EXHIBIT 4(f)
CIRCUS CIRCUS ENTERPRISES, INC., Issuer
AND
XXXXX FARGO BANK (COLORADO), N.A., Trustee
$150,000,000
SUPPLEMENTAL INDENTURE
DATED AS OF
NOVEMBER 15, 1996
7.0% NOTES DUE NOVEMBER 15, 2036
This Supplemental Indenture, dated as of November 15,
1996, between Circus Circus Enterprises, Inc., a Nevada
corporation (hereinafter sometimes referred to as the "Company"),
and Xxxxx Fargo Bank (Colorado), N.A., a corporation organized
and existing as a national banking association under the laws of
the United States, as trustee (hereinafter sometimes referred to
as the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have entered into
an Indenture (the "Indenture") dated as of November 15, 1996
providing for the issuance of debt securities in series; and
WHEREAS, for its lawful corporate purposes, the Company
desires to create and authorize the series of 7.0% Debentures due
November 15, 2036 (hereinafter referred to as the "7.0%
Debentures") in an aggregate principal amount of $150,000,000,
and, to provide the terms and conditions upon which the 7.0%
Debentures are to be executed, registered, authenticated, issued
and delivered, the Company has duly authorized the execution and
delivery of this Supplemental Indenture; and
WHEREAS, the 7.0% Debentures and the certificates of
authentication to be borne by the 7.0% Debentures are to be
substantially in the following forms, respectively:
REGISTERED PRINCIPAL AMOUNT
NO. R-1 $150,000,000
CUSIP NO.
172909 AH 0
XXXXXX XXXXXX ENTERPRISES, INC.
7.0% DEBENTURE
DUE NOVEMBER 15, 2036
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), 00 XXXXX
XXXXXX, XXX XXXX, XXX XXXX TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH DEBENTURE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS DEBENTURE IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR
BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
CIRCUS CIRCUS ENTERPRISES, INC., a Nevada corporation
(the "Company," which term shall include any successor under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the
principal sum of $150,000,000 on November 15, 2036, and to pay
interest thereon at the rate of 7.0% per annum, until the entire
principal amount hereof is paid or duly provided for. This
Debenture is one of a duly authorized series issued by the
Company designated as the "7.0% Debentures due November 15, 2036"
(herein called the "Debentures").
1. Interest.
The Company will pay interest semiannually on May 15 and
November 15 of each year ("Interest Payment Date"). Interest on
the Debentures will accrue from the most recent date to which
interest has been paid, unless the date hereof is a date to which
interest has been paid, in which case from the date of the
Debenture, or, if no interest has been paid, from November 15,
1996. Notwithstanding the foregoing, when there is no existing
default in the payment of interest on the Debentures, if the date
hereof is after a Record Date, as that term is defined below, and
before the next succeeding Interest Payment Date, this Debenture
shall bear interest from such Interest Payment Date; provided,
however, that if the Company shall default in the payment of
interest due on such Interest Payment Date, then this Debenture
shall bear interest from the next preceding Interest Payment Date
to which interest has been paid, or, if no interest has been paid
on the Debentures, from November 15, 1996. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Debentures (except
defaulted interest) to the persons who are registered Holders of
Debentures at the close of business on the May 1 or November 1
preceding the May 15 or November 15, as the case may be, on which
the Interest Payment Date occurs ("Record Date"). Holders must
surrender Debentures to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender
for payment of public and private debts. However, the Company
may pay principal and any interest by its check payable in such
money. It may mail an interest check to a holder's registered
address.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its
subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Debentures under an Indenture dated
as of November 15, 1996 and a Supplemental Indenture dated as of
November 15, 1996, each between the Company and the Trustee
(collectively, the "Indenture"). The terms of the Debentures
include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code sec. 77aaa-77bbbb) as in effect on the date of the
Indenture. The Debentures are subject to all such terms and
Holders are referred to the Indenture and such Act for a
statement of them. Terms used herein which are defined in the
Indenture shall have the respective meanings assigned to them in
the Indenture.
5. Redemption at the Option of the Company.
The Debentures will not be redeemable at the option of the
Company prior to their maturity. Notwithstanding the foregoing,
each Holder and beneficial owner of a Debenture by accepting or
otherwise acquiring an interest in the Debenture shall be deemed
to have agreed that if the Gaming Authority of any jurisdiction
in which the Company or any of its subsidiaries conducts or
proposes to conduct gaming requires that a person who is a Holder
or beneficial owner must be licensed, qualified or found suitable
under applicable Gaming Laws, such Holder or beneficial owner
shall apply for a license, qualification or a finding of
suitability within the required time period. If such person
fails to apply or become licensed or qualified or is found
unsuitable, the Company shall have the right, at its option, (i)
to require such person to dispose of its Debentures or beneficial
interest therein within 30 days of receipt of notice of the
Company's election or such earlier date as may be requested or
prescribed by such Gaming Authority or (ii) to redeem such
Debentures at a redemption price equal to the lesser of (A) such
person's cost and (B) 100% of the principal amount thereof, plus
accrued and unpaid interest to the earlier of the redemption date
and the date of the finding of unsuitability, which may be less
than 30 days following the notice of redemption if so requested
or prescribed by the Gaming Authority. The Company shall notify
the trustee under the Indenture 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 beneficial owner may
incur in connection with its application for a license,
qualification or a finding of suitability.
6. Redemption at the Option of the Holders.
This Debenture will be redeemable on November 15, 2008
(the "Redemption Date"), at the option of the Holders hereof, at
100% of its principal amount, together with interest payable to
the date of redemption. Less than the entire principal amount of
this Debenture may be redeemed on the Redemption Date, provided
the principal amount which is to be redeemed is equal to $1,000
or an integral multiple of $1,000.
The Company must receive at the principal office of
the Paying Agent, during the period from and including the
September 15 to and including the October 15 immediately
preceding the Redemption Date (or, if such October 15 is not a
business day, the next succeeding business day): (i) this
Debenture with the form entitled "Option to Elect Repayment"
attached hereto, duly completed; or (ii)(x) a telegram, telex,
facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc., or a commercial bank or a trust company in the
United States of America, setting forth the name of the
registered Holder of this Debenture, the principal amount of this
Debenture, the amount of this Debenture to be repaid, a statement
that the option to elect repayment is being exercised thereby and
a guarantee that this Debenture to be repaid, with the form
entitled "Option to Elect Repayment" attached hereto, duly
completed, will be received by the Company not later than five
business days after the date of such telegram, telex, facsimile
transmission or letter; and (y) this Debenture and the form duly
completed are received by the Company by such fifth business day.
Any such notice received by the Company during the period from
and including such September 15 to and including such October 15
(or, if such October 15, 2008 is not a business day, the next
succeeding business day) shall be irrevocable. All questions as
to the validity, eligibility (including time of receipt) and the
acceptance of this Debenture for repayment will be determined by
the Company, whose determination will be final and binding.
7. Denominations, Transfer, Exchange.
The Debentures are in registered form without coupons in
minimum denominations of $1,000 and in integral multiples
thereof. A Holder may transfer or exchange Debentures in
accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
The Holder of a Debenture may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment unless
an abandoned property law designates another person, and all
liability of the Trustee and such Paying Agent with respect to
such money shall cease.
10. Discharge Prior to Maturity.
Subject to certain conditions, if the Company deposits with
the Trustee money or U.S. Government Obligations sufficient to
pay principal of and accrued interest on the Debentures to
maturity, the Company will be discharged (to the extent provided
in the Indenture) from the Indenture and the Debentures.
11. Amendment, Supplement, Waiver.
Subject to certain exceptions requiring the consent of the
Holders of each of the affected Debentures, the Indenture or the
Debentures may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the
Debentures then outstanding affected by such amendment,
supplement or waiver, and any past default or compliance with any
provision as to the Debentures may be waived with the consent of
the Holders of a majority in principal amount of the Debentures
then outstanding. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the
Debentures to, among other things, cure any ambiguity, defect or
inconsistency or to provide that the obligations of the Company
hereunder may be represented solely in the records of the Company
in addition to or in place of the issue of Debentures or to make
any change that does not materially adversely affect the rights
of any Holder.
12. Restrictive Covenants.
The Debentures are general unsecured obligations of the
Company limited to the aggregate principal amount of
$150,000,000. The Indenture does not limit the Company from
incurring unsecured Indebtedness other than the aggregate
principal amount of indebtedness to be issued pursuant to the
Supplemental Indenture. It does limit the ability of the Company
and its subsidiaries to grant certain security interests in their
property without equally and ratably securing the Debentures and
to engage in certain sale and leaseback transactions, subject to
certain important exceptions described therein. Once a year the
Company must report to the Trustee with respect to its compliance
with such limitations.
13. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the Debentures and the Indenture, the
predecessor corporation will be released from those obligations.
14. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on any of the Debentures; default in payment of
principal of any of the Debentures due and payable at maturity or
otherwise; failure by the Company for 30 days after notice to it
to comply with any of its other agreements in the Indenture or in
the Debentures; or the happening of an event of default under
other Indebtedness of the Company entitling the holders thereof
to declare at least $10,000,000 aggregate principal amount
thereof due and payable, unless cured or waived in accordance
with the provisions of the applicable instrument, or discharged
within 30 days after notice to the Company by the Trustee or to
the Company and the Trustee by Holders of not less than 25% in
aggregate principal amount of the Debentures then outstanding or
unless the Company by appropriate proceedings is in good faith
contesting such happening; and certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the
Trustee or the Holders of not less than 25% in principal amount
of the Debentures then outstanding may declare all the Debentures
to be due and payable immediately in accordance with Section 6.02
of the Indenture. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. The Trustee may
require security and indemnity satisfactory to it before it
enforces the Indenture or the Debentures. Subject to certain
limitations, Holders of a majority in principal amount of the
Debentures then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in
payment of principal or interest) if it determines that
withholding notice is in their interests.
15. Trustee Dealings with Company.
Xxxxx Fargo Bank (Colorado), N.A., the Trustee under the
Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its subsidiaries or Affiliates, and may otherwise deal
with the Company or its subsidiaries or Affiliates, as if it were
not Trustee.
16. No Recourse Against Others.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or successor
corporation shall not have any liability for any obligations of
the Company under the Debentures or the Indenture or for any
claim based on, in respect of, or by reason of such obligations
or their creation. Each Holder by accepting a Debenture waives
and releases all such liability. The waiver and release are part
of the consideration for the issue of the Debentures.
17. Authentication.
This Debenture shall not be valid until the Trustee signs
the certificate of authentication at the end of this Debenture.
18. Copies of the Indenture.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made
to:
Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Debenture or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties, ) JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Debentures as a
convenience to the Holders of the Debentures. No representation
is made as to the accuracy of such numbers as printed on the
Debentures and reliance may be placed only on the other
identification numbers printed hereon.
[Signature Page To Follow]
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal this 26th
day of November, 1996.
By:
Name:
Title:
By:
Name:
Title:
(SEAL)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debentures of the series designated
"7.0% Debentures due November 15, 2036," pursuant to the
Indenture.
Xxxxx Fargo Bank (Colorado), N. A., as Trustee
By:
Authorized Signatory
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address
including Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Debenture of __________________________________ and
______________ hereby does irrevocably constitute and appoint
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorney to transfer said Debenture on the books of the within-
named Company with full power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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NOTICE: The signature to this assignment must correspond with
the name as it appears on the first page of the within Debenture
in every particular, without alteration or enlargement or any
change whatever.
Signature Guaranteed:
Authorized Signature
Signature guarantee should be
made by a guarantor
institution participating in
the Securities Transfer
Agents Medallion Program or
in such guarantee program
acceptable to the Trustee.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Company to repay the Debenture (or portion hereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest to the repayment date, to
the undersigned, at
(Name, Address and Tax I.D. Number of the undersigned).
For the Debenture to be repaid, the Company must receive
at the office of the Paying Agent, during the period from and
including the September 15 to and including the October 15
immediately preceding the Redemption Date (or, if such October 15
is not a business day, the next succeeding business day): (i) the
Debenture with this "Option to Elect Repayment" form duly completed
or (ii)(x) a telegram, telex, facsimile transmission or letter from
a member of a national securities exchange or the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company in the United States of America, setting forth the
name of the registered holder of the Debenture, the principal
amount of the Debenture, the amount of the Debenture to be repaid,
a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Debenture, with this "Option to
Elect Repayment" form duly completed, will be received by the
Company not later than five business days after the date of such
telegram, telex, facsimile transmission or letter; and (y) the
Debenture and the form duly completed are received by the Company
by such fifth business day.
If less than the entire principal amount of the Debenture
is to be repaid, specify the portion thereof (which shall be $1,000
or an integral multiple of $1,000) which the Holder elects to have
repaid: $_________________. One Debenture will be issued for the
portion not being repaid.
Date Signature
NOTICE: The signature on this Option to Elect Repayment must
correspond with the name as written upon the face of the Debenture
in every particular without alteration or enlargement or any other
change whatsoever.
----------------
AND WHEREAS, all acts and things necessary to make the
7.0% Debentures of this series, when executed by the Company and
authenticated and delivered by or on behalf of the Trustee as in
this Supplemental Indenture provided, the valid, binding and legal
obligations of the Company, and to constitute these presents a
valid indenture and agreement according to its terms, have been
done and performed;
NOW, THEREFORE, in order to declare the terms and
conditions upon which the 7.0% Debentures of this series are
executed, registered, authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of
such 7.0% Debentures by the holders thereof and of the sum of one
dollar to it duly paid by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time
of such 7.0% Debentures, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
(a) Capitalized Terms.
Capitalized terms used herein and not otherwise defined
herein are used with the respective meanings ascribed to such terms
in the Indenture.
(b) Effectiveness.
This Supplemental Indenture shall become effective as of
November 15, 1996, and shall bind the parties hereto, upon its
execution by the parties hereto.
(c) Incorporation of Supplemental Indenture into Indenture.
This Supplemental Indenture is executed by the Company
and the Trustee pursuant to the provisions of Section 9.01 of the
Indenture, and the terms and conditions hereof shall be deemed to
be part of the Indenture for all purposes upon the effectiveness of
this Supplemental Indenture. The Indenture, as amended and
supplemented by this Supplemental Indenture, is in all respects
hereby adopted, ratified and confirmed.
(d) Effect of Headings.
The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
ARTICLE II
CREATION AND AUTHORIZATION OF SERIES
There is hereby created and authorized the series of 7.0%
Debentures entitled the "7.0% Debentures due November 15, 2036",
which shall be a closed series limited to $150,000,000 aggregate
principal amount (except for 7.0% Debentures authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other 7.0% Debentures of this series pursuant to
Sections 3.06, 3.07, 3.09 or 11.06).
ARTICLE III
SPECIAL PROVISIONS APPLICABLE TO THIS SERIES
(a) Two officers signing the 7.0% Debentures for the
Company may do so by facsimile signature. The Company's seal may
be manually applied to the 7.0% Debentures.
(b) The Supplemental Indenture and each 7.0% Debenture
of this series shall be governed by and construed in accordance
with the laws of the State of Nevada, except as otherwise required
by mandatory provisions of law.
(c) The 7.0% Debentures shall be issuable only in
registered form without coupons and only in minimum denominations
of $1,000 and in integral multiples of $1,000.
(d) The 7.0% Debentures will be redeemable on
November 15, 2008 at the option of the Holders thereof, at 100% of
their principal amount, together with interest payable to the date
of redemption.
[Signature Page To Follow]
IN WITNESS WHEREOF, the Company and the Trustee have
caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first above
written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
BY: XXXXX X. XXXXXXXXX
Name: Xxxxx X. Xxxxxxxxx
Title: President, Chief Financial
Officer and Treasurer
XXXXX FARGO BANK (COLORADO), N.A.
BY: XXXXXXX XXXXXXXX
Name: Xxxxxxx Xxxxxxxx
Title: Vice President & Trust Officer
BY: XXXX XXXXXXXXX
Name: Xxxx Xxxxxxxxx
Title: Assistant Vice President
