accelerate the maturity
thereof, or if such event of default would be caused by any payment upon or
in respect of the Debentures, then, in either case, no payment shall be made
by the Company to the
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Holders of the Debentures with respect to the principal (including redemption
and sinking fund payments) of, premium, if any, interest on, or any other
amount owing in respect of, the Debentures.
In the event that, notwithstanding the foregoing, any payment or
distribution shall be received by the Trustee or any Holder of the Debentures
when such payment or distribution is prohibited by the preceding paragraph of
this Section 6.2, such payment or distribution shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear.
SECTION 6.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, or any assignment for the
benefit of creditors or other marshalling of assets or liabilities of the
Company, all amounts due upon all Senior Indebtedness shall first be paid in
full, or payment thereof provided for in money in accordance with its terms,
before any payment or distribution is made by the Company to the Holders of
the Debentures on account of the principal of, premium, if any, interest on,
or any other amount owing in respect of, the Debentures; and upon any such
dissolution or winding-up or liquidation or reorganization, any payment by
the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of
the Debentures or the Trustee would be entitled to receive from the Company,
except for the provisions of this Article VI, shall be paid by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Holders of the
Debentures or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to
pay such Senior Indebtedness in full, in money or money's worth, after giving
effect to any concurrent payment or distribution to or for the holders of
such Senior Indebtedness, before any payment or distribution is made to the
Holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received
by the Trustee or the Holders of the Debentures before all Senior
Indebtedness is paid in full, or provision is made for such payment in money
in
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accordance with its terms, such payment or distribution shall be held in
trust for the benefit of and shall be paid over or delivered to the holders
of such Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary
to pay such Senior Indebtedness in full in money in accordance with its
terms, after giving effect to any concurrent payment or distribution to or
for the benefit of the holders of such Senior Indebtedness. For purposes of
this Article VI, the words "cash, property or securities" shall not be deemed
to include shares of stock of the Company as reorganized or readjusted, or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least
to the extent provided in this Article VI with respect to the Debentures to
the payment of all Senior Indebtedness that may at the time be outstanding,
provided, however, that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of such Senior Indebtedness are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Five of the Indenture shall not be deemed
a dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 6.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Five of the Indenture. Nothing in Section 6.2 or in this
Section 6.3 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07 of the Indenture.
SECTION 6.4. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness, the rights of
the Holders of the Debentures shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to such Senior
Indebtedness until the principal of, premium, if any, and interest on, and
all other amounts owing in respect of, the Debentures shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to
the holders of such Senior Indebtedness of any cash, property or securities
to which the Holders of the Debentures or the Trustee would be entitled
except for the provisions of this Article VI, and no payment over pursuant to
the provisions of this Article VI, to or for the benefit of the holders of
such Senior Indebtedness by Holders of the Debentures or the Trustee, shall,
as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Debentures be deemed to be a payment by
the Company to or on account of such Senior Indebtedness. It is understood
that the provisions of this Article VI are and are intended solely for the
purposes of defining the relative rights of the Holders of the Debentures, on
the one hand, and the holders of Senior Indebtedness on the other hand.
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Nothing contained in this Article VI or elsewhere in this Second
Supplemental Indenture or the Indenture or in the Debentures is intended to
or shall impair, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Debentures, the obligation of
the Company, which is absolute and unconditional, to pay to the Holders of
the Debentures the principal of (and premium, if any) and interest on and all
other amounts owing in respect of the Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Debentures and
creditors of the Company, other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Debenture from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, as amended and supplemented by this Second
Supplemental Indenture, subject to the rights, if any, under this Article VI
of the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article VI, the Trustee, subject to the provisions of Section 7.01 of
the Indenture, and the Holders of the Debentures, shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of the Debentures, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article VI.
SECTION 6.5. TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder of a Debenture by such holder's acceptance thereof
authorizes and directs the Trustee on such holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article VI and appoints the Trustee as such holder's
attorney-in-fact for any and all such purposes.
SECTION 6.6. NOTICE BY THE COMPANY
The Company shall give prompt written notice to a Trust Officer of any
fact known to the Company that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article VI. Notwithstanding the provisions of this
Article VI or any other provision of the Indenture and this Second
Supplemental Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article VI unless and until a Trust Officer shall have
received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any representative or trustee therefor; and
before the receipt of any such written notice, the
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Trustee, subject to the provisions of Section 7.01 of the Indenture, shall be
entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for
in this Section 6.6 at least two Business Days prior to the date upon which
by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if any) or
interest on any Debenture) then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01 of the Indenture,
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
or trustee on behalf of such holder) to establish that such notice has been
given by a holder of such Senior Indebtedness or a representative or trustee on
behalf of any such holder or holders. 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 such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article VI, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such 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 VI, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 6.7. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article VI in respect of any Senior Indebtedness at any time
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article VI, and no implied
covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into the Indenture or this Second Supplemental
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Section 7.01 of the Indenture, the Trustee shall not be liable
to any holder of Senior Indebtedness if it shall pay over or deliver to
Holders of Debentures, the Company or any other Person money or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this
Article VI or otherwise.
SECTION 6.8. SUBORDINATION MAY NOT BE IMPAIRED.
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No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of the
Indenture or this Second Supplemental Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Debentures, without incurring responsibility to the Holders of the Debentures
and without impairing or releasing the subordination provided in this Article
VI or the obligations hereunder of the Holders of the Debentures to the
holders of such Senior Indebtedness, do any one or more the following: (i)
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, such Senior Indebtedness, or otherwise amend or
supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such senior Indebtedness; (iii)
release any Person liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. LISTING ON EXCHANGE.
If the Debentures are distributed to the holders of the Preferred
Securities upon a Dissolution Event, the Company will use its best efforts to
list such Debentures on the New York Stock Exchange, Inc. or on such other
national securities exchange or with the Nasdaq Stock Market or such other
organization as the Preferred Securities are then listed.
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. FORM OF DEBENTURE.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL SECURITY, INSERT: THIS DEBENTURE
IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED
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IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURESS IN
CERTIFICATED FORM, THIS DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(55 βββββ ββββββ, βββ ββββ, βββ ββββ) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY DEBENTURE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
No. $
CUSIP No.
CIRCUS CIRCUS ENTERPRISES, INC.
____% SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE _________ __, ____
CIRCUS CIRCUS ENTERPRISES, INC., a Nevada corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ________________
or registered assigns, the principal sum of ________________ Dollars on
___________ and to pay interest on said principal sum from June __, 1998 or
from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on March 31,
June 30, September 30 and December 31 of each year, commencing September 30,
1998, at the rate of _____% per annum until the principal hereof shall have
become due and payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest,
compounded quarterly, at the same rate per annum. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a
360-day year of twelve 30-day months. The amount of interest payable for any
period shorter than a full quarterly period for which interest is computed
will be computed on the basis of the actual number of days elapsed in such
90-day quarter. In the event that any date on which interest is payable on
this Debenture is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name
-15-
this Debenture (or one or more Predecessor Securities, as defined in said
Indenture) is registered at the close of business on the Regular Record Date
for such interest installment [which shall be the close of business on the
Business Day next preceding such Interest Payment Date.] [IF PURSUANT TO THE
PROVISIONS OF SECTION 2.08 OF THE INDENTURE THE DEBENTURES ARE NO LONGER
REPRESENTED BY A GLOBAL SECURITY -- which shall be [insert date (to be
selected by the Company) which is not less than 15 days prior to each Interest
Payment Date.] Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holders on
such Regular Record Date, and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close
of business on a special record date to be fixed by the Company for the
payment of such defaulted interest, notice whereof shall be given to the
registered Holders of the Debentures not less than fifteen (15) days prior to
such special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Debentures may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Debenture shall be payable at
the office or agency of the Trustee maintained for that purpose in New York,
New York, in any coin or currency of the United States of America which 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 by check mailed to the registered Holder at such address as shall
appear in the security register maintained by the Registrar. Notwithstanding
the foregoing, so long as the Holder of this Debenture is the Property
Trustee of Circus Finance II, the payment of the principal of (and premium,
if any) and interest on this Debenture will be made in immediately available
funds at such place and to such account as may by designated by the Property
Trustee of Circus Finance II.
The indebtedness evidenced by this Debenture is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions. This Debenture
shall not be entitled to any benefit under the Indenture hereinafter referred
to, be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: ___________________
CIRCUS CIRCUS ENTERPRISES, INC.
By: _______________________________
Name:
Title:
Attest:
By:__________________________
Name:
Title:
-17-
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: _______________________________
Authorized Signatory
Dated: ___________________
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(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of the
Company designated its "_____% Subordinated Deferrable Interest Debentures
due _____ __, ____" (herein sometimes referred to as the "Debentures"),
issued under and pursuant to an Indenture dated as of [______ __, ____], duly
executed and delivered between the Company and The Bank of New York, not in
its individual capacity but solely as trustee (the "Trustee"), as
supplemented by a Second Supplemental Indenture dated as of [______ __, ____]
between the Company and the Trustee (such Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Debentures. The terms of the Debentures
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 "TIA"). This Debenture is subject to all such terms and the
Holder of this Debenture is referred to the Indenture and the TIA for a
statement of those terms.
The Debentures are general unsecured obligations of the Company and are
limited (except as otherwise provided in the Indenture) to $__________ in
aggregate principal amount.
Upon the occurrence and continuation of a Tax Event, in certain
circumstances this Debenture may be redeemed by the Company at a redemption
price equal to 100% of the principal amount hereof, plus any accrued but
unpaid interest thereon to the date of such redemption (the "Special
Redemption Price"). The Special Redemption Price shall be paid prior to
12:00 noon, New York City time, on the date of such redemption or at such
earlier time as the Company determines. The Company shall also have the
right to redeem this Debenture at the option of the Company, without premium
or penalty, in whole or in part at any time on or after May 13, 2003 (an
"Optional Redemption"), at a redemption price equal to 100% of the principal
amount hereof, plus any accrued but unpaid interest thereon to the date of
such redemption (the "Optional Redemption Price"). Any optional redemption
pursuant to this paragraph will be made upon not less than 30 nor more than
60 days notice, at the Optional Redemption Price. If the Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed by lot or by any other method utilized by the
Trustee; provided, however, that if at the time of redemption the Debentures
are registered as a global Debenture, the depositary shall determine by lot
the interest of each of its participants in such global Debenture to be
redeemed.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall
-19-
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of a majority in aggregate principal
amount of the Securities of each series affected at the time outstanding, as
defined in the Indenture, to amend or supplement the Indenture or the
Securities of any series (including the Debentures) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of modifying in any manner the rights of the
Holders of the Securities (including the Debentures); provided, however, that
no such amendment or supplement shall (i) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof, or reduce
the rate or extend the time for payment of interest thereon, without the
consent of the Holder of each Security of such series so affected or (ii)
reduce the aforesaid percentage in aggregate principal amount of Securities,
the Holders of which are required to consent to any such amendment or
supplement, without the consent of the Holders of each Security then
outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Securities of such series, to waive any past
default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the
principal of or interest, if any, on any of the Securities of such series.
Any such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this Debenture and of
any Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Debenture at the time and place and at the rate and
in the money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures, and from time to time, to extend the interest payment period of
the Debentures for up to twenty (20) consecutive quarters (an "Extended
Interest Payment Period"), at the end of which period the Company shall pay
all interest then accrued and unpaid (together with interest thereon at the
rate specified for the Debentures to the extent that payment of such interest
is enforceable under applicable law). Before the termination of any such
Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided, however, that such Extended
Interest Payment Period together with all previous and such further
extensions thereof shall not exceed twenty (20) consecutive quarters or
extend beyond the maturity of the Debentures. At the termination of any such
Extended Interest Payment Period and upon the payment of all accrued and
unpaid interest and any additional amounts then due, the Company may select a
new Extended Interest Payment Period, subject to the foregoing requirements.
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As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered Holder hereof on
the security register of the Company maintained by the Registrar, upon
surrender of this Debenture for registration of transfer at the office or
agency of the Trustee in New York, New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company or
the Trustee duly executed by the registered Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will
be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any Paying Agent and the Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Registrar) for the
purpose of receiving payment of principal of and interest due hereon and for
all other purposes, and neither the Company nor the Trustee nor any Paying
Agent nor the Registrar shall be affected by any notice to the contrary.
No past, present or future director, officer, employee or stockholder,
as such, of the Company or the Trustee or any successor of either thereof
shall have any liability for any obligations of the Company or the Trustee
under the Debentures or this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
[The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.]
[This global Debenture is exchangeable for Debentures in definitive
certificated form only under certain limited circumstances set forth in the
Indenture. Debentures so issued are issuable only in registered form without
coupons in denominations of $1000 and any integral multiple thereof.] As
provided in the Indenture and subject to certain limitations therein set forth,
Debentures so issued are exchangeable for a like aggregate principal amount of
Debentures of a different authorized denomination, as requested by the Holder
surrendering the same.
This Debenture shall be governed by the internal laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ARTICLE IX
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ORIGINAL ISSUE OF DEBENTURES
SECTION 9.1. ORIGINAL ISSUE OF DEBENTURES
Debentures in the aggregate principal amount of $___________ may, upon
execution of this Second Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written
order of the Company, signed by its Chairman, its President, or any Vice
President and its Treasurer, an Assistant Treasurer, or Secretary without any
further action by the Company.
ARTICLE X
CERTAIN COVENANTS
The following covenants shall apply to the Debentures (but not with
respect to any other series of Securities), and are in addition to the
covenants set forth in Article Four of the Indenture.
SECTION 10.1. LIMITATION ON DIVIDENDS AND OTHER PAYMENTS
If (i) there shall have occurred any event that constitutes an Event of
Default or (ii) the Company shall be in default with respect to its payment
of any obligations under the Preferred Securities Guarantee, then (a) the
Company shall not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase or make a liquidation payment with respect
to, any of its capital stock, (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company which rank pari passu with or junior to
the Debentures, and (c) the Company shall not make any guarantee payments
(other than pursuant to the Preferred Securities Guarantee) with respect to
the foregoing.
If the Company shall have given notice of its election to defer payments
of interest on the Debentures by extending the interest payment period as
provided in Article IV and such period, or any extension thereof, shall be
continuing, then (i) the Company shall not declare or pay any dividend, or
make any distributions with respect to, or redeem, purchase or make a
liquidation payment with respect to, any of its capital stock, (ii) the
Company shall not make any payment of interest, principal, premium, if any,
on or repay, repurchase or redeem any debt securities issued by the Company
which rank pari passu with or junior to the Debentures, and (iii) the Company
shall not make any guarantee payments (other than pursuant to the Preferred
Securities Guarantee) with respect to the foregoing.
Notwithstanding the foregoing restrictions, nothing in this Section 10.1
shall prevent the Company, in any event, from making dividend, redemption,
liquidation or guarantee payments on capital stock, or interest, principal,
redemption or guarantee payments on debt
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securities issued by the Company ranking pari passu with or junior to the
Debentures, where the payment is made by way of securities (including capital
stock) that rank junior to the securities on which such payment is being made.
SECTION 10.2. COVENANTS AS TO THE TRUST
For so long as the Trust Securities remain outstanding, the Company will
(i) maintain 100% direct or indirect ownership of the Common Securities;
provided, however, that any permitted successor of the Company under the
Indenture may succeed to the Company's ownership of the Common Securities,
(ii) not cause, as sponsor of the Trust, or permit, as the holder of the
Common Securities of the Trust, the termination, dissolution or winding-up of
the Trust, except in connection with a distribution of the Debentures as
provided in the Declaration and in connection with certain mergers,
consolidations or amalgamations as permitted by the Declaration, (iii) use
its reasonable efforts to cause the Trust (a) to remain a statutory business
trust, except in connection with a distribution of Debentures to the holders
of the Preferred Securities in liquidation of the Trust, the redemption of
all of the Trust Securities of the Trust or certain mergers, consolidations
or amalgamations, each as permitted by the Declaration, and (b) to otherwise
continue to be treated as a grantor trust for United States federal income
tax purposes and (iv) use its reasonable efforts to cause each holder of
Trust Securities to be treated as owning an individual beneficial interest in
the Debentures.
ARTICLE XI
CERTAIN EVENTS OF DEFAULT
SECTION 11.1. ADDITIONAL EVENTS OF DEFAULT
An Event of Default with respect to the Debentures shall include those
events described in Section 6.01 of the Indenture and, with respect to the
Debentures only, the occurrence of any of the following events: the voluntary
or involuntary dissolution, winding up or termination of the Trust, except in
connection with (i) the distribution of Debentures to holders of Preferred
Securities in liquidation of their interests in the Trust, (ii) the
redemption of all of the outstanding Preferred Securities, or (iii) certain
mergers, consolidations or amalgamations, each as permitted by the provisions
of the Declaration.
SECTION 11.2. WAIVER OF EXISTING DEFAULTS
Notwithstanding Section 6.04 of the Indenture, the Holders of a majority
in aggregate principal amount of the Debentures may not waive a Default or an
existing Event of Default (i) in the payment of the principal of or accrued
interest on the Debentures, unless the Company has paid or deposited with the
Trustee a sum sufficient to pay all matured installments of interest (with
interest on overdue interest at the rate specified in Section 2.5(a)) upon
all of the Debentures and the principal of the Debentures that shall have
become due otherwise than by acceleration or (ii) that
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arise out of a breach by the Company of Section 10.1. Section 6.04 of the
Indenture shall, in all other respects and as modified by this Section 11.2,
apply to the Debentures.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. SUPPLEMENTAL INDENTURE INCORPORATED INTO INDENTURE
This Second Supplemental Indenture is executed by the Company and the
Trustee pursuant to the provisions of Sections 2.01 and 2.02 of the
Indenture, and the terms and conditions hereof shall be deemed to be part of
the Indenture for all purposes relating to the Debentures. The provisions of
the Indenture, as modified by this Second Supplemental Indenture, are
effective with respect to the Debentures, and are not effective with respect
to any series of Securities to be issued pursuant to any previous or
subsequent supplemental indenture or resolution of the Board of Directors.
The Indenture, as supplemented by this Second Supplemental Indenture, is in
all respects adopted, ratified and confirmed.
SECTION 12.2. TRUSTEE NOT RESPONSIBLE FOR RECITALS; DISCLAIMER
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Second Supplemental Indenture.
SECTION 12.3. GOVERNING LAW
This Second Supplemental Indenture and each Debenture shall be deemed to
be a contract made under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 12.4. SEPARABILITY
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Debentures shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Second Supplemental Indenture or of the Debentures, but this Second
Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein
or therein.
SECTION 12.5. COUNTERPARTS.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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SECTION 12.6. ACKNOWLEDGMENT OF RIGHTS OF HOLDERS OF PREFERRED SECURITIES
The Company hereby acknowledges the right of each holder of Preferred
Securities, upon and during the continuance of an Event of Default under the
Declaration that results from the failure of the Company to pay principal of
or interest on the Debentures when due, to directly institute proceedings
against the Company to obtain payment to such holder of an amount equal to
the principal or interest so defaulted on with respect to Debentures in a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities owned by such holder.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, as of the day and year first above written.
CIRCUS CIRCUS ENTERPRISES, INC.
By:___________________________________
Title:
Attest:
THE BANK OF NEW YORK,
as Trustee
By:_________________________________
Name:
Title:
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STATE OF )
)ss.:
COUNTY OF )
On the day of , 1998 before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he is the
of CIRCUS CIRCUS ENTERPRISES, INC., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto
by like authority.
NOTARY PUBLIC
[seal] Commission expires
STATE OF )
) ss.:
COUNTY OF )
On the day of , 1998 before me personally came , to
me known, who, being by me duly sworn, did depose and say that he is the
of THE BANK OF NEW YORK, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
NOTARY PUBLIC
[seal] Commission expires
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