MIRAGE RESORTS, INCORPORATED, as Issuer,
____________________
INDENTURE
Dated as of
February 4, 1998
PNC BANK, NATIONAL ASSOCIATION
Trustee
Exhibit 4(e)
CROSS-REFERENCE TABLE*
---------------------
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310(a)(1)..................................... 7.10
(a)(2)..................................... 7.10
(a)(3)..................................... N.A.
(a)(4)..................................... N.A.
(b)........................................ 7.08; 7.10; 10.02
(c)........................................ N.A.
311(a)........................................ 7.11
(b)........................................ 7.11
(c)........................................ N.A.
312(a)........................................ 2.07
(b)........................................ 10.03
(c)........................................ 10.03
313(a)........................................ 7.06
(b)(1)..................................... N.A.
(b)(2)..................................... 7.06
(c)........................................ 7.06; 10.02
(d)........................................ 7.06
314(a)........................................ 4.02; 10.02
(b)........................................ N.A.
(c)(1)..................................... 10.04
(c)(2)..................................... 10.04
(c)(3)..................................... N.A.
(d)........................................ N.A.
(e)........................................ 10.05
(f)........................................ N.A.
315(a)........................................ 7.01(b)
(b)........................................ 7.05; 10.02
(c)........................................ 7.01(a)
(d)........................................ 7.01(c)
(e)........................................ 6.11
316(a) (last sentence)........................ 2.11
(a)(1)(A).................................. 6.05
(a)(1)(B).................................. 6.04
(a)(2)..................................... N.A.
(b)........................................ 6.07
317(a)(1)..................................... 6.08
(a)(2)..................................... 6.09
(b)........................................ 2.06
318(a)........................................ 10.01
N.A. means not applicable.
_______________
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.................................. 1
Section 1.01. Definitions....................................................... 1
Section 1.02. Other Definitions................................................. 6
Section 1.03. Incorporation by Reference of Trust Indenture Act................. 7
Section 1.04. Rules of Construction............................................. 7
ARTICLE 2 THE SECURITIES.............................................................. 8
Section 2.01. Forms Generally................................................... 8
Section 2.02. Form of Trustee's Certificate of Authentication................... 8
Section 2.03. Amount Unlimited, Issuable in Series.............................. 9
Section 2.04. Execution and Authentication; Denominations; Delivery and Dating.. 12
Section 2.05. Registrar and Paying Agent........................................ 12
Section 2.06. Paying Agent to Hold Money in Trust............................... 14
Section 2.07. Securityholder Lists.............................................. 14
Section 2.08. Transfer and Exchange............................................. 14
Section 2.09. Replacement Securities............................................ 18
Section 2.10. Outstanding Securities............................................ 18
Section 2.11. Treasury Securities............................................... 18
Section 2.12. Temporary Securities.............................................. 19
Section 2.13. Cancellation...................................................... 19
Section 2.14. Defaulted Interest................................................ 19
ARTICLE 3 REDEMPTION AND OFFER TO REPURCHASE.......................................... 19
Section 3.01. Notices to Trustee................................................ 19
Section 3.02. Selection of Securities to Be Redeemed............................ 20
Section 3.03. Notice of Redemption.............................................. 20
Section 3.04. Effect of Notice of Redemption.................................... 21
Section 3.05. Deposit of Redemption Price....................................... 21
Section 3.06. Securities Redeemed in Part....................................... 21
Section 3.07. Redemption Pursuant to Gaming Laws................................ 21
ARTICLE 4 COVENANTS................................................................... 22
Section 4.01. Payment of Securities............................................. 22
Section 4.02. SEC Reports, Financial Reports.................................... 22
Section 4.03. Compliance Certificate............................................ 23
Section 4.04. Stay, Extension and Usury Laws.................................... 23
Section 4.05. Corporate Existence............................................... 24
Section 4.06. Taxes............................................................. 24
Section 4.07. Change in Control................................................. 24
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ARTICLE 5 SUCCESSORS................................................................. 26
Section 5.01. When the Company May Merge, etc................................... 26
Section 5.02. Successor Corporation Substituted................................. 26
ARTICLE 6 DEFAULTS AND REMEDIES...................................................... 27
Section 6.01. Events of Default................................................. 27
Section 6.02. Acceleration...................................................... 29
Section 6.03. Other Remedies.................................................... 29
Section 6.04. Waiver of Past Defaults........................................... 30
Section 6.05. Control by Majority............................................... 30
Section 6.06. Limitation on Suits............................................... 30
Section 6.07. Rights of Holders to Receive Payment.............................. 31
Section 6.08. Collection Suit by Trustee........................................ 31
Section 6.09. Trustee May File Proofs of Claim.................................. 31
Section 6.10. Priorities........................................................ 31
Section 6.11. Undertaking for Costs............................................. 32
ARTICLE 7 TRUSTEE.................................................................... 32
Section 7.01. Duties of Trustee................................................. 32
Section 7.02. Rights of Trustee................................................. 33
Section 7.03. Individual Rights of Trustee...................................... 33
Section 7.04. Trustee's Disclaimer.............................................. 34
Section 7.05. Notice of Defaults................................................ 34
Section 7.06. Reports by Trustee to Holders..................................... 34
Section 7.07. Compensation and Indemnity........................................ 34
Section 7.08. Replacement of Trustee............................................ 35
Section 7.09. Successor Trustee by Merger, etc.................................. 37
Section 7.10. Eligibility; Disqualification..................................... 37
Section 7.11. Preferential Collection of Claims Against the Company............. 37
ARTICLE 8 DISCHARGE OF INDENTURE..................................................... 37
Section 8.01. Discharge of Liability on Securities.............................. 37
Section 8.02. Repayment to the Company.......................................... 38
Section 8.03. Option to Effect Defeasance or Covenant Defeasance................ 38
Section 8.04. Defeasance and Discharge.......................................... 38
Section 8.05. Covenant Defeasance............................................... 39
Section 8.06. Conditions to Defeasance or Covenant Defeasance................... 39
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Page
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ARTICLE 9 AMENDMENTS................................................................ 40
Section 9.01. Without Consent of Holders....................................... 40
Section 9.02. With Consent of Holders.......................................... 41
Section 9.03. Compliance with Trust Indenture Act.............................. 42
Section 9.04. Revocation and Effect of Consents................................ 42
Section 9.05. Notation on or Exchange of Securities............................ 43
Section 9.06. Trustee Protected................................................ 43
ARTICLE 10 MEETINGS OF SECURITYHOLDERS.............................................. 43
Section 10.01. Purposes for Which Meetings May be Called........................ 43
Section 10.02. Manner of Calling Meetings....................................... 44
Section 10.03. Call of Meetings by Company or Holders........................... 44
Section 10.04. Who May Attend or Vote at Meetings............................... 44
Section 10.05. Regulations by Trustee; Conduct of Meeting; Voting Rights;
Adjournment...................................................... 45
Section 10.06. Voting at the Meeting and Record to be Kept...................... 45
Section 10.07. Exercise of Rights of Trustee or Securityholders Not Hindered
or Delayed by Call of Meeting.................................... 46
ARTICLE 11 MISCELLANEOUS............................................................ 46
Section 11.01. Trust Indenture Act Controls..................................... 46
Section 11.02. Notices.......................................................... 46
Section 11.03. Communication by Holders with Other Holders...................... 47
Section 11.04. Certificate and Opinion as to Conditions Precedent............... 47
Section 11.05. Statements Required in Certificate or Opinion.................... 47
Section 11.06. Rules by Trustee and Agents...................................... 48
Section 11.07. Legal Holidays................................................... 48
Section 11.08. No Recourse Against Others....................................... 48
Section 11.09. Counterparts..................................................... 48
Section 11.10. Governing Law.................................................... 49
Section 11.11. No Adverse Interpretation of Other Agreements.................... 49
Section 11.12. Successors....................................................... 49
Section 11.13. Severability..................................................... 49
Section 11.14. Qualification of Indenture....................................... 49
Section 11.15. Table of Contents, Headings, etc................................. 49
SIGNATURES........................................................................... 50
iii
INDENTURE dated as of February 4, 1998 between MIRAGE RESORTS,
INCORPORATED, a Nevada corporation (the "Company"), and PNC BANK,
NATIONAL ASSOCIATION, as trustee (the "Trustee").
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The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its bonds,
debentures, notes and/or other evidences of indebtedness (herein called the
"Securities"), which may be senior secured, senior unsecured, senior
subordinated or subordinated, to be issued in one or more series as in this
Indenture provided.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
ratable benefit of the Holders of the Securities or of each series thereof as
follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
------------- ------------
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
-------------
"under common control with"), as used with respect to any person, shall mean the
--------------------------
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"AGENT" means any Registrar or Paying Agent.
"ASSETS" means any assets, rights or property of any person.
"AUTHORIZED NEWSPAPER" means a newspaper in the English language or,
at the option of the Company, in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial community of
such place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
Authorized Newspapers meeting the foregoing requirements and in each case on any
Business Day.
"BUSINESS DAY" means, except as otherwise specified as contemplated by
Section 2.03, with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"BOARD OF DIRECTORS" or "BOARD" means the Board of Directors or any
authorized committee of the Board of Directors of the Company, or a Consolidated
Subsidiary thereof, as the context may indicate.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"CAPITAL STOCK" of any person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock and
any and all forms of partnership interests or other equity interests in a
person, including but not limited to any type of preference stock which for
other purposes may not be treated as equity.
"CHANGE IN CONTROL" means (i) the time the Company first determines
that any person or group, within the meaning of Section 14(d)(2) of the Exchange
Act (other than any person who was at the date hereof an officer or director of
the Company or a group consisting of persons who were at the date hereof
officers or directors of the Company) have acquired direct or indirect
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)
of 35% or more of the outstanding voting Capital Stock of the Company, unless a
majority of the Continuing Directors approves the acquisition not later than 10
business days after the Company makes the determination, or (ii) the first day
on which a majority of the members of the Board of Directors of the Company are
not Continuing Directors.
"COMPANY REQUEST" OR "COMPANY ORDER" means a written request or order
(i) signed in the name of the Company by its Chairman of the Board, a Vice
Chairman, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary, an Assistant Secretary or any other employee of the
Company named in an Officers' Certificate delivered to the Trustee, and (ii)
delivered to the Trustee.
"CONSOLIDATED SUBSIDIARY" of any specific person means any subsidiary,
all of whose voting Capital Stock (other than the minimum required number of
directors' qualifying shares) are owned by such person and/or by another
Consolidated Subsidiary of such person, and the accounts of which are, or under
generally accepted accounting principles are required to be, consolidated with
the accounts of such person.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of that
Board of Directors on the date hereof, (ii) had been a member of that Board of
Directors for the two years immediately preceding such date of determination or
(iii) was nominated for election or elected to that Board of Directors with the
affirmative vote of the greater of (x) a majority of Continuing Directors who
were members of that Board at the time of such nomination or election or (y) at
least three Continuing Directors.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 11.02 or such other address of which the Trustee
may give notice to the Company.
2
"CORPORATION" includes corporations, associations, companies and
business trusts.
"DEFAULT" means any event which is, or after notice or passage of time
would be, an Event of Default.
"DEFINITIVE SECURITIES" means any Security in the form established
pursuant to Section 2.01 which is registered on the books of the Registrar.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the person specified as
contemplated in Section 2.03 as the Depositary with respect to such series of
Securities, until a successor shall have been appointed and become such pursuant
to the applicable provision of this Indenture, and, thereafter, "Depositary"
shall mean or include such successor.
"EQUITY INTERESTS" means Capital Stock or warrants, options or other
rights to acquire Capital Stock (but excluding any debt security which is
convertible into, or exchangeable for, Capital Stock).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING PROPERTIES" means The Mirage, Treasure Island, the Golden
Nugget and the Golden Nugget-Laughlin.
"GAMING AUTHORITY" means any Governmental Authority that holds
regulatory, licensing or permit authority over any gaming or gaming related
activities conducted or proposed to be conducted by the Company or any of its
subsidiaries or any joint venture or other entity in which the Company or any of
its subsidiaries owns an interest, including without limitation the Nevada
Gaming Commission, the Nevada State Gaming Control Board and the ▇▇▇▇▇ County
Liquor and Gaming Licensing Board.
"GAMING LAWS" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules, regulations, ordinances,
codes and administrative or judicial precedents pursuant to which any Gaming
Authority possesses regulatory, licensing, or permit authority over gaming or
gaming related activities, including without limitation, the Nevada Gaming
Control Act.
"GAMING LICENSE" means every license, franchise or other authorization
on the date of this Indenture or thereafter required to own, lease, operate or
otherwise conduct gaming or gaming related activities at any property owned or
operated by the Company or any of its subsidiaries or any joint venture or other
entity in which the Company or any of its subsidiaries owns an interest.
"GLOBAL SECURITY" means a Security issued to evidence all or a part of
any series of Securities that is executed by the Company and authenticated and
delivered by the Trustee to a Depositary or pursuant to such Depositary's
instructions, all in accordance with this Indenture
3
and pursuant to an Officers' Certificate, which shall be registered as to
Principal and interest in the name of such Depositary or its nominee.
"GOLDEN NUGGET" means the real and personal property comprising the
Golden Nugget hotel-casino owned and operated by a wholly-owned subsidiary of
the Company and located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in Las Vegas, Nevada.
"GOLDEN NUGGET-▇▇▇▇▇▇▇▇" means the real and personal property
comprising the Golden Nugget hotel-casino owned and operated by a wholly-owned
subsidiary of the Company and located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ in Laughlin,
Nevada.
"GOVERNMENTAL AUTHORITY" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
any federal or state government or any city, county or other political
subdivision thereof or otherwise and whether now or hereafter in existence, or
any officer or official thereof acting in an official capacity, including,
without limitation, any Gaming Authority.
"HOLDER" or "SECURITYHOLDER" means a person in whose name a Security
is registered.
"INDEBTEDNESS" of any person means any indebtedness, contingent or
otherwise, but exclusive of deferred taxes, 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 a portion thereof), or evidenced by bonds, notes, debentures or
similar instruments or reimbursement obligations with respect to letters of
credit, or representing the balance deferred and unpaid of the purchase price of
any property or interest therein (including pursuant to capitalized leases),
except any such balance that constitutes a trade payable, if and to the extent
such indebtedness would appear as a liability upon a balance sheet of such
person prepared on a consolidated basis in accordance with generally accepted
accounting principles, and also includes, to the extent not otherwise included,
the guaranty of any Indebtedness (other than the guaranty of completion of
construction).
"INDENTURE" means this Indenture as amended or supplemented from time
to time.
"MATERIAL SUBSIDIARY" of any person means (i) any subsidiary of such
person which is a "significant subsidiary" within the meaning of Rule 1-02(v) of
Regulation S-X under the Securities Act of 1933, as amended, and the Exchange
Act (as such Regulation is in effect on the date hereof), or (ii) any other
subsidiary of such person which is material to the business, earnings,
prospects, assets or condition, financial or otherwise, of such person and its
subsidiaries taken as a whole.
"THE MIRAGE" means the real and personal property comprising The
Mirage hotel-casino owned and operated by a wholly-owned subsidiary of the
Company and located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in Las Vegas, Nevada.
4
"OFFICER" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Chief Financial Officer, the Treasurer, the
Secretary, the Director of Finance, any Assistant Treasurer or any Assistant
Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by any two
Officers, one of whom must be the Chairman of the Board, a Vice Chairman, the
President, the Chief Financial Officer, the Treasurer or a Vice President of the
Company.
"OPINION OF COUNSEL" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company or the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
that an amount less than its Principal Amount is due and payable upon
acceleration after an Event of Default.
"PLACE OF PAYMENT," when used with respect to the Securities of any
series, means the place or places where the Principal of and any interest on the
Securities of that series are payable as specified as contemplated by Section
2.03.
"PREDECESSOR SECURITIES" of any Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.09 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security means the principal of
the Security plus the premium, if any, on the Security.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"SECURITIES CUSTODIAN" means the Trustee in its capacity as custodian
with respect to the Securities in global form, or any successor entity thereto
in such capacity.
"STATED MATURITY," when used with respect to any Security or any
installment of Principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which an amount equal to the Principal of
such Security or an installment of Principal thereof or interest thereon is due
and payable.
"SUBSIDIARY" of any specified person means (i) a corporation, a
majority of whose Capital Stock with voting power under ordinary circumstances
to elect directors is at the time, directly or indirectly, owned by such person
or by such person and a subsidiary or subsidiaries of such person or by a
subsidiary or subsidiaries of such person or (ii) any other person (other than a
corporation) in which such person or such person and a subsidiary or
subsidiaries of such person or a subsidiary or
5
subsidiaries of such person directly or indirectly, at the date of determination
thereof, has at least a majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is first
qualified under the TIA, except as provided in Section 9.03.
"TREASURE ISLAND" means the real and personal property comprising the
Treasure Island hotel-casino owned and operated by a wholly-owned subsidiary of
the Company and located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇.
"TRUSTEE" means the person named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means (i) during any period when a successor Trustee is serving as
Trustee with respect to all of the Securities, such successor Trustee, and (ii)
during any period when a successor Trustee is serving as Trustee with respect to
one or more (but not all) series of Securities, as to each series the successor
serving as Trustee with respect thereto.
"TRUST OFFICER" means the Chairman of the Board, the President or any
other officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
Section 1.02. Other Definitions.
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Defined in
Term Section
---- ---------
"Bankruptcy Law"..................... 6.01
"Change in Control Date"............. 4.07
"Custodian".......................... 6.01
"Defeased Securities"................ 8.03
"Event of Default"................... 6.01
"Legal Holiday"...................... 11.07
"Paying Agent"....................... 2.05
"Qualified Government Obligations"... 8.06
"Registrar".......................... 2.05
"Repurchase Date".................... 4.07
"Repurchase Offer"................... 4.07
"Repurchase Price"................... 4.07
Section 1.03. 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:
6
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Securityholder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Securities means the Company and any other obligor
upon the Securities.
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 1.04. Rules of Construction
------------- ---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles;
(3) references to "generally accepted accounting principles"
shall mean generally accepted accounting principles in effect in the United
States of America as of the time when and for the period as to which such
accounting principles are to be applied;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the plural
include the singular; and
(6) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
Section 2.01. Forms Generally.
------------- ----------------
The Securities of each series shall be in such form (including global
form) as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
provisions 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 any Gaming Authority or as may
be
7
required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistent herewith, be determined appropriate by the
Officers executing such Securities, as evidenced by their execution thereof. If
the form of any series of Securities is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of a Company Order signed
by two Officers of the Company for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, provided that
such method is permitted by the rules of any securities exchange on which such
Securities may be listed, all as determined by the Officers executing such
Securities, as evidenced by their execution of such Securities.
The terms and provisions in the Securities shall constitute, and are
hereby expressly made, a part of this Indenture.
Section 2.02. Form of Trustee's Certificate of Authentication.
------------- ------------------------------------------------
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated herein referred
to in the within- mentioned Indenture.
___________________________________
As Trustee
By_________________________________
Authorized Signatory
8
Section 2.03 Amount Unlimited, Issuable in Series.
------------ -------------------------------------
The aggregate Principal Amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 2.04,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of any series of Securities:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate Principal Amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.08, 2.09, 2.12 or 9.05 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder);
(3) the person to whom any interest on a Security of the series shall
be payable, if other than the person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
record date for such interest;
(4) the date or dates on which the Principal of any Securities of the
series is payable or the method of determination thereof;
(5) the rate or rates (which may be fixed or variable) at which any
Securities of the series shall bear interest, if any, the date or dates
from which any such interest shall accrue, the dates on which any such
interest shall be payable and the record date for any such interest payable
on any such payment date;
(6) any terms applicable to original issue discount, if any (as that
term is defined in the Internal Revenue Code of 1986, as amended, and the
regulations thereunder), including the rate or rates at which such original
issue discount, if any, shall accrue;
(7) the place or places where the Principal of and interest on any
Securities of the series shall be payable;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
9
(9) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(10) the terms and conditions, if any, upon which the Securities of
the series may or must be converted into other securities of the Company or
exchanged for other securities of the Company or another enterprise;
(11) if other than denomination of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(12) if the amount of Principal of or interest on any Securities of
the series is to be determined with reference to an index, pursuant to a
formula or by another method, the manner in which such amounts shall be
determined and the calculation agent, if any, with respect thereto;
(13) if other than the currency of the United States of America, the
currency, currencies or currency units in which the Principal of or
interest on any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United States of
America for any purpose;
(14) if the Principal of or interest on any Securities of the series
is to be payable, at the election of the Company or the Holder thereof, in
one or more currencies or currency units other than that or those in which
such Securities are stated to be payable, the currency, currencies or
currency units in which the Principal of or interest on such Securities as
to which such election is made shall be payable, the periods within which
and the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be determined);
(15) if other than the entire Principal Amount thereof, the portion of
the Principal Amount of any Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02;
(16) if the Principal Amount payable at the maturity of any Securities
of the series will not be determinable as of any one or more dates prior to
maturity, the amount which shall be deemed to be the Principal Amount of
such Securities as of any such date for any purpose thereunder or
hereunder, including the Principal Amount thereof which shall be due and
payable upon any maturity date other than the Stated Maturity or which
shall be deemed to be outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the Principal Amount shall be determined);
(17) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Article 8, and, if other
than by a Board Resolution, the manner in which any election by the Company
to defease such Securities shall be evidenced;
10
(18) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the Principal Amount
thereof due and payable pursuant to Section 6.02;
(19) if applicable, any provisions for securing all or any portion of
the Indebtedness evidenced by the Securities of the series;
(20) if applicable, any provisions relating to the seniority or
subordination of all or any portion of the Indebtedness evidenced by the
Securities of the series to other Indebtedness of the Company, including,
as applicable, other Indebtedness evidenced by Securities;
(21) any addition to or change in the covenants set forth in Article 4
which applies to Securities of the series;
(22) whether the Securities of the series shall be issued in whole or
in part in temporary or permanent form of a Global Security or Securities
and, if so, the initial Depositary with respect to any such temporary or
permanent Global Security or Securities, and if other than as provided in
Section 2.08, whether and the circumstances under which beneficial owners
of interests in any such temporary or permanent Global Security or
Securities may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may modify or
delete any provision of this Indenture with respect to such series,
provided that no such term may modify or delete any provision hereof if
imposed by the TIA, and provided further that any modification or deletion
of the rights, duties or immunities of the Trustee hereunder shall have
been consented to in writing by the Trustee).
If any of the foregoing terms are not available at the time such Board
Resolution is adopted, or such Officers' Certificate or any supplemental
indenture is executed, such resolution, Officers' Certificate or supplemental
indenture may reference the document or documents to be created in which such
terms will be set forth prior to the issuance of such Securities.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 2.04) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
11
Section 2.04. Execution and Authentication; Denominations; Delivery and Dating.
------------- -----------------------------------------------------------------
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Upon a written order of the Company signed by two Officers of the
Company, the Trustee shall authenticate the Securities.
The Securities shall be issuable only in registered form without
coupons and only in minimum denominations of $1,000 and in integral multiples
thereof.
The Company and the Trustee, by their execution and authentication,
respectively, of the Securities, expressly agree to the terms and conditions
stated therein and to be bound thereby.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
Section 2.05. Registrar and Paying Agent.
------------- ---------------------------
The Company shall maintain in the county where the principal corporate
office of the Trustee is located and in such other locations as it shall
determine (i) an office or agency where Securities of a series may be presented
for registration of transfer or for exchange ("Registrar") and (ii) an office or
---------
agency where Securities of that series may be presented for payment ("Paying
------
Agent"). The Registrar for each series of Securities shall keep a register of
-----
the Securities of that series and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional paying agents
for each series of Securities. The term "Paying Agent" includes any additional
paying agent. The term "Registrar" includes any co-registrar. The Company may
change any Paying Agent or Registrar upon thirty (30) days' notice to the
Trustee. The Company shall notify the Trustee of the name and address of any
Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent for any series of
Securities, the Trustee shall act as such. The Company or any of its
subsidiaries may act as Paying Agent or Registrar for any series of Securities.
12
The Company initially appoints the Trustee to act as Securities
Custodian with respect to the Global Securities.
The Company initially appoints the Trustee as Paying Agent, Registrar
and authenticating agent.
The Company shall, if the Securities of any series are listed on the
New York Stock Exchange, designate as authenticating agent, Registrar and Paying
Agent with respect to the Securities of such series a bank or trust company in
good standing, organized under the laws of the United States of America or any
State, doing business in or having a correspondent relationship with a bank or
trust company doing business in the Borough of Manhattan, City of New York,
State of New York, and having a capital and surplus (including subordinated
capital notes and earned surplus) aggregating at least $10,000,000 (except with
respect to Article 8, in which case the Paying Agent (if other than the Trustee)
shall have a capital and surplus (including subordinated capital notes and
earned surplus) aggregating at least $100,000,000). Whenever, pursuant to this
Indenture, the Trustee is obligated, empowered or authorized to perform any act
with respect to the authentication and issuance of the Securities of any series,
or their transfer, other than the authentication and issuance of Securities of
such series upon original issue or in cases of Securities of such series
mutilated, destroyed, lost or stolen, such act may be performed by the
authenticating agent and Registrar for such series, notwithstanding anything in
this Indenture to the contrary. Whenever, pursuant to this Indenture, the
Trustee is obligated, empowered or authorized to perform any act with respect to
payment of the Principal of or interest on the Securities of any series, such
acts may be performed by the Paying Agent for such series, notwithstanding
anything in this Indenture to the contrary.
The Company covenants that whenever necessary to avoid or fill a
vacancy in the office of authenticating agent, Registrar or Paying Agent for any
series of Securities, the Company will appoint a successor authenticating agent,
Registrar or Paying Agent, as the case may be, so that there shall, at all times
that the Securities of such series are listed on the New York Stock Exchange, be
one or more offices or agencies in the Borough of Manhattan, City of New York,
State of New York, acceptable to the New York Stock Exchange, where Securities
of such series may be presented or surrendered for payment and where Securities
of such series may be surrendered for registration of transfer or exchange.
In case, at the time of the appointment of a successor to the
authenticating agent, any of the Securities of a series shall have been
authenticated but not delivered, any such successor may adopt the certificate of
authentication of the original authenticating agent or of any successor to it as
authenticating agent hereunder, and deliver such Securities so authenticated;
and in case at any time any of the Securities of a series shall not have been
authenticated, any successor to the authenticating agent by merger or
consolidation may authenticate such Securities either in the name of its
predecessor hereunder or in the name of the successor authenticating agent; and
in all such cases such certificate shall have the full force which it is
anywhere in the Securities of such series or in this Indenture provided that the
certificate of authentication shall have.
13
Section 2.06. Paying Agent to Hold Money in Trust.
------------- ------------------------------------
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of Principal of or interest on any series of Securities, and shall
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a subsidiary) shall
have no further liability for the money. If the Company or a subsidiary of the
Company acts as Paying Agent, it shall, on or before each due date of Principal
of or interest on that series of Securities, segregate and hold in a separate
trust fund for the benefit of the Holders of such series all money held by it as
Paying Agent for the benefit of the Holders of such series.
Section 2.07. Securityholder 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
Securityholders. If the Trustee is not the Registrar, the Company and any other
obligor shall furnish to the Trustee on or before each interest payment date and
at such other times as the Trustee may request in writing, but in any event at
least semi-annually, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders.
Section 2.08. Transfer and Exchange.
------------- ----------------------
(a) Transfer and Exchange of Definitive Securities. When Definitive
Securities of any series are presented to the Registrar with the request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal amount
of Definitive Securities of such series of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Definitive Securities presented or surrendered for register of transfer or
exchange 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 his attorney, duly authorized in writing.
(b) Restrictions on Transfer of a Definitive Security for a Beneficial
Interest in a Global Security. A Definitive Security of any series may not be
exchanged for a beneficial interest in a Global Security of such series except
upon satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security of any series, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee,
together with written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an endorsement on the Global Security of such
series to reflect an increase in the aggregate Principal Amount of the
Securities of such series represented by such Global Security,
14
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate Principal Amount of Securities of such series represented by the
Global Security of such series to be increased accordingly. If no Global
Securities of such series are then outstanding, the Company shall issue and the
Trustee shall authenticate a new Global Security of such series in the
appropriate Principal Amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities of any series or beneficial interests therein
shall be effected through the Depositary with respect to such series, in
accordance with this Indenture and the procedures of such Depositary.
(d) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(i) Any person having a beneficial interest in a Global Security
of any series may upon request exchange such beneficial
interest for a Definitive Security of such series. Upon
receipt by the Trustee of written instructions or such other
form of instructions as is customary for the Depositary for
such series from such Depositary or its nominee on behalf of
any person having a beneficial interest in a Global Security
of such series (all of which may be submitted by facsimile),
then the Trustee or the Securities Custodian, at the
direction of the Trustee, will cause, in accordance with the
standing instructions and procedures existing between such
Depositary and the Securities Custodian, the aggregate
Principal Amount of the Global Security of such series to be
reduced and, following such reduction, the Company will
execute and, upon receipt of an authentication order in the
form of an Officers' Certificate, the Trustee will
authenticate and deliver to the transferee a Definitive
Security of such series.
(ii) Definitive Securities of any series issued in exchange for a
beneficial interest in a Global Security of such series
pursuant to this Section 2.08(d) shall be registered in such
names and in such authorized denominations as the Depositary
for such series, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive
Securities to the persons in whose names such Securities are
so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.08), a Global Security
of any series may not be transferred as a whole except by the Depositary for
such series to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such
15
Depositary or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.
(f) Authentication of Definitive Securities in Absence of Depositary.
If at any time:
(i) the Depositary for Securities of any series notifies the
Company that such Depositary is unwilling or unable to
continue as Depositary for the Global Securities of such
series and a successor Depositary for the Global Securities
of such series is not appointed by the Company within 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 Definitive
Securities of such series under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an
Officers' Certificate requesting the authentication and delivery of
Definitive Securities of such series, will authenticate and deliver
Definitive Securities of such series, in an aggregate Principal Amount
equal to the Principal Amount of the Global Securities of such series,
in exchange for such Global Securities.
(g) Cancellation and/or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security of any series have either been
exchanged for Definitive Securities of such series, redeemed, repurchased or
canceled, such Global Security shall be returned to or retained and canceled by
the Trustee. At any time prior to such cancellation, if any beneficial interest
in a Global Security of any series is exchanged for Definitive Securities of
such series, redeemed, repurchased or canceled, the Principal Amount of
Securities of such series represented by such Global Security shall be reduced
and an endorsement shall be made on such Global Security, by the Trustee or the
Securities Custodian, at the direction of the Trustee, to reflect such
reduction.
(h) Obligations with Respect to Transfers and Exchanges of Definitive
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Definitive Securities and Global Securities of any series at
the request of the Registrar for such series.
(ii) No service charge shall be made to a Holder of any series of
Securities for any registration or transfer or exchange, but
the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.12, 3.06, 4.07 and 9.05
hereof).
16
(iii) The Registrar for a series of Securities shall not be
required to register the transfer or exchange of any
Definitive Security of such series selected for redemption
in whole or in part, except the unredeemed portion of any
Definitive Security of such series being redeemed in part.
(iv) All Definitive Securities and Global Securities of any
series issued upon any registration of transfer or exchange
of Definitive Securities or Global Securities of such series
shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under the
Indenture, as the Definitive Securities or Global Securities
of such series surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required
(A) to issue, register the transfer of or exchange
Securities of any series during a period beginning at
the opening of business 15 days before the day of any
selection of Securities of such series for redemption
under Section 3.02 and ending at the close of business
on the day of selection, or
(B) to register the transfer of any Security of such series
so selected for redemption in whole or in part, except
the unredeemed portion of any Security of such series
being redeemed in part.
(vi) Prior to due presentment for registration of transfer of any
Security of a series, the Trustee, any Agent and the Company
may deem and treat the person in whose name such Security is
registered as the absolute owner of such Security for the
purpose of receiving payment of Principal of and interest on
such Security and for all other purposes whatsoever, whether
or not such Security is overdue, and neither the Trustee,
any Agent nor the Company shall be affected by notice to the
contrary.
Section 2.09. Replacement Securities.
------------- -----------------------
If the Holder of a Security of any series claims that such Security
has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security of such series if the
Trustee's requirements are met. If required by the Trustee or the Company, an
indemnity bond must be provided which is sufficient in the judgment of both to
protect the Company, the Trustee, any Agent or any authenticating agent from any
loss which any of them may suffer if a Security of any series is replaced. The
Company may charge for its expenses in replacing a Security of any series.
17
Every replacement Security of any series is an additional obligation
of the Company.
Section 2.10. Outstanding Securities.
------------- -----------------------
The Securities of any series outstanding at any time are all the
Securities of such series authenticated by the Trustee except for those
Securities of such series canceled by it, those Securities of such series
delivered to it for cancellation, those reductions in interest in a Global
Security of such series effected by the Trustee hereunder, and those described
in this Section as not outstanding.
If a Security of any series is replaced pursuant to Section 2.09, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
A Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security.
For each series of Original Issue Discount Securities, the Principal
Amount of such Securities that shall be deemed to be outstanding and used to
determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the Principal
Amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination.
When requested by the Trustee, the Company will advise the Trustee in writing of
such amount, showing its computations in reasonable detail.
Section 2.11. Treasury Securities.
------------- --------------------
In determining whether the Holders of the required Principal Amount of
Securities of any series have concurred in any direction, waiver or consent,
Securities of such series owned by the Company or any other obligor or an
Affiliate of the Company or any other obligor shall be considered as though they
are not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities of such series which the Trustee knows are so owned shall be so
disregarded.
Section 2.12. Temporary Securities.
------------- ---------------------
Until Definitive Securities of any series are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities of
such series. Temporary Securities of any series shall be substantially in the
form of Definitive Securities of such series but may have variations that the
Company considers appropriate for temporary Securities of such series. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Definitive Securities of any series in exchange for temporary Securities of such
series.
18
Section 2.13. Cancellation.
------------- -------------
The Company at any time may deliver Securities of any series to the
Trustee for cancellation. The Registrar and Paying Agent for any series shall
forward to the Trustee any Securities of such series surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all
Securities of any series surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall dispose of canceled Securities as
the Company directs. The Company may not issue new Securities of any series to
replace Securities of such series that it has paid or that have been delivered
to the Trustee for cancellation.
Section 2.14. Defaulted Interest.
------------- -------------------
If the Company fails to make a payment of interest on the Securities
of any series, it shall pay such defaulted interest plus any interest payable on
the defaulted interest, if any, in any lawful manner. It may pay such defaulted
interest, plus any such interest payable on it, to the persons who are Holders
of such series on a subsequent special record date in each case at the rate
provided in the Securities of such series and Section 4.01 hereof. The Company
shall fix any such record date and payment date. At least 15 days before any
such record date, the Company shall mail to the Holders of the affected series a
notice that states the record date, payment date and amount of such interest to
be paid.
ARTICLE 3
REDEMPTION AND OFFER TO REPURCHASE
Section 3.01. Notices to Trustee.
------------- -------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.03 for Securities of such
series) in accordance with this Article. If the Company elects to redeem
Securities of any series, it shall notify the Trustee in writing of the
redemption date and the Principal Amount of the Securities to be redeemed.
The Company shall give each notice provided for in this Section 3.01
at least 40 days before the redemption date (unless a shorter notice period
shall be satisfactory to the Trustee). The Trustee shall have no liability to
any Holder if it deems such shorter notice period satisfactory to it.
Section 3.02. Selection of Securities to Be Redeemed.
------------- ---------------------------------------
Except as provided below, if less than all of the Securities of a
series are to be redeemed, the Trustee shall select the Securities of such
series to be redeemed on a substantially pro rata basis or by lot among the
Holders of the Securities of such series in accordance with a method the Trustee
considers fair and appropriate (in such manner as complies with applicable legal
and stock exchange requirements, if any).
19
The amount of Securities shall be calculated as the aggregate
Principal Amount of Securities of such series originally issued hereunder less
the aggregate Principal Amount of any Securities of such series previously
redeemed. The Trustee shall make the selection not more than 60 days and not
less than 30 days before the redemption date from outstanding Securities of such
series not previously called for redemption.
The Trustee shall promptly notify the Company of the Securities or
portions of Securities to be called for redemption. The Trustee may select for
redemption portions of the Principal of Securities that have denominations
larger than $1,000. Securities and portions of them it selects shall be in
amounts of $1,000 or integral multiples of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
Section 3.03. Notice of Redemption.
------------- ---------------------
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail by first class mail, postage prepaid a notice of
redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) if any Security is being redeemed in part, the portion of the
Principal Amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities of the same series in Principal Amount equal to the unredeemed
portion will be issued;
(4) the name and address of the Paying Agent for the Securities
being redeemed;
(5) that Securities called for redemption must be surrendered to
the Paying Agent for such Securities to collect the redemption price;
(6) that interest on Securities called for redemption ceases to
accrue on and after the redemption date; and
(7) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
20
Section 3.04. Effect of Notice of Redemption.
------------- -------------------------------
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date at the price set forth in the
Security.
Section 3.05. Deposit of Redemption Price.
------------- ----------------------------
Prior to or on the redemption date, the Company shall deposit with the
Paying Agent for the Securities being redeemed (or if the Company or a
subsidiary or an Affiliate of the Company is the Paying Agent for such
Securities, shall segregate and hold in trust) money sufficient to pay the
redemption price of and (except if the redemption date shall be an interest
payment date) accrued interest on, all Securities to be redeemed on that date
other than Securities or portions of Securities called for redemption which
prior thereto have been delivered by the Company to the Trustee for
cancellation. If such money is then held by the Company or a subsidiary or an
Affiliate of the Company in trust and is not required for such purpose, it shall
be discharged from such trust.
Section 3.06. Securities Redeemed in Part.
------------- ----------------------------
Upon surrender of a Security of any series that is redeemed in part,
the Company shall issue and the Trustee shall authenticate for the Holder at the
expense of the Company a new Security of the same series equal in Principal
Amount to the unredeemed portion of the Security surrendered.
Section 3.07. Redemption Pursuant to Gaming Laws.
------------- -----------------------------------
Notwithstanding any other provision of this Article 3, if any Gaming
Authority requires that a Holder or beneficial owner of Securities of a Holder
must be licensed, qualified or found suitable under any Gaming Law, such Holder
or such beneficial owner shall apply for a license, qualification or a finding
of suitability, as the case may be, within the required time period. If such
person fails to apply or become licensed or qualified or is not found suitable
(in each case, a "failure of compliance"), the Company shall have the right, at
its option, (i) to require such Holder or owner to dispose of such Holder's or
owner's Securities within 30 days of receipt of notice of the Company's election
or such earlier date as may be requested or prescribed by such Gaming Authority,
or (ii) to redeem within such 30-day or earlier period requested or prescribed
by such Gaming Authority the Securities of such Holder or owner at a redemption
price equal to the lesser of (A) 100% of the Principal Amount thereof or (B) the
price at which such Holder or owner acquired the Securities, together, in either
case, with accrued interest to the earlier of the redemption date or the date of
the failure of compliance, which may be less than 30 days following the notice
of redemption if so requested or prescribed by such Gaming Authority. The
Company shall notify the Trustee in writing of any such redemption as soon as
practicable. The Company shall not be responsible for any costs or expenses any
such Holder or owner may incur in connection with its application for a license,
qualification or finding of suitability.
21
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.
------------- ----------------------
The Company shall pay the Principal of and interest on the Securities
of each series on the dates and in the manner provided in the Securities of such
series. Principal and interest on any series of Securities shall be considered
paid on the date due if the Paying Agent for such series (other than the Company
or any subsidiary or Affiliate of the Company) holds on that date money in
immediately available funds designated for and sufficient to pay all Principal
and interest then due with respect to such series.
To the extent lawful, the Company shall pay interest (including post-
petition interest in any proceeding under any Bankruptcy Law) on (i) overdue
Principal at the rate borne by the Securities compounded semiannually; and (ii)
overdue installments of interest (without regard to any applicable grace period)
at the same rate, compounded semiannually.
Section 4.02. SEC Reports, Financial Reports.
------------- -------------------------------
The Company shall make available to all of the Holders, upon written
request, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
If the Company is not subject to, or for any reason is not complying
with, the requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall make available to all of the Holders all quarterly and annual reports
which the Company would have been required to file with the SEC if it was
subject to the requirements of Section 13 or 15(d) of the Exchange Act,
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations," and with respect to annual financial statements only, a
report thereon by the Company's independent accountants.
The Company also shall comply with the provisions of TIA Section
314(a). The Company shall timely (giving effect to applicable extensions)
comply with its reporting and filing obligations under applicable federal
securities laws.
Section 4.03. Compliance Certificate.
------------- -----------------------
(a) The Company shall deliver to the Trustee for each series of
Securities, within four months after the end of each fiscal year of the Company
(which currently is December 31), an Officers' Certificate stating that a review
of the activities of the Company and its subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture
22
applicable to such series, and further stating, as to each such Officer signing
such certificate, that to the best of his knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture applicable to such series and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof applicable to
such series (or, if a Default or Event of Default applicable to such series
shall have occurred, describing all such Defaults or Events of Default of which
he may have knowledge) and that to the best of his knowledge no event has
occurred and remains in existence by reason of which payments on account of the
Principal of or interest, if any, on the Securities of such series are
prohibited, or if such event has occurred, a description of the event. The first
certificate pursuant to this Section 4.03(a) shall be for the fiscal year ending
on December 31 of the calendar year in which Securities of such series are first
issued under this Indenture.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants or to a written policy
adopted by the Company's independent public accountants which has been
previously applied (a copy of which shall be delivered to the Trustee), the
annual financial statements delivered pursuant to Section 4.02 shall be
delivered to the Trustee for each series of Securities accompanied by a written
statement of the Company's independent public accountants (which shall be ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP or another firm of established national reputation) that in making
the examination necessary for certification of such financial statements nothing
has come to their attention which would lead them to believe that the Company
has violated any provisions of Article 4 or 5 of this Indenture applicable to
such series or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that, for purposes hereof, such
accountants shall not be liable directly or indirectly to any person for any
failure to obtain knowledge of any such violation.
(c) The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee for each series of Securities outstanding,
forthwith upon becoming aware of (i) any Default, Event of Default or default in
the performance of any covenant, agreement or condition contained in this
Indenture applicable to such series or (ii) any event of default under any other
mortgage, indenture or instrument as that term is used in Section 6.01(4), an
Officers' Certificate specifying such Default, Event of Default or default.
Section 4.04. Stay, Extension and Usury Laws.
------------- -------------------------------
The Company covenants to the Holders of Securities of each series (to
the extent that it may lawfully do so) that it will not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture
applicable to such series; 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, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee for such series, but
will suffer and permit the execution of every such power as though no such law
has been enacted.
Section 4.05. Corporate Existence.
------------- --------------------
Subject to Article 5 hereof, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each subsidiary
23
of the Company, if any, in accordance with the respective organizational
documents of each such entity and the rights (charter and statutory), licenses
and franchises of the Company and its subsidiaries; provided, however, that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any subsidiary,
if the Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and its subsidiaries taken as a whole and that the loss thereof is not adverse
in any material respect to the Holders of any series of Securities.
Section 4.06. Taxes.
------------- ------
The Company shall, and shall cause each of its subsidiaries to, pay
prior to delinquency all taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings or where the failure to
pay would not have a material adverse effect on the Company and its respective
subsidiaries taken as a whole.
Section 4.07. Change in Control.
------------- ------------------
If there is a Change in Control (the time of a Change in Control being
referred to as the "Change in Control Date"), then the Company shall (a)
----------------------
commence, within five business days following the Change in Control Date, an
offer to repurchase (the "Repurchase Offer") all of the then outstanding
----------------
Securities at the Repurchase Price (as defined below) and (b) deposit with the
Paying Agent an amount equal to the aggregate Repurchase Price for all
Securities then outstanding so as to be available for payment to the Holders of
Securities who elect to require the Company to repurchase all or a portion of
their Securities.
The Repurchase Offer for the Securities shall be made at a price of
101% of the Principal Amount, plus accrued interest to the Repurchase Date (as
defined below) (the "Repurchase Price").
----------------
If the Repurchase Date (as defined below) is on or after an interest
payment record date and on or before the related interest payment date, any
accrued interest will be paid to the person in whose name a Security is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Securities pursuant to the
Repurchase Offer.
Notice of any Repurchase Offer shall be mailed by the Company to the
Trustee and the Holders of the Securities at their last registered addresses.
The Repurchase Offer shall remain open from the time of mailing until 10
Business Days thereafter, and no longer, unless a longer period is required by
law or stock exchange rule or unless a majority of the Continuing Directors of
the Company votes in favor of extending such period (the date on which the
Repurchase Offer closes being the "Repurchase Date"). The notice shall contain
---------------
all instructions and materials necessary to enable such Holders to tender
Securities pursuant to the Repurchase Offer. The notice, which shall govern the
terms of the Repurchase Offer, shall state:
24
(1) that the Repurchase Offer is being made pursuant to this
Section 4.07 and that Securities will be accepted for payment either (A) in
whole or (B) in part in integral multiples of $1,000;
(2) the Repurchase Price and the Repurchase Date;
(3) that any Security not tendered will continue to accrue
interest;
(4) that any Security accepted for payment pursuant to the
Repurchase Offer shall cease to accrue interest from and after the
Repurchase Date;
(5) that Holders electing to have a Security of any series
purchased pursuant to the Repurchase Offer will be required to surrender
the Security, with such form, if any, as shall be specified in the notice
completed, to the Paying Agent for such series at the address specified in
the notice prior to the close of business on the Repurchase Date;
(6) that Holders of any series will be entitled to withdraw their
election if the Paying Agent for such series receives, not later than three
Business Days before the Repurchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the Principal
Amount of Securities the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Securities purchased;
and
(7) that Holders whose Securities of any series are purchased
only in part will be issued new Securities of the same series equal in
Principal Amount to the unpurchased portion of the Securities surrendered.
On the Repurchase Date, the Company shall, to the extent lawful, (i)
accept for payment Securities of each series or portions thereof tendered
pursuant to the Repurchase Offer and (ii) deliver to the Trustee for such series
the Securities of such series so tendered together with an Officers' Certificate
stating the Securities of such series or portions thereof accepted for payment
by the Company. The Paying Agent for each series of Securities shall promptly
mail or deliver to Holders of Securities of such series so accepted payment in
an amount equal to the Repurchase Price. The Trustee shall promptly
authenticate and mail or deliver to each Holder who tendered a Security of any
series a new Security or Securities of such series equal in Principal Amount to
any untendered portion of the Security surrendered. The Paying Agent for each
series of Securities shall invest funds deposited with it pursuant to this
Section 4.07 for the benefit of, and at the written direction of, the Company to
the Repurchase Date.
25
ARTICLE 5
SUCCESSORS
Section 5.01. When the Company May Merge, etc.
------------- --------------------------------
The Company shall not consolidate or merge with or into, or sell,
lease, convey or otherwise dispose of all or substantially all of its Assets to,
any person unless:
(1) the person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such disposition shall have
been made, is a corporation organized and existing under the laws of the
United States, any State thereof or the District of Columbia;
(2) the corporation formed by or surviving any such consolidation
or merger (if other than the Company), or to which such disposition shall
have been made, assumes by supplemental indenture all the obligations of
the Company under the Securities and this Indenture; and
(3) immediately after the transaction no Default or Event of
Default exists.
The Company shall deliver to the Trustee for each series of Securities
prior to the consummation of the proposed transaction an Officers' Certificate
to the foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with the provisions of this
Indenture applicable to such series.
Section 5.02. Successor Corporation Substituted.
------------- ----------------------------------
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the Assets of the Company in
accordance with Section 5.01, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of the Company under
this Indenture with the same effect as if such successor person had been named
as the Company herein.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
------------- ------------------
Unless otherwise specified as contemplated by Section 2.03 with
respect to any series of Securities, an "Event of Default" occurs with respect
to each series of Securities individually, if:
26
(1) the Company defaults in the payment of interest on any Security of
such series when the same becomes due and payable and the Default continues for
30 days after the date due and payable;
(2) the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at maturity, upon
redemption or otherwise;
(3) the Company fails to comply with any of its other agreements or
covenants in such series of Securities or in this Indenture and applicable to
such series of Securities and the Default continues for the period and after the
notice specified below;
(4) an event of default occurs under any mortgage, indenture (other
than this Indenture) or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness of the Company or any
subsidiary thereof (or the payment of which is guaranteed by the Company or any
subsidiary of the Company), whether such Indebtedness or guarantee now exists or
shall be created hereafter, if (a) such event of default results from the
failure to pay principal of or interest upon maturity on any such Indebtedness,
(b) the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal or
interest thereon upon maturity, aggregates $50,000,000 or more and (c) the
Default continues for the period and after the notice specified below;
(5) a final judgment or final judgments, no longer subject to appeal,
for the payment of money are entered by a court or courts of competent
jurisdiction against the Company or any subsidiary thereof and such remains
undischarged for a period (during which such judgment remains undischarged,
unvacated or unstayed) of 60 days, provided that the aggregate of all such
judgments exceeds $50,000,000 and the Default continues for the period and after
the notice specified below;
(6) the Company, pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(D) makes a general assignment for the benefit of its creditors,
or
(E) admits in writing its inability generally to pay its debts as
the same become due;
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
27
(A) is for relief against the Company or any Material Subsidiary
of the Company in an involuntary case,
(B) appoints a Custodian of the Company for all or substantially
all of the property of the Company or any Material Subsidiary of the
Company, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 60 days; or
(8) there has occurred a revocation, suspension or involuntary loss of
any Gaming License by the Company or any subsidiary of the Company (after
the same shall have been obtained) which results in the cessation of
operation of the business at the Existing Properties for a period of more
than 90 consecutive days.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
--------------
federal or state law for the relief of debtors. The term "Custodian" means any
---------
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (3) (other than a Default under Section 4.05,
4.07 or 5.01, each of which Default shall be an Event of Default without the
notice or passage of time specified in this paragraph) or (5) is not an Event of
Default with respect to a series of Securities until the Trustee or the Holders
of at least 25% in Principal Amount of such series of Securities then
outstanding notify the Company of the Default and the Company does not cure the
Default or cause the Default to be cured within 60 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
A Default under clause (4) is not an Event of Default with respect to
a series of Securities until the Trustee with respect to such series or the
Holders of at least 25% in Principal Amount of such series then outstanding
notify the Company of the Default and the Company has not caused such Default to
be cured or waived or such acceleration to be rescinded or annulled within 10
days after receipt of the notice. The notice must specify the Default, demand
that it be rescinded or annulled and state that the notice is a "Notice of
Default."
In the case of any Event of Default pursuant to the provisions of this
Section 6.01 occurring with respect to a series of Securities by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium which the Company would
have had to pay if the Company then had elected optionally to redeem such series
of Securities, an equivalent premium (or, in the event that the Company would
not be permitted to redeem such series of Securities optionally on such date,
the premium payable on the first date thereafter on which such redemption would
be permissible) shall also become and be immediately due and payable with
respect to such series to the extent permitted by law, anything in this
Indenture applicable to such series or in the Securities of such series
contained to the contrary notwithstanding.
28
Section 6.02. Acceleration.
------------- -------------
If an Event of Default relating to any series of Securities (other
than an Event of Default specified in clause (6) or (7) of Section 6.01) occurs
and is continuing, the Trustee with respect to such series by notice to the
Company (and if Senior Bank Debt (as defined in any indenture supplemental
hereto) is outstanding, to the representative of the Senior Bank Debt as
specified in such supplemental indenture), or the Holders of at least 25% in
Principal Amount of the then outstanding Securities of such series by notice to
the Company (and to such Trustee if given by the Holders of such series of
Securities), may declare the unpaid Principal (or, in the case of Original Issue
Discount Securities, such lesser amount as may be provided for in such
Securities) of and any accrued interest on all the Securities of such series to
be due and payable. Upon such declaration, the Principal of and interest on
such series shall be due and payable immediately; provided, however, that so
-------- -------
long as any Senior Credit Agreement (as defined in any indenture supplemental
hereto) shall be in force and effect, if an Event of Default with respect to any
series of Securities shall have occurred and be continuing (other than an Event
of Default pursuant to clause (6) or (7) of Section 6.01 with respect to the
Company or any Material Subsidiary), any acceleration pursuant to this Section
6.02 shall not be effective until the earlier of (a) three Business Days
following a notice of acceleration given to the representative of the Senior
Bank Debt (which notice shall be given only after an Event of Default has
occurred) unless such Event of Default is theretofore cured or (b) the
acceleration of any Indebtedness under the Senior Credit Agreement. If an Event
of Default specified in clause (6) or (7) of Section 6.01 occurs with respect to
any series of Securities, such an amount 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 of such series. The Holders of a majority in
Principal Amount of any series of then outstanding Securities by notice to the
Trustee with respect to such series may rescind an acceleration with respect to
such series and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to such
series have been cured or waived, except non-payment of Principal of or interest
on such series that has become due solely because of the acceleration.
Section 6.03. Other Remedies.
------------- ---------------
If an Event of Default with respect to any series of Securities occurs
and is continuing, the Trustee with respect to such series may pursue any
available remedy to collect the payment of Principal of or interest on the
Securities of such series or to enforce the performance of any provision of the
Securities of such series or any provision of this Indenture applicable to such
series.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder of a series of Securities in
exercising any right or remedy accruing upon an Event of Default with respect to
such series shall not impair the right or remedy or constitute a waiver of or
acquiescence in such Event of Default. All remedies are cumulative to the
extent permitted by law.
29
Section 6.04. Waiver of Past Defaults.
------------- ------------------------
Subject to Section 9.02, the Holders of a majority in Principal Amount
of any series of then outstanding Securities by notice to the Trustee may waive
an existing Default or Event of Default with respect to such series of
Securities and its consequences.
Section 6.05. Control by Majority.
------------- --------------------
The Holders of a majority in Principal Amount of any series of then
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it with respect to any default under such series of
Securities. However, subject to Section 7.01, the Trustee may refuse to follow
any direction that conflicts with any rule of law or this Indenture, that is
unduly prejudicial to the rights of another Holder of such series of Securities,
or that would involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
------------- --------------------
A Holder of any series of Securities may not pursue a remedy with
respect to this Indenture or any series of Securities unless:
(1) the Holder gives to the Trustee written notice stating that
an Event of Default with respect to the Securities of that series is
continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of
such series of Securities then outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the notice, the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
aggregate Principal Amount of such series of Securities then outstanding do
not give the Trustee a direction inconsistent with the request.
A Holder of any series of Securities may not use this Indenture to prejudice the
rights of another Holder of such series of Securities or to obtain a preference
or priority over another Holder.
Section 6.07. Rights of Holders to Receive Payment.
------------- -------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of the Principal of and interest on
such Security, on or after the respective due dates expressed in the Security,
or to bring suit for the enforcement of any such
30
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
------------- ---------------------------
If an Event of Default specified in Section 6.01(1) or (2) with
respect to Securities of any series occurs and is continuing, the Trustee may
recover judgment as permitted under applicable law in its own name and as
trustee of an express trust against the Company or any other obligor on the
Securities for the whole amount of Principal (or such portion of the Principal
as may be specified as due upon acceleration at that time in the terms of that
series of Securities) and interest remaining unpaid with respect to such series
of Securities and interest on overdue Principal and interest and such further
amount as shall be sufficient to cover the costs and, to the extent lawful,
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
------------- ---------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative to
the Company, its creditors or its property. Nothing contained herein shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
Section 6.10. Priorities.
------------- -----------
Subject to any applicable subordination provisions in any indenture
supplemental hereto, if the Trustee collects any money pursuant to this Article
with respect to any series of Securities, it shall pay out the money in the
following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders for amounts due and unpaid on such
series of Securities for Principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such series
of Securities for Principal and interest, respectively;
and
Third: to the Company or any other obligor on such series of
Securities, as their interests may appear, or as a
court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to
Holders of any series of Securities pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of any such record date and
payment date.
31
Section 6.11. Undertaking for Costs.
------------- ----------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more than 10% in Principal
Amount of any series of Securities then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
------------- ------------------
(a) If an Event of Default has occurred and is continuing with respect
to any series of Securities, the Trustee with respect to such series shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to any series of Securities:
(1) the Trustee with respect to such series need perform only
those duties that are specifically set forth in this Indenture and no
others.
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section.
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
32
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
------------- ------------------
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
Section 7.03. Individual Rights of Trustee.
------------- -----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities of any series and may otherwise deal with the
Company or an Affiliate of the Company with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
------------- ---------------------
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in the Indenture or any statement in the Securities
other than its authentication.
33
Section 7.05. Notice of Defaults.
------------- -------------------
If a Default or Event of Default with respect to any series of
Securities occurs and is continuing and if it is known to the Trustee with
respect to such series, the Trustee shall mail to the Holders of such series a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment on any series of
Securities (including any failure to make any mandatory redemption payment
required hereunder), the Trustee with respect to such series may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of the Holders of
such series.
Section 7.06. Reports by Trustee to Holders.
------------- ------------------------------
Within 60 days after the reporting date stated below, the Trustee with
respect to each series of Securities shall mail, if required by TIA Section 313,
to the Holders of such series a brief report dated as of such reporting date
that complies with TIA Section 313(a). The Trustee with respect to each series
of Securities also shall comply with TIA Section 313(b)(1) and TIA Section
313(b)(2). The Trustee with respect to each series of Securities shall also
transmit by mail all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders of any series of
Securities shall be filed with the SEC and each securities exchange on which the
Securities of such series are listed. The Company shall notify the Trustee with
respect to a series of Securities when the Securities of such series are listed
on any securities exchange.
The reporting date for this Section 7.06 is May 15 of each year. The
first reporting date is May 15 following the calendar year in which Securities
of such series are first issued under this Indenture.
Section 7.07. Compensation and Indemnity.
------------- ---------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable out-of-
pocket expenses incurred by it. Such expenses shall include the reasonable
compensation and out-of-pocket expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it except as set forth in the next paragraph. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel, and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
34
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee with respect to each series of Securities shall have a lien prior to the
Securities of such series on all money or property held or collected by the
Trustee, except that held in trust to pay Principal and interest on particular
Securities of such series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee.
------------- -----------------------
The Trustee with respect to any series of Securities may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee with respect to such series has accepted its
appointment pursuant to this Section 7.08. The Holders of a majority in
aggregate Principal Amount of the Securities of any series at the time
outstanding may remove the Trustee with respect to the Securities of such series
by so notifying the Trustee and may appoint a successor Trustee. The Company
shall remove the Trustee with respect to any series of Securities if:
(1) such Trustee fails to comply with Section 7.10;
(2) such Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of such Trustee or
its property; or
(4) such Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
series, the Company shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a notice
of its succession to the Holders of the Securities. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.
35
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees as co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each 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 with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject, nevertheless, to its lien, if any,
provided for in Section 7.07. Each successor Trustee shall mail a notice of its
succession to the Holders of Securities of the particular series with respect to
which such successor Trustee has been appointed.
If a successor Trustee with respect to the Securities of any series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
aggregate Principal Amount of the Securities of such series at the time
outstanding may petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of a
Security of any series for which such Trustee acts in such capacity may petition
any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
Section 7.09. Successor Trustee by Merger, etc.
------------- ---------------------------------
If the Trustee with respect to Securities of any series consolidates,
merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation, the successor corporation without any
further act shall be the successor Trustee with respect to the Securities of
such series.
36
Section 7.10. Eligibility; Disqualification.
------------- ------------------------------
This Indenture shall always have a Trustee with respect to each series
of Securities who satisfies the requirements of TIA Section 310(a)(1). The
Trustee with respect to each series of Securities shall always have a combined
capital and surplus (including subordinated capital notes and earned surplus) of
$25,000,000. The Trustee with respect to each series of Securities is subject
to TIA Section 310(b), including the optional provision permitted by the second
sentence of TIA Section 310(b)(9).
Section 7.11. Preferential Collection of Claims Against the Company.
------------- ------------------------------------------------------
The Trustee with respect to each series of Securities is subject to
TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge of Liability on Securities.
------------- -------------------------------------
Except as otherwise contemplated by Section 2.03, when (a) the Company
delivers to the Trustee all outstanding Securities or all outstanding Securities
of any series, as the case may be, theretofore authenticated and delivered
(other than (i) Securities or Securities of such series, as the case may be,
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.09, and (ii) Securities or Securities of such series,
as the case may be, for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 3.05) for
cancellation or (b) all outstanding Securities have become due and payable and
the Company deposits with the Trustee cash sufficient to pay at Stated Maturity
the amount of all Principal of and interest on outstanding Securities or all
outstanding Securities of such series (other than Securities replaced pursuant
to Section 2.09), and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section 7.07,
cease to be of further effect as to all outstanding Securities or all
outstanding Securities of any series, as the case may be. The Trustee shall
join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and Opinion of Counsel, each containing
the applicable information specified in Sections 11.04 and 11.05, and at the
cost and expense of the Company.
Section 8.02. Repayment to the Company.
------------- -------------------------
The Trustee and the Paying Agent shall return to the Company on
Company Request any money held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years; provided,
however, that the Trustee or such Paying Agent,
37
before being required to make any such return, may at the expense and direction
of the Company cause to be published once in an Authorized Newspaper in each
Place of Payment of or mail to each such Holder notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing, any unclaimed money then
remaining will be returned to the Company. After return to the Company, Holders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.
Section 8.03. Option to Effect Defeasance or Covenant Defeasance.
------------- ---------------------------------------------------
Unless otherwise specified as contemplated by Section 2.03 with
respect to Securities of a particular series, the Company, may at its option, by
Board Resolution, at any time, with respect to any series of Securities, elect
to have either Section 8.04 or Section 8.05 be applied to all of the outstanding
Securities of any series (the "Defeased Securities"), upon compliance with the
-------------------
conditions set forth below in this Article 8.
Section 8.04. Defeasance and Discharge.
------------- -------------------------
Upon the Company's exercise under Section 8.03 of the option
applicable to this Section 8.04, the Company shall be deemed to have been
discharged from its obligations with respect to the Defeased Securities on the
date the conditions set forth below are satisfied (hereinafter "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the Defeased
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Sections 2.04, 2.05, 2.06, 2.09,2.12, 2.13, 4.01, 6.06, 6.07, 7.07,
7.08 and 8.02 of this Indenture and to have satisfied all its other obligations
under such series of Securities and this Indenture insofar as such series of
Securities are concerned (and the Trustee, at the expense of the Company, and,
upon written request, shall execute proper instruments acknowledging the same).
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.04 notwithstanding the prior exercise of its option under
Section 8.05 with respect to a series of Securities.
38
Section 8.05. Covenant Defeasance.
------------- --------------------
Upon the Company's exercise under Section 8.03 of the option
applicable to this Section 8.05, the Company shall be released from its
obligations under Sections 4.02, 4.03, 4.06 and 4.07 and Article 5 and such
other provisions as may be provided as contemplated by Section 2.03 with respect
to Securities of a particular series and with respect to the Defeased Securities
on and after the date the conditions set forth below are satisfied (hereinafter
"covenant defeasance"), and the Defeased Securities shall thereafter be deemed
-------------------
to be not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences, if any, thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the Defeased Securities, 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 Section or Article, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provisions herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 but,
except as specified above, the remainder of this Indenture and such Defeased
Securities shall be unaffected thereby.
Section 8.06. Conditions to Defeasance or Covenant Defeasance.
------------- ------------------------------------------------
The following shall be the conditions to application of either Section
8.04 or Section 8.05 to a series of outstanding Securities.
(a) The Company shall have irrevocably deposited with the Trustee, in
trust, (i) sufficient funds in the currency or currency unit in which the
Securities of such series are denominated to pay the Principal of and
interest to Stated Maturity (or redemption) on, the Securities of such
series, or (ii) such amount of direct obligations of, or obligations the
principal of and interest on which are fully guaranteed by, the government
which issued the currency in which the Securities of such series are
denominated, and which are not subject to prepayment, redemption or call
("Qualified Government Obligations"), as will, together with the
----------------------------------
predetermined and certain income to accrue thereon without consideration of
any reinvestment thereof, be sufficient to pay when due the Principal of,
and interest to Stated Maturity (or redemption) on, the Securities of such
series, or (iii) any combination of funds in the currency or currency unit
specified in (i) and Qualified Government Obligations, as will, together
with the predetermined and certain income to accrue thereon without
consideration of any reinvestment thereof, be sufficient to pay when due
the Principal of, and interest to Stated Maturity (or redemption) on, the
Securities of such series;
(b) The Company shall (i) have delivered an Opinion of Counsel that
the Holders of the Securities of such series will not recognize income,
gain or loss for United States federal income tax purposes as a result of
such defeasance, and will be subject to tax in the same manner as if no
defeasance and discharge or covenant defeasance, as the case may be, had
occurred or (ii) in the case of an election under Section 8.04 the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date this Indenture was
39
first executed, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of outstanding Securities of
that particular series will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance; and
(c) If applicable, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the funds deposited pursuant to
Section 8.06(a) will not be subject to the rights of the holders of "Senior
Indebtedness" as defined in any indenture supplemental hereto applicable to
the Securities of such series.
ARTICLE 9
AMENDMENTS
Section 9.01. Without Consent of Holders.
------------- ---------------------------
Without the consent of any Holder of Securities, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants, agreements and obligations of the
Company for the benefit of the Holders of all of the Securities or any
series thereof, or to surrender any right or power herein conferred upon
the Company; or
(3) to establish the form and/or terms of Securities of any
series as permitted by Sections 2.01 and 2.03, respectively; or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.08; or
(5) to cure any ambiguity, defect or inconsistency; or
(6) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that any such addition, change or
elimination other than those permitted by all or any of clauses (1), (2),
(3), (4), (5), (7), (8), (9), (10) and (11) of this Section 9.01 shall
neither (a) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of
such provision nor (b) modify the rights of the Holder of any such Security
with respect to such provision; or
40
(7) to comply with Article 5; or
(8) to comply with any requirements of the SEC in connection with
the qualification or requalification of this Indenture under the TIA; or
(9) to provide for uncertificated Securities in addition to
certificated Securities; or
(10) to secure the Securities; or
(11) to make any change that does not adversely affect the legal
rights hereunder of any Securityholder.
Section 9.02. With Consent of Holders.
------------- ------------------------
Subject to Section 6.07, the Company and the Trustee with respect to
any series of Securities may amend or supplement this Indenture or such series
of Securities without notice to any Securityholder but with the written consent
of the Holders of at least a majority in Principal Amount of the then
outstanding Securities of each series affected by such amendment or supplement,
with each such series voting as a separate class. The Holders of a majority in
Principal Amount of any series of Securities then outstanding may also waive
compliance in a particular instance by the Company with any provision of this
Indenture with respect to that series or the Securities of that series.
However, without the consent of each Securityholder affected, an
amendment, supplement or waiver under this Section, including a waiver pursuant
to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest
on any Security in a manner adverse to the Holders thereof;
(3) reduce the Principal of, or extend the Stated Maturity of any
Security or alter the redemption provisions of any Securities in a manner
adverse to the Holders thereof;
(4) make any Security payable in money other than that stated in
the Security;
(5) make any change in Section 6.04, 6.07 or 9.02 (this
sentence); or
(6) waive a default in the payment of the Principal of, or
interest on, any Security.
41
To secure a consent of the Holders under this Section it shall not be
necessary for the Holders to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to Holders of Securities of each series
affected thereby a notice briefly describing the amendment, supplement or
waiver.
Section 9.03. Compliance with Trust Indenture Act.
------------- ------------------------------------
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
------------- ----------------------------------
Until an amendment, supplement or waiver becomes effective, a consent
to such amendment, supplement or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same Indebtedness as the consenting
Holder's Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives notice of revocation
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite Principal Amount of Securities of
each affected series have consented to the amendment, supplement or waiver (or
before such later date as may be required by law or stock exchange rule).
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver permitted by this Indenture. If a record date is fixed,
then notwithstanding the provisions of the immediately preceding paragraph,
those persons who were Holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders after such record date. No
consent of a Holder of a series of Securities shall be valid or effective for
more than 90 days after such record date unless consents from Holders of the
Principal Amount of Securities of such series required hereunder for such
amendment, supplement or waiver to be effective shall have also been given and
not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective it shall
bind every Holder of Securities of an affected series, unless it is of the type
described in any of clauses (1) through (6) of Section 9.02. In such case, the
amendment, supplement or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or a portion of a
Security that evidences the same Indebtedness as the consenting Holder's
Security.
42
Section 9.05. Notation on or Exchange of Securities.
------------- --------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Section 9.06. Trustee Protected.
------------- ------------------
The Trustee shall sign any indenture supplemental hereto relating to
any amendment, supplement or waiver authorized pursuant to this Article if the
amendment, supplement or waiver does not adversely affects its rights. The
Trustee may request an Opinion of Counsel and an Officers' Certificate, each of
which complies with Sections 11.04 and 11.05, stating that such amendment,
supplement or waiver and the related supplemental indenture are permitted
hereunder and all conditions precedent have been complied with.
ARTICLE 10
MEETINGS OF SECURITYHOLDERS
Section 10.01. Purposes for Which Meetings May be Called.
-------------- -----------------------------------------
A meeting of Holders of any series of Securities, either separately or
jointly, may be called at any time and from time to time pursuant to the
provisions of this Article 10 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive or consent to the waiving
of any Default or Event of Default hereunder and its consequences, or to
take any other action authorized to be taken by Securityholders pursuant to
any of the provisions of Article 6;
(b) to remove the Trustee or appoint a successor Trustee pursuant
to the provisions of Article 7;
(c) to consent to an amendment, supplement or waiver pursuant to
the provisions of Section 9.02; or
(d) to take any action (i) authorized to be taken by or on behalf
of the Holders of any specified aggregate Principal Amount of such series
of Securities under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate
in connection with the administration of this Indenture;
in each case without prejudice to the rights of the Company or Holders of
Securities to take such action in writing in lieu of a meeting.
43
Section 10.02. Manner of Calling Meetings.
-------------- --------------------------
Trustee may at any time call a meeting of Holders of any series of
Securities to take any action specified in Section 10.01, to be held at such
time and at such place in the City of Las Vegas, Nevada, as the Trustee shall
determine. Notice of every meeting of Holders of any series of Securities,
setting forth the time and place of such meeting and in general terms the action
or actions proposed to be taken at such meeting, shall be mailed by the Trustee,
first-class postage prepaid, to the Company, and to the Holders of such series
of Securities at their last addresses as they shall appear on the registration
books of the Registrar, not less than 10 nor more than 60 days prior to the date
fixed for the meeting.
Any meeting of Holders of the Securities shall be valid without notice
if (i) with respect to a meeting of any series of Securities, all Holders of
such series of Securities then outstanding are present in person or by proxy, or
if notice is waived before or after the meeting by all Holders of such series of
Securities then outstanding who are not present and (ii) with respect to a
meeting of all Securityholders, all Holders of such Securities then outstanding
are present in person or by proxy or if notice is waived before or after the
meeting by all Holders of such Securities then outstanding who are not present,
and, in each case, if the Company and the Trustee are either present by duly
authorized representative or have, before or after the meeting, waived notice.
Section 10.03. Call of Meetings by Company or Holders.
-------------- --------------------------------------
In case at any time the Company, pursuant to resolution of its Board
of Directors or the Holders of not less than 25% in aggregate Principal Amount
of any series of Securities then outstanding, shall have requested the Trustee
to call a meeting of Securityholders of such series, either separately or
jointly, to take any action specified in Section 10.01, by written request
setting forth in reasonable detail the action or actions proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days of receipt of such request, then the Company or the Holders of
such series of Securities in the amount above specified may determine the time
and place in the City of Las Vegas, Nevada, or in the Borough of Manhattan, City
of New York, for such meeting and may call such meeting for the purpose of
taking such action, by mailing or causing to be mailed notice thereof as
provided in Section 10.02, or by causing notice thereof to be published at least
once in each of two successive calendar weeks (on any day of the week) in a
newspaper or newspapers printed in the English language, customarily published
at least five days a week and of general circulation in the City of Las Vegas,
Nevada and in the Borough of Manhattan, City of New York, the first such
publication to be not less than 10 nor more than 60 days prior to the date fixed
for the meeting.
Section 10.04. Who May Attend or Vote at Meetings.
-------------- ----------------------------------
To be entitled to vote at any meeting of Securityholders, a person
shall (a) be a registered Holder of one or more Securities (or, if the meeting
is of Holders of one or more (but not all) series of Securities, one or more
Securities of such Series), or (b) be a person appointed by an instrument in
writing as proxy for the registered Holder or Holders of Securities (or, if the
meeting is of Holders of one or more (but not all) series of Securities, one or
more Securities of such series). The only persons who shall be entitled to be
44
present or to speak at any meeting of Securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representative of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 10.05. Regulations by Trustee; Conduct of Meeting; Voting Rights;
-------------- ----------------------------------------------------------
Adjournment.
-----------
Notwithstanding any other provision of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think appropriate. Such regulations may fix
a record date and time for determining the Holders of record of Securities
entitled to vote at such meeting, in which case those and only those persons who
are Holders of Securities at the record date and time so fixed, or their
proxies, shall be entitled to vote at such meeting whether or not they shall be
such Holders at the time of the meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 10.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in Principal Amount of the Securities represented at the meeting and entitled to
vote.
At any meeting each Securityholder or proxy shall be entitled to one
vote for each $1,000 Principal Amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
-------- -------
respect of any Securities challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders. At any meeting of Securityholders, the
presence of persons holding or representing any number of Securities shall be
sufficient for a quorum. Any meeting of Securityholders duly called pursuant to
the provisions of Section 10.02 or Section 10.03 may be adjourned from time to
time by vote of the Holders of a majority in aggregate Principal Amount of the
Securities represented at the meeting and entitled to vote, and the meeting may
be held as so adjourned without further notice.
Section 10.06. Voting at the Meeting and Record to be Kept.
-------------- -------------------------------------------
The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the Principal Amount of the Securities voted by the ballot. The permanent
chairman of the meeting shall appoint two inspectors of votes, who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by
45
the secretary of the meeting and there shall be attached to such record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts, setting
forth a copy of the notice of the meeting and showing that such notice was
mailed as provided in Section 10.02 or published as provided in Section 10.03.
The record shall be signed and verified by the affidavits of the permanent
chairman and the secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 10.07. Exercise of Rights of Trustee or Security Holders not Hindered
-------------- --------------------------------------------------------------
or Delayed by Call of Meeting.
------------------------------
Nothing in this Article 10 contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Securityholders or
any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Securityholders under any of the provisions of
this Indenture or of the Securities.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
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If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 11.02. Notices.
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Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail to the other's address:
The Company's address is:
Mirage Resorts, Incorporated
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
The Trustee's address is:
PNC Bank, National Association
Corporate Trust Department
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect in
it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given when mailed, whether or not the
addressee receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 11.03. Communication by Holders with Other Holders.
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Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
-------------- ---------------------------------------------------
Upon any request or application by the Company or any other obligor to
the Trustee to take any action under this Indenture, the Company or any other
obligor, as the case may be, shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05. Statements Required in Certificate or Opinion.
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Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 11.06. Rules by Trustee and Agents.
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The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 11.07. Legal Holidays.
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A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
-------------
institutions in the State of Nevada or New York are not required to be open. If
a payment date is a Legal Holiday at a Place of Payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period on such payment.
Section 11.08. No Recourse Against Others.
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No past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall have
any liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
Section 11.09. Counterparts.
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This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 11.10. Governing Law.
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The internal laws of the State of Nevada shall govern this Indenture
and the Securities, without regard to the conflicts of laws provisions thereof.
Section 11.11. No Adverse Interpretation of Other Agreements.
-------------- ----------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
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Section 11.12. Successors.
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All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 11.13. Severability.
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In case any provision in this Indenture or in the Securities 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 11.14. Qualification of Indenture.
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The Company shall qualify this Indenture under the TIA and shall pay
all costs and expenses (including attorneys' fees for the Company and the
reasonable attorneys' fees for the Trustee) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Securities and printing this Indenture and the Securities. In
connection with any such qualification of this Indenture under the TIA, the
Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may reasonably
request.
Section 11.15. Table of Contents, Headings, etc.
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The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be executed as of the day and year first above written.
SIGNATURES
Dated: As of February 4, 1998 MIRAGE RESORTS, INCORPORATED
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
___________________________
Attest: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Chairman of the Board
▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary (SEAL)
By: ▇▇▇▇▇▇ ▇. ▇▇▇
___________________________
▇▇▇▇▇▇ ▇. ▇▇▇
Chief Financial Officer
Dated: As of February 4, 1998 PNC BANK, NATIONAL ASSOCIATION
as Trustee
By: ▇▇▇▇▇▇ ▇▇▇▇▇
___________________________
▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
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