================================================================================
GB PROPERTY FUNDING CORP.,
as Issuer,
GB HOLDINGS INC. AND GREATE BAY HOTEL
AND CASINO, INC.,
as Guarantors,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
--------------
AMENDMENT NO. 1
Dated July 22, 2004
to
Amended and Restated Indenture
Dated as of October 12, 2001
--------------
$110 Million
11% Notes Due 2005
================================================================================
AMENDMENT NO. 1, dated July 22, 2004 ("Amendment No. 1"), to the
Amended and Restated Indenture, dated as of October 12, 2001 (the "Indenture"),
among GB Property Funding Corp. (herein called the "Company"), GB Holdings, Inc.
(herein called "Holdings") and Greate Bay Hotel and Casino, Inc. (herein called
"GBHC," and, together with Holdings, herein called the "Guarantors"), each of
which is a corporation duly organized and existing, in the case of the Company
and Holdings, under the laws of the State of Delaware, and in the case of GBHC,
under the laws of the State of New Jersey, and each having its principal office
c/o Sands Hotel and Casino at Indiana Avenue & Xxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxx
Xxxxxx 00000, and Xxxxx Fargo Bank, National Association, as successor by merger
to Xxxxx Fargo Bank Minnesota, National Association (herein called the
"Trustee").
The Company has duly authorized and issued its 11% Notes Due 2005
(herein called "Notes" or the "Securities"), under an Indenture, dated as of
September 29, 2000 (the "Original Indenture") of substantially the tenor and
amount set forth in the Original Indenture, and to provide therefor the Company
has duly authorized the execution and delivery of the Original Indenture, as
amended and restated by the Indenture.
The Indenture is hereby modified, amended and supplemented by the
following:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
For all purposes of this Amendment No. 1, except as otherwise
expressly provided or unless the context otherwise requires:
(i) unless otherwise defined herein, all terms used
herein shall have the meaning attributed to them under the
Indenture;
(ii) the terms defined in this Amendment No. 1 have
the meanings assigned to them in this Article, and include the
plural as well as the singular;
(iii) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Amendment No. 1 as a
whole and not to any particular Article, Section or other
subdivision.
"ACE" means ACE Gaming LLC, a New Jersey limited liability company.
"ACE Holdings" means Atlantic Coast Entertainment Holdings, Inc.,
a Delaware corporation.
"Asset Transfer Transactions" means the transfer (a) by Holdings of
all of its assets (other than the stock of GBHC and the Company) to
GBHC; (b) by GBHC of substantially all of its assets, including the
assets it received from Holdings, to ACE Holdings or ACE; and (c)
by ACE Holdings of all such assets (less the cash paid to the
holders of the Notes pursuant to the Exchange and Consent) to ACE,
all as contemplated in the Prospectuses.
"Exchange and Consent" means the exchange of the Notes for notes
issued by ACE Holdings, and the solicitation of consents of holders
of Notes, and all related activities and payments, all as
contemplated in the Prospectuses.
"Merger" means (a) the merger of the Company into an entity owned
by GBHC; (b) the merger of the surviving entity and GBHC into
Holdings; and (c) any other merger transaction implemented to
achieve any of the foregoing.
"Prospectuses" means those two registration statements and
prospectuses, as amended, filed by ACE Holdings on Form S-4 with
the Securities and Exchange Commission, with respect to the
Transactions.
"Section 1409 Release Notice" means a written notice of any or all
of Holdings, the Company or GBHC in the form of a Company Order,
delivered pursuant to Section 1409.
"Transactions" means the Asset Transfer Transactions, the Merger,
the Warrant Distribution, the Exchange and Consent and all of the
other acts, activities, actions and transactions contemplated in
the Prospectuses or otherwise taken in connection therewith.
"Transfer" means each transfer, assignment, disposition or
conveyance occurring as part of or in connection with the Asset
Transfer Transactions.
"Transferee" means any Person that obtains or receives any Transfer
of assets in the Asset Transfer Transactions, including, without
limitation, ACE Holdings and ACE.
"Warrant Distribution" means the distribution by Holdings of shares
of common stock or warrants to acquire shares of the common stock
of ACE Holdings as contemplated in the Prospectuses.
ARTICLE II
ADDITION OF SECTION 803 TO ARTICLE EIGHTH
"CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE" OF THE
INDENTURE
Article Eight of the Indenture is hereby amended by the addition of
the following:
Section 803. Asset Transfer Transaction.
Notwithstanding any other provision of the Indenture,
Holdings and its Subsidiaries may engage without restriction in the
Transactions free and clear of: (a) any restrictions or obligations
under or created by the Indenture or any Security Documents and (b)
any Security Interests or other liens or claims under or created by
the Indenture or any Security Documents, and neither Holdings and
its Subsidiaries nor any other Person shall be required to act in
accordance with the provisions of Section 801 or 802 of the
Indenture in connection therewith or to comply with those or any
other provisions of the Indenture in connection with the
Transactions. No Transferee in or party to any Asset Transfer
Transaction, or party to the Merger, shall be: (i) required to
assume any of the obligations of any person under the Indenture or
2
to grant, perfect or protect any Security Interests or other lien
or claim in connection therewith or otherwise; (ii) or be deemed to
be a successor to or to succeed or be substituted for, the Company
or any Guarantor in any respect; or (iii) be required to provide
any certificate or opinion to any person. Any Transferee of assets
in any Asset Transfer Transaction and any recipient of securities
in the Warrant Distribution shall obtain those assets and
securities free and clear of any obligation, guaranty, lien, claim
or encumbrance other than, with respect to any Asset Transfer
Transaction, any obligation expressly undertaken in writing in the
documents implementing such Asset Transfer Transaction and, for the
avoidance of doubt, no such person or other person, other than
Holdings, shall have or be deemed to be subject to, any obligations
under the Indenture (including any amendment thereto pursuant to
Exhibit A hereto).
ARTICLE III
ADDITION TO SECTION 1013 "LIMITATION ON RESTRICTED PAYMENTS"
OF THE INDENTURE
Section 1013 of the Indenture is hereby amended by the addition of
the following as the final paragraph thereof:
The provisions of this Section 1013 notwithstanding, neither the
Warrant Distribution nor any of the other Transactions, nor any portion thereof,
shall for any purpose be deemed to constitute or involve a "Restricted Payment"
or otherwise be restricted by or subject to the terms of this Section 1013, and
the provisions of this Section 1013 set forth in the preceding paragraphs shall
have no application to the Transactions in any respect.
ARTICLE IV
ADDITION TO SECTION 1017 "LIMITATION
ON ASSET SALES" OF THE INDENTURE
Section 1017 of the Indenture is hereby amended by the addition of
the following as the final paragraph thereof:
The provisions of Section 101 and this Section 1017
notwithstanding, neither the Asset Transfer Transactions, the Merger nor any of
the other Transactions, nor any portion thereof, shall for any purpose be deemed
to constitute or involve an "Asset Sale" or otherwise be restricted by or
subject to the terms of this Section 1017, and the provisions of this Section
1017 set forth in the preceding paragraphs shall have no application to the
Transactions or any portion thereof.
ARTICLE V
ADDITION TO SECTION 1019 "OWNERSHIP OF
STOCK OF SUBSIDIARY" OF THE INDENTURE
Section 1019 of the Indenture is hereby amended by the addition of
the following as the final paragraph thereof:
The provisions of this Section 1019 notwithstanding, neither the
Asset Transfer Transactions, the Merger nor any of the other Transactions, nor
any portion thereof, shall for any
3
purpose be deemed to be restricted by or subject to the terms of this Section
1019, and the provisions of this Section 1019 set forth in the preceding
paragraphs shall have no application to the Transactions or any portion thereof.
ARTICLE VI
ADDITION TO SECTION 1020 "LIMITATION
ON TRANSACTIONS WITH AFFILIATES" OF THE INDENTURE
Section 1020 of the Indenture is hereby amended by the addition of
the following as the final paragraph thereof:
The provisions of this Section 1020 notwithstanding, neither the
Asset Transfer Transactions, the Warrant Distribution, the Exchange and Consent
nor any of the other Transactions, nor any portion thereof, shall for any
purpose be deemed to be restricted by or subject to the terms of this Section
1020, and the provisions of this Section 1020 set forth in the preceding
paragraphs shall have no application to the Transaction or any portion thereof.
ARTICLE VII
ADDITION TO SECTION 1409 TO ARTICLE FOURTEENTH,
"SECURITY INTEREST" OF THE INDENTURE
Article Fourteenth of the Indenture is hereby amended by the
addition of the following:
Section 1409. Release of Liens, Termination of Security Documents.
A Section 1409 Release Notice may be delivered in
anticipation of the Asset Transfer Transactions. A Section 1409
Release Notice (the "Release Notice") shall be in the form of a
Company Order, and shall request that the Trustee execute one or
more specifically described release instruments, documents and
agreements (which release instruments, documents and agreements
shall accompany such Section 1409 Release Notice). Additionally,
the Release Notice shall (a) include a certified copy of the Board
Resolution of Holdings or any of its Subsidiaries in which such
Board of Directors approved the delivery thereof; (b) be
accompanied by an opinion of outside counsel to the Company and the
Guarantors (not by counsel which is an employee of the Company),
which counsel shall be reasonably satisfactory to the Trustee,
stating that the action contemplated by this Section 1409 is
authorized and permitted by the Indenture as modified by this
Amendment No. 1 and that all conditions precedent herein relating
to such action have been complied with; and (c) if required by the
TIA, be accompanied by certificates in accordance with Section 314
of the TIA. Upon receipt of the Release Notice, all of the Security
Interests and other Liens created by the Security Documents or the
Indenture shall, without any further act or deed, be and be deemed
to be released and terminated and all of the Security Documents
shall be terminated and shall be of no further force or effect and
in order to further evidence the foregoing, the Trustee, at
Holdings' expense, shall execute and deliver, within one Business
Day from the receipt of such Release Notice, any instruments,
documents and agreements specified by Holdings or any of its
Subsidiaries to release all or any part of the Collateral from the
Security Interests or
4
any other Liens created by the Security Documents or the Indenture
including, without limitation, all instruments, documents and
agreements necessary to release any and all Liens of record and to
terminate the Security Documents.
The provisions of this Section 1409 are in addition to, and not in
limitation of, any other provision of this indenture.
ARTICLE VIII
WAIVER
It is intended that the Transactions be permitted to occur and that
the same shall not be deemed to conflict with or constitute any breach of or
default under the terms of the Indenture or the Security Documents and that any
existing breach or default be waived. Therefore, in furtherance thereof and not
in limitation of any terms, provisions or conditions set forth in this Amendment
No. 1, any term, provision or condition set forth in the Indenture, the Security
Documents or any instrument, document or agreement related thereto that
conflicts with, prevents, is inconsistent with, prohibits or otherwise would be
violated by, or in connection with, the Transactions or any portion thereof, and
any breach or default that has occurred, or may occur, in respect of the
Transactions or any portion thereof, and any other breach or default under the
Indenture, the Security Documents or any instrument, documents or agreement
related thereto occurring on or prior to the execution of this Amendment No. 1,
and all consequences of the foregoing, are hereby waived in all respects and any
Event of Default arising from or in respect of any of the foregoing shall be
deemed to have been cured and released, and compliance with any such terms,
provisions and conditions is not required and may be omitted.
ARTICLE IX
SECOND AMENDED AND RESTATED INDENTURE
The Indenture is hereby further amended and restated in its
entirety, as set forth in Exhibit A hereto, which shall be effective upon the
completion of the Transaction following the delivery of a certificate, to the
Trustee, from an officer of Holdings stating that the Transaction has been
completed; provided however that, in all events the Transactions and the parties
thereto (including without limitation the Transferees) shall continue to be
governed by and benefit from and enjoy the benefits and be entitled to the
rights provided in, this Amendment No. 1.
ARTICLE X
MISCELLANEOUS
Section 10.1 Counterparts.
------------
This Amendment No. 1 may be signed in any number of counterparts
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
Section 10.2 Subsidiaries.
------------
Following the execution and delivery of this Amendment No. 1, the
Indenture, including the amendment thereof by Exhibit A hereto (except as
provided or contemplated in this
5
Amendment No. 1) shall cease to have any application to any Subsidiary of
Holdings, GBHC or the Company (other than to GBHC and the Company as
Subsidiaries of Holdings).
Section 10.3 Effect on Indenture.
-------------------
Following the execution and delivery of this Amendment No. 1, the
Indenture shall be deemed to include the terms and provisions of this Amendment
No. 1.
Section 10.4. Third Party Beneficiaries.
-------------------------
Each Transferee shall be deemed to be a third party beneficiary of
this Amendment No. 1.
Section 10.5 Concerning the Trustee.
----------------------
The Trustee shall not be responsible in any manner whatsoever for
or in respect of the sufficiency of this Amendment No. 1 or for or in respect of
the recitals contained herein, all of which are made solely by the Company. In
entering into this Amendment No. 1, the Trustee shall be entitled to the benefit
of every provision of the Indenture relating to the conduct or affecting the
liability of, or affording protection to, the Trustee, whether or not elsewhere
herein so provided.
6
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
GB PROPERTY FUNDING CORP.
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------------
Title: Vice President Finance, Chief Financial
Officer and Principal Accounting Officer
Attest: /s/ Xxxxxxxx X. Wild
---------------------------------------------
Title: Vice President, General Counsel and
Secretary
GB HOLDINGS, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------------
Title: Vice President Finance, Chief Financial
Officer and Principal Accounting Officer
Attest: /s/ Xxxxxxxx X. Wild
---------------------------------------------
Title: Vice President, General Counsel and
Secretary
GREATE BAY HOTEL AND CASINO, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------------
Title: Vice President Finance, Chief Financial
Officer and Principal Accounting Officer
Attest: /s/ Xxxxxxxx X. Wild
---------------------------------------------
Title: Vice President, General Counsel and
Secretary
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxxxxx
----------------------------------------------------
Title: Vice President
7
EXHIBIT A
================================================================================
GB HOLDINGS INC.
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
--------------
Second Amended and Restated Indenture
Dated as of July 22, 2004
--------------
$43,741,030 Million
11% Notes Due 2005
================================================================================
A-i
GB HOLDINGS, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF JULY 22, 2004
TIA INDENTURE
SECTION SECTION
------- ---------
310 (a) (1).................................................................................607
(a) (2).................................................................................607
(a) (3).................................................................................N.A.
(a) (4).................................................................................N.A.
(a) (5).................................................................................607
(b) ....................................................................................604, 608
(c) ....................................................................................N.A.
311 .........................................................................................604
312 .........................................................................................701
313 .........................................................................................601, 702
314 (a) ....................................................................................703, 1008
(b) ....................................................................................N.A.
(c) (1).................................................................................102
(c) (2).................................................................................102
(c) (3).................................................................................N.A.
(d) ....................................................................................N.A.
(e) ....................................................................................102
(f) ....................................................................................N.A.
315 (a) ....................................................................................602
(b) ....................................................................................601
(c) ....................................................................................602
(d) ....................................................................................602
(e) ....................................................................................N.A.
316 (a) (last sentence).....................................................................101("Outstanding")
(a) (1) (A).............................................................................512
(a) (1) (B).............................................................................513
(a) (2).................................................................................N.A.
(b) ....................................................................................508
(c) ....................................................................................104(d)
A-ii
317 (a) (1).................................................................................503
(a) (2).................................................................................504
(b) ....................................................................................1003
318 (a) ....................................................................................111
--------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
A-iii
TABLE OF CONTENTS (1)
PARTIES........................................................................................................1
RECITALS.......................................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.....................................................................................1
Section 102. Compliance Certificates and Opinions............................................................10
Section 103. Form of Documents Delivered to Trustee..........................................................11
Section 104. Acts of Holders.................................................................................11
Section 105. Notices, etc., to Trustee, Company and Guarantors...............................................13
Section 106. Notice to Holders; Waiver.......................................................................13
Section 107. Effect of Headings and Table of Contents........................................................14
Section 108. Successors and Assigns..........................................................................14
Section 109. Separability Clause.............................................................................14
Section 110. Benefits of Indenture...........................................................................14
Section 111. Governing Law...................................................................................14
Section 112. Legal Holidays..................................................................................14
Section 113. Casino Control Act..............................................................................14
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.................................................................................15
Section 202. Form of Face of Notes...........................................................................15
Section 203. Form of Reverse of Notes........................................................................17
Section 204. Form of Trustee's Certificate of Authentication.................................................19
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.................................................................................19
Section 302. Denominations...................................................................................20
Section 303. Execution, Authentication, Delivery and Dating..................................................20
Section 304. Temporary Securities............................................................................21
--------------
(1) This table of contents shall not, for any purpose, be deemed to be a
part of this Indenture.
A-iv
Section 305. Registration, Registration of Transfer and Exchange.............................................22
Section 306. Mutilated, Destroyed, Lost and Stolen Securities................................................23
Section 307. Payment of Interest; Interest Rights Preserved..................................................23
Section 308. Persons Deemed Owners...........................................................................24
Section 309. Cancellation....................................................................................24
Section 310. Computation of Interest.........................................................................25
Section 311. Maximum Interest Rate...........................................................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture..........................................................25
Section 402. Application of Trust Money.......................................................................26
ARTICLE FIVE
REMEDIES
Section 501. Events of Default................................................................................27
Section 502. Acceleration of Maturity; Rescission and Annulment...............................................28
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee..................................29
Section 504. Trustee May File Proofs of Claim.................................................................29
Section 505. Trustee May Enforce Claims Without Possession of Securities......................................30
Section 506. Application of Money Collected...................................................................30
Section 507. Limitation on Suits..............................................................................30
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest........................31
Section 509. Restoration of Rights and Remedies...............................................................31
Section 510. Rights and Remedies Cumulative...................................................................31
Section 511. Delay or Omission Not Waiver.....................................................................32
Section 512. Control by Holders...............................................................................32
Section 513. Waiver of Defaults and Compliance................................................................32
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults...............................................................................33
Section 602. Certain Rights of Trustee........................................................................33
Section 603. Trustee Not Responsible for Recitals or Issuance of Securities...................................34
Section 604. May Hold Securities..............................................................................34
Section 605. Money Held in Trust..............................................................................35
A-v
Section 606. Compensation and Reimbursement...................................................................35
Section 607. Corporate Trustee Required: Eligibility..........................................................35
Section 608. Resignation and Removal; Appointment of Successor................................................36
Section 609. Acceptance of Appointment by Successor...........................................................37
Section 610. Merger, Conversion, Consolidation or Succession to Business......................................37
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
Section 701. Disclosure of Names and Addresses of Holders.....................................................38
Section 702. Reports by Trustee...............................................................................38
Section 703. Reports by Company...............................................................................38
ARTICLE EIGHT
CONSOLIDATION AND MERGER
Section 801. Company May Merge and Consolidate................................................................40
Section 802. Successor Substituted............................................................................40
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Amendments Without Consent of Holders................................41
Section 902. Supplemental Indentures and Amendments with Consent of Holders...................................41
Section 903. Execution of Supplemental Indentures and Amendments..............................................42
Section 904. Effect of Supplemental Indentures................................................................42
Section 905. Conformity with Trust Indenture Act..............................................................42
Section 906. Reference in Securities to Supplemental Indentures...............................................42
Section 907. Notice of Supplemental Indentures and Amendments.................................................43
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, if any, and Interest.............................................43
Section 1002. Maintenance of Office or Agency.................................................................43
Section 1003. Money for Security Payments to Be Held in Trust.................................................44
Section 1004. Corporate Existence.............................................................................45
Section 1005. Payment of Taxes and Other Claims...............................................................45
Section 1006. Maintenance of Properties.......................................................................45
A-vi
Section 1007. [Intentionally Omitted].........................................................................45
Section 1008. Statement by Officers as to Compliance..........................................................45
Section 1009. Statement by Officers of Certain Defaults.......................................................45
Section 1010. [Intentionally Omitted].........................................................................46
Section 1011. [Intentionally Omitted].........................................................................46
Section 1012. [Intentionally Omitted].........................................................................46
Section 1013. Limitation on Restricted Payments...............................................................46
Section 1014. [Intentionally Omitted].........................................................................46
Section 1015. [Intentionally Omitted].........................................................................46
Section 1016. [Intentionally Omitted].........................................................................46
Section 1017. Limitation on Asset Sales.......................................................................46
Section 1018. [Intentionally Omitted].........................................................................47
Section 1019. [Intentionally Omitted].........................................................................47
Section 1020. [Intentionally Omitted].........................................................................47
Section 1021. [Intentionally Omitted].........................................................................47
Section 1022. [Intentionally Omitted].........................................................................47
Section 1023. [Intentionally Omitted].........................................................................47
Section 1024. [Intentionally Omitted].........................................................................47
Section 1025. [Intentionally Omitted].........................................................................47
Section 1026. [Intentionally Omitted].........................................................................47
Section 1027. [Intentionally Omitted].........................................................................47
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Optional Redemption.............................................................................47
Section 1102. Applicability of Article........................................................................47
Section 1103. Election to Redeem; Notice to Trustee...........................................................47
Section 1104. Selection by Trustee of Securities to Be Redeemed...............................................47
Section 1105. Notice of Redemption............................................................................38
Section 1106. Deposit of Redemption Price.....................................................................49
Section 1107. Securities Payable on Redemption Date...........................................................49
Section 1108. Securities Redeemed in Part.....................................................................49
Section 1109. Redemption Pursuant to Gaming Laws..............................................................49
A-vii
ARTICLE TWELVE
[INTENTIONALLY OMITTED]
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance....................................50
Section 1302. Defeasance and Discharge........................................................................50
Section 1303. Covenant Defeasance.............................................................................51
Section 1304. Conditions to Defeasance or Covenant Defeasance.................................................51
Section 1305. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous
Provisions...................................................................................53
Section 1306. Reinstatement...................................................................................53
ARTICLE FOURTEEN
INTENTIONALLY OMITTED
ARTICLE FIFTEEN
MISCELLANEOUS
Section 1501. Counterparts.....................................................................................54
EXHIBIT A
TESTIMONIUM......................................................................................................
SIGNATURE AND SEALS..............................................................................................
A-viii
SECOND AMENDED AND RESTATED INDENTURE, dated as of July 22, 2004
among GB Holdings, Inc. (herein called the "Company"), successor by merger (the
"Merger") to GB Property Funding Corp. (herein called "Funding"), and Greate Bay
Hotel and Casino, Inc. (herein called "GBHC," and, together with Funding, herein
called the "Merged Companies"), which is a corporation duly organized and
existing, under the laws of the State of Delaware, and having its principal
office c/o Sands Hotel and Casino at Indiana Avenue & Xxxxxxxx Xxxx, Xxxxxxxx
Xxxx, Xxx Xxxxxx 00000, and Xxxxx Fargo Bank, National Association, as successor
by merger to Xxxxx Fargo Bank Minnesota, National Association (herein called the
"Trustee").
The Company, the Merged Companies and the Trustee were parties to
an Amended and Restated Indenture, dated as of October 12, 2001 (the "First
Amended and Restated Indenture") which was further amended by Amendment Xx. 0
xxxxxxx ("Xxxxxxxxx Xx. 0"). Funding authorized and issued its 11% Notes Due
2005 (herein called "Notes" or the "Securities"), under an indenture, dated as
of September 29, 2000 (the "Original Indenture") of substantially the tenor and
amount set forth in the Original Indenture in the original principal amount of
$110 million. As a result of an exchange transaction completed on or about the
date of this indenture, the remaining outstanding principal amount of the Notes
is $43,741,030. To provide therefor, the Company has duly authorized the
execution and delivery of the Original Indenture, as amended and restated by the
Amended and Restated Indenture, as further amended by Amendment No. 1 to the
First Amended and Restated Indenture and this Second Amended and Restated
Indenture (this "Indenture").
Each of GBHC and the Company were guarantors of the Securities. By
virtue of the Merger of GBHC and Funding into the Company, the Company has
succeeded to all of the obligations of GBHC and Funding in respect of the
Securities and has become the obligor thereof. Any reference herein or in any of
the Securities to the Company, GBHC, Holdings "Guarantors" or any guarantor or
issuer of the Notes shall, for all purposes, be deemed to refer only to the
Company.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
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 proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
A-1
(i) the terms defined in this Article have the
meanings assigned to them in this Article, and include the plural
as well as the singular;
(ii) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper," as used in TIA Section
311, shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(iii) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with
generally accepted accounting principles, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(iv) [intentionally omitted]; and
(v) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any Person means any other Person that, directly or
indirectly, controls, is controlled by or is under direct or indirect common
control with, such Person and with respect to any natural Person, any other
Person having a relationship by blood, marriage or adoption, not more remote
than first cousins with such natural Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Stock or other equity interests, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Asset Sale" means, as applied to any Person, any direct or
indirect sale, conveyance, transfer, lease or other disposition (other than a
Sale-Leaseback Transaction) by such Person or any Subsidiary of such Person to
any Person other than such Person or a wholly-owned Subsidiary of such Person,
in one transaction or a series of related transactions, of any Capital Stock of
any Subsidiary of such Person or other similar equity interest of such
Subsidiary or any other property or asset of such Person or any Subsidiary of
such Person; provided that the term "Asset Sale" shall not include (a) sales,
conveyances, transfers, leases or other dispositions in the ordinary course of
business; (b) all other dispositions pursuant to which such Person receives,
directly or indirectly, Net Cash Proceeds or fair market value of less than or
equal to $5,000,000 in the aggregate in any twelve month period; (c) sales,
conveyances, transfers, leases or other dispositions of CRDA Investments; and
(d) sales, conveyances, transfers, leases or other dispositions by either
Atlantic Coast Entertainment Holdings, Inc., ACE Gaming, LLC, or any of its or
their subsidiaries.
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"Assets" means, as applied to any Person, any tangible or
intangible assets, or rights or real or personal properties of such Person or
any of its Subsidiaries including capital stock of Subsidiaries.
"Board of Directors" means either the board of directors of a
Person or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of a Person to have been duly adopted by the
Board of Directors of such Person and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
or the State of New Jersey are authorized or obligated by law or executive order
to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights in, or other equivalents (however
designated and whether voting or non-voting) of, such Person's capital stock,
whether outstanding on the Issue Date or issued after such date, and any and all
rights, warrants or options exchangeable for or convertible into such capital
stock.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
any property (whether real, personal or mixed) that is required to be classified
and accounted for as a capital lease obligation under GAAP, and, for the purpose
hereof, the amount of such obligation at any date of determination shall be the
capitalized amount thereof at such date, determined in accordance with GAAP.
"Cash Equivalents" means any of the following, to the extent owned
by Holdings or any of its Subsidiaries free and clear of all Liens (other than
Liens in favor of the Trustee or the Holders) and having a maturity of not
greater than 270 days from the date of acquisition: (a) any evidence of
Indebtedness issued or directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in support
thereof): (b) insured certificates of deposit or acceptances of any commercial
bank that is a member of the Federal Reserve System, that issues (or the parent
of which issues) commercial paper rated as described in clause (c) below and
that has combined capital and surplus and undivided profits of not less than
$100,000,000; (c) commercial paper issued by a corporation (except an Affiliate
of Holdings) organized under the laws of any state of the United States or the
District of Columbia and rated at least A-1 (or the then equivalent grade) by
Standard & Poor's Corporation or at least Prime-1 (or the then equivalent grade)
by Xxxxx'x Investors Service, Inc.; and (d) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States government or issued by any
agency thereof (provided that the full faith and credit of the United States of
America is pledged in support thereof); provided that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as
adopted by the Comptroller of the Currency.
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"Casino Control Act" means the New Jersey Casino Control Act, N.J.
Stat. Xxx. 5:12-1 et seq. (New Jersey Public Law 1977, C.110), and the
regulations promulgated thereunder, N.J.A.C. 19:40-1.1 et seq., as from time to
time amended, or any successor provision of law.
"Casino Control Commission" means the New Jersey Casino Control
Commission as established by Section 50 of the Casino Control Act or any
successor agency appointed pursuant to the Casino Control Act.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations and other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the Issue Date, and includes, without limitation,
all series and classes of such common stock.
"Company" means GB Holdings, Inc., until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at 6th and Marquette, MAC X0000-000, Xxxxxxxxxxx, XX 00000, except
that with respect to presentation of Securities for payment or for registration
of transfer or exchange, such term shall mean the office or agency of the
Trustee at which, at any particular time, its corporate agency business shall be
conducted.
"Corporation" includes corporations, associations, companies and
business trusts.
"CRDA Investments" means Investments in securities issued by, and
monies deposited with, the Casino Reinvestment Development Authority of the
State of New Jersey.
"Default" means any Event of Default, or an event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Holders" shall have the meaning provided in Section
1109.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock or other similar ownership or profit interest that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
exchangeable for Indebtedness, or is redeemable at the option of the holder
thereof, in whole or in part, on or before the Maturity Date of the Securities.
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"Division of Gaming Enforcement" means the Division of Gaming
Enforcement of the New Jersey Department of Law and Public Safety as established
by Section 55 of the Casino Control Act or any successor division or agency.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchanged Amount" means the principal amount of Securities
exchanged in the Exchange Offer.
"Exchange Offer" means that certain offer for the exchange of Notes
set forth in a prospectus of Atlantic Coast Entertainment Holdings, Inc., dated
June 1, 2004.
"Fair Market Value" or "fair value" means either, (a) with respect
to any asset or property, the price which could be negotiated in an arm's-length
free market transaction, for cash, between a willing seller and a willing buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction (the "Arm's Length Value") as determined by the Board of Directors
of the Company acting in good faith and evidenced by a Board Resolution
delivered to the Trustee or (b) with respect to any asset or property, any value
within a range of values determined to reflect the Arm's Length Value by an
investment banking firm retained by the Company or the Board.
"Federal Bankruptcy Code" means the 1978 Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board that are applicable
as of the Issue Date.
"Gaming Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States federal government or foreign government, any state, province
or any city or other political subdivision or otherwise and whether now or
hereafter in existence, or any officer or official thereof with authority to
regulate any gaming operation (or proposed gaming operation) owned, managed, or
operated by Holdings or any of its Subsidiaries.
"Gaming Laws" means each gaming law of any applicable Gaming
Authority as amended from time to time, and the regulations promulgated and
rulings issued thereunder applicable to Holdings or any of its Subsidiaries or
shareholders.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"incur" means to directly or indirectly create, assume, suffer to
exist, guarantee in any manner, or in any manner become liable for the payment
of.
"Indebtedness" of any Person means (a) any liability, contingent or
otherwise, of such Person (whether or not the recourse of the lender is to the
whole of the assets of such Person, or only to a portion thereof), (i) for
borrowed money evidenced by a note, bond, debenture or
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similar instrument, letters of credit, acceptances or other similar facilities
(other than a trade payable or a current liability incurred in the ordinary
course of business) or (ii) for the payment of money relating to a Capitalized
Lease Obligation or other obligation relating to the deferred purchase price of
property or services (including a purchase money obligation); (b) any liability
of others of the kind described in the preceding clause (a) which such Person
has guaranteed including, without limitation, (i) to pay or purchase such
liability; (ii) to supply funds to or in any other manner invest in the debtor
(including an agreement to pay for property or services irrespective of whether
such property is received or such services are rendered; and (iii) to purchase,
sell or lease (as lessee or lessor) property or to purchase or sell services,
primarily for the purpose of enabling a debtor to make a payment of such
Indebtedness or to assure the holder of such Indebtedness against loss; (c) any
obligation secured by a Lien to which the property or assets of such Person are
subject, whether or not the obligations secured thereby shall have been assumed
by or shall otherwise be such Person's legal liability; (d) all obligations of
such Person to purchase, redeem, retire, defease or otherwise make any payment
in respect of any Capital Stock of or other ownership or profit interest in such
Person or any of its Affiliates or any warrants, rights or options to acquire
such Capital Stock, valued, in the case of Disqualified Stock, at the greater of
its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; (e) all Interest and Currency Rate Protection Obligations; and (f)
any and all deferrals, renewals, extensions and refundings of any liability of
the kind described in any of the preceding clauses.
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented, changed, modified or amended (by any
addition to or elimination of, the provisions hereof, or otherwise) by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Independent," when used with respect to any Person, means such
other Person who (a) does not have any material financial interest in the
Company or in any Affiliate of the Company and (b) is not an officer, employee,
promoter, underwriter, trustee, partner or person performing similar functions
for the Company or a spouse, family member or other relative of any such Person;
provided, that with respect to any director of any corporation, such director
shall also be deemed to be "Independent" if such director meets the requirements
for independence established by any "national securities exchange" (as
contemplated in the Securities Exchange Act of 1934) for audit committee
membership. Whenever it is provided in this Indenture that any Independent
Person's opinion or certificate shall be furnished to the Trustee, such Person
shall be appointed by the Company.
"Interest and Currency Rate Protection Obligations" means the
obligations of any Person pursuant to any interest rate swap, cap or collar
agreement, interest rate future or option contract, currency swap agreement,
currency future or option contract and other similar agreement designed to hedge
against fluctuations in interest rates or foreign exchange rates.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Securities.
"Investment" in any Person means any direct or indirect loan,
advance, guarantee or other extension of credit or capital contribution to
(including, without limitation, transfers of cash or other property to others or
payments for property or services for the account or use of
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others (excluding unbilled or uncollected receivables), or otherwise), or
purchase or acquisition of Capital Stock, warrants, rights, options, bonds,
notes, debentures or other securities or evidences of Indebtedness issued by,
any other Person or Indebtedness of any other Person secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness.
"Issue Date" means September 29, 2000.
"Lien" means any mortgage, lien (statutory or other), pledge,
security interest, encumbrance, hypothecation, assignment for security, or other
security agreement of any kind or nature whatsoever. For purposes of this
Indenture, a Person shall be deemed to own subject to a Lien any property which
it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, or other title retention agreement relating to such
Person.
"Maturity," when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, notice of redemption or otherwise.
"Maturity Date," when used with respect to any Security, means the
date specified in such Security as the fixed date on which the final installment
of principal of such Security is due and payable.
"Net Cash Proceeds" means, with respect to any Asset Sale the
proceeds thereof in the form of cash or Cash Equivalents received by the Company
(whether as initial consideration, through the payment or disposition of
deferred compensation or the release of reserves), after deducting therefrom
(without duplication): (a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finders fees and other similar fees
and expenses incurred in connection with such Asset Sale; (b) provisions for all
taxes payable as a result of such Asset Sale; (c) payments made to retire
Indebtedness (other than payments on the Securities) secured by the assets
subject to such Asset Sale to the extent required pursuant to the terms of such
Indebtedness; and (d) appropriate amounts to be provided by the Company as a
reserve, in accordance with GAAP, against any liabilities associated with such
Asset Sale and retained by the Company after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, in each case to the extent, but
only to the extent, that the amounts so deducted are, at or around the time of
receipt of such cash or Cash Equivalents, actually paid to a Person that is not
an Affiliate of the Company or, in the case of reserves, are actually
established and, in each case, are properly attributable to such Asset Sale .
"Officers' Certificate" for any Person means a certificate signed
by the Chairman, the President, Executive Vice President or a Vice President,
and by the Chief Financial Officer or the Secretary of such Person, and
delivered to the Trustee.
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"Opinion of Counsel" means a written opinion of counsel for the
Company or any of the Guarantors or any of their respective Affiliates,
including an employee of any such Person, or any other counsel reasonably
acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities, except to the extent provided in
Sections 1302 and 1303, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in
Article Thirteen; and
(iv) Securities in respect of which, pursuant to
Section 306, other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands the Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder or taken any other
action, Securities owned by Holdings or its Subsidiaries shall be disregarded
and deemed not to be Outstanding (but the Securities of any other Affiliates
shall be deemed for all such purposes to be Outstanding). In determining whether
the Trustee shall be protected in making such calculation or in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities owned by Holdings or its Subsidiaries which the Trustee knows to be
so owned shall be so disregarded. Securities owned by Holdings or its
Subsidiaries which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company, a Guarantor or a Subsidiary of Holdings.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (and premium, if
any, on) or interest on any Securities on behalf of the Company.
"Permitted Investment" means the direct or indirect acquisition,
repair or restoration of property or other Assets (including, without
limitation, Securities of any person possessing any such Asset or with rights
to, any Assets).
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"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Predecessor Security" of any particular 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 306 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means 100% of the principal amount of such Security, together with
accrued, unpaid interest.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the September 14 or March 14 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Payment" means either of the following: (a) the
declaration or payment of any dividend or any other distribution on Common Stock
of the Company or any payment made to the direct or indirect holders (in their
capacities as such) of Common Stock of the Company in respect of that stock
(other than dividends or distributions payable solely in Capital Stock (other
than Disqualified Stock) or (b) the purchase, defeasance, redemption or other
acquisition or retirement for value of any Common Stock of the Company.
"Sale-Leaseback Transaction" means any arrangement with any Person
providing for the leasing by Holdings or any Subsidiary of any real or tangible
personal property, which property has been or is to be sold or transferred by
the Company to such Person or its Affiliates in contemplation of such leasing.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
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"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 the principal of such Security or
such installment of principal or interest is due and payable, including pursuant
to any mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof).
"Subsidiary" of any Person means any corporation, partnership,
joint venture, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding Capital Stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency); (b)
the interest in the capital or profits of such partnership or joint venture; or
(c) the beneficial interest in such trust or estate, is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other Subsidiaries.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"United States Government Obligations" means securities which are
(a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a Person, the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States of America.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only as
long as no senior class of securities has such voting power by reason of any
contingency.
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008) shall include:
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(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
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(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture or otherwise to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient
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for any purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by
any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefore or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) For the purpose of the Company complying with any requirement
of the Casino Control Commission, or the Division of Gaming Enforcement or of
the Casino Control Act, every holder, intermediary holder, intermediary
beneficial holder and beneficial holder of a Security shall be deemed to
authorize any Holder and any other holder, intermediary holder, intermediary
beneficial holder and beneficial holder of a Security, upon written request of
an Officer of the Company, or the Trustee expressing reliance on this Section
and enclosing a copy of this Section, to release, and any such holder,
intermediary holder, intermediary beneficial holder and beneficial holder shall
be required to release, to the Company, or the Trustee, as the
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case may be, the name, address, telephone number, principal contact person, and
amount of such holdings, intermediary holdings, intermediary beneficial holdings
and beneficial holdings of Securities of each such holder, intermediary holder,
intermediary beneficial holder and beneficial holder of a Security.
SECTION 105. Notices, etc., to Trustee, Company and Guarantors.
-------------------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration, or
(ii) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
Indenture, with a copy to: Sands Hotel and Casino, Indiana Avenue
and Brighton Park, Atlantic City, N.J. 08401, or at any other
address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
Any notices hereunder that are required to be given to the Casino
Control Commission shall be addressed to: Document Control Unit, Casino Control
Commission, Tennessee Avenue and the Xxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxxx Xxxx,
Xxx Xxxxxx 00000, Attention: Chief of Administrative Operations. Any notices
hereunder that are required to be
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given to the Division of Gaming Enforcement shall be addressed to: Division of
Gaming Enforcement, 000 Xxxx Xxxxx Xxxxxx, XX-000, Xxxxxxx, Xxx Xxxxxx 00000,
Attention: Deputy Director for the Division of Gaming Enforcement.
SECTION 107. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture shall bind its
successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
-------------------
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 110. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any
Securities Registrar and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
-------------
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York. This Indenture is
subject to the provisions of the Trust Indenture Act of 1939, as amended, that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date or sinking fund payment date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue on such payment for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
SECTION 113. Casino Control Act.
------------------
Notwithstanding the provisions of Section 111 hereof, each of the
provisions of this Indenture is subject to and shall be enforced in compliance
with the provisions of the Casino Control Act, to the extent applicable, and the
regulations promulgated thereunder, unless such provisions are in conflict with
the TIA, in which case the TIA shall control. The Securities are to
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be held subject to the condition that if a holder thereof is found to be
disqualified by the Casino Control Commission pursuant to the provisions of the
Casino Control Act, such holder shall dispose of the Securities in accordance
with the provisions of Section 1109 hereof. The Company shall have the right to
repurchase the Securities at the lowest of (a) the principal amount thereof; (b)
the amount which the Disqualified Holder or beneficial owner paid for the
Securities, together with accrued interest up to the date of the determination
of disqualification; or (c) the market value of such Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Securities and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. Form of Face of Notes. From and after the effective
date of the merger, certificates to be issued to evidence the Security shall be
as follows:
GB HOLDINGS INC.
From and after the effective date of the Merger, certificates to be
issued to evidence the Security shall be as follows:
11% NOTE DUE 2005
No. _________________ $ __________________
GB Holdings Inc., a Delaware corporation (herein called the
"Holdings," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_________ or registered assigns, the principal sum of __________ U.S. Dollars on
September 29, 2005 at the office or agency of the Company referred to below, and
to pay interest thereon on March 29, 2001 and thereafter, on September 29 and
March 29 in each year, from September 29, 2000, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 11% per annum, until the principal hereof is paid or duly provided for.
Notwithstanding anything contained herein, the rate of
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interest on the Securities shall not exceed the highest rate permitted by law.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the September 14 or March 14 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and such defaulted interest
may be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture. Payment of the
principal of (and premium, if any, on) and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in The
City of New York, or at such other office or agency of the Company as may be
maintained for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company (a) by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register or (b) by transfer
to an account maintained by the payee located in the United States.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place. Unless the certificate of
authentication hereon has been duly executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: ______________ GB HOLDINGS INC.
By
--------------------------------------
Attest: ________________________________
Authorized Signature
SECTION 203. Form of Reverse of Notes.
------------------------
This Security is one of a duly authorized issue of securities of
the Company designated as its 11% Notes Due 2005 (herein called the
"Securities"), limited (except as
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otherwise provided in the Indenture referred to below) in aggregate principal
amount to $110 million, which may be issued under an indenture (herein called
the "Indenture"), dated as of September 29, 2000 between the GB Property Funding
Corp., GB Holdings, Inc. and Greate Bay Hotel and Casino, Inc. and Xxxxx Fargo
Bank Minnesota, National Association, trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. Interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice, at any time after January 1, 2001, as a whole or in
part, at the election of the Company, at a Redemption Price equal to 100% of the
principal amount, together in the case of any such redemption with accrued,
unpaid interest, if any, to the Redemption Date, all as provided in the
Indenture.
Each of the provisions of this Security is subject to and shall be
enforced in compliance with the provisions of the Casino Control Act and the
regulations promulgated thereunder, to the extent applicable.
Each Holder by accepting a Security agrees that all Holders,
whether initial holders or subsequent transferees, shall be subject to the
qualification provisions of the Casino Control Act. As set forth more fully in
the Indenture, in the event that the Casino Control Commission determines that a
Holder is not qualified under the Casino Control Act, the Company shall have the
absolute right and obligation to purchase from such Holder (the "Disqualified
Holder") the Securities the Disqualified Holder may then possess, no later than
forty-five days after the date that the Company serves notice on any
Disqualified Holder of such determination. Immediately upon such determination,
the Disqualified Holder shall have (a) no further right to exercise, directly or
through any trustee or nominee, any right conferred by its Securities or (b) no
further right to receive any dividends, interest, or other distribution or
payment with respect to any such Securities. In the event a Disqualified Holder
fails to so sell its Securities within 30 days after the determination by the
Casino Control Commission, the Company shall purchase such Securities within 15
days after the end of such 30 day period at the lowest of (i) the principal
amount thereof; (ii) the amount which the Disqualified Holder paid for the
Securities, together with accrued interest up to the date of the determination
of disqualification; or (c) the market value of such Securities.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
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If an Event of Default shall occur and be continuing, the principal
of all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such amendment,
modification, consent or waiver by or on behalf of the Holder of this Security,
or otherwise in accordance with the terms of the Indenture, shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation thereof is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Company
which is absolute and unconditional, to pay the principal of (and premium, if
any, on) and interest on this Security at the times, place, and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amounts will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this
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Security be overdue, and neither the Company, the Trustee nor any agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Each Guarantor (which term includes any successor Person under the
Indenture) has unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, (a) the due and
punctual payment of the principal of and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on overdue principal, and, to the extent permitted by law, interest, and the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee all in accordance with the terms set forth in the Indenture and
(b) in case of any extension of time of payment or renewal of any Securities or
any of such other obligations, that the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at Stated Maturity, by acceleration or otherwise.
SECTION 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in
substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, AS TRUSTEE
By:
------------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
---------------
(a) The aggregate principal amount of securities which may be
authenticated and delivered under this Indenture is limited to $110 million
(reduced by the Exchanged Amount), except for securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other securities.
(b) The Notes shall be known and designated as the "11% Notes Due
2005" of the Company. Their Stated Maturity shall be September 29, 2005, and
they shall bear interest at the rate of 11% per annum from September 29, 2000,
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, payable on March 29, 2001 and semiannually thereafter on
September 29 and March 29 in each year and at said Stated Maturity, until the
principal thereof is paid or duly provided for.
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(c) The principal of (and premium, if any, on) and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose; provided, however, that, at
the option of the Company, interest may be paid by check mailed to addresses of
the Persons entitled thereto as such addresses shall appear on the Security
Register.
(d) The Securities shall be redeemable as provided in Article
Eleven.
(e) If the Company is served with notice of the disqualification of
any Holder under Section 105(d) of the Casino Control Act by the Casino Control
Commission, such Holder will be prohibited under Section 105(e) of the Casino
Control Act from (i) receiving interest on the Securities held by such Holder;
(ii) exercising, directly or through any trustee or nominee, any right conferred
on such Securities; and (iii) receiving any remuneration in any form from any
Person licensed or qualified by the Casino Control Commission (including the
Company, the Guarantors and the Trustee) for services rendered or otherwise.
Notwithstanding the foregoing, the Trustee shall be entitled to exercise all
rights with respect to the Securities held by such Holder including, but not
limited to, accelerating the Securities (any monies or securities received by
the Trustee on behalf of such Holder to be held in trust for such Holder
pursuant to Section 605 hereof). If the Trustee exercises voting rights with
respect to such Securities, such votes shall be cast in the same proportion as
the votes of the other Outstanding Securities are cast on such issue. A copy of
any notice served upon the Company as described above shall be promptly
delivered by the Company to the Trustee. Any such notice to the Trustee shall be
effective against the Trustee on the second Business Day after receipt thereof
by a Responsible Officer of the Trustee.
SECTION 302. Denominations.
-------------
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman, its President, a Vice President, or the Chief Financial Officer. The
signature of any officer on the Securities may be manual or facsimile signatures
of the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the
Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
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The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Security Register shall
be open to inspection by the Trustee. The Trustee is hereby initially appointed
as security registrar (the "Security Registrar") for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate principal amount
and like terms.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount and like terms, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges not involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the selection of Securities to be redeemed under Section
1104 and ending at the close of business on the day of such mailing of the
relevant notice of redemption or (b) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If (a) any mutilated Security is surrendered to the Trustee or (b)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and
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there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
at the office or agency of the Company maintained for such purpose pursuant to
Section 1002; provided, however, that each installment of interest may at the
Company's option be paid by (a) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears in the Security Register or (b)
transfer to an account maintained by the payee located in the United States.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the Regular Record Date by virtue
of having been such Holder, and such defaulted interest ("Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in clause
(i) or (ii) below:
(i) the Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be
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paid on each Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date, and in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given
in the manner provided for in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor
having been so given, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following clause (ii); or
(ii) the Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may
be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to the due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any, on) and (subject to Sections 305 and 307) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other
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Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of by the Trustee in accordance with its customary procedures and
certification of their disposal delivered to the Company.
SECTION 310. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 311. Maximum Interest Rate.
---------------------
Regardless of any provision contained herein or in the Securities,
the Holders shall not be entitled to receive, collect or apply as interest
(whether termed interest in the documents or deemed to be interest by judicial
determination or operation of law) on the Securities, any amount in excess of
the maximum amount allowed by applicable law, and, if any Holder ever receives,
collects or applies as interest any such excess, the amount that would be
excessive interest shall be deemed to be a partial prepayment of principal and
treated hereunder as such; and, if the principal amount of the Securities is
paid in full, any remaining excess shall forthwith be paid to the Company. In
determining whether or not the interest paid or payable under any specific
contingency exceeds the maximum amount of interest allowed by applicable law,
the Company and the Holders shall, to the maximum extent permitted under
applicable law, (a) characterize any nonprincipal payment as an expense fee, or
premium rather than interest; (b) exclude voluntary prepayments and the effects
thereof; and (c) amortize, prorate, allocate and spread, in equal parts, the
total amount of interest throughout the entire contemplated term of the
Securities.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
Securities herein expressly provided for) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when:
(i) either
(A) all Securities theretofore
authenticated and delivered (other than (1) Securities
which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306
and (2) Securities for whose payment money has
theretofore been deposited in trust with the
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Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for
cancellation
(1) have become due and
payable, or
(2) will become due and
payable at their Stated Maturity within
one year, or
(3) are to be called for
redemption within one year under
arrangements satisfactory to the Trustee
for the giving of notice of redemption by
the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (1), (2) or (3) above,
has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the
date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for in this Section 401 relating
to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 606 and, if money
shall have been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003, shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money and property deposited with the Trustee pursuant to Section 401 shall
be held in trust and, at the direction of the Company, be invested prior to
Maturity in United States Government Obligations, and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to
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the extent required by law. Any funds remaining following payment of all
Securities and all other obligations of the Company hereunder shall be the
property of the Company.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) default in the payment of any interest on any
Security when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(ii) default in the payment of any principal of (or
premium, if any, on) any Security at its Maturity; or
(iii) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
default in the performance, or breach, of a covenant or warranty
which is specifically dealt with elsewhere in this Section), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of a majority in principal amount of the Outstanding
Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder, unless the Company, is proceeding,
and continues to proceed, diligently to cure any such default; or
(iv) [intentionally omitted]; or
(v) [intentionally omitted]; or
(vi) [intentionally omitted]; or
(vii) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition or in
respect of the Company under the Federal Bankruptcy Code or any
other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of their
respective affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days; or
(viii) the institution by the Company of proceedings
to be adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any
other
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applicable federal or state law or the consent by it to the filing
of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due; or
(ix) [intentionally omitted]; or
(x) [intentionally omitted]; or
(xi) [intentionally omitted].
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(vii) or 501(viii)) occurs and is continuing, then and in every such
case, the Trustee and the Holders of not less than a majority in principal
amount of the Securities Outstanding may declare the principal amount of all the
Securities to be due and payable immediately, by a notice in writing to the
Company, and upon any such declaration such principal amount shall become
immediately due and payable. If an Event of Default specified in Section
501(vii) or 501(viii) occurs and is continuing, then the principal amount of all
the Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee and any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Securities Outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(i) the Company has paid or deposited with the Trustee
a sum sufficient to pay,
(A) all Defaulted Interest on all
Outstanding Securities,
(B) all unpaid principal of (and premium,
if any, on) any Outstanding Securities which has
become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal at
the rate borne by the Securities; and
(C) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(ii) all Events of Default, other than the non-payment
of amounts of principal of (or premium, if any, on) or interest on
Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
------------------------------------------------------
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The Company covenants that if
(i) default is made in the payment of any installment
of interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any), and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in any Security
Document or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company, or the property of the
Company, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding; and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money and property collected by the Trustee pursuant to this
Article or in connection with the exercise of remedies under any Security
Document shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any, on,) and interest on
the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(i) the Holders of a majority in principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
A-30
(ii) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(iii) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
any such proceeding; and
(iv) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by
the Holders of a majority or more in principal amount of the
Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Section 507 to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
------------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder
of any of the Securities shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Thirteen) and in the terms of each note representing such Securities of
the principal of (and premium, if any, on) and (subject to Section 307) interest
on, such Securities on the respective Stated Maturities expressed in such
Securities (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Security Document and
such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or any Security Document or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
------------------
Notwithstanding anything to the contrary set forth in Section
316(a) of the TIA (the provisions of which are hereby excluded), the Holders of
not less than a majority in principal amount of the Outstanding Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee under this Indenture, provided that
(i) such direction shall not be in conflict with any
rule of law or with this Indenture;
(ii) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction; and
(iii) the Trustee need not take any action which might
involve it in personal liability unless it has obtained appropriate
indemnity.
SECTION 513. Waiver of Defaults and Compliance.
---------------------------------
Notwithstanding anything to the contrary set forth in Section
316(a) of the TIA (the provisions of which are hereby excluded) the Holders of
not less than a majority in principal amount of the Outstanding Securities may
on behalf of the Holders of all the Securities:
(i) waive any past default hereunder and its
consequences, except a default in respect of the payment of the
principal of (or premium, if any, on) or interest on any Security,
and upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured and released, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon; and
(ii) waive future compliance with any term, provision
or condition of this Indenture or any related instruments,
agreements or documents (but no such waiver shall extend to or
affect such term, provision or condition except to the extent so
expressly waived), in which event the Company may omit to comply
with any such term, provision or condition of this Indenture or any
related instrument, agreement or document.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default hereunder, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such Default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of (or premium, if any, on) or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders. The Trustee shall not be deemed to have knowledge of any Default or
Event of Default hereunder unless a Responsible Officer in its Corporate Trust
Department shall have actual knowledge thereof.
SECTION 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Sections 315(a) through 315(d):
(i) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(iii) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(v) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture
at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(vi) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of
A-33
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(vii) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(viii) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
The Trustee and its directors, officers, employees and Affiliates
shall cooperate with the Casino Control Commission and the Division of Gaming
Enforcement and provide such information and documentation as may from time to
time be requested by such agencies.
The Trustee may rely on, and shall be protected with respect to any
action taken or omitted to be taken in good faith in accordance with, the
direction of the Holders of not less than a majority in principal amount of
Outstanding Securities.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility and Qualification of Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
-------------------
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to TIA Sections
310(b) and 311, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
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SECTION 605. Money Held in Trust.
-------------------
Except as otherwise provided herein, money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise provided herein or agreed
with the Company.
SECTION 606. Compensation and Reimbursement.
------------------------------
The Company agrees:
(i) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time
agree for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(ii) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder or thereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any, on) or interest
on particular Securities.
SECTION 607. Corporate Trustee Required: Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
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SECTION 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) Subject to the provisions of the Casino Control Act, the
Trustee may resign at any time by giving written notice thereof to the Company,
the Casino Control Commission and the Division of Gaming Enforcement. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) Subject to the provisions of the Casino Control Act, the
Trustee may be removed at any time by Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months; or
(ii) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request therefor
by the Company or by any Holder who has been a bona fide Holder of
a Security for at least six months; or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, subject to the provisions of the Casino Control Act, (A)
the Company, by a Board Resolution, may remove the Trustee or (B) subject to TIA
Section 315(e), any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
Notwithstanding the foregoing, any successor Trustee may
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be appointed only with the prior, express approval of the Casino Control
Commission, in consultation with the Division of Gaming Enforcement, provided
that such successor Trustee must first be qualified as a financial source by and
cooperate with the Casino Control Commission and the Division of Gaming
Enforcement.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Securities in the manner provided for in Section 106. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall take all
necessary steps to be approved by the Casino Control Commission and shall
execute, acknowledge and deliver to the Company, and to the retiring Trustee an
instrument accepting such appointment, and the successor Trustee and the Company
shall enter into a supplemental indenture evidencing the appointment of the
successor Trustee. Thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
------------------------------------------------------
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
SECTION 701. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities, the Trustee shall transmit
to the Holders, in the manner and to the extent provided in TIA Section 313(c),
a brief report, dated as of such May 15 if required by TIA Section 313(a).
The Trustee shall transmit to the Holders, within the times
hereinafter specified a brief report with respect to the following:
(i) [intentionally omitted]; and
(ii) the character and amount of any advances made by
it as such since the date of the last report transmitted pursuant
to the provisions of TIA Section 313(a) (or if no such report has
yet been so transmitted, since the date of execution of the
Indenture), for the reimbursement of which it claims or may claim a
Lien or charge, prior to that of the Indenture Securities, on the
trust estate or on property or funds held or collected by it as
such Trustee, and which it has not previously reported pursuant to
this clause (2), if such advances remaining unpaid at any time
aggregate more than 10 per centum of the aggregate principal amount
of the Securities Outstanding at such time, such report to be so
transmitted within 90 days after such time.
To the extent required by applicable laws, rules and regulations, a
copy of each such report shall, at the time of such transmission to the Holders,
be filed with each stock exchange, if any, upon which the Securities are listed,
and also with the Commission.
(b) The Trustee shall transmit by mail to the Casino Control
Commission and the Division of Gaming Enforcement (i) an initial list of the
beneficial Holders of the Securities promptly after the issuance of the
Securities; (ii) current lists of the Holders appearing in the Security Register
on a twice-per-year basis, no later than March 1 and September 1 of each year;
and (iii) upon request by the Casino Control Commission or the Division of
Gaming Enforcement, such additional information with respect to the beneficial
Holders of the Securities as the Trustee may obtain through its good faith
efforts.
(c) The Trustee shall notify the Casino Control Commission and the
Division of Gaming Enforcement, simultaneously with any notice given to the
Holders, of any default or acceleration under the Securities, this Indenture or
any other documents, instrument, agreement,
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covenant, or condition related to the issuance of the Securities, whether
declared or effectuated by the Trustee or the Holders. The Trustee shall notify
the Casino Control Commission and the Division of Gaming Enforcement on a
continuing basis and in writing, of any actions taken by the Trustee or the
Holders with regard to such default, acceleration or similar matters related
thereto.
(d) The Trustee shall notify the Casino Control Commission and the
Division of Gaming Enforcement of the removal or resignation of the Trustee
promptly after such removal or resignation.
(e) The Trustee shall provide to the Casino Control Commission and
the Division of Gaming Enforcement, promptly after the execution by the Trustee
of the same, copies of any and all amendments or modifications to this
Indenture, the Securities or any other documents, instrument, agreement,
covenant or condition related to the issuance of the Securities.
SECTION 703. Reports by Company.
------------------
The Company shall, to the extent required by the TIA:
(i) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, 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
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required
to file information, documents or reports pursuant to either of
said Sections, then it may, if it determines to do so, file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(ii) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time
by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations;
(iii) transmit by mail to all Holders, in the manner
and to the extent provided in TIA Section 313(c), within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company, as the case may be, pursuant to paragraphs (i) and (ii) of
this Section as may be required by rules and regulations prescribed
from time to time by the Commission; and
(iv) comply in all material respects with all
requirements and provisions of the Casino Control Act and notify
the Trustee by mail of all formal hearings and formal proceedings
materially relating to the Company before the Casino Control
Commission relating to the plenary casino licenses for the Company,
as the same are
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scheduled. Such notice shall be in writing and given at least seven
days prior to the hearing to which such notice relates, unless a
shorter notice is given to the Company in which event the Company
shall notify the Trustee promptly upon receiving such definite
information as shall be contained in such notice. The Company
hereby agrees that the Trustee may, but shall have no obligation
to, attend such hearings and other proceedings if permitted to do
so by the Casino Control Commission.
ARTICLE EIGHT
CONSOLIDATION AND MERGER
SECTION 801. Company May Merge and Consolidate.
---------------------------------
The Company shall not consolidate with or merge with or into any
Person or group of Persons in a single transaction or through a series of
transactions, except that:
(i) The Company may consolidate with or merge with or
into any Person or group of Persons in a single transaction or
through a series of transactions if (A) the Company shall be the
continuing Person, or the resulting or surviving Person (the
"surviving entity") shall be a Person organized and existing under
the laws of the United States or any State thereof or the District
of Columbia; (B) the surviving entity (other the Company) shall
expressly assume, by a supplemental indenture executed and
delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, all of the obligations of the Company
under the Securities, and this Indenture; and (C) immediately
before and immediately after giving effect to such transaction, or
series of transactions (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection
with or in respect of, such transaction or series of transactions),
no Default or Event of Default shall have occurred and be
continuing;
(ii) [intentionally omitted]; and
(iii) the Company or such Person shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation or merger and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this covenant
and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with or merger of the Company
with or into any other Person in accordance with Section 801, the successor
Person formed by such consolidation or merger 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.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures and Amendments Without Consent
of Holders.
------------------------------------------------------
Without the consent of any Holders, the Company, when it is so
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company, contained herein and in the Securities;
or
(ii) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company; or
(iii) to add any additional Events of Default; or
(iv) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee pursuant to the
requirements of Section 609; or
(v) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided that
such action shall not adversely affect the interests of the Holders
in any material respect; or
(vi) [intentionally omitted]; or
(vii) to add any guarantor; or
(viii) to make any other change that does not
adversely affect the rights of any Holder; or
(ix) to secure the Securities.
SECTION 902. Supplemental Indentures and Amendments with Consent of
Holders.
------------------------------------------------------
Upon the request of the Company, by a Board Resolution authorizing
the execution thereof, together with the consent of the Holders of not less than
a majority in principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Trustee, the Trustee shall join the Company in an
indenture or indentures supplemental hereto, for any purpose, including, without
limitation, for the purpose of adding any provisions to or changing, modifying
or amending in any manner or eliminating any of the provisions of this Indenture
or making additions to, changing, modifying, amending or eliminating in any
manner the rights of the Holders hereunder; provided, however, that no such
supplemental indenture, or addition, change, amendment or modification to, or
elimination of any provision of, shall, without the consent of the Holder of
each Outstanding Security affected thereby:
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(i) change the Stated Maturity of the principal of, or
any installment of interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the coin or
currency in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
or
(ii) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture; or
(iii) modify any of the provisions of this Section or
Section 513, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures and Amendments.
---------------------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture and all conditions precedent herein provided for relating to such
supplemental indenture have been complied with. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to the Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If
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the Company shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
SECTION 907. Notice of Supplemental Indentures and Amendments.
------------------------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture or amendment pursuant to the provisions of Section 902,
the Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture or amendment.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
---------------------------------------------------
The Company covenants and agrees for the benefit of the Holders
that it will duly and punctually pay the principal of (and premium, if any, on)
and interest on the Securities in accordance with the terms of the Securities
and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in The City of New York an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office of the Trustee shall be such
office or agency of the Company, unless the Company shall designate and maintain
some other office or agency for one or more of such purposes. The Company will
give prompt written notice to the Trustee of any change in the location of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes and may from time
to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any, on)
or interest on any of the Securities,
A-43
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal of (and
premium, if any, on), or interest on, any Securities, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
The Company will cause each Paying Agent (other than the Trustee)
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(i) hold all sums held by it for the payment of the
principal of (and premium, if any on) or interest on Securities in
trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(ii) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the making of
any payment of principal (and premium, if any) or interest; and
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any, on) or interest on any Security and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a
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date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise 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 that the loss thereof is not disadvantageous in any material
respect to the Company.
SECTION 1005. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon the Company or upon the income,
profits or property of the Company and (b) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a lien upon the
property of the Company; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1006. Maintenance of Properties.
-------------------------
Subject to and as permitted by the terms of this Indenture the
Company will cause all properties owned by the Company or used or held for use
in the conduct of its business to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof as in the judgment of the Company may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.
SECTION 1007. [Intentionally Omitted.]
SECTION 1008. Statement by Officer as to Compliance.
-------------------------------------
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year, a brief certificate, which may be in the form attached
as Exhibit A, from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this Section 1008, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 1009. Statement by Officers of Certain Defaults.
-----------------------------------------
When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company gives any notice or takes any other action with
respect to a claimed default (other than with respect to
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Indebtedness in the principal amount of less than $5 million), the Company shall
deliver to the Trustee by registered or certified mail or by telegram, telex or
facsimile transmission an Officers' Certificate specifying such event, notice or
other action within five Business Days of its occurrence.
SECTION 1010. [Intentionally Omitted.]
SECTION 1011. [Intentionally Omitted.]
SECTION 1012. [Intentionally Omitted.]
SECTION 1013. Limitation on Restricted Payments.
---------------------------------
The Company shall not make any Restricted Payment if an Event of
Default shall have occurred and be continuing at the time of such Restricted
Payment.
SECTION 1014. [Intentionally Omitted.]
SECTION 1015. [Intentionally Omitted.]
SECTION 1016. [Intentionally Omitted.]
SECTION 1017. Limitation on Asset Sales.
-------------------------
Subject to and as permitted by the terms of this Indenture the
Company shall not make any Asset Sale of its properties unless (a) the
consideration received in the Asset Sale is equal to Fair Market Value; (b) the
proceeds therefrom consist of at least 85% cash and/or Cash Equivalents; and (c)
unless otherwise expressly provided herein, the Net Cash Proceeds of such Asset
Sale shall be: (i) applied in the manner described in the following paragraph;
or (ii) retained by the Company to apply to the payment on its Securities when
due.
On or before the 180th day after the date on which the Company
consummates the relevant Asset Sale and subject to and as permitted by the terms
of this Indenture, the Company shall use all of the Net Cash Proceeds from such
Asset Sale (other than amounts that the Company has determined to retain
pursuant to clause (ii) of the preceding paragraph) to make either (a) an offer
to purchase (the "Asset Sale Offer") from all holders of Securities up to a
maximum principal amount (expressed as a multiple of $1,000) of Securities equal
to such Net Cash Proceeds at a purchase price equal to 100% of the principal
amount thereof plus accrued and unpaid interest thereon, if any, to the date of
purchase or (b) a Permitted Investment; provided, that the Company shall not be
required to make any Asset Sale Offer if the Net Cash Proceeds of all Asset
Sales that are not used to make a Permitted Investment within 180 days, do not
exceed $5 million. Each Asset Sale Offer shall remain open for a period of at
least 20 business days. If the Asset Sale Offer is more than fully subscribed to
by the Holders of the Securities, the particular Securities to be accepted shall
be selected by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection of portions of the principal of Securities;
provided, however, that no such partial acceptance shall reduce the portion of
the principal amount of a Security not redeemed to less than, $1,000; and
provided further that so long as the Securities are listed on any national
securities exchange (as such term is defined in the Exchange Act), such
selection shall be made by the Trustee in accordance with the provisions of such
exchange.
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SECTION 1018. [Intentionally Omitted.]
SECTION 1019. [Intentionally Omitted.]
SECTION 1020. [Intentionally Omitted.]
SECTION 1021. [Intentionally Omitted.]
SECTION 1022. [Intentionally Omitted.]
SECTION 1023. [Intentionally Omitted.]
SECTION 1024. [Intentionally Omitted.]
SECTION 1025. [Intentionally Omitted.]
SECTION 1026. [Intentionally Omitted.]
SECTION 1027. [Intentionally Omitted.]
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Optional Redemption.
-------------------
The Securities may be redeemed, at the election of the Company, as
a whole or from time to time in part, at the times, subject to the conditions
and at the Redemption Price specified in the form of Security, together with
accrued interest to the Redemption Date.
SECTION 1102. Applicability of Article.
------------------------
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article, other than repurchases
made from time to time in the open market.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal of Securities; provided, however, that no such partial
redemption
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shall reduce the portion of the principal amount of a Security not redeemed to
less than $1,000 and, provided further that, so long as the Securities are
listed on any national securities exchange (as such term is defined in the
Exchange Act), any such redemption shall be made by the Trustee in accordance
with the provisions of such exchange.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided for in
Section 106 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed; provided, however, that in the case
of an optional redemption in which the Company has called for redemption all
outstanding Securities in connection with a refinancing of such Securities, the
Company shall be permitted to (a) specify a proposed redemption date; (b) change
the proposed redemption date once to a final redemption date by notice mailed to
Holders not later than five business days prior to the final redemption date;
(c) establish the final redemption date as a date not more than 90 days after
the first notice from the Company calling the Securities for optional redemption
was mailed to Holders; and (d) rescind the redemption offer at any time prior to
the final redemption date, which rescission shall not cause the maturity of the
Securities to have changed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities are to
be redeemed, the identification (and, in the case of a partial
redemption, the principal amounts) of the particular Securities to
be redeemed;
(iv) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption Date
payable as provided in Section 1107) will become due and payable
upon each such Security, or the portion thereof, to be redeemed,
and that interest thereon will cease to accrue on and after said
date; and
(v) the place or places where such Securities are to
be surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
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SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) in immediately
available funds an amount of money sufficient to pay the Redemption Price of,
and accrued interest on, all the Securities which are to be redeemed on that
date.
SECTION 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Securities.
SECTION 1108. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
SECTION 1109. Redemption Pursuant to Gaming Laws.
----------------------------------
(a) If required to qualify by the Casino Control Commission, all
Holders, whether initial Holders or subsequent transferees, shall be subject to
the qualification provisions of the Casino Control Act relating to financial
sources and/or security holders. In the event that the Casino Control Commission
determines that a Holder is not qualified under the Casino Control Act and/or
such Holder fails to submit for qualification as required by the Casino Control
Commission in its sole discretion, the Company shall have the absolute right and
obligation to purchase from such Holder (the "Disqualified Holder") the
Securities the Disqualified Holder may then possess, either directly, indirectly
or beneficially, no later than forty-five days after the date the Company serves
notice on any Disqualified Holder of such determination. Immediately upon such
determination, the Disqualified Holder shall have no further right (i) to
exercise,
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directly or indirectly, through any trustee or nominee or any other person or
entity, any right conferred by any Securities and (ii) to receive any dividends,
interest, or any other distribution or payment with respect to any such
Securities or any remuneration in any form from the Company or the Trustee;
provided, however, that after such disqualification, interest on any such
Securities shall continue to accrue for the benefit of any subsequent Holder
thereof. The Company shall promptly provide to the Trustee a copy of each notice
served to a Disqualified Holder.
(b) Upon receipt of the notice referred to in clause (a) above, the
Disqualified Holder may sell its Securities either directly to any Person then
qualified or previously qualified (and not subsequently disqualified) or through
a bona fide brokerage transaction, conducted at arm's-length, to a Person not an
Affiliate of the Disqualified Holder. In the event the Disqualified Holder fails
to so sell its Securities within thirty (30) days after the determination by the
Casino Control Commission, the Company shall purchase such Securities within
fifteen (15) days after the end of such thirty (30) day time period, at a time
and place as designated by the Company, at the lowest of (i) the principal
amount thereof; (ii) the amount which the Disqualified Holder or beneficial
owner paid for the Securities, together with accrued interest up to the date of
the determination of disqualification; or (iii) the market value of such
Securities. The right of the Company to purchase such Security may be assigned
by the Company to any Person approved by the Casino Control Commission.
(c) The provisions of this Section shall be construed in accordance
with the applicable provisions of the Casino Control Act.
ARTICLE TWELVE
[INTENTIONALLY OMITTED]
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.
-----------------------------------------------------
The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either Section 1302 or Section
1303 be applied to all Outstanding Securities upon compliance with the
conditions set forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise under Section 1301 of the option
applicable to this Section 1302, the Company shall be deemed to have been
discharged from its obligations with respect to all Outstanding Securities on
the date the conditions set forth in Section 1304 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
Outstanding Securities, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1305 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
A-50
proper instruments acknowledging the same), except for the following, which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of Outstanding Securities to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any, on) and interest on such
Securities when such payments are due; (b) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003; (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder; and (d)
this Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option under this Section 1302 notwithstanding the
prior exercise of its option under Section 1303 with respect to the Securities.
SECTION 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 1301 of the option
applicable to this Section 1303, the Company shall be released from its
obligations under any covenant contained in Section 801 and in Sections 1005
through 1026 with respect to the Outstanding Securities on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the Outstanding 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 covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(3) or otherwise, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities:
(i) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Article Thirteen applicable to
it) as trust funds, for a period of at least 123 days prior to the
date of such defeasance, in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount; or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount; or
(C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any, on) and interest on the
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Outstanding Securities on the Stated Maturity (or Redemption Date,
if applicable) of such principal (and premium, if any) or
installment of interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding
Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
provided that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities. Before
such a deposit the Company may give to the Trustee, in accordance
with Section 1103 hereof, a notice of its election to redeem all of
the Outstanding Securities at a future date in accordance with
Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in
applying the foregoing. For this purpose, "U.S. Government
Obligations" means securities that are (1) direct obligations of
the United States of America for the timely payment of which its
full faith and credit is, pledged or (2) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as
amended), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
(ii) No Default or Event of Default with respect to
the Securities shall have occurred and be continuing on the date of
such deposit or, insofar as paragraphs (7) and (8) of Section 501
hereof are concerned, at any time during the period ending on the
123rd day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration
of such period).
(iii) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound.
(iv) In the case of an election under Section 1302,
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B)
there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities will
not recognize income, gain or loss for federal income tax purposes
as a result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not
occurred.
A-52
(v) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the Outstanding Securities will
not recognize income, gain or loss for federal income tax purposes
as a result of such covenant defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant
defeasance had not occurred.
(vi) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the
defeasance under Section 1302 or the covenant defeasance under
Section 1303 (as the case may be) have been complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations To Be
Held in Trust; Other Miscellaneous Provisions.
-----------------------------------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Governmental
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance, as applicable, in accordance with this Article.
SECTION 1306. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1302 or 1303, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1305; provided, however, that if the Company makes any payment of
principal of (or premium, if any, on) or interest on any Security following the
reinstatement of its obligations, the Company shall be
A-53
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE FOURTEEN
[INTENTIONALLY OMITTED]
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 1501. Counterparts.
------------
This Indenture may be signed in any number of counterparts each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
A-54
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
GB HOLDINGS, INC.
By
-------------------------------------
Title:
Attest: ________________________________
Title:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By
-------------------------------------
Title:
A-55
EXHIBIT A
--------------------------------------------------------------------------------
OFFICERS' CERTIFICATE
OF
GB HOLDINGS, INC.
--------------------------------------------------------------------------------
Reference is made to that certain Indenture, dated as of
____________________ (the "Indenture") among GB Holdings, Inc. (the "Company")
and Xxxxx Fargo Bank, National Association, as successor by merger to Xxxxx
Fargo Bank Minnesota, National Association, as Trustee (the "Trustee"). Except
as otherwise defined herein, capitalized terms used herein shall have the
meanings set forth in the Indenture.
Pursuant to Section 1008 of the Indenture, the undersigned officer
of the Company hereby certifies to the Trustee as follows:
He is now, and at the times mentioned herein has been, the
duly elected, qualified and acting officer of the Company as
specified below.
To his knowledge, and without regard to any period of grace
or requirements of notice under the Indenture, the Company is
in compliance with all conditions and covenants under the
Indenture.
IN WITNESS WHEREOF, I have set my hand this ____ day of __________.
GB HOLDINGS, INC.
By
-------------------------------------
