UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): May 21, 2015
Boyd Gaming Corporation
(Exact Name of Registrant as Specified in its Charter)
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| Nevada |
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001-12882 |
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88-0242733 |
| (State or Other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification Number) |
3883 Howard Hughes Parkway, Ninth Floor
Las Vegas, Nevada 89169
(Address of Principal Executive Offices, Including Zip Code)
(702) 792-7200
(Registrant’s Telephone Number, Including Area Code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
Issuance of 6.875% senior notes due 2023
On
May 21, 2015, Boyd Gaming Corporation (the “Company”) issued $750 million aggregate principal amount of 6.875% senior notes due 2023 (the “2023 Notes”). The 2023 Notes were sold in a public offering initially described on
the Form 8-K filed May 8, 2015.
As previously announced, the Company is using a portion of the net proceeds from the offering to finance a tender
offer for its 9.125% senior notes due 2018 (the “2018 Notes”), subject to the satisfaction of the conditions thereof. The Company intends to apply the balance of the net proceeds from the offering to repurchase any 2018 Notes that remain
outstanding following the expiration of the tender offer and to repay a portion of the outstanding revolving balance on its bank credit facility. The Company may also use a portion of the net proceeds from the offering for general corporate
purposes.
Indenture relating to 2023 Notes
The 2023 Notes were issued pursuant to a base indenture, the form of which was previously filed as an exhibit to the Form 8-K filed May 8, 2015, as
supplemented by the supplemental indenture (the base and the supplemental indenture, together, the “Indenture”), each dated May 21, 2015, and each by and between the Company, the guarantors named therein and Wilmington Trust, National
Association, as trustee. The base indenture and the supplemental indenture are attached hereto as Exhibits 4.1 and 4.2, respectively, and incorporated herein by reference.
The Indenture provides that the 2023 Notes will bear interest at a rate of 6.875% per annum, payable semi-annually on May 15 and November 15 of
each year, commencing on November 15, 2015. The 2023 Notes will mature on May 15, 2023 and will be fully and unconditionally guaranteed by the Company’s current and future Significant Subsidiaries (as defined in the Indenture).
Prior to May 15, 2018, the Company may redeem the 2023 Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest (as defined in the Indenture), if any, up to, but excluding, the applicable redemption date, plus a make whole premium.
The Company may redeem some or all of the 2023 Notes at any time after May 15, 2018 at the redemption prices specified below, plus accrued and unpaid
interest and Additional Interest (as defined in the Indenture), if any, up to, but excluding, the applicable redemption date:
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| Twelve-month period beginning May 15, |
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Price |
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| 2018 |
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105.156 |
% |
| 2019 |
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103.438 |
% |
| 2020 |
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101.719 |
% |
| 2021 and thereafter |
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100.000 |
% |
In addition, at any time prior to May 15, 2018, the Company may redeem up to 35% of the aggregate principal amount of the
2023 Notes at a redemption price equal to 106.875% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest (as defined in the Indenture), if any, up to, but excluding, the applicable redemption date, with the net
cash proceeds that the Company raises in one or more equity offerings.
The Indenture contains covenants that, subject to exceptions and qualifications, among other things, limit the
Company’s ability and the ability of its restricted subsidiaries (as defined in the Indenture) to (i) incur additional indebtedness or liens; (ii) pay dividends or make distributions or repurchase the Company’s capital stock;
(iii) make certain investments; and (iv) sell or merge with other companies. Upon the occurrence of a change of control (as defined in the Indenture), the Company will be required, unless certain conditions are met, to offer to repurchase
the 2023 Notes at a price equal to 101% of the principal amount of the 2023 Notes, plus any accrued and unpaid interest and Additional Interest (as defined in the Indenture), if any, to, but not including, the date of purchase. If the Company sells
assets or experiences an event of loss, it will be required under certain circumstances to offer to purchase the 2023 Notes.
The Indenture contains
customary events of default including, without limitation, failure to make required payments, failure to comply with certain agreements or covenants, cross-acceleration to certain other indebtedness in excess of specified amounts, certain events of
bankruptcy and insolvency, and failure to pay certain judgments. An event of default under the Indenture will allow either the trustee or the holders of at least 25% in principal amount of the then outstanding 2023 Notes to accelerate, or in certain
cases, will automatically cause the acceleration of, the amounts due under the 2023 Notes.
The foregoing description of the Indenture is qualified in its
entirety by reference to the terms of the Indenture. The foregoing description of the 2023 Notes is qualified in its entirety by reference to the terms of the 2023 Notes, the form of which is included as part of the supplemental indenture that forms
a part of the Indenture attached hereto as Exhibit 4.2 and incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 hereto is incorporated herein by
reference.
Item 3.03. Material Modification to Rights of Security Holders.
As described above under Item 1.01 hereto, the Indenture contains various restrictive covenants, including a covenant that, among other things, restricts
the Company’s ability to pay dividends or make distributions or repurchase capital stock, subject to certain exceptions and qualifications.
Item 9.01. Financial Statements and Exhibits.
(d)
Exhibits.
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| Exhibit
Number |
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Description |
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| 4.1 |
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Indenture with respect to Senior Notes, dated May 21, 2015, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee. |
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| 4.2 |
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First Supplemental Indenture dated May 21, 2015 governing the Company’s 6.875% senior notes due 2023, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee. |
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| 4.3 |
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Form of 6.875% senior note due 2023 (included in Exhibit 4.2). |
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| 5.1 |
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Opinion of Morrison & Foerster LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.2 |
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Opinion of McDonald Carano Wilson LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.3 |
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Opinion of Jones Walker LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.4 |
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Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC regarding the 6.875% senior notes and guarantees thereof. |
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| 5.5 |
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Opinion of Ice Miller LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.6 |
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Opinion of Brownstein Hyatt Farber Schreck, LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.7 |
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Opinion of Greenberg Traurig, LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 23.1 |
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Consent of Morrison & Foerster LLP (included in Exhibit 5.1). |
* * *
This Current Report on Form 8-K and the exhibits incorporated by reference herein contain forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Such statements include, without limitation, statements regarding our expectations, hopes or intentions regarding the future. These
forward looking statements can often be identified by their use of words such as “will”, “predict”, “continue”, “forecast”, “expect”, “believe”, “anticipate”, “outlook”,
“could”, “target”, “project”, “intend”, “plan”, “seek”, “estimate”, “should”, “may” and “assume”, as well as variations of such words and similar
expressions referring to the future, and may include (without limitation) statements regarding the 2018 Notes, the 2023 Notes and the tender offer and solicitation for and redemption of the 2018 Notes. Forward-looking statements involve certain
risks and uncertainties, and actual results may differ materially from those discussed in each such statement. Factors that could cause actual results to differ include (without limitation) the Company’s financial performance. Additional
factors are discussed under the heading “Risk Factors” in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2015, and in the Company’s other current and periodic reports filed from time to
time with the Securities and Exchange Commission. All forward-looking statements in this document are made as of the date hereof, based on information available to the Company as of the date hereof, and the Company assumes no obligation to update
any forward-looking statement.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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| Date: May 21, 2015 |
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Boyd Gaming Corporation |
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/s/ Anthony D. McDuffie |
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Anthony D. McDuffie Vice President and Chief
Accounting Officer |
EXHIBIT INDEX
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| Exhibit
Number |
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Description |
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| 4.1 |
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Indenture with respect to Senior Notes, dated May 21, 2015, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee. |
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| 4.2 |
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First Supplemental Indenture dated May 21, 2015 governing the Company’s 6.875% senior notes due 2023, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee. |
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| 4.3 |
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Form of 6.875% senior note due 2023 (included in Exhibit 4.2). |
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| 5.1 |
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Opinion of Morrison & Foerster LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.2 |
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Opinion of McDonald Carano Wilson LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.3 |
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Opinion of Jones Walker LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.4 |
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Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC regarding the 6.875% senior notes and guarantees thereof. |
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| 5.5 |
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Opinion of Ice Miller LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.6 |
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Opinion of Brownstein Hyatt Farber Schreck, LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 5.7 |
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Opinion of Greenberg Traurig, LLP regarding the 6.875% senior notes and guarantees thereof. |
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| 23.1 |
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Consent of Morrison & Foerster LLP (included in Exhibit 5.1). |
Exhibit 4.1
Execution Version
BOYD GAMING CORPORATION
SENIOR NOTES
INDENTURE
Dated as of May 21, 2015
Wilmington
Trust, National Association, as
Trustee
CROSS-REFERENCE TABLE*
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| Trust Indenture Act Section |
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Indenture Section |
| 310(a)(1) |
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7.10 |
| (a)(2) |
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7.10 |
| (a)(3) |
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N.A. |
| (a)(4) |
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N.A. |
| (a)(5) |
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7.10 |
| (b) |
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7.10 |
| (c) |
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N.A. |
| 311(a) |
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7.11 |
| (b) |
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7.11 |
| (c) |
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N.A. |
| 312(a) |
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2.05 |
| (b) |
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12.03 |
| (c) |
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12.03 |
| 313(a) |
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7.06 |
| (b)(1) |
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10.03 |
| (b)(2) |
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7.07 |
| (c) |
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7.06;12.02 |
| (d) |
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7.06 |
| 314(a) |
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1.01;4.03;6.12;12.02;12.05 |
| (b) |
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N.A. |
| (c)(1) |
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12.04 |
| (c)(2) |
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12.04 |
| (c)(3) |
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N.A. |
| (d) |
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N.A. |
| (e) |
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12.05 |
| (f) |
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N.A. |
| 315(a) |
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7.01 |
| (b) |
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7.05;12.02 |
| (c) |
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7.01 |
| (d) |
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7.01 |
| (e) |
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6.11 |
| 316(a) (last sentence) |
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2.09 |
| (a)(1)(A) |
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6.05 |
| (a)(1)(B) |
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6.04 |
| (a)(2) |
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9.01 |
| (b) |
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6.07 |
| (c) |
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9.04 |
| 317(a)(1) |
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6.08 |
| (a)(2) |
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6.09 |
| (b) |
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2.04 |
| 318(a) |
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12.01 |
| (b) |
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N.A. |
| (c) |
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12.01 |
N.A. means not applicable.
| * |
This Cross Reference Table is not part of the Indenture. |
TABLE OF CONTENTS
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Page |
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| ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE |
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1 |
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| Section 1.01. |
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Definitions |
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1 |
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| Section 1.02. |
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Other Definitions |
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11 |
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| Section 1.03. |
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Incorporation by Reference of Trust Indenture Act |
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11 |
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| Section 1.04. |
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Rules of Construction |
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11 |
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| ARTICLE 2. THE NOTES |
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12 |
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| Section 2.01. |
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Amount Unlimited; Issuable in Series |
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12 |
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| Section 2.02. |
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Form; Dating; Execution and Authentication |
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14 |
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| Section 2.03. |
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Registrar and Paying Agent |
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15 |
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| Section 2.04. |
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Paying Agent to Hold Money in Trust |
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15 |
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| Section 2.05. |
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Holder Lists |
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16 |
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| Section 2.06. |
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Transfer and Exchange |
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16 |
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| Section 2.07. |
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Replacement Notes |
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19 |
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| Section 2.08. |
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Outstanding Notes |
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19 |
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| Section 2.09. |
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Treasury Notes |
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20 |
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| Section 2.10. |
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Temporary Notes |
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20 |
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| Section 2.11. |
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Cancellation |
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20 |
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| Section 2.12. |
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Defaulted Interest |
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20 |
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| Section 2.13. |
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CUSIP, ISIN and Other Numbers |
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21 |
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| ARTICLE 3. REDEMPTION AND PREPAYMENT |
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21 |
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| Section 3.01. |
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Notices to Trustee |
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21 |
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| Section 3.02. |
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Selection of Notes to Be Redeemed |
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21 |
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| Section 3.03. |
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Notice of Redemption |
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21 |
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| Section 3.04. |
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Effect of Notice of Redemption |
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22 |
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| Section 3.05. |
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Deposit of Redemption Price |
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22 |
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| Section 3.06. |
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Notes Redeemed in Part |
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23 |
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| Section 3.07. |
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Optional Redemption |
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23 |
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| Section 3.08. |
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Mandatory Redemption |
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23 |
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| Section 3.09. |
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Mandatory Disposition or Redemption Pursuant to Gaming Laws |
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23 |
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| ARTICLE 4. COVENANTS |
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23 |
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| Section 4.01. |
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Payment of Notes |
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23 |
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| Section 4.02. |
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Maintenance of Office or Agency |
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24 |
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| Section 4.03. |
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Reports |
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24 |
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| Section 4.04. |
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Compliance Certificate |
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25 |
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| Section 4.05. |
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Stay and Extension Laws |
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25 |
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| Section 4.06. |
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Corporate Existence |
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25 |
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| Section 4.07. |
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Limitation on Status of Investment Company |
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26 |
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| Section 4.08. |
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Payment for Consent |
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26 |
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| Section 4.09. |
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Additional Note Guarantees |
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26 |
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| ARTICLE 5. SUCCESSORS |
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26 |
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| Section 5.01. |
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Merger, Consolidation and Sale of Assets |
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26 |
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| Section 5.02. |
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Successor Corporation Substituted |
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27 |
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| ARTICLE 6. DEFAULTS AND REMEDIES |
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27 |
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| Section 6.01. |
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Events of Default |
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27 |
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| Section 6.02. |
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Acceleration |
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28 |
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| Section 6.03. |
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Other Remedies |
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29 |
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| Section 6.04. |
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Waiver of Past Defaults |
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29 |
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| Section 6.05. |
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Control by Majority |
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29 |
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| Section 6.06. |
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Limitation on Suits |
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29 |
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| Section 6.07. |
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Rights of Holders of Notes to Receive Payment |
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30 |
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| Section 6.08. |
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Collection Suit by Trustee |
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30 |
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| Section 6.09. |
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Trustee May File Proofs of Claim |
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30 |
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| Section 6.10. |
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Priorities |
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31 |
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| Section 6.11. |
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Undertaking for Costs |
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31 |
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| ARTICLE 7. TRUSTEE |
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31 |
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| Section 7.01. |
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Duties of Trustee |
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31 |
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| Section 7.02. |
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Rights of Trustee |
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32 |
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| Section 7.03. |
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Individual Rights of Trustee |
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34 |
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| Section 7.04. |
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Trustee’s Disclaimer |
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34 |
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| Section 7.05. |
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Notice of Defaults |
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34 |
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| Section 7.06. |
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Reports by Trustee to Holders of the Notes |
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34 |
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| Section 7.07. |
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Compensation and Indemnity |
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35 |
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ii
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| Section 7.08. |
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Replacement of Trustee |
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36 |
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| Section 7.09. |
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Successor Trustee by Merger, etc. |
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36 |
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| Section 7.10. |
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Eligibility; Disqualification |
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37 |
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| Section 7.11. |
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Preferential Collection of Claims Against Company |
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37 |
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| ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
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37 |
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| Section 8.01. |
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Option to Effect Legal Defeasance or Covenant Defeasance |
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37 |
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| Section 8.02. |
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Legal Defeasance and Discharge |
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37 |
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| Section 8.03. |
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Covenant Defeasance |
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38 |
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| Section 8.04. |
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Conditions to Legal or Covenant Defeasance |
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38 |
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| Section 8.05. |
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Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions |
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39 |
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| Section 8.06. |
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Repayment to Company |
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40 |
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| Section 8.07. |
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Reinstatement |
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40 |
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| ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER |
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40 |
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| Section 9.01. |
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Without Consent of Holders of Notes |
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40 |
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| Section 9.02. |
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With Consent of Holders of Notes |
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42 |
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| Section 9.03. |
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Compliance with Trust Indenture Act |
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43 |
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| Section 9.04. |
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Revocation and Effect of Consents |
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43 |
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| Section 9.05. |
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Notation on or Exchange of Notes |
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43 |
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| Section 9.06. |
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Trustee to Sign Amendments, etc. |
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44 |
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| Section 9.07. |
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Reference in Notes to Supplemental Indentures |
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44 |
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| ARTICLE 10. NOTE GUARANTEES |
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44 |
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| Section 10.01. |
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Note Guarantees |
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44 |
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| Section 10.02. |
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Limitation on Liability; Termination, Release and Discharge |
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46 |
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| Section 10.03. |
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Right of Contribution |
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| Section 10.04. |
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No Subrogation |
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| ARTICLE 11. SATISFACTION AND DISCHARGE |
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| Section 11.01. |
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Satisfaction and Discharge |
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| Section 11.02. |
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Application of Trust Money |
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| ARTICLE 12. MISCELLANEOUS |
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| Section 12.01. |
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Trust Indenture Act Controls |
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| Section 12.02. |
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Notices |
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| Section 12.03. |
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Communication by Holders of Notes with Other Holders of Notes |
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| Section 12.04. |
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Certificate and Opinion as to Conditions Precedent |
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| Section 12.05. |
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Statements Required in Certificate or Opinion |
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| Section 12.06. |
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Rules by Trustee and Agents |
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| Section 12.07. |
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No Personal Liability of Directors, Officers, Employees and Stockholders |
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| Section 12.08. |
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Governing Law |
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No Adverse Interpretation of Other Agreements |
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| Section 12.10. |
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Successors |
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Severability |
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| Section 12.12. |
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Counterpart Originals |
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Table of Contents, Headings, etc. |
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iv
INDENTURE dated as of May 21, 2015 by and among Boyd Gaming Corporation, a Nevada corporation
(including any and all successors thereto, the “Company”), the Guarantors (as defined herein) and Wilmington Trust, National Association, a national banking association, as trustee (the “Trustee”).
RECITALS
A. The
Company and each Guarantor have duly authorized the execution and delivery of this Indenture to provide for the issuance by the Company from time to time of its debt securities or other evidences of indebtedness (the “Notes”)
unlimited as to principal amount to bear such rates of interest, to mature at such time or times, to be issued in one or more series, to be guaranteed by each Guarantor and to have such other provisions as shall be fixed as in this Indenture
provided.
B. All things necessary to make this Indenture a valid and legally binding agreement of the Company and each Guarantor,
in accordance with its terms, have been done.
AGREEMENT
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Notes or of series thereof, as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY
REFERENCE
Section 1.01. Definitions.
“Additional Assets” means: (1) any Property (other than cash, cash equivalents or securities) to be owned by the Company
or a Restricted Subsidiary and used in a Related Business; (2) the costs of improving, restoring, replacing or developing any Property owned by the Company or a Restricted Subsidiary which is used or usable in a Related Business; or
(3) Investments in any other Person engaged primarily in a Related Business (including the acquisition from third parties of Capital Stock of such Person) as a result of which such other Person becomes a Restricted Subsidiary and satisfies the
requirements for a Restricted Subsidiary set forth below in the definition of “Restricted Subsidiary.”
“Acquired
Debt” means, with respect to any specified Person, (1) Indebtedness of another Person and any of such other Person’s Subsidiaries existing at the time such other Person becomes a Subsidiary of the specified Person or at the time
it merges or consolidates with the specified Person or any of the specified Person’s Subsidiaries or is assumed by the specified Person or any Subsidiary of the specified Person in connection with the acquisition of assets from such other
Person and (2) Indebtedness secured by a Lien encumbering any asset acquired by the specified Person, in each case, to the extent that such Indebtedness is not Incurred by the specified Person or any Subsidiary of the specified Person or such
other Person in connection with, or in anticipation or contemplation of, such other Person becoming a Subsidiary of the specified Person or such acquisition, merger or consolidation.
“Additional Interest” means all amounts, if any, payable pursuant to the provisions relating to additional interest
applicable to any series of Notes as the sole remedy for an Event of Default relating to the failure to comply with certain covenants with respect to that series and for any failure to comply with the requirements of Section 314(a) of the Trust
Indenture Act.
“Affiliate” means, with respect to any Person, a Person (i) which directly
or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such Person, (ii) which directly or indirectly through one or more intermediaries beneficially owns or holds 10% or more of any
class of the Voting Stock of such Person (or a 10% or greater equity interest in a Person which is not a corporation) or (iii) of which 10% or more of any class of the Voting Stock (or, in the case of a Person which is not a corporation, 10% or
more of the equity interest) is beneficially owned or held directly or indirectly through one or more intermediaries by such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent” means any Registrar, Paying Agent or co-registrar.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note,
the rules and procedures of the Depositary that apply to such transfer or exchange.
“Attributable Indebtedness” means
Indebtedness deemed to be Incurred in respect of a Sale/ Leaseback Transaction and shall be, at the date of determination, the present value (discounted at the actual rate of interest implicit in such transaction, compounded annually), of the total
obligations of the lessee for rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such lease has been extended).
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Board of Directors” means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of
such Board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors, to be in full force and effect on the date of such certification and delivered to the Trustee.
“Boyd Family” means William S. Boyd, any direct descendant or spouse of such person, or any direct descendant of such spouse,
and any trust or other estate in which each person who has a beneficial interest, directly or indirectly through one or more intermediaries, in Capital Stock of the Company is one of the foregoing persons.
“Business Day” means any day other than a Legal Holiday.
“Capital Lease Obligations” means Indebtedness represented by obligations under a lease that is required to be capitalized
for financial reporting purposes in accordance with GAAP and the amount of such Indebtedness shall be the capitalized amount of such obligations determined in accordance with GAAP. For the avoidance of doubt, any lease obligation that would not be
required to be classified and accounted for as a capital lease obligation under GAAP as in effect as of the date hereof shall not be treated as a Capital Lease Obligation even if such lease obligation would be required to be classified and accounted
for as a capital lease obligation under generally accepted accounting principles in the United States as in effect at any time after the date hereof, whether such lease obligation was entered into before or after the date hereof.
“Capital Stock” means, with respect to any Person, any and all shares or other equivalents (however designated) of corporate
stock, partnership interests or any other participation, right, warrants, options or other interest in the nature of an equity interest in such Person, but excluding any debt security convertible or exchangeable into such equity interest.
2
“Clearstream” means Clearstream Banking, S.A.
“Company” means Boyd Gaming Corporation, a Nevada corporation, and any and all successors thereto.
“Core Business” means (1) the gaming, card club, racing, sports, entertainment, leisure, amusement, lodging, restaurant,
retail operations, service station operations, riverboat operations, real estate development and all other businesses and activities necessary for or reasonably related or incident thereto, including, without limitation, related acquisition,
construction, development or operation of related truck stop, transportation, retail and other facilities designed to enhance any of the foregoing and online or internet gaming, and (2) any of the types of preexisting businesses being operated
on land acquired (whether by purchase, lease or otherwise) by the Company or any Restricted Subsidiary, or similar types of businesses conducted by the Company or such Restricted Subsidiary after such acquisition of land, and all other businesses
and activities necessary for or reasonably related or incident thereto, provided that such land was acquired by the Company or such Restricted Subsidiary for the purpose, determined in good faith by the Company, of ultimately conducting a
business or activity described in clause (1) above at some time in the future.
“Corporate Trust Office of the
Trustee” shall be at the address of the Trustee specified in Section 12.02 or such other address as to which the Trustee may give notice to the Company.
“Credit Facility” means (i) the Third Amended and Restated Credit Agreement, dated as of August 14, 2013, by and
among the Company, the financial institutions named therein, Bank of America, National Association, as administrative agent and letter of credit issuer, and Wells Fargo Bank, National Association, as swing line lender, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending
the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or
indentures or increasing or decreasing the amount loaned or issued thereunder or altering the maturity thereof and (ii) whether or not the Credit Agreement referred to in clause (i) remains outstanding, if designated by the Company to be
included in the definition of “Credit Facility,” one or more (a) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to
lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (b) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or
bank guarantees or bankers’ acceptances), or (c) instruments or agreements evidencing any other Indebtedness (including without limitation any Sale/Leaseback Transaction), in each case, with the same or different borrowers or issuers and,
in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.
“Currency Exchange Protection Agreement” means, in respect of a Person, any foreign exchange contract, currency swap
agreement, currency option or other similar agreement or arrangement designed to protect such Person against fluctuations in currency exchange rates.
“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
3
“Definitive Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06, which Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in
Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
“Development Services” means, with respect to any Qualified Facility (as such term is defined in the definition of Qualified
Investment), the provision (through retained professionals or otherwise) of development, design or construction services with respect to such Qualified Facility.
“Disqualified Stock” of a Person means any Capital Stock of such Person (i) that by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable) or otherwise, (a) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (b) is or may become redeemable or repurchaseable at the
option of the holder thereof, in whole or in part, or (c) is convertible or exchangeable or exercisable for Indebtedness and (ii) as to which the maturity, mandatory redemption, conversion or exchange or redemption at the option of the
holder thereof occurs, or may occur, in the case of each of clauses (i) or (ii) on or prior to the first anniversary of the Stated Maturity of the Notes; provided, however, that such Capital Stock of the Company or any of its
Subsidiaries shall not constitute Disqualified Stock if it is redeemable prior to the first anniversary of the Stated Maturity of the Notes only if (a) the holder or a beneficial owner of such Capital Stock is required to qualify under the
Gaming Laws and does not so qualify, or (b) the Board of Directors determines in its reasonable, good faith judgment, as evidenced by a Board Resolution, that as a result of a holder or beneficial owner owning such Capital Stock, the Company or
any of its Subsidiaries has lost or may lose any Gaming License, which if lost or not reinstated, as the case may be, would have a material adverse effect on the business of the Company and its Subsidiaries, taken as a whole, or would restrict the
ability of the Company or any of its Subsidiaries to conduct business in any gaming jurisdiction.
“Domestic Subsidiary”
means any Restricted Subsidiary of the Company that was formed under the laws of the United States of America or any state of the United States of America or the District of Columbia.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear system.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fair Market Value” means with respect to any Property, the price which could be negotiated in an arm’s-length free
market transaction, between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value will be determined, except as otherwise provided: (1) if such Property has a
Fair Market Value of $25,000,000 or less, by any Officer of the Company; or (2) if such Property has a Fair Market Value in excess of $25,000,000, by a majority of the Board of Directors and evidenced by a Board Resolution, dated within 30 days
of the relevant transaction (or the date of the written agreement with respect to such transaction).
“GAAP” means
accounting principles generally accepted in the United States of America in effect on the date of this Indenture.
4
“Gaming Authority” means any of the Nevada Gaming Commission, the Nevada State
Gaming Control Board, the Louisiana Gaming Control Board, Louisiana State Racing Commission, the Mississippi Gaming Commission, the New Jersey Casino Control Commission, the New Jersey Division of Gaming Enforcement, the Illinois Gaming Board, the
Indiana Gaming Commission and any other agency (including, without limitation, any agency established by a federally-recognized Indian tribe to regulate gaming on such tribe’s reservation), authority, board, bureau, commission, department,
office or instrumentality of any nature whatsoever which has, or may at any time after the date of this Indenture have, jurisdiction over the gaming activities of the Company or any of its Subsidiaries or any successor to such authority.
“Gaming Facility” means any gaming or pari-mutuel wagering establishment and other Property or assets directly ancillary
thereto or used in connection therewith, including any building, restaurant, hotel, theater, parking facilities, gas stations, retail shops, convenience stores, spa, land, golf courses, hunting facilities, sporting clay courses and other recreation
and entertainment facilities, vessel, barge, ship and equipment or 100% of the equity interest of a Person the primary business of which is ownership and operation of any of the foregoing.
“Gaming Laws” means the gaming laws of a jurisdiction or jurisdictions to which the Company or any of its Subsidiaries is, or
may at any time after the date of this Indenture be, subject.
“Gaming License” means any license, permit, franchise or
other authorization from any governmental authority required on the date of this Indenture or at any time thereafter to own, lease, operate or otherwise conduct the gaming business of the Company and its Subsidiaries, including all licenses granted
under Gaming Laws and other Legal Requirements.
“Global Note Legend” means the legend set forth in Section 2.06(f),
which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and
collectively, each of the Global Notes issued in accordance with Section 2.01, 2.06(b)(ii), 2.06(d) or 2.06(f).
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness
of any other Person and any obligation, direct or indirect, contingent or otherwise, of such first Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising
by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise) or (ii) entered into for the purpose of assuring
in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee”
shall not include (a) endorsements for collection or deposit in the ordinary course of business; or (b) any obligation in the nature of a completion guaranty which is limited solely to an obligation to complete the development,
construction or opening of any new Gaming Facility entered into on behalf of any Person in which a Qualified Investment has been made by the Company or any Restricted Subsidiary. The term “Guarantee” used as a verb has a corresponding
meaning.
“Guarantors” means any Subsidiary of the Company that gives a Note Guarantee in accordance with the provisions
of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.
“Holder” means a Person in whose name a Note is registered.
5
“Incur” means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), extend, assume, Guarantee or become liable in respect of such Indebtedness or other obligation or the recording, as required pursuant to GAAP or otherwise, of any such
Indebtedness or obligation on the consolidated balance sheet of such Person including by merger or operation of law (and “Incurrence,” “Incurred,” “Incurable” and “Incurring” shall
have meanings correlative to the foregoing).
“Indebtedness” means (without duplication), with respect to any Person, any
indebtedness, secured or unsecured, contingent or otherwise, which is for borrowed money (whether or not the recourse of the lender is to the whole of the Property of such Person or only to a portion thereof), or the principal amount of such
indebtedness evidenced by bonds, notes, debentures or similar instruments or representing the balance deferred and unpaid of the purchase price of any property (excluding any balances that constitute customer advance payments and deposits, accounts
payable or trade payables, and other accrued liabilities arising in the ordinary course of business) if and to the extent any of the foregoing indebtedness would appear as a liability upon a balance sheet of such Person prepared in accordance with
GAAP, and shall also include, to the extent not otherwise included (i) any Capital Lease Obligations; (ii) Indebtedness of other Persons secured by a Lien to which the Property owned or held by such Person is subject, whether or not the
obligation or obligations secured thereby shall have been assumed (the amount of such Indebtedness being deemed to be the lesser of the value of such Property or the amount of the Indebtedness so secured); (iii) Guarantees of Indebtedness of
other Persons; (iv) any Disqualified Stock; (v) any Attributable Indebtedness; (vi) all obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments or credit transactions issued
for the account of such Person (including reimbursement obligations with respect thereto), other than obligations with respect to letters of credit securing obligations (other than obligations described in this definition) of such Person to the
extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of
credit; (vii) in the case of the Company, Preferred Stock of its Restricted Subsidiaries; and (viii) obligations pursuant to any Interest Rate Agreement or Currency Exchange Protection Agreement.
Notwithstanding the foregoing, Indebtedness shall not include (i) any pay-in-kind interest or accrued interest or earn out obligations or
other contingent consideration until due and payable or (ii) any indebtedness of (x) Diamond Jo, LLC under that certain Minimum Assessment Agreement, dated as of October 1, 2007, by and among the City of Dubuque, Iowa, Diamond Jo, LLC and the City
Assessor of the City of Dubuque, Iowa, or (y) Kansas Star Casino, LLC under that certain Developer’s Agreement, dated as of March 7, 2011, by and between Kansas Star Casino, LLC and the City of Mulvane, Kansas, in each case as amended, renewed,
repurchased, extended, substituted, refinanced or replaced from time to time so long as the principal amount (or accreted value, if applicable) of such indebtedness does not exceed the principal amount (or accreted value, if applicable) of the
indebtedness amended, renewed, repurchased, extended, substituted, refinanced or replaced (plus all accrued interest on the indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith). For purposes of
this definition, the maximum fixed repurchase price of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such
Disqualified Stock or Preferred Stock were repurchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture; provided, however, that if such Disqualified Stock or Preferred Stock is not then
permitted to be repurchased, the repurchase price shall be the book value of such Disqualified Stock or Preferred Stock. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability of any other obligations described in clauses (i) through (viii) above in respect thereof at such date.
“Indenture” means this Indenture, as amended or supplemented from time to time. The term “Indenture” shall also
include the terms of a particular series of Notes established as contemplated by Section 2.01.
“Indirect Participant”
means a Person who holds a beneficial interest in a Global Note through a Participant.
“Interest Rate Agreement” means,
for any Person, any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement.
6
“Investment” by any Person means any direct or indirect loan, advance or other
extension of credit or capital contribution (by means of transfers of cash or other Property to others or payments for Property or services for the account or use of others), in connection with the performance of obligations under any completion
guaranty or otherwise, to, or Incurrence of a Guarantee of any obligation of, or purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Indebtedness issued by, any other Person, including the
designation by the Board of Directors to be an Unrestricted Subsidiary. The amount of any Investment shall be the original cost of such Investment, plus the cost of all additions thereto, and minus the amount of any portion of such Investment repaid
to the Person making such Investment in cash as a repayment of principal or a return of capital, as the case may be, but without any other adjustments for increases or decreases in value, write-ups, write-downs or write-offs with respect to such
Investment. In determining the amount of any Investment in respect of any Property other than cash, such Property shall be valued at its Fair Market Value at the time of such Investment. Notwithstanding the foregoing, the purchase or acquisition of
any securities, Indebtedness or Additional Assets of any other Person solely with Capital Stock (other than Disqualified Stock) shall not be deemed to be an Investment.
“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the Cities of New York, New York and Las
Vegas, Nevada or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue on such payment for the intervening period.
“Legal Requirements” means all
laws, statutes and ordinances and all rules, orders, rulings, regulations, directives, decrees, injunctions and requirements of all governmental authorities, that are now or may hereafter be in existence, and that may be applicable to the Company or
any Subsidiary or Affiliate thereof or the Trustee (including building codes, zoning and environmental laws, regulations and ordinances and Gaming Laws), as modified by any variances, special use permits, waivers, exceptions or other exemptions
which may from time to time be applicable.
“Lien” means with respect to any Property of any Person, any mortgage or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge, easement (other than any easement not materially impairing usefulness or marketability), encumbrance, preference, priority, or other security
agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such Property (including any Capital Lease Obligation, conditional sale or other title retention agreement having substantially the same economic effect as
any of the foregoing). Any Sale/Leaseback Transaction shall be deemed to constitute a Lien on the Property which is the subject of such Sale/Leaseback Transaction securing the Attributable Indebtedness represented thereby.
“Marketable Security” means any common stock, debt security or other security of a Person which is (or will, upon
distribution thereof, be) listed on the New York Stock Exchange, Inc., the American Stock Exchange, NASDAQ or any other national securities exchange registered under Section 6 of the Securities Act or approved for quotation in any system of
automated dissemination of quotations of securities prices in the United States of America or for which there is a recognized market maker or trading market.
“NASDAQ” means the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market.
“Note Guarantee” means the Guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes
set forth in Article 10, including as a result of execution of a supplemental indenture.
7
“Notes” has the meaning assigned to it in the Recitals to this Indenture.
“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
“Offering” means the offering of the Notes by the Company.
“Officer” means the Chief Executive Officer, President, Treasurer, any Executive Vice President, Senior Vice President
or any Vice President of the Company.
“Officers’ Certificate” means a certificate signed by two Officers at least
one of whom shall be the principal executive officer, principal accounting officer or principal financial officer of the Company.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee that meets the
requirements of Section 12.05. The counsel may be an employee of or counsel to the Company, any Guarantor or the Trustee.
“Original Issue Discount Note” means any Note which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02.
“Outstanding” when
used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Notes as to which
defeasance has been effected pursuant to Section 8.02 or 8.03; and
(iv) Notes which have been paid pursuant to Section 2.07 or
in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes
are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company;
provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Notes have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Note which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the maturity thereof to such date pursuant to Section 6.02,
(B) if, as of such date, the principal amount payable at the Stated Maturity of a Note is not determinable, the principal amount of such Note which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated
by Section 2.01, of the principal amount of such Note (or, in the case of a Note described in clause (A) or (B) above, of the amount determined as provided in such clause), and (D) Notes owned by the Company or any other obligor
upon the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such
8
request, demand, authorization, direction, notice, consent, waiver or other action, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Company
or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor.
“Participant” means, with
respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and with respect to DTC, shall include Euroclear and Clearstream).
“Permitted Holders” means the Boyd Family and any group (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act) comprised solely of members of the Boyd Family.
“Person” means any individual, corporation, company (including
limited liability company), partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Preferred Stock” means any Capital Stock of a Person, however designated, which entitles the holder thereof to a preference
with respect to dividends, distributions or liquidation proceeds of such Person over the holders of other Capital Stock issued by such Person.
“Property” means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible, including, without limitation, Capital Stock in any other Person (but excluding Capital Stock or other securities issued by such first Person).
“Qualified Investment” means an Investment by the Company or any of its Restricted Subsidiaries in any Person primarily
engaged or preparing to engage in a Core Business or a Related Business; provided that: (a) the primary purpose for which such Investment was made was to finance or otherwise facilitate the development, construction or acquisition of a facility
(a “Qualified Facility”) that (i) is located in a jurisdiction in which the conduct of gaming using electronic gaming devices is permitted pursuant to applicable law and (ii) conducts or, following such development,
construction or acquisition, will conduct gaming utilizing electronic gaming devices or is related to, ancillary or supportive of, connected with or arising out of such gaming business; (b) the Company and any of its Restricted Subsidiaries at
the time of the Investment (i) own in the aggregate at least 35.0% of the outstanding Voting Stock of such Person or (ii) (x) control the day-to-day gaming operation of such Person pursuant to a written agreement and (y) provide
or have provided Development Services with respect to the applicable Qualified Facility; and (c) none of the Permitted Holders or any Affiliate of such Persons, other than the Company or any of its Subsidiaries, is a direct or indirect obligor,
contingently or otherwise, of any Indebtedness of such Person or a direct or indirect holder of any Capital Stock of such Person, other than through their respective ownership interests in the Company.
“Related Business” means the business conducted (or proposed to be conducted) by the Company and its Subsidiaries in
connection with any Gaming Facility and any and all reasonably related businesses necessary for, in support, furtherance or anticipation of and/or ancillary to or in preparation for, such business including, without limitation, the development,
expansion or operation of any Gaming Facility (including any land-based, dockside, riverboat or other type of casino), owned, or to be owned, leased or managed by the Company or one of its Subsidiaries.
9
“Responsible Officer,” when used with respect to the Trustee, means any officer
within the Corporate Trust Office of the Trustee (or any successor group of the Trustee) 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 and in each case who shall have direct responsibility for the administration of
this Indenture.
“Restricted Subsidiary” means any Subsidiary of the Company that (a) has not been designated by the
Board of Directors of the Company as an Unrestricted Subsidiary, or (b) was an Unrestricted Subsidiary but has been redesignated by the Board of Directors of the Company as a Restricted Subsidiary, in each case as provided under the definition
of Unrestricted Subsidiary.
“SEC” means the Securities and Exchange Commission.
“Sale/Leaseback Transaction” means, with respect to any Person, any direct or indirect arrangement pursuant to which Property
is sold or transferred by such Person or a Restricted Subsidiary of such Person and is thereafter leased back from the purchaser or transferee thereof by such Person or one of its Restricted Subsidiaries.
“Securities Act” means the Securities Act of 1933, as amended.
“Significant Subsidiary” means any Subsidiary of the Company that:
(a) guarantees or otherwise provides direct credit support for any Indebtedness of the Company; or
(b) is a Domestic Subsidiary and a “Significant Subsidiary” as defined in the Credit Facility.
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which a
payment of principal of such security 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 upon the happening of
any contingency unless such contingency has occurred).
“Subsidiary” of any Person means any corporation, association,
partnership, limited liability company or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (1), such Person, (2) such Person and one or more Subsidiaries of such Person, or (3) one or
more Subsidiaries of such Person.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA.
“Trustee” means the party named as such
above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unrestricted Subsidiary” means (i) any Subsidiary of the Company which at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of Directors in compliance with the Indenture) and (ii) any Subsidiary of an Unrestricted Subsidiary.
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“U.S. Government Obligations” means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not
callable or redeemable at the issuer’s option.
“Voting Stock” means securities of any class or classes of a Person,
the holders of which are ordinarily, in the absence of contingencies, entitled to vote for corporate directors (or Persons performing equivalent functions).
Section 1.02. Other Definitions.
|
|
|
|
|
| Term |
|
Defined in
Section |
|
| “Authentication Order” |
|
|
2.02 |
|
| “Covenant Defeasance” |
|
|
8.03 |
|
| “DTC” |
|
|
2.03 |
|
| “Event of Default” |
|
|
6.01 |
|
| “Funding Guarantor” |
|
|
10.03 |
|
| “Guarantor Obligations” |
|
|
10.01 |
|
| “Legal Defeasance” |
|
|
8.02 |
|
| “Paying Agent” |
|
|
2.03 |
|
| “Registrar” |
|
|
2.03 |
|
| “Successor” |
|
|
5.01 |
|
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
“indenture securities” means the Notes;
“indenture security holder” means a Holder of a Note;
“indenture to be qualified” means this Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor
upon the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
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(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) provisions apply to successive events and transactions;
(f) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement or successor sections or
rules adopted by the SEC from time to time; and
(g) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness.
ARTICLE 2.
THE NOTES
Section 2.01. Amount
Unlimited; Issuable in Series.
The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is
unlimited.
The Notes may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to
Section 2.02, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Notes of any series:
(a) the title of the Notes of the series, including CUSIP number(s) (which shall distinguish the Notes of the series from Notes of any other
series);
(b) any limit upon the aggregate principal amount of the Notes of the series which may be authenticated and delivered under this
Indenture (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of the series pursuant to Section 2.06, 2.07, 2.10, 3.06 or 9.07 and except for any Notes which, pursuant
to Section 2.02, are deemed never to have been authenticated and delivered hereunder);
(c) the Person to whom any interest on a Note
of the series shall be payable, if other than the Person in whose name that Note (or one or more predecessor Notes) is registered at the close of business on the record date for such interest;
(d) the date or dates on which the principal of any Notes of the series is payable;
(e) the rate or rates at which any Notes of the series shall bear interest, if any, the date or dates from which any such interest shall
accrue, the interest payment dates on which any such interest shall be payable and the record date for any such interest payable on any interest payment date;
(f) the place or places where the principal of and any premium and interest on any Notes of the series shall be payable;
(g) the period or periods within which, the price or prices at which and the terms and conditions upon which any Notes of the series may be
redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Notes shall be evidenced;
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(h) if the amount of principal of or any premium or interest on any Notes of the series may be
determined with reference to a financial or economic measure or pursuant to a formula, the manner in which such amounts shall be determined;
(i) if other than the entire principal amount thereof, the portion of the principal amount of any Notes of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(j) if the principal amount payable at the Stated
Maturity of any Notes of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Notes as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be due and payable upon any maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be determined);
(k) if other than by a Board Resolution, the manner in
which any election by the Company to defease any Notes of the series pursuant to Section 8.02 or Section 8.03 shall be evidenced; or, that the Notes of the series, in whole or any specified part, shall not be defeasible pursuant to
Section 8.02 or Section 8.03 or both such Sections;
(l) if applicable, that any Notes of the series shall be issuable in whole
or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that
set forth in Section 2.06(f) and any circumstances in addition to or in lieu of those set forth in Section 2.06 in which any such Global Security may be exchanged in whole or in part for Notes registered, and any transfer of such Global
Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Note or a nominee thereof;
(m) any addition to or change in the Events of Default which apply to any Notes of the series and any change in the right of the Trustee or the
requisite Holders of such Notes to declare the principal amount thereof due and payable pursuant to Section 6.02;
(n) any addition
to, deletion from or change in the covenants set forth in Article 4 which apply to Notes of the series;
(o) provisions, if any, with
regard to the conversion or exchange of the Notes of the series, at the option of the Holders thereof or the Company, as the case may be, for or into new Notes of a different series, Marketable Securities or other securities;
(p) provisions, if any, with regard to the exchange of the Notes of the series, at the option of the Holders thereof, for other Notes of the
same series of the same aggregate principal amount or of a different authorized series or different authorized denomination or denominations, or both;
(q) if the Notes of the series shall be guaranteed, the terms and conditions of such Note Guarantees and provisions for the accession of the
guarantors to certain obligations hereunder; and
(r) any other terms of the series.
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All Notes of any one series shall be substantially identical except as to denomination and except
as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 2.02) set forth, or determined in the manner provided, in the Officers’ Certificate referred to above or in any such indenture
supplemental hereto. All Notes of any one series need not be issued at one time and, unless otherwise provided in or pursuant to the Board Resolution referred to above and (subject to Section 2.02) set forth, or determined in the manner
provided, in the Officers’ Certificate referred to above or in any such indenture supplemental hereto with respect to a series of Notes, additional Notes of a series may be issued, at the option of the Company, without the consent of any
Holder, at any time and from time to time.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the
terms of the series. If all of the Notes of any series established by action taken pursuant to a Board Resolution are not to be issued at one time, it shall not be necessary to deliver a record of such action at the time of issuance of each Note of
such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the first Note of such series
Section 2.02. Form; Dating; Execution and Authentication.
(a) General. The Notes and the Trustee’s certificate of authentication shall be substantially in the form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate 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 Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution thereof. If the form of Notes of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Authentication Order contemplated by Section 2.02(d) for the authentication and delivery of such Notes. If all of the Notes of
any series established by action taken pursuant to a Board Resolution are not to be issued at one time, it shall not be necessary to deliver a record of such action at the time of issuance of each Note of such series, but an appropriate record of
such action shall be delivered at or before the time of issuance of the first Note of such series.
The Notes may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes shall be in minimum denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Company and
the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of such Note shall govern and be controlling.
(b) Global Notes. Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06.
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(c) Execution. At least one Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.
(d) Authentication. The Trustee will, upon receipt
of a written order of the Company signed by an Officer (an “Authentication Order”), authenticate and deliver Notes for an original issue in an aggregate principal amount specified in the written order of the Company pursuant to this
Section 2.02. Such Authentication Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of the Notes is to be authenticated. The aggregate principal amount of Notes outstanding at any time may
not exceed the aggregate principal amount of Notes authorized for issuance by the Company, pursuant to one or more Authentication Orders, except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the
Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange
(“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The
Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.
The Company initially appoints
the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04. Paying Agent to Hold
Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold
in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, interest or Additional Interest, if any, on the Notes, and will notify the Trustee of any default by the Company in
making any such payment. The Trustee and any Paying Agent (other than the Company) may assume that no Additional Interest is payable unless it
15
has received written notice from the Company or a Holder that Additional Interest is due and payable. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon payment over to the Trustee, the Paying Agent (if other than
the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying
Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05. Holder Lists.
The
Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least five Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the
names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA § 312(a).
Section 2.06. Transfer and
Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All
Global Notes will be exchangeable by the Company for Definitive Notes if (i) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary, (ii) there has occurred and is continuing an Event of
Default with respect to the Notes of the applicable series and the Holders thereof have requested such exchange or (iii) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the Trustee. Upon the occurrence of the preceding events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the
Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 2.06 or Section 2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided
however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c). Neither the Company nor the Trustee shall be liable for any delay by the Holder of a Global Note or the Depositary in
identifying holders of beneficial interests in the Global Notes.
(b) Transfer and Exchange of Beneficial Interests in
the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Transfers of beneficial
interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial interest in a Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
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(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written
order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) (1) a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in
(1) above. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Section, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section
2.06(g).
(c) Transfer or Exchange of Beneficial Interests in Global Notes for Definitive Notes. If any holder of a
beneficial interest in an Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g), and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c) shall be registered
in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so registered.
(d) Transfer and Exchange of
Definitive Notes for Beneficial Interests in Global Notes. A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, together with the Definitive Note accompanied by an executed assignment in the form attached to the Note or otherwise satisfactory to the
Trustee, the Trustee shall cancel the applicable Definitive Note and, upon receipt of proper instructions initiated by such Holder through the applicable procedures at the Depositary, the Trustee shall increase or cause to be increased the aggregate
principal amount of one of the Global Notes.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e). A Holder of Definitive
Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Definitive Notes pursuant to the instructions from
the Holder thereof.
17
(f) Global Note Legend. Each Global Note issued under this Indenture shall bear a
legend on its face in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”
(g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have
been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with
Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Company’s order or at the Registrar’s request.
(ii) No service charge shall
be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06 and 9.05).
(iii) The Registrar shall not be required to register the transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes
issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid and legally binding obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v) Notwithstanding anything
contained herein to the contrary, neither the Trustee nor the Registrar shall be responsible for ascertaining whether any transfer complies with the registration provisions of or exemptions from the Securities Act, applicable state securities laws
or other applicable law.
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(vi) Neither the Registrar nor the Company shall be required (A) to issue,
to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment date.
(vii) Prior to due presentment for the registration
of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes
and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(viii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02.
(ix) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, in the absence of notice to the Company or the Trustee that the Note has been acquired by a bona fide purchaser, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge a Holder for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it
for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.09, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Note; provided however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 3.07(b).
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
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If the principal amount of any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09. Treasury Notes.
In
determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, any Guarantor or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any Guarantor, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
Section 2.11. Cancellation.
The
Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of such canceled Notes in its customary manner (consistent with all applicable legal requirements). Certification of the
disposition of all canceled Notes shall be delivered to the Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes. The Company shall promptly notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than
10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall send
to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. Notwithstanding the foregoing, any interest which is paid prior to the expiration of the 30-day period set forth in
Section 6.01(a) shall be paid to Holders as of the record date for the Interest Payment Date for which interest has not been paid.
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Section 2.13. CUSIP, ISIN and Other Numbers.
The Company in issuing the Notes may use “CUSIP”, “ISIN” or other such numbers (if then generally in use) and, if it
does so, the Trustee shall use the CUSIP, ISIN or other such numbers in notices of redemption or exchange as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness or accuracy of
the CUSIP, ISIN or other such numbers printed in the notice or on the Notes and that reliance may be placed only on the other identification numbers printed on the Notes and any such redemption or exchange shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01.
Notices to Trustee.
If the Company elects to redeem Notes of any series pursuant to the optional redemption provisions of such Note
and Section 3.07, it shall furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date, an Officers’ Certificate setting forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the series of Notes to be redeemed, (iii) the redemption date, (iv) the principal amount of Notes to be redeemed and (v) the redemption price
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes of any series are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall
select the Notes of such series to be redeemed or purchased among the Holders of the Notes that are subject to such redemption or purchase on a pro rata basis unless otherwise required by law or applicable stock exchange requirements;
provided that as long as DTC serves as Depositary for a Global Note, any redemption shall comply with DTC’s procedural requirements with respect to such note (provided that the Trustee shall have no responsibility to ensure compliance
with the procedural requirements of DTC).
The Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000; except that if all of the Notes of
a Holder of such series are to be redeemed, the entire outstanding amount of Notes of such series held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 15 days but not more than 60 days before a redemption date, the Company shall send a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address; except that redemption notices may be sent more than 60 days prior to a redemption date if the notice issued is in connection with a defeasance of the Notes or a satisfaction and discharge of the
Indenture.
The notice shall identify the Notes (including CUSIP Numbers) to be redeemed and shall state:
(a) the redemption date;
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(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion (so long as such amount is in a denomination of $1,000 or minimum integral multiples of $1,000 in excess thereof) shall be issued upon cancellation
of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are
being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Notes.
At the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided, however, that the Company shall have delivered to the Trustee, at least 30 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such notice
and providing a form setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 3.04.
Effect of Notice of Redemption.
A notice of redemption may be conditional. If the redemption conditions specified in the redemption
notice are not satisfied by the redemption date set forth therein, the Company may, as specified in the redemption notice, extend the redemption period or withdrawal the redemption notice or the redemption notice may be deemed to be null and void.
Section 3.05. Deposit of Redemption Price.
On the redemption date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and
accrued interest on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption. If a Note is redeemed after an interest record date but on or prior to the related interest payment date, then
any accrued and unpaid interest on such redemption date shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
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Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the Company’s written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in the Note, the Company shall not have the option to redeem the Notes.
(b) Any optional redemption provided for in the Note shall be made pursuant to the provisions of Section 3.01 through 3.06.
Section 3.08. Mandatory Redemption.
The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes of any series unless
established by or pursuant to a Board Resolution or Officers’ Certificate creating such series or in one or more indentures supplemental hereto.
Section 3.09. Mandatory Disposition or Redemption Pursuant to Gaming Laws.
If a Holder or beneficial owner of a Note is required to be licensed, qualified or found suitable under applicable Gaming Laws and is not so
licensed, qualified or found suitable within any time period specified by the applicable Gaming Authority, the Holder shall be obligated, at the request of the Company, to dispose of such Holder’s Notes within a time period prescribed by the
Company or such other time period prescribed by such Gaming Authority (in which event the Company’s obligation to pay any interest after the receipt of such notice shall be limited as provided in such Gaming Laws). Thereafter, the Company shall
have the right to redeem, on the date fixed by the Company for the redemption of such Notes, such Holder’s Notes at a redemption price equal to the lesser of (1) the lowest closing sale price of the Notes on any trading day during the
120-day period ending on the date upon which the Company shall have received notice from a Gaming Authority of such Holder’s disqualification or (2) the price at which such Holder or beneficial owner acquired such Notes, unless a different
redemption price is required by such Gaming Authority, in which event such required price shall be the redemption price. The Company is not required to pay or reimburse any Holder or beneficial owner of a Note for the costs of licensure,
qualification or finding of suitability or investigation for such licensure, qualification or finding of suitability. Any Holder or beneficial owner of a Note required to be licensed, qualified or found suitable under applicable Gaming Laws must pay
all investigative fees and costs of the Gaming Authorities in connection with such licensure, qualification, finding of suitability or application therefor.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The
Company shall pay or cause to be paid the principal of, premium, if any, interest and Additional Interest, if any, on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, interest and Additional Interest, if
any, shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. New York Time on the due date money deposited by the Company in immediately available funds and designated
for and sufficient to pay all such amounts.
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The Company shall pay interest on overdue principal at the rate equal to 1% per annum in
excess of the then applicable interest rate on the Notes to the extent lawful; it shall pay interest on overdue installments of interest at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the United States, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of 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 and surrenders may be made at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations; 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 United States for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.03. Reports.
(a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company shall furnish to the
Trustee and the Holders within 15 days after it would be required to file them with the SEC (i) all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company
were required to file such forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report thereon by the Company’s certified
independent accountants and (ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports. In addition, whether or not required by the rules and regulations of the SEC,
the Company shall file a copy of all such information and reports with the SEC for public availability within the time periods specified in the SEC’s rules and regulations (unless the SEC will not accept such a filing) and will post the reports
on its website within those time periods. The Company shall at all times comply with TIA § 314(a).
(b) If, at any time the
Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in Section 4.03(a) with the SEC within the time periods specified above
unless the SEC will not accept such a filing.
(c) The Company will not take any action for the purpose of causing the SEC not to accept
any such filings. If, notwithstanding the foregoing, the SEC will not accept the Company’s filings for any reason, the Company will post the reports referred to in Section 4.03(a) and (b) on its website within the time periods that
would apply if the Company were required to file those reports with the SEC.
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(d) Notwithstanding the foregoing, the Company will be deemed to have furnished such reports
referred to above to the Trustee and the Holders of Notes if (i) the Company has filed (or, in the case of a Form 8-K, furnished) such reports with the SEC via the EDGAR filing system and such reports are publicly available, or (ii) the
reports are posted and publicly available on the Company’s website.
(e) If at any time the Company is no longer subject to the
reporting requirements under the Exchange Act, for so long as any Notes remain outstanding, the Company shall furnish to the Holders and to prospective investors, upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
(f) Delivery of such reports, information and documents to the Trustee pursuant to this Section is
for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants under this Indenture (as to which the Trustee is entitled to certificates).
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year (which fiscal year initially ends December 31,
2015), an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this Indenture and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect
thereto.
(b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee, not more than 30 days after any
Officer becomes aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 4.05. Stay and Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.06. Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect
(i) its corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however,
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that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders.
Section 4.07. Limitation on Status of Investment Company.
The Company shall not, and shall not permit any of its Restricted Subsidiaries to, become an “investment company” (as that term is
defined in the Investment Company Act of 1940, as amended), to the extent such status would subject the Company or any such Subsidiary to regulation under the Investment Company Act, except for Subsidiaries established for the purpose of financing
the operating businesses of the Company and its Subsidiaries.
Section 4.08. Payment for Consent.
Neither the Company nor any of its Subsidiaries shall directly or indirectly, pay or cause to be paid any consideration to or for the benefit
of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the same series of Notes that
consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
Section 4.09. Additional Note Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or creates a Significant Subsidiary, or any non-Guarantor Restricted Subsidiary
becomes a Significant Subsidiary after the date of this Indenture, then such Restricted Subsidiary shall become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel satisfying the requirements of Sections 12.04 and
12.05 of this Indenture and stating that such supplemental indenture constitutes the legal, valid and binding obligation of such Guarantor within 30 days following the date on which it was acquired, created or otherwise became a Significant
Subsidiary (or such longer period as may be required to obtain any necessary approvals under applicable Gaming Laws or other regulatory requirements). Any Subsidiary that does not constitute a Significant Subsidiary need not become a Guarantor
unless and until such time as it becomes a Significant Subsidiary. Notwithstanding the foregoing, to the extent any Significant Subsidiary is subject to the terms of any instrument governing Acquired Debt, as in effect at the time of acquisition
which instrument or restriction prohibits such Significant Subsidiary from issuing a Note Guarantee, such Significant Subsidiary shall not be required to execute such a supplemental indenture until it is permitted to issue such Note Guarantee
pursuant to the terms of such Acquired Debt. The Company shall use reasonable commercial efforts to obtain all approvals of any Gaming Authority necessary to permit any Significant Subsidiary to become a Guarantor as promptly as practicable.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation and Sale of Assets.
Unless otherwise specified in Section 4.02 or in a supplemental indenture hereto, nothing contained in this Indenture or in any of
the Notes shall prevent the Company from merging or consolidating with or into any other entity or in one transaction or a series of related transactions selling, conveying, assigning, transferring, leasing or otherwise disposing of all or
substantially all of its Property. The Company hereby covenants and agrees that (i) the entity formed by or surviving any such
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consolidation or merger (if the Company is not the surviving entity) or the Person to which such sale, assignment, transfer, lease or conveyance is made (the “Successor”)
(A) shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia and such corporation shall expressly assume, by supplemental indenture, executed and delivered to
the Trustee by such corporation, the due and punctual payment of the principal, premium, if any, interest and Additional Interest, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all the
covenants and conditions of this Indenture to be performed by the Company; and (B) the Successor shall have all Gaming Licenses required to operate all Gaming Facilities to be owned by such Successor; and (ii) in the case of a sale,
transfer, assignment, lease, conveyance or other disposition of all or substantially all of the Company’s Property, such Property shall have been transferred as an entirety or virtually as an entirety to one Person. In connection with any such
supplemental indenture, the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, transfer, lease or conveyance and such supplemental indenture, if any,
complies with this Indenture, and such Opinion of Counsel shall also state that such supplemental indenture constitutes the legal, valid and binding obligation of such Successor.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all
of the assets of the Company in accordance with Section 5.01, the Successor shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of
this Indenture referring to the “Company” shall refer instead to the Successor and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if the Successor had been named as
the Company herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of and interest on the Notes except in the case of a sale, assignment, transfer, conveyance or other
disposition of all of the Company’s assets that meets the requirements of Section 5.01.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01.
Events of Default.
An “Event of Default” occurs with respect to Notes of any series if:
(a) the Company defaults in the payment of interest (including Additional Interest, if any) on any of the Notes of that series when it becomes
due and payable and such default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on any Note of that series when due at maturity, upon acceleration, required purchase or otherwise;
(c) the Company fails
to observe, perform or comply with the covenants and agreements of Section 5.01;
(d) the Company or, if applicable, any Guarantor
with respect to that series, fails to observe, perform or comply with any of the other covenants and agreements with respect to that series in this Indenture, the Notes, or, if applicable, the Note Guarantees and such failure to observe, perform or
comply continues for a period of 60 days after receipt by the Company of a written notice from the Trustee or the Holders of at least 30% in aggregate principal amount of Notes of that series then outstanding voting as a single class;
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(e) the Company or any Guarantor that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its creditors;
(f) a court of competent jurisdiction enters an order or decree with respect to the Company or any Guarantor that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary under any Bankruptcy Law that:
(i) is for relief against such Person in an involuntary case;
(ii) appoints a custodian of such Person or for all or substantially all of the property of such Person; or
(iii) orders the liquidation of such Person;
and the order or decree remains unstayed and in effect for 60 consecutive days;
(g) except as permitted by this Indenture with respect to that series of Notes, any Note Guarantee of that series is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person controlling such Guarantor, with respect to that series, denies or disaffirms its obligations under its Note
Guarantee, and such default continues for a period of 30 days; and
(h) any other Event of Default provided with respect to Notes of that
series.
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or
involuntary or is 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.
The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers’
Certificate of any Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.
Section 6.02.
Acceleration.
Subject to the terms of any supplemental indenture hereto for a series of Notes, if an Event of Default with
respect to the Notes of any series (other than an Event of Default resulting from Section 6.01(e) or (f)) shall have occurred and be continuing, the Trustee or the Holders of not less than 30% in aggregate principal amount of the Notes then
outstanding for that series (or, if any Notes of that series are Original Issue Discount Notes, such portion of the principal amount of such Notes as may be specified by the terms thereof) may accelerate the maturity of all the Notes of such series
by a notice in writing to the
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Company (and to the Trustee, if given by the Holders) specifying the Event of Default and that it is a “notice of acceleration” and on the fifth Business Day after delivery of such
notice, the principal amount, together with any accrued and unpaid interest and premium, if any, on all of the Notes of such series then outstanding, will become immediately due and payable. In case an Event of Default resulting from
Section 6.01(e) or (f) shall occur, the Notes then outstanding of each series (including any accrued interest and, if applicable, Additional Interest, thereon) shall be due and payable immediately without any declaration or other act on
the part of the Trustee or the Holders; provided, however, that, the Holders of a majority in aggregate principal amount of the Notes then outstanding of that series, may, by written notice to the Trustee, rescind and annul such
acceleration with respect to that series if all Events of Default, other than the nonpayment of accelerated principal, premium, if any, or interest on the Notes of such series, have been cured or waived as provided in this Indenture and such
rescission and annulment would not conflict with any judgment or decree.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing with respect to a series, the Trustee may pursue any available remedy to collect the payment of
principal and interest on the Notes of that series or to enforce the performance of any provision of the Notes or this Indenture with respect to that series.
The Trustee may maintain a proceeding even if it does not possess any of the Notes of that series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Notes of any series then outstanding by notice to the Trustee may waive an existing
Default with respect to that series and its consequences hereunder except (i) a Default in the payment of principal of or interest on a Note of that series or (ii) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each affected Holder of Notes of the same series. Upon any such waiver, such Default shall cease to exist and shall be deemed to have been cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes of any series may direct the time, method and place of
conducting any proceeding for exercising any remedy with respect to that series available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this
Indenture that the Trustee determines may be prejudicial to the rights of other Holders of such series of Notes or that may involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification or security satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if:
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(a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default;
(b) the Holders of at least 30% in principal amount of the then outstanding Notes of the same series make a written request to the Trustee
to pursue the remedy;
(c) such Holder of a Note or Holders of Notes of such series offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the provision of indemnity; and
(e) during such 60-day period the
Holders of a majority in principal amount of the then outstanding Notes of such series do not give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note of the same series or to obtain a preference
or priority over another Holder of a Note of the same series.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note of any series to receive payment of principal,
premium, Additional Interest, if any, and interest on such Note, on or after the respective due dates expressed in such Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee is authorized to recover judgment in
its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium and interest remaining unpaid on the Notes of all series as to which such Event of Default has occurred and is continuing and interest
on overdue principal and, to the extent lawful, interest and 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.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian 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 to the Trustee any amount due to 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 7.07. To the extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a
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Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the
Trustee collects any money or property pursuant to this Article, it shall pay out the money or property in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07, including payment of all
compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes in respect of which or for the benefit of which such money has been collected for amounts
due and unpaid on such Notes for principal, premium, Additional Interest, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the applicable Notes for principal, premium, Additional
Interest, if any, and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder of a Note
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes of any series.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
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(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee pursuant to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions specifically required to be
furnished to it hereunder to determine whether or not they substantially conform to the procedural requirements of this Indenture.
(c) The
Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(d)
Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or 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 to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured
to it. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holders shall have offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree
in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may rely upon any document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or
refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel. The Trustee may consult with counsel of its own selection with respect to legal matters relating to this Indenture and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance upon such advice or Opinion of Counsel.
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(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(g) 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, consent, order, approval, bond, debenture, note or other paper or document unless requested in writing to do so by the Holders of not less than a majority in principal amount of the Notes at the time
outstanding, 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, at the expense of the Company and shall Incur no liability of any kind by reason of such inquiry or investigation.
(h) 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 security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be Incurred by it in compliance with
such request or direction.
(i) The Trustee shall not be responsible or liable for any action taken or omitted by it in good faith at the
direction of the Holders of not less than a majority in principal amount of the Notes as to the time, method and place of conducting any proceedings for any remedy available to the Trustee or the exercising of any power conferred by this Indenture.
(j) Any action taken, or omitted to be taken, by the Trustee in good faith pursuant to this Indenture upon the request or authority or
consent of any person who, at the time of making such request or giving such authority or consent, is the Holder of any Note shall be conclusive and binding upon future Holders of Notes and upon Notes executed and delivered in exchange therefor or
in place thereof.
(k) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default (and stating the occurrence of a Default or Event of Default) is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Notes and this Indenture.
(l) The Trustee may request that the Company deliver an Officers’ Certificate
setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any Person authorized to sign an Officers’
Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(m) The
Trustee shall not be responsible or liable for punitive, special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of actions.
(n) The Trustee shall not be required to give any bond or surety in respect
of the execution of the trusts and powers under this Indenture.
(o) Any permissive right of the Trustee to take or refrain from taking
actions enumerated in this Indenture or other related documents shall not be construed as a duty.
(p) The Trustee shall not be responsible
or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes;
fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or communication services; accidents; labor disputes; and acts of civil or
military authorities and governmental action.
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Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue
as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.04.
Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this
Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible
for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee
shall send to Holders of Notes of all applicable series a notice of the Default or Event of Default within 90 days after it is known to the Trustee. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes of such series.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each anniversary in respect of any issuance of a series of Notes hereunder, and for so long as such series of Notes remain
outstanding, the Trustee shall send to the Holders of the applicable series of Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within
the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA § 313(b)(2). The Trustee shall also send all reports as required by TIA § 313(c).
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A copy of each report at the time of its sending to the Holders of Notes shall be given also to
the Company and the Company shall file such notice with the SEC and each stock exchange on which the Notes are listed in accordance with TIA § 313(d). The Company shall promptly notify the Trustee when Notes of any series are listed on any
stock exchange or delisted therefrom.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee as agreed upon in writing from time to time reasonable compensation for its acceptance of this Indenture
and services hereunder. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable out-of-pocket expenses
incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
The Company shall fully indemnify the Trustee and hold it harmless against any and all losses, liabilities, claims, damages or expenses
(including reasonable legal fees and expenses) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself against any claim (whether asserted by or against the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense shall be determined by a court of competent jurisdiction to have been caused by its own negligence or willful misconduct. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is actually prejudiced by failure of the Trustee to provide timely
notice of claims of which a Responsible Officer has received written notice. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture and the resignation
or removal of the Trustee.
To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes or particular series of Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(e) or (f) occurs, the
expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.
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Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority in principal amount of the then outstanding Notes of any series may remove the Trustee as to such series of Notes by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company, or the Holders of at least 20% in principal amount of the then outstanding Notes of any series may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee
for such series of Notes.
If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to
comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall send a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another
corporation or banking association, the successor corporation or association without any further act shall be the successor Trustee.
In
case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture and any of the Notes shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which is anywhere provided in the Notes or in this Indenture.
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Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA § 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in
TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND
COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option evidenced by an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 be
applied to all outstanding Notes or any series of Notes and all obligations of the Guarantors discharged with respect to their Note Guarantees of such Notes or series of Notes, upon compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Company shall, subject
to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from its obligations with respect to all outstanding Notes of such series and all obligations of the Guarantors discharged with respect to their
Note Guarantees of such series of Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes of such series, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other obligations under Notes of such series and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute such instruments as reasonably requested by
the Company acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes of such series to receive solely from the trust fund
described in Section 8.04, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, Additional Interest, if any, and interest on such Notes when such payments are due, (b) the Company’s
obligations with respect to such Notes under Article 2 and Section 4.02, (c) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations in connection therewith and
(d) this Article 8. Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.
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Section 8.03. Covenant Defeasance.
Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Company shall, subject
to the satisfaction of the conditions set forth in Section 8.04, be released from its obligations under the covenants contained in Sections 4.06 through the end of Article 4 and Article 5 and any other covenants specified in an indenture
supplemental hereto with respect to the outstanding Notes of such series on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes of such series shall
thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders of Notes of such series (and the consequences of any thereof) in connection with such covenants, but shall continue
to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding
Notes of such series, 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 6.01, but, except as
specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04, Sections 6.01(c) through 6.01(h), except for Sections 6.01(e) and 6.01(f) with respect to the Company (but not with respect to any Restricted Subsidiary) shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes of any series:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in United States dollars,
non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, Additional
Interest, if any, and interest on all outstanding Notes of such series on the stated date for payment thereof or on the applicable redemption date, as the case may be and the Company must specify whether the Notes are being defeased to maturity or
to a particular redemption date;
(b) in the case of an election under Section 8.02, the Company shall have delivered to the Trustee
an Opinion of Counsel confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes of such series will not recognize income, gain or loss for federal income tax purposes as a result
of such Legal 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 Legal Defeasance had not occurred;
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(c) in the case of an election under Section 8.03, the Company shall have delivered to the
Trustee an Opinion of Counsel confirming that the beneficial owners of the outstanding Notes of such series 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;
(d) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default
resulting from the Incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease Notes pursuant to this Article 8 concurrently with such Incurrence);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any of the Guarantors is a party or by which the Company or any of the Guarantors is bound;
(f) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with.
Section 8.05.
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
Subject to
Section 8.06, all money and non-callable U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”)
pursuant to Section 8.04 in respect of the outstanding Notes of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, Additional Interest, 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 cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of such outstanding Notes.
Anything in this Article 8 to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 8.04 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount thereof that would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
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Section 8.06. Repayment to Company.
Subject to applicable law, 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, premium, if any, Additional Interest, if any, or interest on any Note and remaining unclaimed for two years after such principal, and premium, if any, Additional Interest, if any, or interest has become due and payable
shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter 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 The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S. Government Obligations in accordance
with Section 8.02 or 8.03, as the case may be, 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 applicable Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02
or 8.03, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, Additional Interest, if any, or interest on any such Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT
AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02, the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note
Guarantees without the consent of any Holder of a Note to:
(a) cure any ambiguity, defect, mistake, omission or inconsistency as evidenced
in an Officers’ Certificate;
(b) provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of
the Notes or Note Guarantees, as applicable, by a Successor to the Company or a successor to such Guarantor pursuant to Article 5;
(c)
provide for uncertificated Notes in addition to or in place of certificated Notes;
(d) add any Note Guarantees with respect to the Notes
and to release Note Guarantees when required or permitted by the terms of this Indenture;
(e) secure the Notes;
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(f) add to the covenants of the Company or any Guarantor for the benefit of the Holders of all or
any series of Notes or the Note Guarantees (and if such covenants are to be for the benefit of less than all series of Notes, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right
or power conferred upon the Company or any Guarantor;
(g) make any change that would provide any additional rights or benefits to the
Holders of all or any series of the Notes or the Note Guarantees (and if such additional rights or benefits are to be for the benefit of less than all series of Notes, stating that such additional rights or benefits are expressly being included
solely for the benefit of such series) or, in the good faith opinion of the Company, that does not adversely affect the legal rights hereunder of any Holder or any Guarantor;
(h) comply with the requirements of applicable Gaming Laws or to provide for requirements imposed by applicable Gaming Authorities;
(i) comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;
(j) conform the text of this Indenture, the Notes or the Note Guarantees to any provision of the “Description of Notes” contained in
any prospectus or supplemental prospectus relating to the initial offering of all or any series of the Notes, to the extent that such provision in that “Description of Notes” was intended to be a verbatim recitation of a provision of this
Indenture or such Notes (as evidenced by an Officers’ Certificate of the Company);
(k) establish the form or terms of Notes of any
series as permitted by Section 2.01;
(l) evidence and provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Notes of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 7.08;
(m) add to this Indenture such provisions as may be expressly permitted by the TIA, excluding, however,
the provisions referred to in TIA § 316 (a)(2) as in effect at the date as of which this instrument was executed or any corresponding provision in any federal statute hereafter enacted;
(n) provide for the terms and conditions of conversion into any Marketable Securities of the Notes of any series which are convertible into
Marketable Securities; and
(o) add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of
Notes, provided that any such addition, change or elimination (i) shall neither (A) apply to any Note of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Note with respect to such provision or (ii) shall become effective only when there is no Note described in clause (i) Outstanding;
(p) remove redemption provisions included in any Notes that are no longer in effect.
Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents described in Sections 7.02, 9.06 and 12.04 the Trustee shall join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its
own rights, duties, liabilities or immunities under this Indenture or otherwise.
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Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the
Notes and the Note Guarantees without notice to any Holder of Notes but with the consent of the Holders of at least a majority in principal amount each series of the Notes affected by such amendment or supplement then outstanding voting as a single
class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, Additional Interest, if any, or interest on the Notes of that series, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture,
the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes of the affected series voting as a single class (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). Section 2.08 shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Sections 7.02, 9.06 and
12.04 the Trustee shall join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties, liabilities or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver
of this Indenture becomes effective, the Company shall send to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to send such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
Without the consent of each
Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest on any Note;
(c) reduce the principal of or extend the stated maturity of any Note;
(d) reduce the premium payable upon the redemption of any Note or change the time at which a Note may be redeemed;
(e) impair the right of any Holder to receive payment of principal of, or interest, premium or Additional Interest, if any, on the Notes on or
after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes of such series and a waiver of the payment default that resulted from such acceleration);
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(f) make any Note payable in money other than that stated in the Notes; or
(g) make any change in Section 6.04 or 6.07 or in the foregoing amendment and waiver provisions.
In addition, any amendment which releases any Guarantor from its obligations under any Note Guarantee (except as specified in Article 5 or
Section 10.02 prior to any such amendment) will require the consent of the Holders of at least 66 2⁄3% in aggregate principal amount of the Notes
then outstanding.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular series of Notes, or which modifies the rights of the Holders of Notes of such series with respect to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Notes of any other series.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the
TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. From and after the date an amendment, supplement or waiver becomes effective in
accordance with its terms, it shall bind every Holder.
The Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph,
those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
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Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental indenture until the Board of Directors approves it. In executing any amended or supplemental indenture, the Trustee
shall receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 12.04, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this Indenture.
Section 9.07. Reference in Notes to Supplemental
Indentures.
Notes of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article
may bear a notation in form approved by the Company as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes of any series so modified as to conform, in the opinion of the Company, to any such
supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Notes of such series.
ARTICLE 10.
NOTE GUARANTEES
Section 10.01. Note Guarantees.
(a)
Subject to the provisions of this Article 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes, to the
extent lawful, and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, Additional Interest, if any, and interest on the Notes and all other
obligations of the Company under this Indenture (including under Section 7.07) and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the foregoing being hereinafter collectively called the “Guarantor
Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article 10
notwithstanding any extension or renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to,
demand of, and protest to the Company of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor
Obligations.
(c) Each Guarantor further agrees that its Note Guarantee constitutes a guarantee of payment when due (and not a guarantee of
collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.02 and Article 8, the obligations of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any
defense of
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setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or
remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms
or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guarantor Obligations or any of them; (v) the failure of any Holder to exercise any right or
remedy against any other Guarantor; (vi) any change in the ownership of the Company; (vii) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (viii) any other act or thing or
omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Note Guarantee shall remain in full force and effect until payment in full of all the Guarantor Obligations
or such Guarantor is released from its Note Guarantee in compliance with Section 5.01, Section 10.02, Section 11.01 or Article 8. Each Guarantor further agrees that its Note Guarantee shall continue to be effective or be reinstated,
as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest or Additional Interest, if any, on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the
bankruptcy or reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right
which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or
otherwise, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the
unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of
any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (i) the maturity
of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the
Guarantor Obligations guaranteed and (ii) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor
for the purposes of such Guarantor’s Note Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses
(including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
(i) Neither the Company nor the Guarantors shall be required to make a notation on the Notes to reflect any Note Guarantee or any release,
termination or discharge thereof and any such notation shall not be a condition to the validity of any Note Guarantee.
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Section 10.02. Limitation on Liability; Termination, Release and Discharge.
(a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to
the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal or state law and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.
(b) A Note Guarantee of a Guarantor shall be automatically and unconditionally released and discharged, and each Guarantor and its obligations
under the Note Guarantee and this Indenture shall be released and discharged:
(i) in connection with any sale or other
disposition of all or substantially all of the assets of that Guarantor (by way of merger, consolidation, or otherwise) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary;
(ii) in connection with any sale or other disposition of Capital Stock of that Guarantor to a Person that is not (either before
or after giving effect to such transaction) the Company or a Restricted Subsidiary and such sale or other disposition is permitted by this Indenture and the Guarantor ceases to be a Restricted Subsidiary of the Company as a result of the sale or
other disposition;
(iii) if the Company designates any Restricted Subsidiary that is a Guarantor to be an Unrestricted
Subsidiary in accordance with this Indenture;
(iv) upon legal defeasance, covenant defeasance or satisfaction and
discharge of this Indenture pursuant to Section 8.02, Section 8.03, or Section 11.01; or
(v) solely with
respect to a series of Notes, if the Holders of at least a majority of the Notes of such series consent thereto.
(c) If any Guarantor is
released from its Note Guarantee, any of its Subsidiaries that are Guarantors will be released from their Note Guarantees.
(d) In the case
of any transaction described in Section 10.02(b)(i) or (b)(ii) or in the event that the Company otherwise requests the Trustee to acknowledge any release pursuant to Section 10.02, the Company shall deliver to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(e) The release of a Guarantor from its Note Guarantee and its obligations under this Indenture in accordance with the provisions of this
Section 10.02 shall not preclude the future application of Section 4.19 to such Person.
Section 10.03. Right of Contribution.
Subject to Section 10.04, each Guarantor agrees that in the event any payment or distribution is made by any Guarantor (a “Funding
Guarantor”) in respect of the Guarantor Obligations, such Funding Guarantor shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the relative net worth of each Guarantor (including the Funding Guarantor)
as of the date of such payment or
46
distribution for all payments, damages and expenses incurred by that Funding Guarantor in discharging the Guarantor Obligations. The provisions of this Section 10.03 shall in no respect
limit the obligations and liabilities of each Guarantor to the Trustee and the Holders and each Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor hereunder.
Section 10.04. No Subrogation.
Notwithstanding any payment or payments made by any Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights
of the Trustee or any Holder against the Company or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Guarantor Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Company or any other Guarantor in respect of payments made by such Guarantor hereunder, until the Guarantor Obligations are paid in full. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Guarantor Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Trustee and the Holders, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to be applied against the Guarantor
Obligations.
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as to all Notes of a series issued hereunder, when:
| |
(a) |
all Notes of such series that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes of such series for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or |
| |
(b) |
all Notes of such series that have not been delivered to the Trustee for cancellation have become due and payable by reason of the sending of a notice of redemption or otherwise or will become due and payable within one
year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes of such series not delivered to the Trustee for cancellation for principal,
premium, if any, Additional Interest, if any, and accrued interest to the date of maturity or redemption; |
| (2) |
other than with respect to a discharge when the Notes of such series have become due and payable, no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument
to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound; |
47
| (3) |
the Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and |
| (4) |
the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes of such series at maturity or the redemption date, as the case may be.
|
In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied. Upon compliance with the foregoing, the Trustee shall execute such instrument(s) as reasonably requested by the Company acknowledging the satisfaction and discharge of all of the
Company’s obligations under the Notes of the applicable series and this Indenture.
Notwithstanding the satisfaction and discharge of
this Indenture, if money shall have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the provisions of Section 11.02 and Section 8.06 shall survive such satisfaction and discharge.
Section 11.02. Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to Section 11.01 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), interest and Additional Interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent
required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with
Section 11.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01; provided that if the Company has made any payment of principal of, premium, if any, interest and Additional Interest, if any, on
any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust
Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA §318(c),
the imposed duties shall control.
Section 12.02. Notices.
Any notice or communication by the Company, any Guarantor or the Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested), electronic transmission (with confirmation of receipt) or overnight air courier guaranteeing next day delivery, to the other’s address, as follows:
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If to the Company or any Guarantor:
Boyd Gaming Corporation
3883
Howard Hughes Parkway, 9th Floor
Las Vegas, Nevada 89169
Telecopier No.: (702) 792-7214
Attention: Josh Hirsberg
and
Boyd Gaming Corporation
3883 Howard Hughes Parkway, 9th Floor
Las Vegas, Nevada 89169
Telecopier No.: (702) 696-1114
Attention: Brian A. Larson, Esq.
With a copy to:
Morrison & Foerster LLP
250 West 55th Street
New York, NY 10109
Telecopier
No.: (212) 903-3644
Attention: Geoffrey R. Peck
If to the Trustee:
Wilmington
Trust, National Association
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-1615
_____________________
Telecopier
No.: (302) 636-4149
Attention: Boyd Gaming Corporation Administrator
The Company, the Guarantors or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if electronically transmitted; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar; provided that notwithstanding any other provision of this Indenture,
where this Indenture provides for notice of any event (including any notice of redemption) to a Holder of a Global Notes (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Note (or its designee)
pursuant to the customary procedures of such Depositary. Any notice or communication shall also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder
or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is sent in the manner
provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
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If the Company or any Guarantor sends a notice or communication to Holders, it shall provide a
copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Guarantors, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 12.04.
Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers’ Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in Section 12.05) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 12.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature
and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or
not, in the opinion of such Person, such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.
No past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall have any
liability for any obligations of the Company or the Guarantors under the Notes, this Indenture and the Note Guarantees, where applicable, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
50
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEE WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 12.10. Successors.
All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.02.
Section 12.11. Severability.
In
case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. Unless otherwise indicated, references in this Indenture to Articles and Sections are to the articles and
sections of this Indenture.
[SIGNATURES ON FOLLOWING PAGE]
51
|
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| SIGNATURES |
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| BOYD GAMING CORPORATION |
|
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| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President and Chief Executive Officer |
|
| BOYD ATLANTIC CITY, INC. |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President |
|
| BOYD TUNICA, INC. |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President |
|
| BLUE CHIP CASINO, LLC |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President and Manager |
|
| CALIFORNIA HOTEL AND CASINO |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President |
|
| TREASURE CHEST CASINO, L.L.C. |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President, Chief Executive Officer and Manager |
[Signature Page to Base Indenture]
|
|
|
|
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| RED RIVER ENTERTAINMENT OF SHREVEPORT, LLC |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President and Manager |
|
| BOYD RACING, L.L.C. |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President and Manager |
|
| PAR-A-DICE GAMING CORPORATION |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President and Secretary |
|
| COAST CASINOS, INC. |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President |
|
| COAST HOTELS AND CASINOS, INC. |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President |
|
| SAM-WILL, INC. |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President |
[Signature Page to Base Indenture]
|
|
|
|
|
| M.S.W., INC. |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President |
|
| CALIFORNIA HOTEL FINANCE CORPORATION |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President |
|
| BOYD ACQUISITION, LLC |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President and Manager |
|
| BOYD LOUISIANA RACING, L.L.C. |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President and Manager |
|
| BOYD BILOXI, LLC |
|
|
| By: |
|
/s/ Keith E. Smith |
|
|
Name: |
|
Keith E. Smith |
|
|
Title: |
|
President and Manager |
[Signature Page to Base Indenture]
|
|
|
|
|
|
|
WILMINGTON TRUST, NATIONAL ASSOCIATION,
AS TRUSTEE |
|
|
| By: |
|
/s/ Joshua C. Jones |
|
|
Name: |
|
Joshua C. Jones |
|
|
Title: |
|
Assistant Vice President |
[Signature Page to Base Indenture]
Exhibit 4.2
Execution Version
BOYD GAMING CORPORATION
AND
THE GUARANTORS NAMED HEREIN
6.875% SENIOR NOTES DUE 2023
FIRST
SUPPLEMENTAL INDENTURE
Dated as of May 21, 2015
WILMINGTON
TRUST, NATIONAL ASSOCIATION,
as Trustee
CROSS-REFERENCE TABLE*
|
|
|
|
|
| Trust Indenture Act Section |
|
Indenture Section |
| 310 |
|
(a)(1) |
|
7.10 |
|
|
(a)(2) |
|
7.10 |
|
|
(a)(3) |
|
N.A. |
|
|
(a)(4) |
|
N.A. |
|
|
(a)(5) |
|
7.10 |
|
|
(b) |
|
7.10 |
|
|
(c) |
|
N.A. |
| 311 |
|
(a) |
|
7.11 |
|
|
(b) |
|
7.11 |
|
|
(c) |
|
N.A. |
| 312 |
|
(a) |
|
2.04 |
|
|
(b) |
|
12.03 |
|
|
(c) |
|
12.03 |
| 313 |
|
(a) |
|
7.06 |
|
|
(b)(1) |
|
10.03 |
|
|
(b)(2) |
|
7.07 |
|
|
(c) |
|
7.06;12.02 |
|
|
(d) |
|
7.06 |
| 314 |
|
(a) |
|
1.01;4.03;6.12;12.02;12.05 |
|
|
(b) |
|
N.A. |
|
|
(c)(1) |
|
12.04 |
|
|
(c)(2) |
|
12.04 |
|
|
(c)(3) |
|
N.A. |
|
|
(d) |
|
N.A. |
|
|
(e) |
|
12.05 |
|
|
(f) |
|
N.A. |
| 315 |
|
(a) |
|
7.01 |
|
|
(b) |
|
7.05;12.02 |
|
|
(c) |
|
7.01 |
|
|
(d) |
|
7.01 |
|
|
(e) |
|
6.11 |
| 316 |
|
(a) (last sentence) |
|
2.08 |
|
|
(a)(1)(A) |
|
6.05 |
|
|
(a)(1)(B) |
|
6.04 |
|
|
(a)(2) |
|
9.01 |
|
|
(b) |
|
6.07 |
|
|
(c) |
|
9.04 |
| 317 |
|
(a)(1) |
|
6.08 |
|
|
(a)(2) |
|
6.09 |
|
|
(b) |
|
2.03 |
| 318 |
|
(a) |
|
12.01 |
|
|
(b) |
|
N.A. |
|
|
(c) |
|
12.01 |
N.A. means not applicable.
| * |
This Cross Reference Table is not part of the Indenture. |
TABLE OF CONTENTS
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| |
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Page |
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| ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE |
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2 |
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Section 1.01. |
|
Definitions |
|
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2 |
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Section 1.02. |
|
Other Definitions |
|
|
27 |
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Section 1.03. |
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Incorporation by Reference of Trust Indenture Act |
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27 |
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Section 1.04. |
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Rules of Construction |
|
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27 |
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Section 1.05. |
|
Conflicts with Base Indenture |
|
|
28 |
|
|
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| ARTICLE 2. THE NOTES |
|
|
28 |
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|
Section 2.01. |
|
Form; Dating; Execution and Authentication |
|
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28 |
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Section 2.02. |
|
Registrar and Paying Agent |
|
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29 |
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Section 2.03. |
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Paying Agent to Hold Money in Trust |
|
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29 |
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Section 2.04. |
|
Holder Lists |
|
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30 |
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Section 2.05. |
|
Transfer and Exchange |
|
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30 |
|
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|
Section 2.06. |
|
Replacement Notes |
|
|
33 |
|
|
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|
Section 2.07. |
|
Outstanding Notes |
|
|
33 |
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|
Section 2.08. |
|
Treasury Notes |
|
|
34 |
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|
Section 2.09. |
|
Temporary Notes |
|
|
34 |
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|
Section 2.10. |
|
Cancellation |
|
|
34 |
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Section 2.11. |
|
Defaulted Interest |
|
|
34 |
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|
Section 2.12. |
|
CUSIP, ISIN and Other Numbers |
|
|
35 |
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|
Section 2.13. |
|
Issuance of Additional Notes |
|
|
35 |
|
|
|
| ARTICLE 3. REDEMPTION AND PREPAYMENT |
|
|
35 |
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|
|
Section 3.01. |
|
Notices to Trustee |
|
|
35 |
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|
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|
Section 3.02. |
|
Selection of Notes to Be Redeemed |
|
|
35 |
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|
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|
|
Section 3.03. |
|
Notice of Redemption |
|
|
36 |
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|
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|
Section 3.04. |
|
Effect of Notice of Redemption |
|
|
37 |
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Section 3.05. |
|
Deposit of Redemption Price |
|
|
37 |
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|
Section 3.06. |
|
Notes Redeemed in Part |
|
|
37 |
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|
Section 3.07. |
|
Optional Redemption |
|
|
37 |
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|
Section 3.08. |
|
Mandatory Redemption |
|
|
38 |
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|
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|
Section 3.09. |
|
Mandatory Disposition or Redemption Pursuant to Gaming Laws |
|
|
38 |
|
i
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|
|
| ARTICLE 4. COVENANTS |
|
|
39 |
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|
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|
Section 4.01. |
|
Payment of Notes |
|
|
39 |
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|
Section 4.02. |
|
Maintenance of Office or Agency |
|
|
39 |
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|
Section 4.03. |
|
Reports |
|
|
39 |
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Section 4.04. |
|
Compliance Certificate |
|
|
40 |
|
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|
Section 4.05. |
|
Stay and Extension Laws |
|
|
40 |
|
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|
Section 4.06. |
|
Corporate Existence |
|
|
41 |
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|
Section 4.07. |
|
Limitation on Status of Investment Company |
|
|
41 |
|
|
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|
Section 4.08. |
|
Payment for Consent |
|
|
41 |
|
|
|
|
|
|
|
Section 4.09. |
|
Additional Note Guarantees |
|
|
41 |
|
|
|
|
|
|
|
Section 4.10. |
|
Change of Control |
|
|
42 |
|
|
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|
|
|
Section 4.11. |
|
Asset Sales; Event of Loss |
|
|
43 |
|
|
|
|
|
|
|
Section 4.12. |
|
Limitation on Indebtedness |
|
|
45 |
|
|
|
|
|
|
|
Section 4.13. |
|
Limitation on Layered Indebtedness |
|
|
48 |
|
|
|
|
|
|
|
Section 4.14. |
|
Limitation on Liens |
|
|
49 |
|
|
|
|
|
|
|
Section 4.15. |
|
Limitation on Restricted Payments |
|
|
49 |
|
|
|
|
|
|
|
Section 4.16. |
|
Limitation on Dividend and Other Payment Restricted Affecting Restricted Subsidiaries |
|
|
52 |
|
|
|
|
|
|
|
Section 4.17. |
|
Limitation on Transaction with Affiliates |
|
|
54 |
|
|
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|
|
|
Section 4.18. |
|
Business Activities |
|
|
55 |
|
|
|
|
|
|
|
Section 4.19. |
|
Designation of Restricted and Unrestricted Subsidiaries |
|
|
55 |
|
|
|
|
|
|
|
Section 4.20. |
|
Certain Suspended Covenants |
|
|
56 |
|
|
|
| ARTICLE 5. SUCCESSORS |
|
|
56 |
|
|
|
|
|
|
|
Section 5.01. |
|
Merger, Consolidation and Sale of Assets |
|
|
56 |
|
|
|
|
|
|
|
Section 5.02. |
|
Successor Corporation Substituted |
|
|
57 |
|
|
|
| ARTICLE 6. DEFAULTS AND REMEDIES |
|
|
57 |
|
|
|
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|
|
|
Section 6.01. |
|
Events of Default |
|
|
57 |
|
|
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|
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|
|
Section 6.02. |
|
Acceleration |
|
|
59 |
|
|
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|
|
|
Section 6.03. |
|
Other Remedies |
|
|
59 |
|
|
|
|
|
|
|
Section 6.04. |
|
Waiver of Past Defaults |
|
|
60 |
|
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|
|
|
Section 6.05. |
|
Control by Majority |
|
|
60 |
|
ii
|
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|
|
|
|
|
|
|
|
Section 6.06. |
|
Limitation on Suits |
|
|
60 |
|
|
|
|
|
|
|
Section 6.07. |
|
Rights of Holders of Notes to Receive Payment |
|
|
60 |
|
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|
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|
|
|
Section 6.08. |
|
Collection Suit by Trustee |
|
|
61 |
|
|
|
|
|
|
|
Section 6.09. |
|
Trustee May File Proofs of Claim |
|
|
61 |
|
|
|
|
|
|
|
Section 6.10. |
|
Priorities |
|
|
61 |
|
|
|
|
|
|
|
Section 6.11. |
|
Undertaking for Costs |
|
|
62 |
|
|
|
|
|
|
|
Section 6.12. |
|
Reporting Defaults |
|
|
62 |
|
|
|
| ARTICLE 7. TRUSTEE |
|
|
62 |
|
|
|
|
|
|
|
Section 7.01. |
|
Duties of Trustee |
|
|
62 |
|
|
|
|
|
|
|
Section 7.02. |
|
Rights of Trustee |
|
|
63 |
|
|
|
|
|
|
|
Section 7.03. |
|
Individual Rights of Trustee |
|
|
65 |
|
|
|
|
|
|
|
Section 7.04. |
|
Trustee’s Disclaimer |
|
|
65 |
|
|
|
|
|
|
|
Section 7.05. |
|
Notice of Defaults |
|
|
65 |
|
|
|
|
|
|
|
Section 7.06. |
|
Reports by Trustee to Holders of the Notes |
|
|
65 |
|
|
|
|
|
|
|
Section 7.07. |
|
Compensation and Indemnity |
|
|
66 |
|
|
|
|
|
|
|
Section 7.08. |
|
Replacement of Trustee |
|
|
66 |
|
|
|
|
|
|
|
Section 7.09. |
|
Successor Trustee by Merger, etc |
|
|
67 |
|
|
|
|
|
|
|
Section 7.10. |
|
Eligibility; Disqualification |
|
|
67 |
|
|
|
|
|
|
|
Section 7.11. |
|
Preferential Collection of Claims Against Company |
|
|
68 |
|
|
|
| ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
|
|
68 |
|
|
|
|
|
|
|
Section 8.01. |
|
Option to Effect Legal Defeasance or Covenant Defeasance |
|
|
68 |
|
|
|
|
|
|
|
Section 8.02. |
|
Legal Defeasance and Discharge |
|
|
68 |
|
|
|
|
|
|
|
Section 8.03. |
|
Covenant Defeasance |
|
|
68 |
|
|
|
|
|
|
|
Section 8.04. |
|
Conditions to Legal or Covenant Defeasance |
|
|
69 |
|
|
|
|
|
|
|
Section 8.05. |
|
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions |
|
|
70 |
|
|
|
|
|
|
|
Section 8.06. |
|
Repayment to Company |
|
|
70 |
|
|
|
|
|
|
|
Section 8.07. |
|
Reinstatement |
|
|
71 |
|
|
|
| ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER |
|
|
71 |
|
|
|
|
|
|
|
Section 9.01. |
|
Without Consent of Holders of Notes |
|
|
71 |
|
|
|
|
|
|
|
Section 9.02. |
|
With Consent of Holders of Notes |
|
|
72 |
|
|
|
|
|
|
|
Section 9.03. |
|
Compliance with Trust Indenture Act |
|
|
73 |
|
|
|
|
|
|
|
Section 9.04. |
|
Revocation and Effect of Consents |
|
|
73 |
|
iii
|
|
|
|
|
|
|
|
|
|
|
Section 9.05. |
|
Notation on or Exchange of Notes |
|
|
74 |
|
|
|
|
|
|
|
Section 9.06. |
|
Trustee to Sign Amendments, etc |
|
|
74 |
|
|
|
|
|
|
|
Section 9.07. |
|
Reference in Notes to Supplemental Indentures |
|
|
74 |
|
|
|
| ARTICLE 10. NOTE GUARANTEES |
|
|
74 |
|
|
|
|
|
|
|
Section 10.01. |
|
Note Guarantees |
|
|
74 |
|
|
|
|
|
|
|
Section 10.02. |
|
Limitation on Liability; Termination, Release and Discharge |
|
|
76 |
|
|
|
|
|
|
|
Section 10.03. |
|
Right of Contribution |
|
|
77 |
|
|
|
|
|
|
|
Section 10.04. |
|
No Subrogation |
|
|
77 |
|
|
|
| ARTICLE 11. SATISFACTION AND DISCHARGE |
|
|
77 |
|
|
|
|
|
|
|
Section 11.01. |
|
Satisfaction and Discharge |
|
|
77 |
|
|
|
|
|
|
|
Section 11.02. |
|
Application of Trust Money |
|
|
78 |
|
|
|
| ARTICLE 12. MISCELLANEOUS |
|
|
79 |
|
|
|
|
|
|
|
Section 12.01. |
|
Trust Indenture Act Controls |
|
|
79 |
|
|
|
|
|
|
|
Section 12.02. |
|
Notices |
|
|
79 |
|
|
|
|
|
|
|
Section 12.03. |
|
Communication by Holders of Notes with Other Holders of Notes |
|
|
80 |
|
|
|
|
|
|
|
Section 12.04. |
|
Certificate and Opinion as to Conditions Precedent |
|
|
80 |
|
|
|
|
|
|
|
Section 12.05. |
|
Statements Required in Certificate or Opinion |
|
|
80 |
|
|
|
|
|
|
|
Section 12.06. |
|
Rules by Trustee and Agents |
|
|
81 |
|
|
|
|
|
|
|
Section 12.07. |
|
No Personal Liability of Directors, Officers, Employees and Stockholders |
|
|
81 |
|
|
|
|
|
|
|
Section 12.08. |
|
Governing Law |
|
|
81 |
|
|
|
|
|
|
|
Section 12.09. |
|
No Adverse Interpretation of Other Agreements |
|
|
81 |
|
|
|
|
|
|
|
Section 12.10. |
|
Successors |
|
|
81 |
|
|
|
|
|
|
|
Section 12.11. |
|
Severability |
|
|
82 |
|
|
|
|
|
|
|
Section 12.12. |
|
Counterpart Originals |
|
|
82 |
|
|
|
|
|
|
|
Section 12.13. |
|
Table of Contents, Headings, etc |
|
|
82 |
|
iv
FIRST SUPPLEMENTAL INDENTURE dated as of May 21, 2015 by and among Boyd Gaming Corporation,
a Nevada corporation (including any and all successors thereto, the “Company”), the Guarantors (as defined herein) and Wilmington Trust, National Association, as trustee (the “Trustee”).
THIS FIRST SUPPLEMENTAL INDENTURE CONTAINS ALL OF THE TERMS RELEVANT TO THE 6.875% SENIOR NOTES DUE 2023 OF BOYD GAMING CORPORATION. THE BASE
INDENTURE (AS DEFINED HEREIN), AS IT MAY BE AMENDED AND SUPPLEMENTED FROM TIME TO TIME, AS TO WHICH THE FIRST SUPPLEMENTAL INDENTURE SUPPLEMENTS, NEED NOT BE REFERRED TO WITH RESPECT TO THE TERMS OF THE 6.875% SENIOR NOTES DUE 2023 GOVERNED HEREBY.
WHEREAS, the Company, the Guarantors from time to time party thereto and the Trustee entered into an indenture in respect of the issuance
of Debt Securities (as defined herein) by the Company, dated as of May 21, 2015 (the “Base Indenture”);
WHEREAS,
Sections 2.01 and 9.01 of the Base Indenture provide that the Company and the Trustee may enter into a supplemental indenture to the Base Indenture for, among other things, the purpose of establishing the designation, form, terms and provisions of
the Debt Securities;
WHEREAS, clause (k) of Section 9.01 of the Base Indenture provides that the Company and the Trustee may
enter into a supplemental indenture to the Base Indenture to establish the form and terms of Debt Securities of any series as permitted by Section 2.01 of the Base Indenture;
WHEREAS, clause (o) of Section 9.01 of the Base Indenture provides that the Company and the Trustee may enter into a supplemental
indenture to the Base Indenture adding to, changing or eliminating any provision of the Base Indenture with respect to one or more series of Debt Securities; provided, that any such addition, change or elimination (a) shall neither
(i) apply to any Debt Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the holder of any such Debt Security with respect to
such provision or (b) shall become effective only when there is no Debt Security described in clause (a) Outstanding (as defined below);
WHEREAS, at the time this supplemental indenture (the “Supplemental Indenture”) is being executed and delivered there are no
Debt Securities that are outstanding which are entitled to the benefit of such provision and as to which this Supplemental Indenture would apply;
WHEREAS, the Company desires to establish and issue a new series of Debt Securities, the Company’s 6.875% Senior Notes due 2023 (the
“Notes”), pursuant to the Base Indenture, as modified by this Supplemental Indenture; and
WHEREAS, the Company desires
to enter into this Supplemental Indenture pursuant to Sections 2.01 and 9.01 of the Base Indenture (i) to supplement the Base Indenture, (ii) to establish the form, terms and provisions of the Notes and (iii) to make deletions,
modifications and additions to the Base Indenture with respect to (and only with respect to) the Notes as contemplated by Sections 2.01 and 9.01 of the Base Indenture.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto, for the benefit of each
other and for the equal and proportionate benefit of all Persons who hereafter become Holders of the Notes, hereby enter into this Supplemental Indenture which amends, modifies, supplements and restates in its entirety (except solely for the
provisions of the Base Indenture which authorize the creation of this Supplemental Indenture) the Base Indenture with respect to (and only with respect to) the Notes, as follows:
ARTICLE 1. DEFINITIONS AND INCORPORATION
BY REFERENCE
| Section 1.01. |
Definitions. |
“Acquired Debt” means, with respect to any specified
Person, (1) Indebtedness of another Person and any of such other Person’s Subsidiaries existing at the time such other Person becomes a Subsidiary of the specified Person or at the time it merges or consolidates with the specified Person
or any of the specified Person’s Subsidiaries or is assumed by the specified Person or any Subsidiary of the specified Person in connection with the acquisition of assets from such other Person and (2) Indebtedness secured by a Lien
encumbering any asset acquired by the specified Person, in each case, to the extent that such Indebtedness is not Incurred by the specified Person or any Subsidiary of the specified Person or such other Person in connection with, or in anticipation
or contemplation of, such other Person becoming a Subsidiary of the specified Person or such acquisition, merger or consolidation.
“Additional Assets” means: (1) any Property (other than cash, cash equivalents or securities) to be owned by the Company
or a Restricted Subsidiary and used in a Related Business; (2) the costs of improving, restoring, replacing or developing any Property owned by the Company or a Restricted Subsidiary which is used or usable in a Related Business; or
(3) Investments in any other Person engaged primarily in a Related Business (including the acquisition from third parties of Capital Stock of such Person) as a result of which such other Person becomes a Restricted Subsidiary and satisfies the
requirements for a Restricted Subsidiary set forth below in the definition of Restricted Subsidiary.
“Additional
Interest” means all amounts, if any, payable pursuant to the provisions relating to additional interest described under Section 6.12 as the sole remedy for an Event of Default relating to the failure to comply with the reporting
obligations pursuant to Section 4.03 and for any failure to comply with the requirements of Section 314(a) of the TIA.
“Additional Notes” means any Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections
2.01 and 2.13 and subject to compliance with Article 4.
“Affiliate” means, with respect to any Person, a Person
(i) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such Person, (ii) which directly or indirectly through one or more intermediaries beneficially owns or
holds 10% or more of any class of the Voting Stock of such Person (or a 10% or greater equity interest in a Person which is not a corporation) or (iii) of which 10% or more of any class of the Voting Stock (or, in the case of a Person which is
not a corporation, 10% or more of the equity interest) is beneficially owned or held directly or indirectly through one or more intermediaries by such Person. The term “control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent” means any Registrar, Paying Agent or co-registrar.
“Applicable Premium” means, with respect to any Note, on any redemption date, the greater of:
(a) 1.0% of the principal amount of the Note; or
2
(b) the excess of:
(i) the present value at such redemption date of (x) the redemption price of the Note at May 15, 2018 plus
(y) all required interest payments due on the Note through May 15, 2018 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis
points; over
(ii) the principal amount of the Note, if greater.
Applicable Premium shall be determined by the Company, and the Trustee shall have no obligation to confirm or verify such determination.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note,
the rules and procedures of the Depositary that apply to such transfer or exchange.
“Asset Sale” means the sale,
conveyance, transfer, lease or other disposition, whether in a single transaction or a series of related transactions (including, without limitation, dispositions pursuant to Sale/Leaseback Transactions or pursuant to the merger of the Company or
any of its Restricted Subsidiaries with or into any person other than the Company or one of its Restricted Subsidiaries), by the Company or one of its Restricted Subsidiaries to any Person other than the Company or one of its Restricted Subsidiaries
of:
(a) any of the Capital Stock or other ownership interests of any Restricted Subsidiary of the Company (other than directors’
qualifying shares or shares required by law to be held by a Person other than the Company or a Restricted Subsidiary); or
(b) any other
Property of the Company or any Property of its Restricted Subsidiaries, in each case not in the ordinary course of business of the Company or such Restricted Subsidiary.
Notwithstanding the foregoing, the following items will not be deemed to be Asset Sales:
(a) any single transaction or series of related transactions that involves assets having a Fair Market Value of $100,000,000 or less;
(b) any issuance or other such disposition of Capital Stock or other ownership interests of any Restricted Subsidiary to the Company or
another Restricted Subsidiary;
(c) any such disposition of Property between or among the Company and its Restricted Subsidiaries;
(d) the sale or other disposition of cash or Temporary Cash Investments;
(e) any exchange of like Property pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended, for use in a Related
Business;
(f) a Restricted Payment that is permitted by Section 4.15;
(g) the disposition of all or substantially all of the assets of the Company in a manner permitted by Section 4.11 and 5.01 or any
disposition that constitutes a Change of Control;
(h) the sale or discount, in each case without recourse (direct or indirect), of
accounts receivable arising in the ordinary course of business of the Company or such Restricted Subsidiary, as the case may be, but only in connection with the compromise or collection thereof;
3
(i) sales or grants of licenses or sublicenses to use trademarks, know-how, patents and any other
intellectual property or intellectual property rights to the extent not materially interfering with the business of the Company and its Restricted Subsidiaries;
(j) dispositions that occur in the ordinary course of the Company’s or a Restricted Subsidiary’s business in connection with
Permitted Liens;
(k) any sale of inventory or other assets or any disposition of any obsolete, damaged or worn out property, equipment or
assets (including the abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Board of Directors, no longer economically practicable to maintain or useful in the conduct of the business of the Company and
its Restricted Subsidiaries);
(l) the disposition of receivables in connection with the compromise, settlement or collection thereof;
(m) foreclosures, condemnation or any similar action on assets or the granting of Liens permitted by Section 4.14; or
(n) any surrender or waiver of contractual rights or the settlement, release, recovery on or surrender of contract, tort or other claims of
any kind that occur in the ordinary course of the Company’s or any Restricted Subsidiary’s business.
“Attributable
Indebtedness” means Indebtedness deemed to be Incurred in respect of a Sale/ Leaseback Transaction and shall be, at the date of determination, the present value (discounted at the actual rate of interest implicit in such transaction,
compounded annually), of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such lease has been extended).
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Base Indenture” has the meaning assigned to it in the Recitals to this Supplemental Indenture.
“Board of Directors” means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of
such Board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors, to be in full force and effect on the date of such certification and delivered to the Trustee.
“Borgata Joint Venture” means Marina District Development Holding Co., LLC and its successors and assigns.
“Boyd Family” means William S. Boyd, any direct descendant or spouse of such person, or any direct descendant of such spouse,
and any trust or other estate in which each person who has a beneficial interest, directly or indirectly through one or more intermediaries, in Capital Stock of the Company is one of the foregoing persons.
“Business Day” means any day other than a Legal Holiday.
4
“Capital Lease Obligations” means Indebtedness represented by obligations under
a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP and the amount of such Indebtedness shall be the capitalized amount of such obligations determined in accordance with GAAP. For purposes of
Section 4.14, Capital Lease Obligations shall be deemed secured by a Lien on the Property being leased. For the avoidance of doubt, any lease obligation that would not be required to be classified and accounted for as a capital lease obligation
under GAAP as in effect as of the date hereof shall not be treated as a Capital Lease Obligation even if such lease obligation would be required to be classified and accounted for as a capital lease obligation under generally accepted accounting
principles in the United States of America as in effect at any time after the date hereof, whether such lease obligation was entered into before or after the date hereof.
“Capital Stock” means, with respect to any Person, any and all shares or other equivalents (however designated) of corporate
stock, partnership interests or any other participation, right, warrants, options or other interest in the nature of an equity interest in such Person, but excluding any debt security convertible or exchangeable into such equity interest.
“Change of Control” shall be deemed to occur if:
(a) any “person” or “group” (within the meaning of Sections 13(d)(3) and 14(d)(2) of the Exchange Act or any successor
provision to either of the foregoing, including any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the Permitted Holders and other than a
Restricted Subsidiary, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act, except that a Person shall be deemed to have “beneficial ownership” of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the passage of time) of 50% or more of the total voting power of all classes of the Voting Stock of the Company and/or warrants or options to acquire such Voting Stock, calculated
on a fully diluted basis; provided that for purposes of this clause (1), the members of the Boyd Family shall be deemed to beneficially own any Voting Stock of a corporation held by any other corporation (the “parent
corporation”) so long as the members of the Boyd Family beneficially own (as so defined), directly or indirectly through one or more intermediaries, in the aggregate 50% or more of the total voting power of the Voting Stock of the parent
corporation;
(b) the sale, lease, conveyance or other transfer of all or substantially all of the Property of the Company (other than to
any Restricted Subsidiary), determined on a consolidated basis, shall have occurred;
(c) the stockholders of the Company shall have
approved any plan of liquidation or dissolution of the Company; or
(d) the Company consolidates with or merges into another Person or any
Person consolidates with or merges into the Company in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is reclassified into or exchanged for cash, securities or other property, other than any such
transaction where:
(i) the outstanding Voting Stock of the Company is reclassified into or exchanged for Voting Stock of
the surviving corporation that is Capital Stock; and
(ii) the holders of the Voting Stock of the Company immediately prior
to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction in substantially the same proportion as before the transaction.
5
“Change of Control Time” means the earlier of the public announcement of
(1) a Change of Control or (2) (if applicable) the Company’s intention to effect a Change of Control.
“Change of
Control Triggering Event” means both a Change of Control and a Rating Decline; provided, however, that a Change of Control Triggering Event shall not be deemed to have occurred if (i) at the Change of Control Time the
Notes have Investment Grade Status and (ii) the Company effects defeasance of the Notes pursuant to Article 8 prior to a Rating Decline.
“Clearstream” means Clearstream Banking, S.A.
“Company” means Boyd Gaming Corporation, a Nevada corporation, and any and all successors thereto.
“Consolidated EBITDA” means, for any period, without duplication, the sum of:
(a) Consolidated Net Income;
(b) to the extent Consolidated Net Income has been reduced thereby: (i) Consolidated Fixed Charges; (ii) provisions for taxes based
on income; (iii) consolidated depreciation expense; (iv) consolidated amortization expense; (v) all preopening expenses paid or accrued; and (vi) other noncash items reducing Consolidated Net Income, and minus other noncash items
increasing Consolidated Net Income; and
(c) an estimate of the amount (determined in good faith by the Company) of business interruption
insurance expected to be collected with respect to such period, whether or not (i) any applicable insurance carrier has designated all or any portion of any expected recovery as attributable to business interruption coverage as opposed to other
types of coverage, and (ii) the affected operations are classified as discontinued operations or any such operations have been or are being disposed of, minus any business interruption insurance received or expected to be received and included
in the calculation of Consolidated Net Income for such period;
all as determined on a consolidated basis for the Company and its Restricted Subsidiaries
in conformity with GAAP; provided that, (i) from and after the date the Company and any of its Restricted Subsidiaries enters into any management agreement pursuant to which such Person is paid management fees, such management fees shall
be annualized, and (ii) with respect to each Project, from and after the date of any Project Opening, that portion of the Consolidated EBITDA which is attributable to the applicable Project owned and operated by the Company or any of its
Restricted Subsidiaries shall be annualized. In computing such annualization, for the period from and after entering into any management agreement or from and after any Project Opening, as applicable, until the end of the fourth full fiscal quarter
thereafter shall be treated as one accounting period and annualized.
“Consolidated Fixed Charge Coverage Ratio” means
the ratio of Consolidated EBITDA during the Reference Period to the aggregate amount of Consolidated Fixed Charges during the Reference Period.
“Consolidated Fixed Charges” means, for any period, the total interest expense of the Company and its Restricted Subsidiaries
including:
(a) the interest component of Capital Lease Obligations, which shall be deemed to accrue at any interest rate reasonably
determined by the Company to be the rate of interest implicit in such Capital Lease Obligations,
6
(b) one-third of the rental expense attributable to operating leases,
(c) amortization of Indebtedness discount and commissions, discounts and other similar fees and charges owed with respect to Indebtedness,
(d) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing,
(e) net costs pursuant to Interest Rate Agreements,
(f) dividends on all Preferred Stock of Restricted Subsidiaries held by Persons other than the Company or a Restricted Subsidiary,
(g) interest attributable to the Indebtedness of any other Person for which the Company or any Restricted Subsidiary is responsible or liable
as obligor, guarantor or otherwise; plus
(h) the product of:
(i) dividends on all Preferred Stock of Restricted Subsidiaries held by Persons other than the Company or a Restricted
Subsidiary and any dividend or distribution, whether in cash, Property or securities, on Disqualified Stock of the Company (other than dividends paid in Capital Stock that is not Disqualified Stock); times
(ii) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal,
state and local statutory income tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP.
minus interest income. In addition, Consolidated Fixed Charges shall not include (w) non-cash interest expense, (x) deferred financing costs
amortized or written off, and premiums and prepayment penalties and other fees, premiums or reserves paid in connection with any refinancing or repayment of Indebtedness, any amendment, supplement, consent or waiver in connection with any
Indebtedness, or any acquisition, disposition or financing; (y) any expensing of commitment and other financing fees or (z) write-offs relating to termination of Interest Rate Agreements. For the avoidance of doubt and consistent with
GAAP, Consolidated Fixed Charges shall not include any capitalized interest.
“Consolidated Net Income” means for any
period, the net income (loss) of the Company and its Subsidiaries determined in accordance with GAAP; provided, however, that the following items shall be excluded from the computation of Consolidated Net Income:
(a) any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except that, subject to the limitations contained in
(c) below:
(i) the net income (or, if applicable, the Company’s equity in the net income) of any such Person for
such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (b) below); and
(ii) the Company’s equity in a net loss of any such Person (other than an Unrestricted Subsidiary) for such period shall
be included in determining such Consolidated Net Income;
7
(b) any net income (loss) of any Restricted Subsidiary if such Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Company, except that:
(i) subject to the limitations contained in (c) below, the Company’s equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash that could have been distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a
dividend (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause); and
(ii) the Company’s equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income;
(c) any gain or loss realized upon the sale or other disposition of any Property of the Company or its
consolidated Subsidiaries (including pursuant to any Sale/Leaseback Transaction) which is not sold or otherwise disposed of in the ordinary course of business and any gain or loss realized upon the sale or other disposition of any Capital Stock of
any Person;
(d) accruals and reserves that are established or adjusted, in each case within 12 months of the subject transaction, as a
result of any acquisition, Investment, asset disposition, write down or write off (including the related tax benefit) in accordance with GAAP (including any adjustments of estimated payouts on earn-outs);
(e) items classified as extraordinary or any non-cash item classified as nonrecurring;
(f) any non-cash charges related to fair value adjustments;
(g) expenses or charges relating to the amortization of intangibles;
(h) deferred financing costs amortized or written off, and premiums and prepayment penalties and any gain or loss realized in connection with
any refinancing or repayment of Indebtedness, any amendment, supplement, consent or waiver in connection with any Indebtedness, or any acquisition, disposition or financing; and
(i) the cumulative effect of a change in accounting principles.
For purposes of calculating Consolidated Net Income, any non-recurring charges or expenses of such Person or of a company or business acquired
by such Person (in each case, including but not limited to those relating to severance, relocation costs and one time compensation charges and any charges or expenses in connection with conforming accounting policies or reaudited, combining or
restating financial information), in each case, incurred in connection with or as a result of the purchase or acquisition of such acquired company or business by such Person shall be added to the Consolidated Net Income of such Person, to the extent
any such charges or expenses were deducted in computing such Consolidated Net Income of such Person.
“Consolidated Total
Assets” of any Person as of any date means the total assets of such Person and its Restricted Subsidiaries as of the most recent fiscal quarter end for which a consolidated balance sheet of such Person and its Restricted Subsidiaries is
available, calculated on a consolidated basis in accordance with GAAP.
8
“Core Business” means (i) the gaming, card club, racing, sports,
entertainment, leisure, amusement, lodging, restaurant, retail operations, service station operations, riverboat operations, real estate development and all other businesses and activities necessary for or reasonably related or incident thereto,
including, without limitation, related acquisition, construction, development or operation of related truck stop, transportation, retail and other facilities designed to enhance any of the foregoing and online or internet gaming, and (ii) any
of the types of preexisting businesses being operated on land acquired (whether by purchase, lease or otherwise) by the Company or any Restricted Subsidiary, or similar types of businesses conducted by the Company or such Restricted Subsidiary after
such acquisition of land, and all other businesses and activities necessary for or reasonably related or incident thereto; provided that such land was acquired by the Company or such Restricted Subsidiary for the purpose, determined in good
faith by the Company, of ultimately conducting a business or activity described in clause (i) above at some time in the future.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 12.02 or such other
address as to which the Trustee may give notice to the Company.
“Credit Facility” means (i) the Third Amended and
Restated Credit Agreement, dated as of August 14, 2013, by and among the Company, the financial institutions named therein, Bank of America, National Association, as administrative agent and letter of credit issuer, and Wells Fargo Bank,
National Association, as swing line lender, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified
from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or indenture or indentures or any
successor or replacement agreement or agreements or indenture or indentures or increasing or decreasing the amount loaned or issued thereunder or altering the maturity thereof and (ii) whether or not the Credit Agreement referred to in clause
(i) remains outstanding, if designated by the Company to be included in the definition of Credit Facility, one or more (a) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (b) debt securities, indentures or other forms of debt financing
(including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (c) instruments or agreements evidencing any other Indebtedness (including without limitation any Sale/Leaseback Transaction), in each
case, with the same or different borrowers or issuers and, in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.
“Currency Exchange Protection Agreement” means, in respect of a Person, any foreign exchange contract, currency swap
agreement, currency option or other similar agreement or arrangement designed to protect such Person against fluctuations in currency exchange rates.
“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“Debt Securities” means “Notes” as such term is defined in the Base Indenture.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with
Section 2.05, which Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
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“Depositary” means, with respect to the Notes issuable or issued in whole or in
part in global form, the Person specified in Section 2.02 as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this
Indenture.
“Development Services” means, with respect to any Qualified Facility (as such term is defined in the
definition of Qualified Investment), the provision (through retained professionals or otherwise) of development, design or construction services with respect to such Qualified Facility.
“Disqualified Stock” of a Person means any Capital Stock of such Person (i) that by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable) or otherwise, (a) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (b) is or may become redeemable or repurchaseable at the
option of the holder thereof, in whole or in part, or (c) is convertible or exchangeable or exercisable for Indebtedness and (ii) as to which the maturity, mandatory redemption, conversion or exchange or redemption at the option of the
holder thereof occurs, or may occur, in the case of each of clauses (i) or (ii) on or prior to the first anniversary of the Stated Maturity of the Notes; provided, however, that such Capital Stock of the Company or any of its
Subsidiaries shall not constitute Disqualified Stock if it is redeemable prior to the first anniversary of the Stated Maturity of the Notes only if (a) the holder or a beneficial owner of such Capital Stock is required to qualify under the
Gaming Laws and does not so qualify, or (b) the Board of Directors determines in its reasonable, good faith judgment, as evidenced by a Board Resolution, that as a result of a holder or beneficial owner owning such Capital Stock, the Company or
any of its Subsidiaries has lost or may lose any Gaming License, which if lost or not reinstated, as the case may be, would have a material adverse effect on the business of the Company and its Subsidiaries, taken as a whole, or would restrict the
ability of the Company or any of its Subsidiaries to conduct business in any gaming jurisdiction.
“Domestic Subsidiary”
means any Restricted Subsidiary of the Company that was formed under the laws of the United States of America or any state of the United States of America or the District of Columbia.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear system.
“Event of Loss” means, with respect to any Property with a Fair Market Value of more than $100,000,000, any loss, destruction
or damage of such Property, or any condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such Property, or confiscation or requisition of the use of such Property.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing Indentures” means collectively, (1) the Indenture dated as of November 10, 2010 among the Company, the
Guarantors party thereto and U.S. Bank National Association, as trustee, relating to the 9 1/8% Senior Notes due 2018; and (2) the Indenture dated as of June 8, 2012 among the Company, the Guarantors party thereto and U.S. Bank
National Association, as trustee, relating to the 9% Senior Notes due 2020; each as in effect on the Issue Date and each as amended, modified or supplemented.
“Fair Market Value” means with respect to any Property, the price which could be negotiated in an arm’s-length free
market transaction, between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value will be determined, except as otherwise provided: (1) if such Property has a
Fair Market Value of $25,000,000 or less, by any Officer of the Company; or (2) if such Property has a Fair Market Value in excess of $25,000,000, by a majority of the Board of Directors and evidenced by a Board Resolution, dated within 30 days
of the relevant transaction (or the date of the written agreement with respect to such transaction).
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“GAAP” means accounting principles generally accepted in the United States of
America in effect on the date of this Indenture.
“FF&E” means furniture, fixtures or equipment.
“Gaming Authority” means any of the Nevada Gaming Commission, the Nevada State Gaming Control Board, the Louisiana Gaming
Control Board, Louisiana State Racing Commission, the Mississippi Gaming Commission, the New Jersey Casino Control Commission, the New Jersey Division of Gaming Enforcement, the Illinois Gaming Board, the Indiana Gaming Commission and any other
agency (including, without limitation, any agency established by a federally-recognized Indian tribe to regulate gaming on such tribe’s reservation), authority, board, bureau, commission, department, office or instrumentality of any nature
whatsoever which has, or may at any time after the date of this Indenture have, jurisdiction over the gaming activities of the Company or any of its Subsidiaries or any successor to such authority.
“Gaming Facility” means any gaming or pari-mutuel wagering establishment and other Property or assets directly ancillary
thereto or used in connection therewith, including any building, restaurant, hotel, theater, parking facilities, gas stations, retail shops, convenience stores, spa, land, golf courses, hunting facilities, sporting clay courses and other recreation
and entertainment facilities, vessel, barge, ship and equipment or 100% of the equity interest of a Person the primary business of which is ownership and operation of any of the foregoing.
“Gaming Laws” means the gaming laws of a jurisdiction or jurisdictions to which the Company or any of its Subsidiaries is, or
may at any time after the date of this Indenture be, subject.
“Gaming License” means any license, permit, franchise or
other authorization from any governmental authority required on the date of this Indenture or at any time thereafter to own, lease, operate or otherwise conduct the gaming business of the Company and its Subsidiaries, including all licenses granted
under Gaming Laws and other Legal Requirements.
“Global Note Legend” means the legend set forth in Section 2.05(f),
which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and
collectively, each of the Global Notes issued in accordance with Section 2.05(b)(ii), 2.05(d) or 2.05(f).
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness
of any other Person and any obligation, direct or indirect, contingent or otherwise, of such first Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising
by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise) or (ii) entered into for the purpose of assuring
in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee”
shall not include (a) endorsements for collection or deposit in the ordinary course of business; or (b) any obligation in the nature of a completion guaranty which is limited solely to an obligation to complete the development,
construction or opening of any new Gaming Facility entered into on behalf of any Person in which a Qualified Investment has been made by the Company or any Restricted Subsidiary. The term “Guarantee” used as a verb has a corresponding
meaning.
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“Guarantors” means any Subsidiary of the Company that gives a Note Guarantee in
accordance with the provisions of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.
“Holder” means a Person in whose name a Note is registered.
“Incur” means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (by conversion,
exchange or otherwise), extend, assume, Guarantee or become liable in respect of such Indebtedness or other obligation or the recording, as required pursuant to GAAP or otherwise, of any such Indebtedness or obligation on the consolidated balance
sheet of such Person including by merger or operation of law (and “Incurrence,” “Incurred,” “Incurrable” and “Incurring” shall have meanings correlative to the foregoing).
“Indebtedness” means (without duplication), with respect to any Person, any indebtedness, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the lender is to the whole of the Property of such Person or only to a portion thereof), or the principal amount of such indebtedness evidenced by bonds, notes, debentures or
similar instruments or representing the balance deferred and unpaid of the purchase price of any property (excluding any balances that constitute customer advance payments and deposits, accounts payable or trade payables, and other accrued
liabilities arising in the ordinary course of business) if and to the extent any of the foregoing indebtedness would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included (i) any Capital Lease Obligations; (ii) Indebtedness of other Persons secured by a Lien to which the Property owned or held by such Person is subject, whether or not the obligation or obligations secured thereby
shall have been assumed (the amount of such Indebtedness being deemed to be the lesser of the value of such Property or the amount of the Indebtedness so secured); (iii) Guarantees of Indebtedness of other Persons; (iv) any Disqualified
Stock; (v) any Attributable Indebtedness; (vi) all obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments or credit transactions issued for the account of such Person (including
reimbursement obligations with respect thereto), other than obligations with respect to letters of credit securing obligations (other than obligations described in this definition) of such Person to the extent such letters of credit are not drawn
upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit; (vii) in the case of the
Company, Preferred Stock of its Restricted Subsidiaries; and (viii) obligations pursuant to any Interest Rate Agreement or Currency Exchange Protection Agreement.
Notwithstanding the foregoing, Indebtedness shall not include any pay-in-kind interest or accrued interest or earn out obligations or other
contingent consideration until due and payable or (ii) any indebtedness of (x) Diamond Jo, LLC under that certain Minimum Assessment Agreement, dated as of October 1, 2007, by and among the City of Dubuque, Iowa, Diamond Jo, LLC and
the City Assessor of the City of Dubuque, Iowa, or (y) Kansas Star Casino, LLC under that certain Developer’s Agreement, dated as of March 7, 2011, by and between Kansas Star Casino, LLC and the City of Mulvane, Kansas, in each case
as amended, renewed, repurchased, extended, substituted, refinanced or replaced from time to time so long as the principal amount (or accreted value, if applicable) of such indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the indebtedness amended, renewed, repurchased, extended, substituted, refinanced or replaced (plus all accrued interest on the indebtedness and the amount of all fees and expenses, including premiums, incurred in connection
therewith). For purposes of this definition, the maximum fixed repurchase price of any Disqualified Stock or Preferred
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Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock
were repurchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture; provided, however, that if such Disqualified Stock or Preferred Stock is not then permitted to be repurchased, the
repurchase price shall be the book value of such Disqualified Stock or Preferred Stock. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the
maximum liability of any other obligations described in clauses (i) through (viii) above in respect thereof at such date.
“Indenture” means the Base Indenture, as supplemented by this Supplemental Indenture, in each case as amended or supplemented
from time to time.
“Independent Advisor” means, an investment banking firm of national standing with non-investment
grade debt underwriting experience or any accounting firm or third party appraiser of national standing; provided, however, that any such firm or appraiser is not an Affiliate of the Company.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes” means the $750,000,000 aggregate principal amount of Notes issued under this Indenture on the Issue Date.
“Interest Rate Agreement” means, for any Person, any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar agreement or arrangement.
“Investment” by any Person means any direct or indirect
loan, advance or other extension of credit or capital contribution (by means of transfers of cash or other Property to others or payments for Property or services for the account or use of others), in connection with the performance of obligations
under any completion guaranty or otherwise, to, or Incurrence of a Guarantee of any obligation of, or purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Indebtedness issued by, any other Person,
including the designation by the Board of Directors to be an Unrestricted Subsidiary. The amount of any Investment shall be the original cost of such Investment, plus the cost of all additions thereto, and minus the amount of any portion of such
Investment repaid to the Person making such Investment in cash as a repayment of principal or a return of capital, as the case may be, but without any other adjustments for increases or decreases in value, write-ups, write-downs or write-offs with
respect to such Investment. In determining the amount of any Investment in respect of any Property other than cash, such Property shall be valued at its Fair Market Value at the time of such Investment. Notwithstanding the foregoing, the purchase or
acquisition of any securities, Indebtedness or Additional Assets of any other Person solely with Capital Stock (other than Disqualified Stock) shall not be deemed to be an Investment.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s (or any successor
to the rating agency business thereof) and BBB– (or the equivalent) by S&P (or any successor to the rating agency business thereof).
“Investment Grade Status” means any time at which the ratings of the Notes by each of Moody’s (or any successor to the
rating agency business thereof) and S&P (or any successor to the rating agency business thereof) are Investment Grade Ratings.
“Issue Date” means May 21, 2015.
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“Legal Holiday” means a Saturday, a Sunday or a day on which banking
institutions in the cities of New York, New York and Las Vegas, Nevada or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.
“Legal Requirements” means all laws, statutes and ordinances and all rules, orders, rulings, regulations, directives,
decrees, injunctions and requirements of all governmental authorities, that are now or may hereafter be in existence, and that may be applicable to the Company or any Subsidiary or Affiliate thereof or the Trustee (including building codes, zoning
and environmental laws, regulations and ordinances and Gaming Laws), as modified by any variances, special use permits, waivers, exceptions or other exemptions which may from time to time be applicable.
“Lien” means with respect to any Property of any Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement (other than any easement not materially impairing usefulness or marketability), encumbrance, preference, priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital Lease Obligation, conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing). Any Sale/Leaseback Transaction
shall be deemed to constitute a Lien on the Property which is the subject of such Sale/Leaseback Transaction securing the Attributable Indebtedness represented thereby.
“Moody’s” means Moody’s Investors Service, Inc.
“NASDAQ” means the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market.
“Net Cash Proceeds” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale,
net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes
paid or payable as a result thereof.
“Net Proceeds” from any Asset Sale or Event of Loss by any Person or its Restricted
Subsidiaries means cash and cash equivalents received in respect of the Property sold or with respect to which an Event of Loss occurred, excluding business interruption or delay in completion insurance proceeds, and net of:
(a) all reasonable out-of-pocket expenses of such Person or such Restricted Subsidiary incurred in connection with an Asset Sale or Event of
Loss, including, without limitation, all legal, title and recording tax expenses, commissions and fees and expenses incurred (but excluding any finder’s fee or broker’s fee payable to any Affiliate of such Person) and all Federal, state,
provincial, foreign and local taxes arising in connection with such Asset Sale or Event of Loss that are paid or required to be accrued as a liability under GAAP by such Person or its Restricted Subsidiaries;
(b) all payments made by such Person or its Restricted Subsidiaries on any Indebtedness which is secured by such Property in accordance with
the terms of any Lien upon or with respect to such Property or which must, by the terms of such Lien, or in order to obtain a necessary consent to such Asset Sale or by applicable law, be repaid out of the proceeds from such Asset Sale or Event of
Loss;
(c) appropriate amounts to be provided by such Person or its Restricted Subsidiaries, as a reserve, in accordance with GAAP,
against any liabilities associated with such Asset Sale or Event of
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Loss and retained by such Person or its Restricted Subsidiaries including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters
and liabilities under any indemnification obligations associated with such Asset Sale or Event of Loss; and
(d) all contractually
required distributions and other payments made to minority interest holders (but excluding distributions and payments to Affiliates of such Person) in Restricted Subsidiaries of such Person as a result of such Asset Sale or Event of Loss;
provided, however, that, in the event that any consideration for an Asset Sale or Event of Loss (which would otherwise constitute Net Proceeds)
is required to be held in escrow pending determination of whether a purchase price adjustment will be made, such consideration (or any portion thereof) shall become Net Proceeds only at such time as it is released to such Person or its Restricted
Subsidiaries from escrow; and provided, further, that any noncash consideration received in connection with an Asset Sale or Event of Loss which is subsequently converted to cash shall be deemed to be Net Proceeds at and from the time
of such conversion.
“Non-Recourse Indebtedness” means Indebtedness of a Person to the extent that under the terms
thereof or pursuant to applicable law:
(1) no personal recourse shall be had against such Person for the payment of the principal of or
interest or premium, if any, on such Indebtedness; and
(2) enforcement of obligations on such Indebtedness is limited only to recourse
against interests in Property purchased with the proceeds of the Incurrence of such Indebtedness and as to which neither the Company nor any of its Restricted Subsidiaries provides any credit support or is liable.
“Note Guarantee” means the Guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes
set forth in Article 10, including as a result of execution of a supplemental indenture.
“Notes” has the meaning
assigned to it in the Recitals to this Indenture. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under this Indenture except for redemption rights and obligations. Unless the context otherwise
requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“Offering” means the
offering of the Notes by the Company.
“Officer” means the Chief Executive Officer, President, Treasurer, any Executive
Vice President, Senior Vice President or any Vice President of the Company.
“Officers’ Certificate” means a
certificate signed by two Officers at least one of whom shall be the principal executive officer, principal accounting officer or principal financial officer of the Company.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee that meets the
requirements of Section 12.05. The counsel may be an employee of or counsel to the Company, any Guarantor or the Trustee.
“Outstanding” when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated
and delivered under this Indenture, except:
(a) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
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(b) Notes for whose payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture;
(c) Notes as to which defeasance has
been effected pursuant to Section 8.02 or 8.03; and
(d) Notes which have been paid pursuant to Section 2.06 or in exchange for
or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a
bona fide purchaser in whose hands such Notes are valid obligations of the Company;
provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Notes have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) if, as of such date, the principal
amount payable at the Stated Maturity of a Note is not determinable, the principal amount of such Note which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 2.01, of the principal
amount of such Note and (B) Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Company
or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor.
“Pari Passu Indebtedness”
means:
(a) with respect to the Company, any Indebtedness which ranks pari passu in right of payment with the Notes; and
(b) with respect to any Guarantor, any Indebtedness which ranks pari passu in right of payment with such Guarantor’s Note Guarantee.
The determination of whether any Indebtedness ranks pari passu in right of payment shall not take into account whether or not such
Indebtedness is secured by any collateral.
“Participant” means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and with respect to DTC, shall include Euroclear and Clearstream).
“Peninsula Restricted Subsidiary Designation” means the designation of Peninsula Gaming, LLC, a Delaware limited liability
company, as a Restricted Subsidiary under the Indenture; provided that the portion of Consolidated EBITDA for the Reference Period ending immediately prior to such designation which is attributable to Peninsula Gaming, LLC and its Restricted
Subsidiaries exceeds $130,000,000 (calculated on a pro forma basis as if such designation occurred on the first day of such Reference Period).
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“Permitted FF&E Financings” means Indebtedness of the Company or any of its
Restricted Subsidiaries that is Incurred to finance FF&E used directly in the operation of a Gaming Facility owned or leased by the Company or its Restricted Subsidiaries and secured by a Lien on such FF&E in an amount not to exceed 100% of
the cost of the FF&E so purchased or leased.
“Permitted Holders” means the Boyd Family and any group (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act) comprised solely of members of the Boyd Family.
“Permitted
Investment” means an Investment by the Company or any Restricted Subsidiary in:
(a) a Restricted Subsidiary or a Person which
will, upon the making of such Investment, become a Restricted Subsidiary; provided, however, that the primary business of such Restricted Subsidiary is a Core Business or a Related Business;
(b) another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary; provided, however, that such Person’s primary business is a Core Business or a Related Business;
(c) Temporary Cash Investments;
(d) receivables owing to the Company or any Restricted Subsidiary, if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms, including without limitation credit extended to customers; provided, however, that such trade terms may include such concessionary trade terms as the Company or any such
Restricted Subsidiary deems reasonable under the circumstances;
(e) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(f) loans or advances to employees made in the ordinary course of business consistent with past practices of the Company or such Restricted
Subsidiary, as the case may be;
(g) stock, obligations or securities received in settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in satisfaction of judgments;
(h) any Investment existing on, or made
pursuant to binding commitments existing on, the Issue Date or an Investment consisting of any extension, modification or renewal of any Investment existing on the Issue Date so long as such extension, modification or renewal does not increase the
Investment as in effect at the Issue Date or is not materially adverse to the interests of the Holders;
(i) securities received pursuant
to clause (b) of Section 4.11;
(j) Investments consisting of the licensing or contribution of intellectual property pursuant to
joint marketing arrangements with other Persons in the ordinary course of business;
(k) Investments consisting of or to finance purchases
and acquisitions of inventory, supplies, materials, services or equipment or purchases of contract rights or licenses or leases of intellectual property in the ordinary course of business;
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(l) Qualified Investments; provided that at the time such Qualified Investment is made and
giving pro forma effect thereto (A) the Consolidated Fixed Charge Coverage Ratio of the Company on the date of the Investment would have been greater than 2.5 to 1 and (B) no Default or Event of Default would exist; provided,
however, that, if an Investment in any Person made pursuant to this clause (l) would, at any time after the date such Investment is made, cease to qualify as a Qualified Investment due to a failure to satisfy the requirements of
clause (b) of the definition of Qualified Investment, then the Company will be deemed to have made an Investment equal to the value of its Investment in such Person at such time (valued in each case as provided in the definition of Investment)
and the value of such Investment at such time will, for the period such Investment does not so qualify, be included in the calculation of the aggregate amount of Restricted Payments referenced under Section 4.15(a)(iii);
(m) payments with respect to a Guarantee or other extension of credit that qualified as a Qualified Investment at the time the Guarantee was
given or extension of credit was made, unless such Guarantee or extension of credit no longer qualifies as a Qualified Investment due to a failure to satisfy the requirements of clause (b) of the definition of Qualified Investment;
(n) any guarantee of Indebtedness permitted by Section 4.12;
(o) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other
Persons in the ordinary course of business;
(p) any Investment required by a Gaming Authority or made in lieu of payment of a tax or in
consideration of a reduction in tax;
(q) Investments of a Person existing at the time such Person is acquired, becomes a Restricted
Subsidiary or is merged or consolidated with the Company or any Restricted Subsidiary in accordance with Section 5.01 after the Issue Date to the extent that such Investments were not made in contemplation of or in connection with such
acquisition, designation, redesignation, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(r) Investments in an aggregate principal amount not to exceed $23,100,000 of Urban Renewal Tax Increment Revenue Bonds, Taxable Series 2007
of the City of Dubuque, Iowa issued as of October 16, 2007 pursuant to that certain Official Statement, dated October 1, 2007, as such bonds may be renewed, extended, substituted, refinanced or replaced, so long as the principal amount of
the aggregate Investment does not exceed the amount of the aggregate Investment outstanding on the Issue Date (plus an amount equal to all accrued interest of such bonds and the amount of all fees and expenses, including premiums, incurred in
connection with any renewal, extension, substitution, refinancing or replacement of such bonds); and
(s) transfers by the Company or a
Restricted Subsidiary to an Unrestricted Subsidiary of operational agreements (including, without limitation, slot machine leases, technical assistance services agreements, trademark and trade names licenses, management services agreements and
royalty agreements) or other agreements (or rights under agreements) entered into in the ordinary course of business between the Company or a Restricted Subsidiary, on the one hand, and an Unrestricted Subsidiary, on the other hand.
“Permitted Liens” means:
(a) Liens securing Indebtedness and other obligations under the Credit Facility in an amount not to exceed the amount of Indebtedness
permitted to be Incurred pursuant to Section 4.12(b)(iii);
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(b) Liens to secure Indebtedness permitted by Section 4.12(b)(viii) covering only the assets
acquired with or financed by such Indebtedness;
(c) Liens in favor of the Company or any Guarantor;
(d) Liens for taxes, assessments or governmental charges or levies on the Property of the Company or any Restricted Subsidiary if the same
shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings;
(e) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and other similar Liens which secure payment
of obligations arising in the ordinary course of business;
(f) Liens in favor of issuers of performance bonds and surety bonds obtained
in the ordinary course of business;
(g) other Liens incidental to the conduct of its business or the ownership of its Properties which
were not created in connection with the Incurrence of Indebtedness or the obtaining of advances or credit and which do not in the aggregate materially detract from the value of its Properties or materially impair the use thereof in the operation of
its business, including without limitation leases, subleases, licenses and sublicenses;
(h) Liens arising from Uniform Commercial Code
financing statements regarding operating leases;
(i) pledges or deposits under workmen’s compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which the Company or any Restricted Subsidiary is a party, or deposits to secure public or
statutory obligations of the Company or any Restricted Subsidiary, or deposits for the payment of rent, or deposits to secure liability to insurance carriers, in each case Incurred in the ordinary course of business;
(j) minor survey exceptions;
(k) utility easements, building or zoning restrictions and such other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character and do not materially detract from the value of such Property;
(l)
Liens existing on the Issue Date (other than Liens securing Indebtedness);
(m) Liens securing obligations to a trustee pursuant to the
compensation and indemnity provisions of any indenture and Liens created for the benefit of (or to secure) the Notes or the Note Guarantees;
(n) Liens on cash, cash equivalents, and other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(o) Liens (including extensions and renewals thereof) upon real or tangible personal property acquired by that Person after the date of
this Indenture; provided that
(i) any such Lien is created solely for the purpose of securing Indebtedness
representing, or Incurred to finance, refinance or refund, all costs (including the cost of construction, installation or improvement) of the item of Property subject thereto;
19
(ii) the principal amount of the Indebtedness secured by such Lien does not
exceed 100% of that cost;
(iii) any such Lien does not extend to or cover any other Property other than that item of
Property and any improvements on that item or is otherwise a Permitted Lien under the final clause (ii) of this definition; and
(iv) the Incurrence of that Indebtedness is permitted under Section 4.12;
(p) Liens on any property to secure all or part of the cost of improvements or construction thereon or Indebtedness incurred to provide funds
for that purpose in a principal amount not exceeding the cost of those improvements or construction;
(q) Liens upon specific items of
inventory or other goods and proceeds of that Person securing that Person’s obligations in respect of bankers’ acceptances issued or created for the account of that Person to facilitate the purchase, shipment or storage of that inventory
or other goods;
(r) Liens securing reimbursement obligations with respect to commercial letters of credit issued for the account of that
Person which encumber documents and other Property relating to those commercial letters of credit and the products and proceeds thereof;
(s) Liens securing obligations under Currency Exchange Protection Agreements that are not in violation of this Indenture;
provided that with respect to such obligations relating to Indebtedness, such Lien extends only to the property securing such Indebtedness;
(t) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the
importation of goods by that Person;
(u) licenses, leases or subleases granted to others not interfering in any material adverse respect
with the business of that Person or any of its Subsidiaries;
(v) Liens encumbering Property or assets of that Person under construction
arising from progress or partial payments by a customer of that Person or one of its Subsidiaries relating to that Property or assets;
(w) Liens encumbering customary initial deposits and margin accounts, and other Liens incurred in the ordinary course of business and which
are within the general parameters customary in the gaming industry;
(x) Liens encumbering deposits made to secure obligations arising
from statutory or regulatory requirements of that Person or its Subsidiaries;
(y) Liens of a collection bank arising under
Section 4-210 of the Uniform Commercial Code on items in the course of collection, in favor of a banking institution, financial institution, or securities intermediary arising as a matter of law encumbering deposits (including the right of
setoff) and which are within the general parameters customary in the banking industry or otherwise relate to depositary relations with such institution or intermediary, and securing customary cash management obligations not otherwise prohibited by
this Indenture;
20
(z) Liens on cash collateral required to be deposited pursuant to the terms of the Credit
Facility to secure the funding obligations of any defaulting lender, including cash collateral deposited with respect to any unreimbursed drawing under a letter of credit;
(aa) any interest or title of a lessor in the Property subject to any Capitalized Lease Obligation or operating lease which, in each case, is
permitted under this Indenture or purchase money Indebtedness which is permitted to be incurred under Section 4.12;
(bb) Liens
arising out of conditional sale, title retention consignment or similar arrangements for the sale of goods entered into by that Person or any of its Subsidiaries in the ordinary course of business;
(cc) Liens for judgments or orders not giving rise to an Event of Default and deposits to secure surety or appeal bonds;
(dd) Liens on Property of a Person existing at the time such Person is acquired, becomes a Restricted Subsidiary or is merged or consolidated
with the Company or any Restricted Subsidiary; provided that such Liens were in existence prior to the contemplation of such acquisition, merger or consolidation, and were not created in connection therewith or in anticipation thereof, to the
extent that such Liens do not extend to any additional Property or assets of the Company or any Restricted Subsidiary;
(ee) pledges or
deposits made by such Person in connection with any letter of intent or purchase agreement;
(ff) Liens deemed to exist in connection with
Investments in repurchase agreements; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreements;
(gg) Any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar
arrangement pursuant to any joint venture or similar agreement;
(hh) Liens securing Permitted Refinancing Indebtedness permitted to be
Incurred under this Indenture; provided that such Liens extend only to the Property or assets of the Company or any Restricted Subsidiary encumbered by the refinanced Indebtedness unless the Incurrence of such Liens is otherwise permitted
under this Indenture; and
(ii) Liens not specified in the foregoing; provided that the aggregate Indebtedness secured by the Liens
under this clause (ii) does not exceed 7.5% of the Company’s Consolidated Total Assets at any one time outstanding as of the date any such Lien is granted or otherwise becomes effective in reliance on this clause (ii) (for the
avoidance of doubt, Liens Incurred in reliance on this clause (ii) may secure Indebtedness in an amount in addition to Indebtedness that is also secured by Liens Incurred in reliance on one or more other clauses of this definition).
“Permitted Refinancing Indebtedness” means any renewals, repurchases, redemptions, extensions, substitutions, refinancings or
replacements of any Indebtedness of the Company or any of its Restricted Subsidiaries, including any successive extensions, renewals, substitutions, refinancings or replacements (and including refinancings by the Company of Indebtedness of a
Restricted Subsidiary):
(a) to the extent that the principal amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, repurchased, redeemed, extended, substituted, refinanced or replaced (plus all accrued interest on the Indebtedness and the amount of
all fees and expenses, including premiums, incurred in connection therewith);
21
(b) so long as the Weighted Average Life to Maturity and stated maturity is not shortened; and
(c) so long as the new Indebtedness is not be senior in right of payment to the Indebtedness that is being renewed, repurchased,
redeemed, extended, substituted, refinanced or replaced;
provided, however, that Permitted Refinancing Indebtedness shall not include Indebtedness
of the Company or any Guarantor that refinances Indebtedness of a Subsidiary that is not a Guarantor.
“Person” means any
individual, corporation, company (including limited liability company), partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Preferred Stock” means any Capital Stock of a Person, however designated, which entitles the holder thereof to a preference
with respect to dividends, distributions or liquidation proceeds of such Person over the holders of other Capital Stock issued by such Person.
“Project” means any new facility developed or being developed by the Company or any of its Restricted Subsidiaries or any
expansion, renovation or refurbishment of a facility owned by the Company or any of its Restricted Subsidiaries which expansion, renovation or refurbishment cost or is reasonably expected to cost $100,000,000 or more.
“Project Opening” means, with respect to (a) any Project which is a new facility, when all of the following have
occurred: (i) a certificate of occupancy (which may be a temporary certificate of occupancy) has been issued in respect of such Project and, if such Project includes gaming facilities, then such certificate of occupancy need only relate to such
gaming facilities and not the remainder of such Project; (ii) such Project (or the gaming facility portion thereof in the case of a Project that includes gaming facilities and not the remainder of such Project) is in a condition (including
installment of furnishings, fixtures and equipment) to receive customers in the ordinary course of business; (iii) if such Project includes gaming facilities, such gaming facilities (but not necessarily the hotel facilities if a hotel is
contemplated to accompany such Project’s gaming facilities) are legally open for business and to the general public and operating in accordance with applicable law; and (iv) all Gaming Licenses, if applicable, with respect to such Project
have been granted and not revoked or suspended, and (b) any Project which is an expansion, renovation or refurbishment, when clauses (ii), (iii) and (iv) have occurred, to the extent applicable.
“Property” means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible, including, without limitation, Capital Stock in any other Person (but excluding Capital Stock or other securities issued by such first Person).
“Public Equity Offerings” means an underwritten public offering of Capital Stock of the Company pursuant to an effective
registration statement under the Securities Act.
22
“Qualified Investment” means an Investment by the Company or any of its
Restricted Subsidiaries in any Person primarily engaged or preparing to engage in a Core Business or a Related Business; provided that: (a) the primary purpose for which such Investment was made was to finance or otherwise facilitate the
development, construction or acquisition of a facility (a “Qualified Facility”) that (i) is located in a jurisdiction in which the conduct of gaming using electronic gaming devices is permitted pursuant to applicable law and
(ii) conducts or, following such development, construction or acquisition, will conduct gaming utilizing electronic gaming devices or is related to, ancillary or supportive of, connected with or arising out of such gaming business; (b) the
Company and any of its Restricted Subsidiaries at the time of the Investment (i) own in the aggregate at least 35.0% of the outstanding Voting Stock of such Person or (ii) (x) control the day-to-day gaming operation of such Person
pursuant to a written agreement and (y) provide or have provided Development Services with respect to the applicable Qualified Facility; and (c) none of the Permitted Holders or any Affiliate of such Persons, other than the Company or any
of its Subsidiaries, is a direct or indirect obligor, contingently or otherwise, of any Indebtedness of such Person or a direct or indirect holder of any Capital Stock of such Person, other than through their respective ownership interests in the
Company.
“Qualified Non-Recourse-Debt” means Indebtedness:
(a) as to which neither the Company nor any of its Restricted Subsidiaries (A) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness), or (B) is directly or indirectly liable as a guarantor or otherwise; provided, however, that the provision by the Company of a completion guaranty or the making of
payments with respect thereto, in each case, to the extent permitted under Section 4.15, shall not prevent any Indebtedness from constituting Qualified Non-Recourse Debt;
(b) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any Indebtedness of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to
be accelerated or payable prior to its stated maturity; and
(c) as to which the lenders have been notified in writing that they will not
have any recourse to the stock or assets of the Company or any of its Restricted Subsidiaries.
“Rating Agencies” means
S&P and Moody’s or any successor to the respective rating agency businesses thereof.
“Rating Decline” shall
have occurred if at any date within 90 calendar days after the date of public disclosure of the occurrence of a Change of Control (which period will be extended for so long as the Company’s debt ratings are under publicly announced review for
possible downgrading (or without an indication of the direction of a possible ratings change) by either Moody’s or S&P or their respective successors) the Notes no longer have Investment Grade Status.
“Reference Period” means the period of four consecutive fiscal quarters ending with the last full fiscal quarter immediately
preceding the date of a proposed Incurrence, Restricted Payment or other transaction for which financial statements are available.
“Related Business” means the business conducted (or proposed to be conducted) by the Company and its Subsidiaries in
connection with any Gaming Facility and any and all reasonably related businesses necessary for, in support, furtherance or anticipation of and/or ancillary to or in preparation for, such business including, without limitation, the development,
expansion or operation of any Gaming Facility (including any land-based, dockside, riverboat or other type of casino), owned, or to be owned, leased or managed by the Company or one of its Subsidiaries.
23
“Related Person” means any legal or beneficial owner of 5% or more of any class
of Capital Stock of the Company or any of its Subsidiaries.
“Responsible Officer,” when used with respect to the
Trustee, means any officer within the Corporate Trust Office of the Trustee (or any successor group of the Trustee) 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 and in each case who shall have direct
responsibility for the administration of this Indenture.
“Restricted Payment” means:
(a) any dividend or distribution (whether made in cash, Property or securities) declared or paid on or with respect to any shares of Capital
Stock of the Company or to the Company’s stockholders with respect to any shares of Capital Stock of the Company except for such dividends or distributions payable solely in Capital Stock of the Company (other than Disqualified Stock of the
Company);
(b) a payment made by the Company or any Restricted Subsidiary (other than to the Company or a Restricted Subsidiary) to
purchase, redeem, acquire or retire any Capital Stock of the Company or Capital Stock of any Affiliate of the Company or any warrants, rights or options, to directly or indirectly purchase or acquire any such Capital Stock or any securities
exchangeable for or convertible into any such Capital Stock;
(c) a payment made by the Company or any Restricted Subsidiary after the
Issue Date to redeem, repurchase, defease or otherwise acquire or retire for value, prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment (other than the redemption, purchase, repurchase, defeasance or other
acquisition of any Indebtedness subordinate in right of payment to the Notes or any Note Guarantee made in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within twelve months of the
date of such payment), Indebtedness of the Company or any Guarantor which is subordinate (whether pursuant to its terms or by operation of law) in right of payment to the Notes or any Note Guarantee;
(d) any Investment (other than a Permitted Investment) in any Person; or
(e) any “Restricted Payment” as defined in any of the Existing Indentures that was made after March 31, 1997 and prior to the
Issue Date, including Investments in excess of $100,000,000 in the Borgata Joint Venture.
“Restricted Subsidiary” means
any Subsidiary of the Company that (a) has not been designated by the Board of Directors as an Unrestricted Subsidiary, or (b) was an Unrestricted Subsidiary but has been redesignated by the Board of Directors as a Restricted Subsidiary,
in each case as provided under the definition of Unrestricted Subsidiary; provided, however, that no Subsidiary shall be redesignated from an Unrestricted Subsidiary to a Restricted Subsidiary unless, immediately after giving pro forma effect
to such designation, the Company would be able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.12(a).
“S&P” means Standard & Poor’s Ratings Group, a division of the McGraw-Hill Companies, Inc.
24
“Sale/Leaseback Transaction” means, with respect to any Person, any direct or
indirect arrangement pursuant to which Property is sold or transferred by such Person or a Restricted Subsidiary of such Person and is thereafter leased back from the purchaser or transferee thereof by such Person or one of its Restricted
Subsidiaries.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Significant Subsidiary” means any Subsidiary of the Company that:
(a) guarantees or otherwise provides direct credit support for any Indebtedness of the Company; or
(b) is a Domestic Subsidiary and a “Significant Subsidiary” as defined in the Credit Facility.
“Stated Maturity” means the date specified in the Note as the fixed date on which a payment of principal of the Note is due
and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of the Note at the option of the Holder thereof upon the happening of any contingency unless such contingency has
occurred).
“Subsidiary” of any Person means any corporation, association, partnership, limited liability company or
other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (1), such Person, (2) such Person and one or more Subsidiaries of such Person, or (3) one or more Subsidiaries of such Person.
“Supplemental Indenture” has the meaning assigned to it in the Recitals to this first Supplemental Indenture.
“Temporary Cash Investments” means any of the following:
(a) Investments in U.S. Government Obligations maturing within 90 days of the date of acquisition thereof;
(b) Investments in time deposit accounts, certificates of deposit and money market deposits maturing within 90 days of the date of acquisition
thereof issued by a bank or trust company which is organized under the laws of the United States of America or any state thereof having capital, surplus and undivided profits aggregating in excess of $500,000,000 and whose long-term debt is rated
“A-3” or higher, “A–” or higher or “A–” or higher according to Moody’s, S&P or Fitch Credit Rating Co. (or such similar equivalent rating by at least one “nationally recognized statistical rating
organization” (as defined in Rule 436 under the Securities Act)), respectively;
(c) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause (a) above entered into with a bank meeting the qualifications described in clause (b) above;
(d) Investments in commercial paper, maturing not more than 90 days after the date of acquisition, issued by a corporation (other than the
Company or an Affiliate of the Company) organized and in existence under the laws of the United States of America with a rating at the time as of which any
25
Investment therein is made of “P-1” (or higher) according to Moody’s, “A-1” (or higher) according to S&P or “A-1” (or higher) according to Fitch Credit
Rating Co. (or such similar equivalent rating by at least one “nationally recognized statistical rating organization” (as defined in Rule 436 under the Securities Act)); and
(e) Investments in money market funds substantially all of whose assets comprise securities of the types described in clauses (a) through
(d) above.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on
the date on which the Base Indenture is qualified under the TIA, except as provided in Section 9.03.
“Treasury
Rate” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15
(519) that has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period
from the redemption date to May 15, 2018; provided, however, that if the period from the redemption date to May 15, 2018, is less than one year, the weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year will be used.
“Trustee” means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unrestricted Subsidiary” means (i) any Subsidiary of the Company which at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of Directors in compliance with this Indenture) and (ii) any Subsidiary of an Unrestricted Subsidiary. As of the Issue Date, each of: Boyd Acquisition I, LLC, a Delaware limited liability
company, Boyd Acquisition II, LLC, a Delaware limited liability company, OED Acquisition, LLC, a Delaware limited liability company, Peninsula Gaming, LLC, a Delaware limited liability company, BYDSSE Gaming, LLC, a Florida limited liability
company, Boyd Interactive Gaming, a Nevada corporation, and each Subsidiary of each such Person is an Unrestricted Subsidiary. For the avoidance of doubt, as of the Issue Date, Borgata Joint Venture is not a Restricted Subsidiary.
“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the
issuer’s option.
“Voting Stock” means securities of any class or classes of a Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for corporate directors (or Persons performing equivalent functions).
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by
dividing:
(a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at final maturity, in respect of the Indebtedness, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making
of such payment; by
(b) the then outstanding principal amount of such Indebtedness.
26
| Section 1.02. |
Other Definitions. |
|
|
|
| Term |
|
Defined
in Section |
|
|
| “Affiliate Transaction” |
|
4.17 |
| “Authentication Order” |
|
2.01 |
| “Change of Control Offer” |
|
4.10 |
| “Change of Control Payment” |
|
4.10 |
| “Change of Control Payment Date” |
|
4.10 |
| “Covenant Defeasance” |
|
8.03 |
| “DTC” |
|
2.02 |
| “Effective Covenants” |
|
4.20 |
| “Event of Default” |
|
6.01 |
| “Excess Proceeds” |
|
4.11 |
| “Funding Guarantor”
“Guarantor Obligations” “Legal
Defeasance” |
|
10.03
10.01 8.02 |
| “Paying Agent” |
|
2.02 |
| “Prepayment Offer” |
|
4.11 |
| “Registrar” |
|
2.02 |
| “Successor” |
|
5.01 |
| “Suspended Covenants” |
|
4.20 |
| Section 1.03. |
Incorporation by Reference of Trust Indenture Act. |
Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in
this Indenture have the following meanings:
“indenture securities” means the Notes;
“indenture security holder” means a Holder of a Note;
“indenture to be qualified” means this Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor
upon the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
| Section 1.04. |
Rules of Construction. |
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
27
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) provisions apply to successive events and transactions;
(f) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement or successor sections or
rules adopted by the SEC from time to time; and
(g) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness.
| Section 1.05. |
Conflicts with Base Indenture |
In the event that any provision of this Supplemental
Indenture limits, qualifies or conflicts with a provision of the Base Indenture, such provision of this Supplemental Indenture shall control.
ARTICLE 2. THE NOTES
| Section 2.01. |
Form; Dating; Execution and Authentication. |
(a) General. The Notes and the
Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto.
The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes shall be in minimum denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Company and
the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of the Indenture shall govern and be controlling.
(b) Global Notes. Each Global Note, substantially in the form of
Exhibit A attached hereto, shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section
2.05.
(c) Execution. At least one Officer shall sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
28
A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
(d) Authentication. The Trustee
will, upon receipt of a written order of the Company signed by an Officer (an “Authentication Order”), authenticate and deliver Notes for an original issue in an aggregate principal amount specified in the written order of the
Company pursuant to this Section 2.01. Such Authentication Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of the Notes is to be authenticated. The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company, pursuant to one or more Authentication Orders, except as provided in Section 2.06.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the
Company.
| Section 2.02. |
Registrar and Paying Agent. |
The Company shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying
agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes. The Company may change the Registrar and Paying Agent without prior notice to the Holders of the Notes.
| Section 2.03. |
Paying Agent to Hold Money in Trust. |
The Company shall require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, interest or Additional Interest, if any, on the
Notes, and will notify the Trustee of any default by the Company in making any such payment. The Trustee and any Paying Agent (other than the Company) may assume that no Additional Interest is payable unless it has received written notice from the
Company or a Holder that Additional Interest is due and payable. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
29
| Section 2.04. |
Holder Lists. |
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least 5 Business Days
before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company shall
otherwise comply with TIA § 312(a).
| Section 2.05. |
Transfer and Exchange. |
(a) Transfer and Exchange of Global Notes. A Global Note
may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchangeable by the Company for Definitive Notes if (i) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary or (ii) there
has occurred and is continuing an Event of Default and the holder thereof has requested such exchange. Upon the occurrence of the preceding events in (i) or (ii) above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.06 and 2.09. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant
to this Section 2.05 or Section 2.06 or 2.09, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.05(a);
provided however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.05(b) or (c). Neither the Company nor the Trustee shall be liable for any delay by the Holder of a Global Note or the
Depositary in identifying holders of beneficial interests in the Global Notes.
(b) Transfer and Exchange of Beneficial Interests in
the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Transfers of beneficial
interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in a Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.05(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.05(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable
30
Procedures containing information regarding the Participant account to be credited with such increase or (B) (1) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this Section, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.05(g).
(c) Transfer or Exchange of Beneficial Interests in Global Notes for Definitive Notes. If any holder of a beneficial interest in an
Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in
Section 2.05(b)(ii), the Trustee shall cause the aggregate principal amount of the Global Note to be reduced accordingly pursuant to Section 2.05(g), and the Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.05(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to
the Persons in whose names such Notes are so registered.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests in
Global Notes. A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Global Note at any
time. Upon receipt of a request for such an exchange or transfer, together with the Definitive Note accompanied by an executed assignment in the form attached to the Note or otherwise satisfactory to the Trustee, the Trustee shall cancel the
applicable Definitive Note and upon receipt of proper instructions initiated by such Holder through the applicable procedures at the Depositary, the Trustee shall increase or cause to be increased the aggregate principal amount of one of the Global
Notes.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such
Holder’s compliance with the provisions of this Section 2.05(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form attached to the Note or as otherwise satisfactory to the Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.05(e). A Holder of Definitive Notes
may transfer such Notes to a Person who takes delivery thereof in the form of an Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Definitive Notes pursuant to the instructions from the Holder
thereof.
(f) Global Note Legend. Each Global Note issued under this Indenture shall bear a legend on its face in substantially the
following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
31
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.05 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.05(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY.”
(g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular
Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.10. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Company’s order or at the Registrar’s request.
(ii) No service charge shall
be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.09, 3.06 and 9.05).
(iii) The Registrar shall not be required to register the transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes
issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid and legally binding obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v) Notwithstanding anything
contained herein to the contrary, neither the Trustee nor the Registrar shall be responsible for ascertaining whether any transfer complies with the registration provisions of or exemptions from the Securities Act, applicable state securities laws
or other applicable law.
(vi) Neither the Registrar nor the Company shall be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening of business
32
15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (B) to register the transfer of or
to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding
interest payment date.
(vii) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any
Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the contrary.
(viii) The Trustee shall authenticate
Global Notes and Definitive Notes in accordance with the provisions of Section 2.01.
(ix) All certifications,
certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.05 to effect a registration of transfer or exchange may be submitted by facsimile.
| Section 2.06. |
Replacement Notes. |
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, in the absence of notice to the Company or the Trustee that the Note has been acquired by a bona fide purchaser, the Company shall issue and the
Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s and the Company’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge a Holder for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
| Section 2.07. |
Outstanding Notes. |
The Notes Outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not
outstanding. Except as set forth in Section 2.08, a Note does not cease to be Outstanding because the Company or an Affiliate of the Company holds the Note; provided however, Notes held by the Company or a Subsidiary of the Company shall
not be deemed to be Outstanding for purposes of Section 3.07(b).
If a Note is replaced pursuant to Section 2.06, it ceases to
be Outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the
principal amount of any Note is considered paid under Section 4.01, it ceases to be Outstanding and interest on it ceases to accrue.
33
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds,
on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer Outstanding and shall cease to accrue interest.
| Section 2.08. |
Treasury Notes. |
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the Company, any Guarantor or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any Guarantor,
shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually
knows are so owned shall be so disregarded.
| Section 2.09. |
Temporary Notes. |
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Company considers appropriate
for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
| Section 2.10. |
Cancellation. |
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall dispose of such canceled Notes in its customary manner (consistent with all applicable legal requirements). Certification of the disposition of all canceled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
| Section 2.11. |
Defaulted Interest. |
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes. The
Company shall promptly notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment
date; provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall send to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. Notwithstanding the foregoing, any interest
which is paid prior to the expiration of the 30-day period set forth in Section 6.01(a) shall be paid to Holders as of the record date for the interest payment date for which interest has not been paid.
34
| Section 2.12. |
CUSIP, ISIN and Other Numbers. |
The Company in issuing the Notes may use
“CUSIP”, “ISIN” or other such numbers (if then generally in use) and, if it does so, the Trustee shall use the CUSIP, ISIN or other such numbers in notices of redemption or exchange as a convenience to Holders; provided
that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP, ISIN or other such numbers printed in the notice or on the Notes and that reliance may be placed only on the other identification numbers
printed on the Notes and any such redemption or exchange shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the CUSIP numbers.
| Section 2.13. |
Issuance of Additional Notes. |
The Company shall be entitled, from time to time, subject
to its compliance with Section 4.12, without the consent of any Holder, to issue Additional Notes under this Indenture with identical terms as the Notes issued on the Issue Date other than with respect to (i) the date of issuance,
(ii) the issue price, (iii) the amount of interest payable on the first interest payment date and (iv) any changes necessary to conform to and ensure compliance with the Securities Act (or other applicable securities laws). The
Initial Notes issued on the Issue Date and any Additional Notes shall be treated as a single class for all purposes under this Indenture.
With respect to any Additional Notes, the Company shall set forth in an Officers’ Certificate prepared pursuant to a resolution of the
Board of Directors, a copy of which shall be delivered to the Trustee, the following information:
(a) the aggregate principal amount of
such Additional Notes to be authenticated and delivered pursuant to this Indenture; and
(b) the issue price, the issue date and the CUSIP
or ISIN number of such Additional Notes; provided, however, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Internal
Revenue Code of 1986, as amended.
For the avoidance of doubt, in connection with any issuance of Additional Notes, the Company shall
deliver to the Trustee the documents contemplated by Sections 2.01(d) and 12.04.
ARTICLE 3. REDEMPTION AND PREPAYMENT
| Section 3.01. |
Notices to Trustee. |
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of such Note and Section 3.07, it shall furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date, an Officers’ Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the Notes to be redeemed, (iii) the redemption date, (iv) the principal amount of Notes to be redeemed and (v) the redemption price
| Section 3.02. |
Selection of Notes to Be Redeemed. |
If less than all of the Notes are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the Notes to be redeemed or purchased among the Holders of the Notes that are subject to such redemption or purchase on a pro rata basis unless otherwise required by law or
applicable
35
stock exchange requirements; provided that as long as DTC serves as Depositary for a Global Note, any redemption shall comply with DTC’s procedural requirements (provided that
the Trustee shall have no responsibility to ensure compliance with the procedural requirements of DTC).
The Trustee shall promptly notify
the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected shall be in minimum amounts of $1,000 or
whole multiples of $1,000 in excess thereof, except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. The Company is not required to transfer or exchange any Notes selected for redemption and may suspend
any transfers or exchanges of Notes for a period of 15 Business Day prior to selection of Notes to be redeemed.
| Section 3.03. |
Notice of Redemption. |
At least 15 days but not more than 60 days before a redemption
date, the Company shall send a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice issued is in
connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture.
The notice shall identify the Notes
(including CUSIP Numbers) to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c)
if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion (so long
as such amount is in a denomination of $1,000 or minimum integral multiples of $1,000 in excess thereof) shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption
are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Notes.
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company shall have delivered to the Trustee, at least 30 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such notice and providing a
form setting forth the information to be stated in such notice as provided in the preceding paragraph.
36
| Section 3.04. |
Effect of Notice of Redemption. |
A notice of redemption may be conditional. If the
redemption conditions specified in the redemption notice are not satisfied by the redemption date set forth therein, the Company may, as specified in the redemption notice, extend the redemption period or withdrawal the redemption notice or the
redemption notice may be deemed to be null and void.
| Section 3.05. |
Deposit of Redemption Price. |
On the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued interest and Additional Interest, if any, on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and accrued interest and Additional Interest, if any, on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest and Additional Interest, if any, on such
redemption date shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the
rate provided in the Notes and in Section 4.01.
| Section 3.06. |
Notes Redeemed in Part. |
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company’s written request, the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
| Section 3.07. |
Optional Redemption. |
(a) Except pursuant to clause (b) and (c) of this
Section 3.07, the Notes will not be redeemable prior to May 15, 2018.
On or after May 15, 2018, the Company may redeem all
or part of the Notes upon not less than 15 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Additional Interest, if any, on the Notes
redeemed, to the applicable redemption date (subject to the rights of Holders of the Notes on any relevant record date to receive interest due on the relevant interest payment date occurring on or prior to the redemption date), if redeemed during
the twelve-month period beginning on May 15 of the years indicated below:
|
|
|
|
|
| Year |
|
Percentage |
|
|
|
| 2018 |
|
|
105.156 |
% |
| 2019 |
|
|
103.438 |
% |
| 2020 |
|
|
101.719 |
% |
| 2021 and thereafter |
|
|
100.000 |
% |
37
(b) At any time prior to May 15, 2018, the Company may on any one or more occasions redeem
up to 35% of the aggregate principal amount of Notes at a redemption price of 106.875% of the principal amount, plus accrued and unpaid interest and Additional Interest, if any, to the redemption date, with the Net Cash Proceeds of one or more
Public Equity Offerings; provided that:
(i) at least 65% of the aggregate principal amount of the Notes remains
outstanding immediately after the occurrence of such redemption (excluding the Notes held by the Company and its Subsidiaries); and
(ii) the redemption occurs within 90 days of the date of the closing of such Public Equity Offering.
(c) At any time prior to May 15, 2018 the Company may also redeem all or a part of the Notes, upon not less than 15 nor more than 60
days’ prior notice to the Holders, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of the date of redemption, and accrued and unpaid interest and Additional Interest, if any, to
the date of redemption, subject to the rights of Holders of the Notes on any relevant record date to receive interest due on the relevant interest payment date occurring on or prior to the redemption date.
(d) Any optional redemption provided for in the Note shall be made pursuant to the provisions of Section 3.01 through 3.06.
| Section 3.08. |
Mandatory Redemption. |
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
| Section 3.09. |
Mandatory Disposition or Redemption Pursuant to Gaming Laws. |
If a Holder or beneficial
owner of a Note is required to be licensed, qualified or found suitable under applicable Gaming Laws and is not so licensed, qualified or found suitable within any time period specified by the applicable Gaming Authority, the Holder shall be
obligated, at the request of the Company, to dispose of such Holder’s Notes within a time period prescribed by the Company or such other time period prescribed by such Gaming Authority (in which event the Company’s obligation to pay any
interest after the receipt of such notice shall be limited as provided in such Gaming Laws). Thereafter, the Company shall have the right to redeem, on the date fixed by the Company for the redemption of such Notes, such Holder’s Notes at a
redemption price equal to the lesser of (1) the lowest closing sale price of the Notes on any trading day during the 120-day period ending on the date upon which the Company shall have received notice from a Gaming Authority of such
Holder’s disqualification or (2) the price at which such Holder or beneficial owner acquired such Notes, unless a different redemption price is required by such Gaming Authority, in which event such required price shall be the redemption
price. The Company is not required to pay or reimburse any Holder or beneficial owner of a Note for the costs of licensure, qualification or finding of suitability or investigation for such licensure, qualification or finding of suitability. Any
Holder or beneficial owner of a Note required to be licensed, qualified or found suitable under applicable Gaming Laws must pay all investigative fees and costs of the Gaming Authorities in connection with such licensure, qualification, finding of
suitability or application therefor.
38
ARTICLE 4. COVENANTS
| Section 4.01. |
Payment of Notes. |
The Company shall pay or cause to be paid the principal of, premium,
if any, interest and Additional Interest, if any, on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, interest and Additional Interest, if any, shall be considered paid on the date due if the Paying Agent,
if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. New York Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all such amounts.
The Company shall pay interest on overdue principal at the rate equal to 1% per annum in excess of the then applicable interest rate on
the Notes to the extent lawful; it shall pay interest on overdue installments of interest at the same rate to the extent lawful.
| Section 4.02. |
Maintenance of Office or Agency. |
The Company shall maintain in the United States of
America an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of 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 and surrenders may be made at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate
one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; 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 United States of America for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section 2.02.
(a) Whether or not required by the rules and regulations of the SEC, so long
as any Notes are outstanding, the Company shall furnish to the Trustee and the Holders within 15 days after the time periods specified in the SEC’s rules and regulations (i) all quarterly and annual reports, including financial information
that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to file such forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and, with respect to the annual information only, a report thereon by the Company’s certified independent accountants and (ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Company
were required to file such reports. In addition, whether or not required by the rules and regulations of the SEC, the Company shall file a copy of all such information and reports with the SEC for public availability within the time periods
specified in the SEC’s rules and regulations (unless the SEC will not accept such a filing) and will post the reports on its website within those time periods. The Company shall at all times comply with TIA § 314(a).
39
(b) If, at any time the Company is no longer subject to the periodic reporting requirements of
the Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in Section 4.03(a) with the SEC within the time periods specified above unless the SEC will not accept such a filing.
(c) The Company will not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing,
the SEC will not accept the Company’s filings for any reason, the Company will post the reports referred to in Section 4.03(a) and (b) on its website within the time periods that would apply if the Company were required to file those
reports with the SEC.
(d) Notwithstanding the foregoing, the Company will be deemed to have furnished such reports referred to above to
the Trustee and the Holders of Notes if (i) the Company has filed (or, in the case of a Form 8-K, furnished) such reports with the SEC via the EDGAR filing system and such reports are publicly available, or (ii) the reports are posted and
publicly available on the Company’s website.
(e) Delivery of such reports, information and documents to the Trustee pursuant to this
Section is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to certificates).
| Section 4.04. |
Compliance Certificate. |
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year (which fiscal year initially ends December 31, 2015), an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture and further stating, as to each such Officer signing such certificate, that
to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect thereto.
(b) The Company shall, so long as any of the Notes
are outstanding, deliver to the Trustee, not more than 30 days after any Officer becomes aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
| Section 4.05. |
Stay and Extension Laws. |
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture. The Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
40
| Section 4.06. |
Corporate Existence. |
Subject to Article 5, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Company or any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and franchises of the Company and its Restricted Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries, if the Board of Directors shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders.
| Section 4.07. |
Limitation on Status of Investment Company. |
The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, become an “investment company” (as that term is defined in the Investment Company Act of 1940, as amended), to the extent such status would subject the Company or any such Restricted Subsidiary to
regulation under the Investment Company Act, except for Restricted Subsidiaries established for the purpose of financing the operating businesses of the Company and its Subsidiaries.
| Section 4.08. |
Payment for Consent. |
Neither the Company nor any of its Subsidiaries shall directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is
offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
| Section 4.09. |
Additional Note Guarantees. |
If the Company or any of its Restricted Subsidiaries
acquires or creates a Significant Subsidiary, or any non-Guarantor Restricted Subsidiary becomes a Significant Subsidiary after the date of this Indenture, then such Restricted Subsidiary shall become a Guarantor and execute a supplemental indenture
and deliver to the Trustee an Opinion of Counsel satisfying the requirements of Sections 12.04 and 12.05 of this Indenture and stating that such supplemental indenture constitutes the legal, valid and binding obligation of such Guarantor within 30
days following the date on which it was acquired, created or otherwise became a Significant Subsidiary (or such longer period as may be required to obtain any necessary approvals under applicable Gaming Laws or other regulatory requirements). Any
Subsidiary that does not constitute a Significant Subsidiary need not become a Guarantor unless and until such time as it becomes a Significant Subsidiary. Notwithstanding the foregoing, to the extent any Significant Subsidiary is subject to the
terms of any instrument governing Acquired Debt, as in effect at the time of acquisition which instrument or restriction prohibits such Significant Subsidiary from issuing a Note Guarantee, such Significant Subsidiary shall not be required to
execute such a supplemental indenture until it is permitted to issue such Note Guarantee pursuant to the terms of such Acquired Debt. The Company shall use reasonable commercial efforts to obtain all approvals of any Gaming Authority necessary to
permit any Significant Subsidiary to become a Guarantor as promptly as practicable.
41
| Section 4.10. |
Change of Control |
(a) If (i) a Change of Control (if, at the Change of Control
Time, the Notes do not have Investment Grade Status) or (ii) a Change of Control Triggering Event (if, at the Change of Control Time, the Notes have Investment Grade Status) occurs, each Holder of Notes will have the right to require the
Company to repurchase all or any part (equal to $1,000 or a minimum integral multiple of $1,000 in excess of $1,000) of that Holder’s Notes pursuant to an offer (“Change of Control Offer”) on the terms set forth in this
Indenture. In the Change of Control Offer, the Company will offer a payment (“Change of Control Payment”) in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Additional
Interest, if any, on the Notes repurchased, to the date of purchase.
(b) Not later than 30 days following (i) any Change of Control
or (ii) in the event the Notes have Investment Grade Status at the earlier of the public announcement of (x) a Change of Control or (y) (if applicable) the Company’s intention to effect a Change of Control, a Change of Control
Triggering Event, the Company will send a notice (which notice may be conditional) to each Holder (with a copy to the Trustee) stating, among other things:
(i) that a Change of Control or Change of Control Triggering Event, as the case may be, has occurred and a Change of Control
Offer is being made pursuant to this Section 4.10 and that all Notes (or portions thereof) timely tendered will be accepted for payment;
(ii) the purchase price and the date at which the Change of Control Payment is to be made (“Change of Control Payment
Date”), which date will be no earlier than 15 days and, subject to the following sentence, no later than 60 days from the date such notice is mailed, pursuant to the procedures required by this Indenture and described in such notice;
(iii) that any Note (or portion thereof) accepted for payment (and for which payment has been duly provided on the Change of
Control Payment Date) pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(iv) that any Notes (or portions thereof) not tendered will continue to accrue interest;
(v) a description of the transaction or transactions constituting the Change of Control or Change of Control Triggering Event,
as the case may be; and
(vi) the procedures that Holders must follow in order to tender their Notes (or portions thereof)
for payment and the procedures that Holders must follow in order to withdraw an election to tender Notes (or portions thereof) for payment.
(c) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon such Change of Control, if a definitive
agreement is in place for the Change of Control at the time of the making of the Change of Control Offer. In addition, the Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the time and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control made by the Company and such third party purchases all Notes properly tendered and not withdrawn
under such Change of Control Offer.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control or Change of
42
Control Triggering Event, as the case may be. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company
will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict.
(e) On the Change of Control Payment Date, the Company will, to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions of
Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted together
with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
The paying agent will promptly send to each Holder of Notes properly tendered the Change of Control Payment, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal
amount of $1,000 or an integral multiple of $1,000 in excess of $1,000.
(f) The provisions described above that require the Company to
make a Change of Control Offer following a Change of Control will be applicable whether or not any other provisions of this Indenture are applicable. Except as described above with respect to a Change of Control, this Indenture does not contain
provisions that permit the Holders of the Notes to require that the Company repurchase or redeem the Notes in the event of a takeover, recapitalization or similar transaction.
(g) Prior to the occurrence of a Change of Control, the provisions under this Indenture relating to the Company’s obligation to make an
offer to purchase the Notes as a result of a Change of Control may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.
| Section 4.11. |
Asset Sales; Event of Loss. |
(a) Other than upon an Event of Loss, the Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale after the Issue Date, unless:
(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value of the Property subject to such Asset Sale; and
(ii) at least 75% of such
consideration consists of cash, Temporary Cash Investments or any stock or assets of the kind referred to in clause (1) or (3) of the definition of Additional Assets; provided, however, that for purposes of this clause (ii),
(x) the assumption of Indebtedness of the Company or a Restricted Subsidiary which is not subordinated to the Notes or any Note Guarantee shall be deemed to be Temporary Cash Investments if the Company, such Restricted Subsidiary and all other
Restricted Subsidiaries of the Company, to the extent any of the foregoing are liable with respect to such Indebtedness, are expressly released from all liability for such Indebtedness by the holder thereof in connection with such Asset Sale;
(y) any securities
43
or Notes received by the Company or such Restricted Subsidiary, as the case may be, from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Temporary Cash
Investments within 180 days of the date of such Asset Sale shall be deemed to be Temporary Cash Investments; and (z) the Company and its Restricted Subsidiaries may receive consideration in the form of securities exceeding 25% of the
consideration for one or more Asset Sales so long as the Company and its Restricted Subsidiaries do not hold such securities having an aggregate Fair Market Value in excess of the greater of $150,000,000 and 5% of Consolidated Total Assets of the
Company at any time outstanding.
(b) Upon an Event of Loss incurred by the Company or any of its Restricted Subsidiaries, the Net
Proceeds received from such Event of Loss shall be applied in the same manner as proceeds from Asset Sales described in clause (c) below and pursuant to the procedures set forth in clause (c) below.
(c) Within 360 days after the receipt of the Net Proceeds of an Asset Sale or Event of Loss, an amount equal to 100% of the Net Proceeds from
such Asset Sale or Event of Loss may be applied by the Company or a Restricted Subsidiary to do one or both of the following:
(i) repay, redeem or repurchase senior Indebtedness of the Company or any Guarantor, including Indebtedness under the Credit
Facility or the Notes and, in the case of any such repayment under any revolving credit or other facility that permits future borrowings, effect a corresponding reduction in the availability or commitments; or
(ii) reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with
Net Proceeds received by the Company or another Restricted Subsidiary);
provided, however, reinvestments in Additional Assets after the
occurrence of an Event of Loss and prior to the receipt of the Net Proceeds of such Event of Loss shall be included as reinvestments pursuant to clause (ii); provided, further, however, that if the Company or any Restricted Subsidiary
contractually commits within such 360-day period to apply such Net Proceeds within 180 days of such contractual commitment in accordance with the above clause (i) and/or (ii), and such Net Proceeds are subsequently applied as contemplated in
such contractual commitment, then the requirement for application of Net Proceeds set forth in this clause (c) shall be considered satisfied.
(d) Any Net Proceeds from an Asset Sale or Event of Loss that are not used in accordance with the preceding paragraph shall constitute excess
proceeds (“Excess Proceeds”). When the aggregate amount of Excess Proceeds exceeds $100,000,000, the Company shall make an offer to purchase (the “Prepayment Offer”) from all Holders of the Notes, and, at the
election of the Company, the Holders of any other Pari Passu Indebtedness containing comparable repurchase rights, an aggregate principal amount of Notes and, if applicable, such other Pari Passu Indebtedness equal to the Excess Proceeds, at a price
in cash at least equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, in accordance with the procedures set forth below in clause (e). To the extent that any portion of the Excess
Proceeds remains after compliance with the preceding sentence and provided that all Holders have been given the opportunity to tender their Notes for repurchase in accordance with this Indenture, the Company or such Restricted Subsidiary may use
such remaining amount for general corporate purposes or the repurchase of Indebtedness subordinated in right of payment to the Notes or the Note Guarantee if required to be repurchased pursuant to their respective terms and the amount of Excess
Proceeds shall be reset to zero. Pending application of Net Proceeds pursuant to clauses (c)(i) and (ii) above, such Net Proceeds will be invested in Temporary Cash Investments or used to temporarily repay Pari Passu Indebtedness that
is revolving Indebtedness.
44
(e) Not more than 20 Business Days after the amount of Excess Proceeds exceeds $100,000,000, the
Company shall send a prepayment offer notice to the Holders (with a copy to the Trustee), accompanied by such information regarding the Company and its Subsidiaries as the Company in good faith believes will enable such Holders to make an informed
decision with respect to the Prepayment Offer. The prepayment offer notice will state, among other things:
(i) that the
Company is offering to purchase Notes pursuant to the provisions of this Indenture:
(ii) that any Note (or any portion
thereof) accepted for payment (and for which payment has been duly provided on the purchase date) pursuant to the Prepayment Offer shall cease to accrue interest after the purchase date;
(iii) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less
than 15 days nor more than 60 days from the date the prepayment offer notice is mailed;
(iv) the aggregate principal
amount of Notes (or portions thereof) to be purchased;
(v) a description of any conditions to such Prepayment Offer; and
(vi) a description of the procedure which Holders must follow in order to tender their Notes (or portions thereof) and the
procedures that Holders must follow in order to withdraw an election to tender their Notes (or portions thereof) for payment.
The Company may send such a
prepayment offer notice at any time after it receives Net Proceeds from an Asset Sale and/or an Event of Loss in an amount in excess of $100,000,000.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection with the purchase of Notes as a result of a Prepayment Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions
relating to the Prepayment Offer, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of such conflict.
| Section 4.12. |
Limitation on Indebtedness. |
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, Incur any Indebtedness; provided, however, that the Company or any Guarantor may Incur Indebtedness if the Company’s Consolidated Fixed Charge Coverage Ratio would exceed 2.0 to 1.0, after giving effect
to:
(i) the Incurrence of such Indebtedness as if such Indebtedness was Incurred at the beginning of the Reference Period
and (if applicable) the application of the net proceeds thereof to repay or defease other Indebtedness as if the application of such net proceeds occurred at the beginning of the Reference Period;
(ii) the Incurrence and retirement (including any Indebtedness that has been defeased) of any other Indebtedness since the
first day of the Reference Period as if such Indebtedness was Incurred or retired at the beginning of the Reference Period;
45
(iii) the execution or termination of any management agreement pursuant to which
the Company or any Restricted Subsidiary was or will be paid a management fee since the first day of the Reference Period including any execution or termination which will be effective contemporaneously with the Incurrence of such Indebtedness, as
if such execution or termination occurred at the beginning of the Reference Period; and
(iv) the acquisition or
disposition of any Property or any company or business by the Company or any Restricted Subsidiary since the first day of the Reference Period including any acquisition or disposition which will be consummated contemporaneously with the Incurrence
of such Indebtedness, as if such acquisition or disposition occurred at the beginning of the Reference Period, including without limitation any net reduction of lease payments in connection with any acquisition of Property and any related income or
expense.
For purposes of such computation, with respect to Indebtedness that bears interest at a variable rate, such Indebtedness shall
be deemed to bear interest at the applicable interest rate (or weighted average interest rate, if there are multiple applicable interest rates) on the date such Indebtedness is Incurred or repaid.
(b) Notwithstanding the foregoing limitation, the Company or any Restricted Subsidiary, as specified below, may Incur the following
Indebtedness:
(i) Indebtedness of the Company represented by the Initial Notes and of the Guarantors under the Note
Guarantees;
(ii) Indebtedness of the Company or any Restricted Subsidiary outstanding on the Issue Date;
(iii) Indebtedness of the Company or any Restricted Subsidiary under the Credit Facility in an aggregate amount outstanding at
any time not to exceed the greater of (A) $2.75 billion, and (B) 4.5 times Consolidated EBITDA during the Reference Period (after giving pro forma effect to the acquisition or disposition of any company or business by the Company or any
Restricted Subsidiary since the first day of the Reference Period including any acquisition or disposition which will be consummated contemporaneously with the Incurrence of Indebtedness under this clause (iii), as if such acquisition or disposition
occurred at the beginning of the Reference Period);
(iv) Indebtedness of the Company or a Restricted Subsidiary owing to
and held by a Restricted Subsidiary or the Company; provided, however, that (A) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be
unsecured and expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes then due, in the case of the Company, or the Note Guarantees, in the case of a Guarantor, and (B) any subsequent issuance or
transfer of any Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness except to the Company or a Restricted Subsidiary shall be deemed in
each case to constitute the Incurrence of such Indebtedness by the issuer thereof;
(v) Indebtedness of the Company or a
Restricted Subsidiary under Interest Rate Agreements; provided that the obligations under such agreements were entered into in connection with payment obligations on Indebtedness otherwise permitted by the terms of this Section 4.11;
46
(vi) Indebtedness of the Company or a Restricted Subsidiary under Currency
Exchange Protection Agreements; provided that such Currency Exchange Protection Agreements were entered into for the purpose of limiting exchange rate risks and not as speculative investments;
(vii) Indebtedness of the Company or any Restricted Subsidiary in connection with one or more letters of credit, bankers’
acceptances, worker’s compensation claims, surety bonds, appeal bonds, performance bonds or completion guarantees issued in the ordinary course of business or pursuant to self-insurance and similar obligations and not in connection with the
borrowing of money or the obtaining of advances or credit;
(viii) Indebtedness of the Company or any Restricted Subsidiary
outstanding under Permitted FF&E Financings which are either (A) Non-Recourse Indebtedness of the Company and its Restricted Subsidiaries or (B) limited in amount (including all Permitted Refinancing Indebtedness Incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness Incurred pursuant to this clause (b)(viii)) for each Gaming Facility owned or leased by the Company or any of its Restricted Subsidiaries to the lesser of (x) the
amount of FF&E used in such Gaming Facility and financed by such Permitted FF&E Financing or (y) $25,000,000;
(ix) Indebtedness (including Capital Lease Obligations) Incurred by the Company or any of its Restricted Subsidiaries to
finance (whether prior to or within 270 days after) the acquisition, lease, construction, repair, replacement or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any
Person owning such assets) in an aggregate amount not to exceed the greater of (A) $150,000,000 and (B) 5% of the Company’s Consolidated Total Assets;
(x) Indebtedness consisting of the financing of insurance premiums or take-or-pay obligations contained in supply arrangements;
(xi) Indebtedness arising from agreements of the Company or any Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Person otherwise permitted by this Indenture;
(xii) guarantees incurred in the ordinary course of business supporting obligations of suppliers, lessees and vendors;
(xiii) Acquired Debt and any other Indebtedness incurred to finance a merger, consolidation or other acquisition;
provided that immediately after giving effect to the incurrence of such Acquired Debt and such other Indebtedness, as the case may be, on a pro forma basis as if such incurrence (and the related merger, consolidation or other acquisition) had
occurred at the beginning of the applicable Reference Period, the Company’s Consolidated Fixed Charge Coverage Ratio would be equal to or greater than the Company’s Consolidated Fixed Charge Coverage Ratio immediately prior to such merger,
consolidation or other acquisition;
(xiv) Indebtedness of the Company to the extent the net proceeds thereof are promptly
deposited to defease the Notes as described below under Article 8;
(xv) Indebtedness (including under the Credit Facility)
of the Company or any Restricted Subsidiary not otherwise permitted to be Incurred pursuant to the provisions of this section in an aggregate amount outstanding as of the date of any Incurrence of such Indebtedness not to exceed 7.5% of the
Company’s Consolidated Total Assets; or
47
(xvi) Permitted Refinancing Indebtedness Incurred by the Company or any
Restricted Subsidiary in respect of Indebtedness of the Company or any Restricted Subsidiary outstanding pursuant to the provisions of clause (a) above or such clauses (b)(i), (ii), (viii), (ix), (xiii), and this clause (b)(xvi);
provided, however, any such Permitted Refinancing Indebtedness may be Incurred up to 90 days prior to the repayment, repurchase or redemption of the Indebtedness being refinanced, redeemed or repaid with such Permitted Refinancing
Indebtedness; provided, further, that prior to any repayment, repurchase or redemption of the Indebtedness being refinanced with such Permitted Refinancing Indebtedness, the Company or the applicable Restricted Subsidiary may
temporarily invest the proceeds of such Permitted Refinancing Indebtedness in Temporary Cash Investments or use the proceeds of such Permitted Refinancing Indebtedness to pay down Indebtedness under the revolving credit portion of the Credit
Facility.
(c) For purposes of determining compliance with this Section 4.12, in the event that an item of proposed Indebtedness
meets the criteria of more than one of the categories described in clauses (b)(i) through (xvi) above, or is entitled to be Incurred pursuant to clause (a) above, the Company will be permitted to (i) classify such item of
Indebtedness on the date of its Incurrence in any manner that complies with this covenant and (ii) divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in clauses (b)(i) through
(xvi) above or as Incurred pursuant to clause (a) above. The Company may reclassify such Indebtedness from time to time in its sole discretion and may classify any item of Indebtedness in part under one or more of the categories described
in clauses (b)(i) through (xvi) above and/or in part as Indebtedness entitled to be Incurred pursuant to clause (a) above. Notwithstanding the foregoing, Indebtedness outstanding under the Company’s Credit Facility on the Issue
Date, after giving effect to the application of the proceeds from the issuance of the Notes that are applied on the Issue Date, initially will be deemed to have been Incurred on such date under clause (b)(iii), and may later be reclassified.
(d) Accrual of interest, the accretion of principal amount, the payment of interest on any Indebtedness in the form of additional
Indebtedness, fair value adjustments to the amount of Indebtedness and the payment of dividends in the form of additional Disqualified Stock or Preferred Stock, as applicable, in each case will not be deemed to be an Incurrence of Indebtedness for
purposes of this covenant. In addition, a Guarantee of Indebtedness of the Company or of a Restricted Subsidiary will not constitute a separate Incurrence, or amount outstanding, of Indebtedness so long as the Indebtedness so Guaranteed was Incurred
in accordance with the terms of this Indenture. The Company may rely on internal or publicly reported financial reports even though there may be subsequent adjustments (including review and audit adjustments) to such financial statements. For the
avoidance of doubt, any Incurrence of Indebtedness which is based upon or made in reliance on a computation based on such internal or publicly reported financial statements, shall be deemed to continue to comply with the applicable covenant,
notwithstanding any subsequent adjustments that may result in changes to such internal or publicly reported financial statements.
| Section 4.13. |
Limitation on Layered Indebtedness. |
The Company will not Incur, and will not permit any
Guarantor to Incur, any Indebtedness (including any Indebtedness described in clauses (b)(i) through (xvi) of Section 4.12 that is contractually subordinated in right of payment to any other Indebtedness of the Company or such
Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness will be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the Company or any Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis.
48
| Section 4.14. |
Limitation on Liens. |
The Company shall not, and shall not permit any Guarantor to,
directly or indirectly, Incur or suffer to exist, any Lien (other than Permitted Liens) upon any of its Property, whether owned at the Issue Date or thereafter acquired, or any interest therein or any income or profits therefrom, which secures
Indebtedness that ranks pari passu with or is subordinated to the Notes unless:
(a) if such Lien secures Indebtedness that ranks
pari passu in right of payment with the Notes or any Note Guarantee, the Notes or such Note Guarantee are secured on an equal and ratable basis with the obligations so secured; or
(b) if such Lien secures Indebtedness that is subordinate in right of payment to the Notes or any Note Guarantee, the Notes or such Note
Guarantee are secured on a senior basis to the obligations so secured.
Any Lien created for the benefit of the Holders pursuant to the
preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien securing such Indebtedness that gave rise to the obligations to secure the
Notes or such Note Guarantee under this section.
| Section 4.15. |
Limitation on Restricted Payments. |
(a) The Company shall not make, and shall not permit
any Restricted Subsidiary to make, any Restricted Payment if at the time of, and after giving effect to, such proposed Restricted Payment:
(i) a Default or an Event of Default shall have occurred and be continuing;
(ii) the Company could not Incur at least $1.00 of additional Indebtedness pursuant to the clause (a) under
Section 4.12; or
(iii) the aggregate amount of such Restricted Payment and all other Restricted Payments made from
and after July 22, 1997 (the amount of any Restricted Payment, if made other than in cash, to be based upon Fair Market Value) would exceed an amount equal, without duplication, to the sum of:
(A) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from April 1, 1997 to
the end of the most recent fiscal quarter ended immediately prior to the date of such Restricted Payment (or, in the case such Consolidated Net Income shall be a deficit, minus 100% of such deficit);
(B) the aggregate proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock)
subsequent to March 31, 1997 (other than an issuance or sale (x) to a Subsidiary of the Company or an employee stock ownership plan or other trust established by the Company or any of its Subsidiaries, (y) pursuant to clauses
(iii) or (iv) of Section 4.15(b) or (z) in connection with the acquisition of Coast Casinos, Inc.);
49
(C) the amount by which Indebtedness of the Company or any Restricted Subsidiary
is reduced on the Company’s balance sheet upon the conversion or exchange (other than an issuance or sale to a Subsidiary of the Company or an employee stock ownership plan or other trust established by the Company or any of its Subsidiaries)
subsequent to March 31, 1997, of any Indebtedness of the Company or any Restricted Subsidiary convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash or other property
distributed by the Company or any Restricted Subsidiary upon such conversion or exchange);
(D) the amount equal to the net
reduction in Investments that were treated as Restricted Payments subsequent to March 31, 1997 resulting from (x) payments of dividends, repayments of loans or advances or other transfers of assets to the Company or any Restricted
Subsidiary or the satisfaction or reduction (other than by means of payments by the Company or any Restricted Subsidiary) of obligations of other Persons which have been Guaranteed by the Company or any Restricted Subsidiary or (y) the
redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries, in each case such net reduction in Investments being (1) valued as provided in the definition of Investment, (2) an amount not to exceed the aggregate amount of
Investments previously made by the Company or any Restricted Subsidiary which were treated as a Restricted Payment when made and (3) included in this clause (D) only to the extent not included in Consolidated Net Income;
(E) payments of dividends, repayments of loans or advances or other transfers of assets to the Company or any Restricted
Subsidiary from the Borgata Joint Venture to the extent such dividends, repayments, advances or other transfers exceed $100,000,000, but only to the extent that any such payments are excluded from the computation of Consolidated Net Income and in an
aggregate amount not in excess of the amount of Investments in the Borgata Joint Venture that were treated as Restricted Payments when made; and
(F) $50,000,000.
(b) The provisions of clause (a) shall not prohibit:
(i) the payment of any dividend within 60 days after the date of its declaration if such dividend could have been paid on the
date of its declaration in compliance with the provisions of this Indenture;
(ii) the redemption or repurchase of any
Capital Stock or Indebtedness of the Company
(A) if the holder or beneficial owner of such Capital Stock or Indebtedness
is required to qualify under the Gaming Laws and does not so qualify; or
(B) if necessary in the reasonable, good faith
judgment of the Board of Directors, as evidenced by a Board Resolution, to prevent the loss or secure the reinstatement of any Gaming License which if lost or not reinstated, as the case may be, would have a material adverse effect on the business
of the Company and its Subsidiaries, taken as a whole, or would restrict the ability of the Company or any of its Subsidiaries to conduct business in any gaming jurisdiction;
50
(iii) any purchase, redemption or other acquisition or retirement of Capital
Stock of the Company made by exchange for, or with proceeds of the sale of, Capital Stock (other than Disqualified Stock) of the Company received not more than 90 days before or after such purchase, redemption or other acquisition or retirement of
Capital Stock;
(iv) any purchase, redemption or other acquisition or retirement of the Indebtedness of any Person made by
exchange for, or with proceeds of the sale of, Capital Stock (other than Disqualified Stock) of the Company received not more than 90 days before or after such purchase, redemption or other acquisition or retirement of Indebtedness;
(v) any purchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Company or any
Guarantor that is contractually subordinated to the Notes or to any Note Guarantee from the proceeds of Permitted Refinancing Indebtedness Incurred not more than 90 days before or after such repurchase, redemption, defeasance or other acquisition or
retirement of such Indebtedness;
(vi) cash payments in lieu of fractional shares issuable as dividends on Capital Stock of
the Company or any of its Restricted Subsidiaries;
(vii) the redemption or repurchase of any (i) Indebtedness
subordinated in right of payment to the Notes or any Note Guarantee, or (ii) Capital Stock of the Company , in each case to the extent required by a final non-appealable order or judgment entered by a court or courts of competent jurisdiction;
(viii) the purchase, redemption or other acquisition or retirement of Indebtedness subordinated in right of payment to the
Notes or any Note Guarantee (A) with any Excess Proceeds remaining after all Holders have been given the opportunity to tender their Notes for repurchase in accordance with Section 4.11 if any such subordinated Indebtedness is required to
be repurchased pursuant to its respective terms and (B) other purchases, redemptions or other acquisition or retirement of Indebtedness subordinated in right of payment to the Notes or any Note Guarantee in an aggregate amount not to exceed
$250,000,000 in the aggregate;
(ix) so long as no Default or Event of Default has occurred and is continuing, repurchases
by the Company of its common stock or options, warrants or other securities exercisable or convertible into such common stock (excluding any debt security that is convertible into, or exercisable for, common stock) held by employees, officers,
consultants or directors of the Company or any of its direct or indirect Subsidiaries upon death, disability or termination of employment or directorship of such employees, officers, consultants or directors not to exceed $10,000,000 in the
aggregate in any fiscal year, with unused amounts in any fiscal year permitted to be carried over for the next two succeeding fiscal years;
(x) the repurchase of Capital Stock deemed to occur upon the exercise of stock options to the extent such Capital Stock
represents a portion of the exercise price of those stock options;
(xi) the repurchase of Capital Stock upon the vesting
of restricted stock, restricted stock units or performance share units to the extent necessary to satisfy tax withholding obligations attributable to such vesting;
51
(xii) other Investments in an aggregate amount at any time not to exceed 10% of
the Company’s Consolidated Total Assets (in each case with Investments calculated at the time of such Investment);
(xiii) so long as no Default or Event of Default has occurred and is continuing, the repurchase of Indebtedness subordinated in
right of payment to the Notes or any Note Guarantee with any Excess Proceeds as provided under Section 4.11 or pursuant to Section 4.10; provided that all Notes tendered by Holders in connection with a Change of Control Offer or Prepayment
Offer, as applicable, have been repurchased, redeemed or acquired for value; and
(xiv) Restricted Payments made on or
after the Issue Date pursuant to this clause (xiv) not to exceed (A) $100,000,000 in the aggregate prior to a Peninsula Restricted Subsidiary Designation and (ii) $200,000,000 in the aggregate after a Peninsula Restricted Subsidiary
Designation.
(c) The full amount of any Restricted Payments made subsequent to March 31, 1997 pursuant to clauses (b)(i) and
(ii) of this Section 4.15 (but not pursuant to (b)(iii) through (xiii) of this Section 4.15) shall be included in the calculation of the aggregate amount of Restricted Payments referred to under clause (a)(iii) of this
Section 4.15. For the avoidance of doubt, only Restricted Payments made from and after July 22, 1997 pursuant to clauses corresponding to clauses (b)(i) and (ii) above (but not pursuant to any other clause of any indenture that is or
was excluded from the calculation of the aggregate amount of Restricted Payments corresponding to the calculation in clause (a)(iii)) shall be included in the calculation of the aggregate amount of Restricted Payments made from and after
July 22, 1997 pursuant to clause (a)(iii) in the first paragraph of this covenant.
| Section 4.16. |
Limitation on Dividend and Other Payment Restricted Affecting Restricted Subsidiaries |
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends
or make any other distributions to the Company or any other Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary; or
(iv) transfer any of its Property to the Company or any other Restricted Subsidiary.
(b) Notwithstanding clause (a) of this Section 4.16, the Company may, and may permit any Restricted Subsidiary to, directly or
indirectly, create or otherwise suffer to exist or become effective such encumbrances or restrictions existing under or by reason of:
(i) agreements in effect on the Issue Date;
(ii) applicable law, including rules, regulations or orders issued by any Gaming Authority;
52
(iii) customary non-assignment provisions in contracts, leases or licenses
entered into in the ordinary course of business;
(iv) agreements in existence with respect to a Restricted Subsidiary at
the time it is acquired or so designated; provided, however, that such agreements are not entered into in anticipation or contemplation of such designation;
(v) any agreement or other instrument of a Person whose property, assets or Capital Stock is acquired by the Company or any
Restricted Subsidiary which agreement or other instrument was in existence at the time of such acquisition (but not created in contemplation thereof); provided that such encumbrance or restriction is not, and will not be, applicable to any
Person, or the properties or assets of any Person, other than such acquired Person and its Subsidiaries or such property or assets, including directly-related assets, such as accessions and proceeds so acquired or leased;
(vi) provisions limiting the disposition or distribution of assets or Property in joint venture agreements, asset sale
agreements, sale-leaseback agreements, stock sale agreements and other similar agreements; which limitation is applicable only to the assets that are the subject of such agreements;
(vii) any restrictions or transfer of property with respect to the transfer of assets secured by a Lien permitted to be
Incurred pursuant to Section 4.14;
(viii) purchase money obligations for Property or equipment acquired for use in
the business of the Company or any of its Restricted Subsidiaries and Capital Lease Obligations that impose restrictions on the Property or equipment purchased or leased in the ordinary course of business;
(ix) any instrument governing Indebtedness represented by industrial revenue or development bonds issued by a municipality and
guaranteed by the Company or any of its Restricted Subsidiaries;
(x) customary provisions contained in leases, licenses
and other similar agreements entered into in the ordinary course of business;
(xi) any restriction on cash or other
deposits or net worth imposed by customers or lessors or required by insurance, surety or bonding companies, in each case under contracts entered into in the ordinary course of business; or
(xii) any encumbrances or restrictions of the type referred to in clauses (a)(i) through (iv) of this Section 4.16
imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (b)(i) through (xi) of this
Section 4.16; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(c) For purposes of determining compliance with this Section (i) the priority of any Preferred Stock in receiving dividends or
liquidating distributions prior to dividends or liquidating
53
distributions being paid on common stock shall not be deemed a restriction on the ability to pay dividends or make other distributions on Capital Stock and (ii) the subordination of loans or
advances made to the Company or a Restricted Subsidiary to other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to pay indebtedness owed or to make loans or advances.
(d) Nothing contained in this Section 4.16 shall prevent the Company or any Restricted Subsidiary from granting any Lien permitted under
Section 4.11.
| Section 4.17. |
Limitation on Transaction with Affiliates |
(a) The Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, lease or exchange of any Property, the making of
any Investment, the giving of any Guarantee or the rendering or receiving of any service) with, from or for the benefit of any Affiliate, any Related Person or any officer or director of any Affiliate or a Related Person involving aggregate
consideration in excess of $25,000,000 (an “Affiliate Transaction”) unless:
(i) the terms of such
Affiliate Transaction are in writing, in the best interest of the Company or such Restricted Subsidiary, as the case may be, and at least as favorable to the Company or such Restricted Subsidiary, as the case may be, as those that could be obtained
at the time of such Affiliate Transaction in a similar transaction in arm’s-length dealings with a Person who is not such an Affiliate, Related Person or officer or director of an Affiliate or Related Person;
(ii) with respect to each Affiliate Transaction involving aggregate payments to either party in excess of $50,000,000, such
Affiliate Transaction was approved by a majority of the disinterested members of the Board of Directors and that such Affiliate Transaction complies with clause (a)(i) of this Section 4.17; and
(iii) with respect to each Affiliate Transaction involving aggregate payments in excess of $100,000,000, the Company delivers
to the Trustee an opinion letter from an Independent Advisor to the effect that such Affiliate Transaction is fair, from a financial point of view;
provided, however, that the foregoing limitation shall not apply for so long as the Company’s common stock is listed for trading on the New
York Stock Exchange or NYSE Amex Equities or is quoted on the National Association of Securities Dealers Automated Quotation System and designated as a “national market system security.”
(b) Notwithstanding the foregoing limitations, the Company or any of its Restricted Subsidiaries may enter into or suffer to exist the
following:
(i) any transaction pursuant to any contract in existence on the Issue Date;
(ii) any Restricted Payment permitted to be made pursuant to Section 4.15;
(iii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between
two or more of its Restricted Subsidiaries;
54
(iv) the pledge of the Capital Stock of any Unrestricted Subsidiary or joint
venture to secure the Indebtedness of any such Person;
(v) the payment of compensation (including amounts paid pursuant to
employee benefit plans) for the personal services of, indemnity provided on behalf of, and reimbursement of expense to, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(vi) any Permitted Investment and any other Investment made by the Company or any of its Restricted Subsidiaries other than an
Investment in a holder of 10% or more of the Capital Stock of the Company or an Investment in an entity controlled by a holder of 10% or more of the Capital Stock of the Company (other than indirect control by reason of such holder’s ownership
of Capital Stock of the Company); and
(vii) transactions pursuant to agreements existing on the Issue Date and any
modification thereto or any transaction contemplated thereby in any replacement agreement therefor so long as such modification or replacement is not more disadvantageous to the Company or any of its Restricted Subsidiaries in any material respect
than the respective agreement existing on the Issue Date.
| Section 4.18. |
Business Activities |
The Company will not, and will not permit any of its Restricted
Subsidiaries, to engage in any business other than a Core Business, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.
| Section 4.19. |
Designation of Restricted and Unrestricted Subsidiaries. |
The Board of Directors may
designate any Restricted Subsidiary and any newly acquired or newly formed Subsidiary to be an Unrestricted Subsidiary; provided that:
(a) such designation would not cause a Default;
(b) such Subsidiary has no Indebtedness other than Qualified Non-Recourse Debt;
(c) such Subsidiary does not own any Capital Stock or Indebtedness of or own or hold any lien on any Property of the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; and
(d) such Subsidiary is not a Significant
Subsidiary.
If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted
Payments under Section 4.15 or under one or more clauses of the definition of Permitted Investment, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a Board Resolution giving effect to such
55
designation and an Officers’ Certificate certifying that (a) such designation complied with the preceding conditions and (b) was permitted by Section 4.15 and giving the
effective date of such designation, such filing with the Trustee to occur within 75 days after the end of the fiscal quarter of the Company in which such designation is made (or, in the case of a designation made during the last fiscal quarter of
the fiscal year, within 120 days after the end of such fiscal year). If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary
for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be Incurred by a Restricted Subsidiary of the Company as of such date.
The Board of Directors may at any time designate, or redesignate, any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company
(with delivery of an Officers’ Certificate to the Trustee); provided that such designation, or redesignation, will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of
such Unrestricted Subsidiary, and such designation, or redesignation, will only be permitted if (a) such Indebtedness is permitted under Section 4.12, calculated on a pro forma basis as if such designation had occurred at the beginning of
the applicable Reference Period and (b) no Default or Event of Default would be in existence following such designation or redesignation.
| Section 4.20. |
Certain Suspended Covenants |
During any period of time that (a) the Notes have
Investment Grade Status, and (b) no Default or Event of Default has occurred and is continuing under this Indenture with respect to the Notes, the Company and its Restricted Subsidiaries will not be subject to the provisions of this Indenture
described under Sections 4.10, 4.11, 4.12, and 4.15 (collectively, the “Suspended Covenants”); provided that with respect to those covenants that will remain in effect (the “Effective Covenants”), references
in such Effective Covenants to clauses in the Suspended Covenants will be deemed to continue to exist for purposes of interpretation of the Effective Covenants.
In the event that the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of
the preceding sentence and, subsequently, at least one of the two designated Rating Agencies withdraws its rating or assigns the Notes a rating below the required Investment Grade Ratings, then the Company and its Restricted Subsidiaries will
thereafter again be subject to the Suspended Covenants for the benefit of the Notes. Calculations under the reinstated Section 4.15 covenant will be made as if such covenant had been in effect since the date of this Indenture except that no
Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Notice of the commencement or termination of any period of time during which the Company and its Restricted Subsidiaries are
subject to the Suspended Covenants shall be promptly given to the Trustee.
ARTICLE 5. SUCCESSORS
| Section 5.01. |
Merger, Consolidation and Sale of Assets. |
(a) The Company shall not merge or
consolidate with or into any other entity or in one transaction or a series of related transactions sell, convey, assign, transfer, lease or otherwise dispose of all or substantially all of its Property unless (i) the entity formed by or
surviving any such consolidation or merger (if the Company is not the surviving entity) or the Person to which such sale, assignment, transfer, lease or conveyance is made (the “Successor”) (A) shall be a Person (other than an
individual) organized and existing under the laws of the United States of America or a State thereof or the District of Columbia and such Person shall expressly assume, by supplemental indenture executed and delivered to the Trustee by such Person,
the due and punctual payment of the principal, premium, if any, interest and
56
Additional Interest, if any, on all the Notes and the due and punctual performance and observance of all the covenants, conditions and obligations under the Notes and this Indenture to be
performed by the Company; provided that if any Successor is not a corporation, there shall be a co-issuer that is a corporation and (B) shall have all Gaming Licenses required to operate all Gaming Facilities to be owned by such
Successor, (ii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all of the Company’s Property, such Property shall have been transferred as an entirety or virtually as an entirety
to one Person, (iii) immediately before giving effect to such transaction or series of transactions on a pro forma basis, no Default or Event of Default shall have occurred and be continuing, and (iv) immediately after giving effect to
such transaction or series of transactions on a pro forma basis (including without limitation, any Indebtedness Incurred or anticipated to be incurred in connection with such transaction or series of transactions), the Company or the Successor, as
the case may be, would be able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.12. In connection with any such supplemental indenture, there shall be delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, sale, transfer, lease or conveyance and such supplemental indenture, if any, complies with this Indenture, and such Opinion of Counsel shall also state that such supplemental indenture
constitutes the legal, valid and binding obligation of such Successor.
(b) No Guarantor may sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another Guarantor, unless (i) immediately after giving effect
thereto, no Default or Event of Default has occurred or is continuing and (ii) either (x) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger
unconditionally assumes all the obligations of that Guarantor under its Note Guarantee and this Indenture pursuant to a supplemental indenture executed and delivered to the Trustee or (y) the Net Proceeds of such sale or other disposition are
applied in accordance with Section 4.11.
| Section 5.02. |
Successor Corporation Substituted. |
Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.01, the Successor shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the Successor and not to the Company), and may exercise every right and power of
the Company under this Indenture with the same effect as if the Successor had been named as the Company herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of and
interest on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of all of the Company’s assets that meets the requirements of Section 5.01(a).
ARTICLE 6. DEFAULTS AND REMEDIES
| Section 6.01. |
Events of Default. |
An “Event of Default” occurs with respect to Notes
if:
(a) the Company defaults in the payment of interest (including Additional Interest, if any) on any of the Notes when it becomes due
and payable and such default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on any Note when due at maturity, upon acceleration, required purchase or otherwise;
57
(c) the Company fails to observe, perform or comply with the covenants and agreements of
Section 5.01(a);
(d) the Company or any Guarantor fails to observe, perform or comply with any of the other covenants and agreements
in this Indenture, the Notes, or the Note Guarantees and such failure to observe, perform or comply continues for a period of 60 days after receipt by the Company of a written notice from the Trustee or the Holders of at least 30% in aggregate
principal amount of Notes then outstanding;
(e) the Company or any Guarantor that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its creditors;
(f) a court of competent jurisdiction enters an order or decree with respect to the Company or any Guarantor that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary under any Bankruptcy Law that:
(i) is for relief against such Person(s) in an involuntary case;
(ii) appoints a custodian of such Person(s) or for all or substantially all of the property of such Person; or
(iii) orders the liquidation of such Person(s);
and the order or decree remains unstayed and in effect for 60 consecutive days;
(g) except as permitted by this Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for
any reason to be in full force and effect, or any Guarantor, or any Person controlling such Guarantor denies or disaffirms its obligations under its Note Guarantee, and such default continues for a period of 30 days;
(h) Indebtedness of the Company or any Restricted Subsidiary is not paid when due or within any applicable grace period or is accelerated by
the holders thereof and, in either case, the total amount of such unpaid or accelerated Indebtedness exceeds $75,000,000;
(i) the entry
by a court of competent jurisdiction of one or more judgments or orders against the Company or any Restricted Subsidiary in an uninsured aggregate amount in excess of $75,000,000 and such judgment or order is not discharged, waived, stayed or
satisfied for a period of 60 consecutive days after such judgment or judgments become final and non-appealable; and
(j) any revocation,
suspension or loss of any Gaming License which results in the cessation of business for a period of more than 90 consecutive days of the business of any Gaming Facility or
58
Gaming Facilities owned, leased or operated directly by the Company or any of its Restricted Subsidiaries, which, taken together, collectively contribute more than 10% of the Company’s
Consolidated EBITDA (other than any voluntary relinquishment of a Gaming License if such relinquishment is, in the reasonably good faith judgment of the Board of Directors and evidenced by a Board Resolution, desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole).
A default under clauses (h), (i) or (j) above is not an Event of
Default until the Trustee or Holders of not less than 30% in aggregate principal amount of the Notes notify the Company of the Default; provided that any default under clause (h) above resulting from a default or acceleration with
respect to Indebtedness will not be considered an Event of Default if such default or acceleration is cured or annulled, respectively, within 30 days of the receipt by the Company of the abovementioned notice of default from the Trustee or Holders
of not less than 30% in aggregate principal amount of the Notes.
The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is 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.
The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers’
Certificate of any Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.
| Section 6.02. |
Acceleration. |
If an Event of Default (other than an Event of Default resulting from
Section 6.01(e) or (f)) shall have occurred and be continuing, the Trustee or the Holders of not less than 30% in aggregate principal amount of the Notes then Outstanding may accelerate the maturity of all the Notes by a notice in writing to
the Company (and to the Trustee, if given by the Holders) specifying the Event of Default and that it is a “notice of acceleration” and on the fifth Business Day after delivery of such notice, the principal amount, together with any
accrued and unpaid interest and premium and Additional Interest, if any, on all of the Notes then outstanding, will become immediately due and payable. In case an Event of Default resulting from Section 6.01(e) or (f) shall occur, the
Notes then Outstanding (including any accrued interest and, if applicable, Additional Interest, thereon) shall be due and payable immediately without any declaration or other act on the part of the Trustee or the Holders.
| Section 6.03. |
Other Remedies. |
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
59
| Section 6.04. |
Waiver of Past Defaults. |
The Holders of a majority in principal amount of the Notes
then outstanding by notice to the Trustee may waive an existing Default and its consequences hereunder (including rescission of acceleration as a result thereof) except (i) a Default in the payment of principal of or interest on a Note or
(ii) a Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each affected Holder of Notes. Upon any such waiver, such Default shall cease to exist and shall be deemed to have been cured for
every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
| Section 6.05. |
Control by Majority. |
Holders of a majority in principal amount of the then Outstanding
Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture that the Trustee determines may be prejudicial to the rights of other Holders of the Notes or that may involve the Trustee in personal liability; provided, however, that the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification or security satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
| Section 6.06. |
Limitation on Suits. |
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default;
(b) the Holders of at least 30% in principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after receipt of the request and
the offer and, if requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority in principal amount
of the then Outstanding Notes do not give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this
Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.
| Section 6.07. |
Rights of Holders of Notes to Receive Payment. |
Notwithstanding any other provision of
this Indenture, the right of any Holder of a Note to receive payment of principal, premium, Additional Interest, if any, and interest on such Note, on or after the respective due dates expressed in such Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
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| Section 6.08. |
Collection Suit by Trustee. |
If an Event of Default specified in Section 6.01(a) or
(b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium and interest and Additional Interest, if any,
remaining unpaid on the Notes as to which such Event of Default has occurred and is continuing and interest on overdue principal and, to the extent lawful, interest and 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.
| Section 6.09. |
Trustee May File Proofs of Claim. |
The Trustee is authorized to file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 to the Trustee any amount due to 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 7.07.
To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
| Section 6.10. |
Priorities. |
If the Trustee collects any money or property pursuant to this Article, it
shall pay out the money or property in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes in respect of which or for the benefit of which such money has been collected for amounts
due and unpaid on such Notes for principal, premium, Additional Interest, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the applicable Notes for principal, premium, Additional
Interest, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
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The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant
to this Section 6.10.
| Section 6.11. |
Undertaking for Costs. |
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
| Section 6.12. |
Reporting Defaults. |
Notwithstanding any other provision of this Indenture, the sole
remedy for an Event of Default relating to the failure to comply with the reporting obligations described in Section 4.03 and for any failure to comply with the requirements of TIA§314(a), will for the 365 days after the occurrence of such
an Event of Default consist exclusively of the right to receive Additional Interest on the principal amount of the Notes at a rate equal to 0.50% per annum. The Additional Interest will be payable in the same manner and subject to the same
terms as other interest payable under this Indenture. The Additional Interest will accrue on all outstanding Notes from and including the date on which an Event of Default relating to a failure to comply with the reporting obligations under
Section 4.03 or TIA § 314(a) first occurs to but excluding the 365th day thereafter (or such earlier date on which the Event of Default relating to such reporting obligations is cured or waived). If the Event of Default resulting from such
failure to comply with the reporting obligations is continuing on such 365th day, such Additional Interest will cease to accrue and the Notes will be subject to the other remedies provided under this Article 6.
ARTICLE 7. TRUSTEE
| Section 7.01. |
Duties of Trustee. |
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee pursuant to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions specifically required to be
furnished to it hereunder to determine whether or not they substantially conform to the procedural requirements of this Indenture.
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(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or 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 to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to it. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holders shall have
offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
| Section 7.02. |
Rights of Trustee. |
(a) The Trustee may rely upon any document (whether in its original
or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection with respect to legal matters relating
to this Indenture and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance upon
such advice or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
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(f) The rights, privileges, protections, immunities and benefits given to the Trustee, including,
without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(g) 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, consent, order, approval, bond, debenture, note or other paper or document unless requested in writing to do so by the Holders of not less than a majority in principal amount of the Notes at the time
outstanding, 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, at the expense of the Company and shall Incur no liability of any kind by reason of such inquiry or investigation.
(h) 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 security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be Incurred by it in
compliance with such request or direction.
(i) The Trustee shall not be responsible or liable for any action taken or omitted by it in
good faith at the direction of the Holders of not less than a majority in principal amount of the Notes as to the time, method and place of conducting any proceedings for any remedy available to the Trustee or the exercising of any power conferred
by this Indenture.
(j) Any action taken, or omitted to be taken, by the Trustee in good faith pursuant to this Indenture upon the request
or authority or consent of any person who, at the time of making such request or giving such authority or consent, is the Holder of any Note shall be conclusive and binding upon future Holders of Notes and upon Notes executed and delivered in
exchange therefor or in place thereof.
(k) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default (and stating the occurrence of a Default or Event of Default) is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(l) The Trustee may request that the
Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any Person
authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(m) The Trustee shall not be responsible or liable for punitive, special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of actions.
(n) The Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers under this Indenture.
(o) Any permissive right of the Trustee to take or refrain from taking actions enumerated in this Indenture or other related documents
shall not be construed as a duty.
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The Trustee shall not be responsible or liable for any failure or delay in the performance of its
obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances;
sabotage; epidemics; riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or communication services; accidents; labor disputes; and acts of civil or military authorities and governmental action.
| Section 7.03. |
Individual Rights of Trustee. |
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (as
defined in the Trust Indenture Act) it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10
and 7.11.
| Section 7.04. |
Trustee’s Disclaimer. |
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
| Section 7.05. |
Notice of Defaults. |
If a Default or Event of Default occurs and is continuing and if it
is actually known to a Responsible Officer of the Trustee, the Trustee shall send to Holders of Notes a notice of the Default or Event of Default within 90 days after it is known to the Trustee. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders
of the Notes.
| Section 7.06. |
Reports by Trustee to Holders of the Notes. |
Within 60 days after each May 21
beginning with the May 21 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee shall send to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA
§ 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA § 313(b)(2). The Trustee
shall also send all reports as required by TIA § 313(c).
A copy of each report at the time of its sending to the Holders of
Notes shall be given also to the Company and the Company shall file such notice with the SEC and each stock exchange on which the Notes are listed in accordance with TIA § 313(d). The Company shall promptly notify the Trustee when Notes
are listed on any stock exchange or delisted therefrom.
65
| Section 7.07. |
Compensation and Indemnity. |
The Company shall pay to the Trustee as agreed upon in
writing from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable out-of-pocket expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.
The Company shall fully indemnify the Trustee and hold it harmless against any and all losses,
liabilities, claims, damages or expenses (including reasonable legal fees and expenses) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of
enforcing this Indenture against the Company (including this Section 7.07) and defending itself against any claim (whether asserted by or against the Company or any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense shall be determined by a court of competent jurisdiction to have been caused by its own negligence or willful misconduct. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is actually prejudiced
by failure of the Trustee to provide timely notice of claims of which a Responsible Officer has received written notice. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture and the resignation
or removal of the Trustee.
To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(e) or (f) occurs, the
expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.
| Section 7.08. |
Replacement of Trustee. |
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of a
majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
66
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company, or the Holders of at least 20% in principal amount of the then outstanding Notes may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10,
such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall send a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee;
provided all sums owing to the Trustee hereunder have been paid. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.
| Section 7.09. |
Successor Trustee by Merger, etc. |
If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the successor corporation or association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by
this Indenture and any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated. In case at that
time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee. In all such cases such certificates
shall have the full force which is anywhere provided in the Notes or in this Indenture.
| Section 7.10. |
Eligibility; Disqualification. |
There shall at all times be a Trustee hereunder that is
a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or
state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
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This Indenture shall always have a Trustee who satisfies the requirements of TIA
§ 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b).
| Section 7.11. |
Preferential Collection of Claims Against Company. |
The Trustee is subject to TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
| Section 8.01. |
Option to Effect Legal Defeasance or Covenant Defeasance. |
The Company may, at its
option evidenced by an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 be applied to all outstanding Notes and all obligations of the Guarantors discharged with respect to their Note Guarantees of such Notes,
upon compliance with the conditions set forth below in this Article 8.
| Section 8.02. |
Legal Defeasance and Discharge. |
Upon the Company’s exercise under
Section 8.01 of the option applicable to this Section 8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from its obligations with respect to all
outstanding Notes and all obligations of the Guarantors discharged with respect to their Note Guarantees on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute such instruments as
reasonably requested by the Company acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive solely from the
trust fund described in Section 8.04, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, Additional Interest, if any, and interest on such Notes when such payments are due, (b) the
Company’s obligations with respect to such Notes under Article 2 and Section 4.02, (c) the rights, powers, trusts, and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.
| Section 8.03. |
Covenant Defeasance. |
Upon the Company’s exercise under Section 8.01 of the
option applicable to this Section 8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from its obligations under the covenants contained in Sections 4.06 through the end of Article
4 and Article 5 and any other covenants specified in an indenture supplemental hereto with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders of Notes (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).
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For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, 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 6.01, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company’s
exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, Sections 6.01(c) through 6.01(h), except for Sections 6.01(e) and 6.01(f) with respect
to the Company (but not with respect to any Restricted Subsidiary) shall not constitute Events of Default.
| Section 8.04. |
Conditions to Legal or Covenant Defeasance. |
The following shall be the conditions to
the application of either Section 8.02 or 8.03 to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in United States
dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any,
Additional Interest, if any, and interest on all outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be and the Company must specify whether the Notes are being defeased to maturity or to a
particular redemption date;
(b) in the case of an election under Section 8.02, the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal
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 Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that
the beneficial owners of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the Incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease Notes pursuant to this Article 8
concurrently with such Incurrence);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of the Guarantors is a party or by which the Company or any of the Guarantors is bound;
69
(f) the Company shall have delivered to the Trustee an Officers’ Certificate stating that
the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with.
| Section 8.05. |
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions. |
Subject to Section 8.06, all money and non-callable U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal, premium, if any, Additional Interest, 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 cash or non-callable
U.S. Government Obligations deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 8.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
| Section 8.06. |
Repayment to Company. |
Subject to applicable law, 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, premium, if any, Additional Interest, if any, or interest on any Note and remaining unclaimed for two years after such principal, and premium, if any,
Additional Interest, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter 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 The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
70
| Section 8.07. |
Reinstatement. |
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable U.S. Government Obligations in accordance with Section 8.02 or 8.03, as the case may be, 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 applicable Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, Additional Interest, if any, or interest on
any such Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER
| Section 9.01. |
Without Consent of Holders of Notes. |
Notwithstanding Section 9.02, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees without the consent of any Holder of a Note to:
(a) cure any ambiguity, defect, mistake, omission or inconsistency as evidenced in an Officers’ Certificate;
(b) provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes or Note Guarantees, as
applicable, by a Successor to the Company or a successor to such Guarantor pursuant to Article 5;
(c) provide for uncertificated Notes in
addition to or in place of certificated Notes;
(d) add any Note Guarantees with respect to the Notes and to release Note Guarantees when
required or permitted by the terms of this Indenture;
(e) secure the Notes;
(f) add to the covenants of the Company or any Guarantor for the benefit of the Holders of all Notes or the Note Guarantees or to surrender
any right or power conferred upon the Company or any Guarantor;
(g) make any change that would provide any additional rights or benefits
to the Holders of all of the Notes or the Note Guarantees or, in the good faith opinion of the Company, that does not adversely affect the legal rights hereunder of any Holder of the Notes or any Guarantor;
(h) comply with the requirements of applicable Gaming Laws or to provide for requirements imposed by applicable Gaming Authorities;
(i) comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;
(j) conform the text of this Indenture, the Notes or the Note Guarantees to any provision of the “Description of Notes” contained in
any prospectus or supplemental prospectus relating to the initial
71
offering of all of the Notes, to the extent that such provision in that “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture or such Notes
(as evidenced by an Officers’ Certificate of the Company and Opinion of Counsel);
(k) provide for the issuance of Additional Notes
in accordance with the limitations set forth in this Indenture as of the date hereof;
(l) evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 7.08;
(m) change the Registrar or Paying Agent; and
(n) remove redemption provisions included in any Notes that are no longer in effect.
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Sections 9.06 and 12.04, the Trustee shall join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties, liabilities or
immunities under this Indenture or otherwise.
| Section 9.02. |
With Consent of Holders of Notes. |
Except as provided below in this Section 9.02,
the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes and the Note Guarantees without notice to any Holder of Notes but with the consent of the Holders of at least a majority in principal amount of the Notes
then outstanding voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default (other than
a Default or Event of Default in the payment of the principal of, premium, if any, Additional Interest, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes). Section 2.07 shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee (which may consist of an Officers’ Certificate of the Company (or an agent of the Company engaged in respect of such consents)) of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Sections 9.06 and 12.04, the Trustee shall join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
72
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver of this Indenture becomes effective, the Company shall send to the Holders of Notes affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to send such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or
waiver.
Without the consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with
respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest on any Note;
(c) reduce the principal of or extend the Stated Maturity of any Note;
(d) reduce the premium payable upon the redemption of any Note or change the time at which a Note may be redeemed;
(e) impair the right of any Holder to receive payment of principal of, or interest, premium or Additional Interest, if any, on the Notes on or
after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes, except (i) a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes, (ii) a waiver of the payment default that resulted from such acceleration and (iii) any waiver or modification of the obligation to make an offer to purchase as a result of a Change of
Control prior to the occurrence of a Change of Control;
(f) make any Note payable in money other than that stated in the Notes; or
(g) make any change in Section 6.04 or 6.07 or in the foregoing amendment and waiver provisions.
In addition, any amendment which releases any Guarantor from its obligations under any Note Guarantee (except as specified in Article 5 or
Section 10.02 prior to any such amendment) will require the consent of the Holders of at least 66 2⁄3% in aggregate principal amount of the Notes
then outstanding.
| Section 9.03. |
Compliance with Trust Indenture Act. |
Every amendment or supplement to this Indenture or
the Notes shall be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.
| Section 9.04. |
Revocation and Effect of Consents. |
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the
consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes
effective. From and after the date an amendment, supplement or waiver becomes effective in accordance with its terms, it shall bind every Holder.
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The Company may, but shall not be obligated to, fix a record date for the purpose of determining
the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons
who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.
| Section 9.05. |
Notation on or Exchange of Notes. |
The Trustee may place an appropriate notation about
an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
| Section 9.06. |
Trustee to Sign Amendments, etc. |
The Trustee shall sign any amended or supplemental
indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental indenture until the
Board of Directors approves it. In executing any amended or supplemental indenture, the Trustee shall receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 12.04,
an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture.
| Section 9.07. |
Reference in Notes to Supplemental Indentures. |
Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may bear a notation in form approved by the Company as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to
conform, in the opinion of the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE 10. NOTE GUARANTEES
| Section 10.01. |
Note Guarantees. |
(a) Subject to the provisions of this Article 10, each Guarantor
hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee the full and punctual payment
when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, Additional Interest, if any, and interest on the Notes and all other obligations of the Company under this Indenture (including under
Section 7.07) and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Guarantor
whether or not a
74
claim for post-filing or post-petition interest is allowed in such proceeding) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each
Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article 10 notwithstanding any extension or
renewal of any Guarantor Obligation.
(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, and protest to the
Company of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Note Guarantee constitutes a guarantee of payment when due (and not a guarantee of collection) and
waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d)
Except as set forth in Section 10.02 and Article 8, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in
full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by
(i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of any
thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guarantor
Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; (vi) any change in the ownership of the Company; (vii) any default, failure or delay, willful or otherwise, in the
performance of the Guarantor Obligations; or (viii) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a
discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Note Guarantee shall remain in full force
and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 5.01, Section 10.02, Section 11.01 or Article 8. Each Guarantor further agrees that its
Note Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest or Additional Interest, if any, on any of the Guarantor Obligations is
rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(f) In
furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall
become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on
behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not
prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding).
75
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the
Holders, on the other hand, (i) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guarantor Obligations guaranteed and (ii) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantor for the purposes of such Guarantor’s Note Guarantee.
(h) Each Guarantor also
agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.01.
(i) Neither the Company nor the Guarantors shall be required to make a notation on the Notes to reflect any Note Guarantee or any release,
termination or discharge thereof and any such notation shall not be a condition to the validity of any Note Guarantee.
| Section 10.02. |
Limitation on Liability; Termination, Release and Discharge. |
(a) Any term or provision
of this Indenture to the contrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, result in the
obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law and not otherwise being void or voidable under any similar laws affecting the rights of creditors
generally.
(b) A Note Guarantee of a Guarantor shall be automatically and unconditionally released and discharged, and each Guarantor and
its obligations under the Note Guarantee and this Indenture shall be released and discharged:
(i) in connection with any
sale or other disposition of all or substantially all of the assets of that Guarantor (by way of merger, consolidation, or otherwise) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted
Subsidiary, if such sale or other disposition is permitted by this Indenture;
(ii) in connection with any sale or other
disposition of Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary and such sale or other disposition is permitted by this Indenture and the
Guarantor ceases to be a Restricted Subsidiary of the Company as a result of the sale or other disposition;
(iii) if the
Company designates any Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in accordance with this Indenture; or
(iv) upon legal defeasance, covenant defeasance or satisfaction and discharge of this Indenture pursuant to Section 8.02,
Section 8.03, or Section 11.01.
(c) If any Guarantor is released from its Note Guarantee, any of its Subsidiaries that are
Guarantors will be released from their Note Guarantees.
76
(d) In the case of any transaction described in Section 10.02(b)(i) or (b)(ii) or in the
event that the Company otherwise requests the Trustee to acknowledge any release pursuant to Section 10.02, the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for in this Indenture relating to such transaction have been complied with.
(e) The release of a Guarantor from its
Note Guarantee and its obligations under this Indenture in accordance with the provisions of this Section 10.02 shall not preclude the future application of Section 4.20 to such Person.
| Section 10.03. |
Right of Contribution. |
Subject to Section 10.04, each Guarantor agrees that in the
event any payment or distribution is made by any Guarantor (a “Funding Guarantor”) in respect of the Guarantor Obligations, such Funding Guarantor shall be entitled to a contribution from each other Guarantor in a pro rata amount
based on the relative net worth of each Guarantor (including the Funding Guarantor) as of the date of such payment or distribution for all payments, damages and expenses incurred by that Funding Guarantor in discharging the Guarantor Obligations.
The provisions of this Section 10.03 shall in no respect limit the obligations and liabilities of each Guarantor to the Trustee and the Holders and each Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed
by such Guarantor hereunder.
| Section 10.04. |
No Subrogation. |
Notwithstanding any payment or payments made by any Guarantor
hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Company or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for
the payment of the Guarantor Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or any other Guarantor in respect of payments made by such Guarantor hereunder, until the Guarantor
Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Guarantor Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust
for the Trustee and the Holders, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor to the
Trustee, if required), to be applied against the Guarantor Obligations.
ARTICLE 11. SATISFACTION AND DISCHARGE
| Section 11.01. |
Satisfaction and Discharge. |
This Indenture will be discharged and will cease to be of
further effect as to all Notes issued hereunder, when:
(a) either:
(i) all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes
for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or
77
(ii) all Notes that have not been delivered to the Trustee for cancellation have
become due and payable by reason of the sending of a notice of redemption or otherwise or will become due and payable within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, Additional Interest, if any, and accrued interest to the date of maturity or redemption;
(b) other than with respect to a discharge when the Notes have become due and payable, no Default or Event of Default shall have occurred and
be continuing on the date of such deposit or shall occur as a result of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and such deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(c) the Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and
(d) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of
the Notes at maturity or the redemption date, as the case may be.
In addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied. Upon compliance with the foregoing, the Trustee shall execute such instrument(s) as reasonably requested by the Company acknowledging the
satisfaction and discharge of all of the Company’s and the Guarantor’s Obligations under the Notes and this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to subclause
(b) of clause (1) of this Section, the provisions of Section 11.02 and Section 8.06 shall survive such satisfaction and discharge.
| Section 11.02. |
Application of Trust Money. |
Subject to the provisions of Section 8.06, all money
deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any), interest and Additional Interest, if any, for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 11.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01; provided that if the Company has made any payment of principal
of, premium, if any, interest and Additional Interest, if any, on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
78
ARTICLE 12. MISCELLANEOUS
| Section 12.01. |
Trust Indenture Act Controls. |
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA §318(c), the imposed duties shall control.
Any notice or communication by the Company, any Guarantor or the Trustee to
the other is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), electronic transmission (with confirmation of receipt) or overnight air courier guaranteeing next day
delivery, to the other’s address, as follows:
If to the Company or any Guarantor:
Boyd Gaming Corporation
3883
Howard Hughes Parkway, 9th Floor
Las Vegas, Nevada 89169
Telecopier No.: (702) 792-7214
Attention: Josh Hirsberg
and
Boyd Gaming Corporation
3883 Howard Hughes Parkway, 9th Floor
Las Vegas, Nevada 89169
Telecopier No.: (702) 696-1114
Attention: Brian A. Larson, Esq.
With a copy to:
Morrison & Foerster LLP
250 West 55th Street
New York, NY 10109
Telecopier
No.: (212) 903-3644
Attention: Geoffrey R. Peck
If to the Trustee:
Wilmington
Trust, National Association
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-1615
Telecopier No.: (302) 636-4149
Attention: Boyd Gaming Corporation Administrator
79
The Company, the Guarantors or the Trustee, by notice to the others may designate additional or
different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally delivered; 5 Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if electronically transmitted; and the next Business
Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to
a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar; provided that notwithstanding any
other provision of this Indenture, where this Indenture provides for notice of any event (including any notice of redemption) to a Holder of a Global Notes (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for
such Note (or its designee) pursuant to the customary procedures of such Depositary. Any notice or communication shall also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to mail a notice
or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or
communication is sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company or any Guarantor sends a notice or communication to Holders, it shall provide a copy to the Trustee and each Agent at the same
time.
| Section 12.03. |
Communication by Holders of Notes with Other Holders of Notes. |
Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
| Section 12.04. |
Certificate and Opinion as to Conditions Precedent. |
Upon any request or application by
the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers’
Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in Section 12.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
| Section 12.05. |
Statements Required in Certificate or Opinion. |
Each certificate or opinion with respect
to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read such covenant or condition;
80
(b) a brief statement as to the nature and scope of the examination or investigation upon which
the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
| Section 12.06. |
Rules by Trustee and Agents. |
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
| Section 12.07. |
No Personal Liability of Directors, Officers, Employees and Stockholders. |
No past,
present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture and the Note
Guarantees, where applicable, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes.
| Section 12.08. |
Governing Law. |
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
| Section 12.09. |
No Adverse Interpretation of Other Agreements. |
This Indenture may not be used to
interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
| Section 12.10. |
Successors. |
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.02.
81
| Section 12.11. |
Severability. |
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
| Section 12.12. |
Counterpart Originals. |
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.
| Section 12.13. |
Table of Contents, Headings, etc. |
The Table of Contents, Cross-Reference Table and
Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. Unless
otherwise indicated, references in this Indenture to Articles and Sections are to the articles and sections of this Indenture.
[SIGNATURES ON FOLLOWING PAGE]
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| SIGNATURES |
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| BOYD GAMING CORPORATION |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President and Chief Executive Officer |
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| BOYD ATLANTIC CITY, INC. |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President |
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| BOYD TUNICA, INC. |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President |
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| BLUE CHIP CASINO, LLC |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President and Manager |
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| CALIFORNIA HOTEL AND CASINO |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President |
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| TREASURE CHEST CASINO, L.L.C. |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President, Chief Executive Officer and |
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Manager |
[Signature Page to
Supplemental Indenture for Notes Offering]
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| RED RIVER ENTERTAINMENT OF SHREVEPORT, LLC |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President and Manager |
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| BOYD RACING, L.L.C. |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President and Manager |
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| PAR-A-DICE GAMING CORPORATION |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President and Secretary |
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| COAST CASINOS, INC. |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President |
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| COAST HOTELS AND CASINOS, INC. |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President |
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| SAM-WILL, INC. |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President |
[Signature Page to
Supplemental Indenture for Notes Offering]
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| M.S.W., INC. |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President |
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| CALIFORNIA HOTEL FINANCE CORPORATION |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President |
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| BOYD ACQUISITION, LLC |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President and Manager |
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| BOYD LOUISIANA RACING, L.L.C. |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President and Manager |
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| BOYD BILOXI, LLC |
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| By: |
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/s/ Keith E. Smith |
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Name: |
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Keith E. Smith |
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Title: |
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President and Manager |
[Signature Page to
Supplemental Indenture for Notes Offering]
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| WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE |
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| By: |
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/s/ Joshua C. Jones |
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Name: |
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Joshua C. Jones |
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Title: |
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Assistant Vice President |
[Signature Page to First
Supplemental Indenture]
EXHIBIT A
[Face of Note]
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.05 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.05(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE COMPANY.]1
CUSIP Number: 103304BK6
ISIN
Number: US103304BK67
6.875% Senior Note due 2023
BOYD GAMING CORPORATION
promises to pay to CEDE & CO or registered assigns, the principal sum of [ ] ($[ ]) or such greater or
lesser amount as may be indicated on the Schedule of Exchanges of Interests in the Global Note, attached hereto on May 15, 2023
Interest
Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated:
| 1 |
Insert Global Note Legend as applicable. |
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| BOYD GAMING CORPORATION |
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| By: |
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Name: |
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Title: |
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| By: |
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Name: |
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Title: |
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| This is one of the Notes referred to in the within-mentioned Indenture: |
|
| |
| as Trustee |
|
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| By: |
|
|
|
|
Authorized Signatory |
[Back of Note]
6.875% Senior Note due 2023
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Boyd Gaming Corporation, a Nevada corporation (the “Company”), promises to pay
interest on the principal amount of this Note at 6.875% per annum from May 21, 2015 until maturity. The Company will pay interest semi-annually in arrears on May 15 and November 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be November 15, 2015. The Company shall pay interest on overdue principal and premium, if any, from time to time on demand at a
rate that is 1% per annum in excess of the rate then in effect; it shall pay interest on overdue installments of interest and Additional Interest, if any, from time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve
30-day months.
2. METHOD OF PAYMENT. The Company will pay interest and Additional
Interest, if any, on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the May 1 or November 1 immediately preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.11 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and Additional Interest, if
any, and interest at the office or agency of the Paying Agent and Registrar, or, at the option of the Company, payment of interest and Additional Interest, if any, may be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium and Additional Interest, if any, on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be 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. Principal and interest shall be considered paid on the due date the Trustee or Paying Agent holds money sufficient to pay the principal and interest then due.
1
3. PAYING AGENT AND
REGISTRAR. Initially, Wilmington Trust National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.
4. SUPPLEMENTAL
INDENTURE. The Company issued the Notes under the Indenture dated as of May 21, 2015 (the “Base Indenture,” supplemented by the First Supplemental Indenture dated as of May 21, 2015 (the
“Supplemental Indenture,” and together with the Base Indenture the “Indenture”)) among the Company, the Guarantors listed therein and the Trustee. The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except pursuant to clause (b) and (c) of this Paragraph 5, the Notes will not be redeemable prior to May 15, 2018. On or
after May 15, 2018, the Company may redeem all or part of the Notes upon not less than 15 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid
interest and Additional Interest, if any, on the Notes redeemed, to the applicable redemption date (subject to the rights of Holders of the Notes on any relevant record date to receive interest due on the relevant interest payment date occurring on
or prior to the redemption date), if redeemed during the twelve-month period beginning on May 15 of the years indicated below:
|
|
|
|
|
| Year |
|
Percentage |
|
| 2018 |
|
|
105.156 |
% |
| 2019 |
|
|
103.438 |
% |
| 2020 |
|
|
101.719 |
% |
| 2021 and thereafter |
|
|
100.000 |
% |
(b) At any time prior to May 15, 2018, the Company may on any one or more occasions redeem up to 35% of
the aggregate principal amount of Notes at a redemption price of 106.875% of the principal amount, plus accrued and unpaid interest and Additional Interest, if any, to the redemption date, with the Net Cash Proceeds of one or more Public Equity
Offerings; provided that (i) at least 65% of the aggregate principal amount of the Notes remains outstanding immediately after the occurrence of such redemption (excluding the Notes held by the Company and its Subsidiaries); and
(ii) the redemption occurs within 90 days of the date of the closing of such Public Equity Offering.
(c) At any time prior to
May 15, 2018 the Company may also redeem all or a part of the Notes, upon not less than 15 nor more than 60 days’ prior notice sent to each Holder, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the
Applicable Premium as of the date of redemption, and accrued and unpaid interest and Additional Interest, if any, to the date of redemption, subject to the rights of Holders of the Notes on any relevant record date to receive interest due on the
relevant interest payment date occurring on or prior to the redemption date.
(d) Any optional redemption provided for in the Note shall
be made pursuant to the provisions of Section 3.01 through 3.06 of the Indenture.
2
6. MANDATORY REDEMPTION. The Company shall
not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
7. MANDATORY
DISPOSITION OR REDEMPTION PURSUANT TO GAMING LAWS. If a Holder or beneficial owner of a Note is required to be licensed,
qualified or found suitable under applicable Gaming Laws and is not so licensed, qualified or found suitable within any time period specified by the applicable Gaming Authority, the Holder shall be obligated, at the request of the Company, to
dispose of such Holder’s Notes within a time period prescribed by the Company or such other time period prescribed by such Gaming Authority (in which event the Company’s obligation to pay any interest after the receipt of such notice shall
be limited as provided in such Gaming Laws). Thereafter, the Company shall have the right to redeem, on the date fixed by the Company for the redemption of such Notes, such Holder’s Notes at a redemption price equal to the lesser of
(1) the lowest closing sale price of the Notes on any trading day during the 120-day period ending on the date upon which the Company shall have received notice from a Gaming Authority of such Holder’s disqualification or (2) the
price at which such Holder or beneficial owner acquired such Notes, unless a different redemption price is required by such Gaming Authority, in which event such required price shall be the redemption price. The Company is not required to pay or
reimburse any Holder or beneficial owner of a Note for the costs of licensure, qualification or finding of suitability or investigation for such licensure, qualification or finding of suitability. Any Holder or beneficial owner of a Note required to
be licensed, qualified or found suitable under applicable Gaming Laws must pay all investigative fees and costs of the Gaming Authorities in connection with such licensure, qualification, finding of suitability or application therefor.
8. REPURCHASE AT THE OPTION OF THE
HOLDER.
(a) If (i) a Change of Control (if, at the Change of Control Time the Notes do not have Investment Grade
Status) or (ii) a Change of Control Triggering Event (if, at the Change of Control Time the Notes have Investment Grade Status) occurs, each Holder of Notes shall have the right to require the Company to purchase such Holder’s Notes, in
whole, or in part (equal to a minimum principal amount of $1,000 or integral multiple of $1,000 in excess of $1,000) of that Holders’ Notes pursuant to an offer (a “Change of Control Offer”) on the terms set forth in the Indenture. In
the Change of Control Offer, the Company will offer a payment (“Change of Control Payment”) in cash equal to 101% of the principal amount of Notes repurchased plus accrued and unpaid interest and Additional Interest, if any, on the Notes
repurchased, to the date of purchase.
Not later than 30 days following (i) any Change of Control or (ii) in the event the Notes
have Investment Grade Status at the earlier of the public announcement of (x) a Change of Control or (y) (if applicable) the Company’s intention to effect a Change of Control, a Change of Control Triggering Event, the Company will
send a notice (which notice may be conditional) to each Holder (with a copy to the Trustee) regarding the Change of Control Offer. The Holder of this Note may elect to have this Note or a portion hereof in an authorized denomination purchased by
completing the form entitled “Option of Holder to Elect Purchase” appearing below and tendering this Note pursuant to the Change of Control Offer. Any Note (or portion thereof) accepted for payment (and for which payment has been duly
provided on the Change of Control Payment Date) pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date
(b) If at any time the Company or any Restricted Subsidiary engages in any Asset Sale and/or suffers (or incurs) an Event of Loss, as a result
of which the aggregate amount of Excess Proceeds exceeds $100,000,000, the Company shall, not more than 20 Business Days of the date after the amount of Excess Proceeds exceeds $100,000,000, use the then-existing Excess Proceeds to make an offer to
purchase from all Holders of the Notes, and at the election of the Company, the holders of any other outstanding Pari Passu Indebtedness having comparable repurchase rights, an aggregate principal amount
3
of Notes, and, if applicable, such other Pari Passu Indebtedness, equal to the Excess Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid
interest and Additional Interest, if any, thereon. The Holder of this Note may elect to have this Note or a portion hereof in an authorized denomination purchased by completing the form entitled “Option of Holder to Elect Purchase”
appearing below and tendering this Note pursuant to the Prepayment Offer. Any Note (or any portion thereof) accepted for payment (and for which payment has been duly provided on the purchase date) pursuant to the Prepayment Offer shall cease to
accrue interest after the purchase date. Upon completion of a Prepayment Offer (including payment for accepted Notes), any surplus Excess Proceeds that were the subject of such offer shall cease to be Excess Proceeds, and the Company may then use
such amounts for general corporate purposes or for the repurchase of Indebtedness subordinated in right of payment to the Notes or the Note Guarantees if required to be purchased pursuant to their respective terms and the amount of Excess Proceeds
shall be reset to zero.
9. NOTICE OF REDEMPTION. At least 15 days but
not more than 60 days before a redemption date, the Company shall send a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be sent more than 60 days prior to a redemption
date if the notice issued is in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notices of redemption may be conditional. Notes in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. Unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date.
10. DENOMINATIONS, TRANSFER,
EXCHANGE. The Notes are in registered form without coupons in minimum denominations of minimum principal amount of $1,000 or integral multiple of $1,000 in excess of $1,000. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents. Holders will be required to pay all taxes due on transfer.
The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. The Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND
WAIVER. Subject to certain exceptions set forth in the Indenture, (i) the Indenture and the Notes may be amended without prior notice to any Holder of Notes but with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Notes then outstanding voting as a single class and (ii) subject to Section 6.04 and 6.07 of the Indenture, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if any, Additional Interest, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision
of the Indenture, the Notes or the Note Guarantees may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes (including, without limitation, consents obtained in connection
with a tender offer, exchange offer for, or purchase of, the Notes). Subject to certain exceptions set forth in the Indenture, without the consent of any Holder of Notes, the Company, the Guarantors, and the Trustee may amend or supplement the
Indenture, the Notes or the Note Guarantees to (a) cure any ambiguity, defect, mistake, omission or inconsistency as evidenced in an Officers’ Certificate; (b) provide for the assumption of the Company’s or a Guarantor’s
obligations to the Holders of the Notes or Note Guarantees, as applicable, by a Successor to the Company or a successor to such Guarantor pursuant to Article 5 of the Indenture; (c) provide for uncertificated Notes in
4
addition to or in place of certificated Notes; (d) add any Note Guarantees with respect to the Notes and to release Note Guarantees when required or permitted by the terms of the Indenture;
(e) secure the Notes; (f) add to the covenants of the Company or any Guarantor for the benefit of the Holders of all Notes or the Note Guarantees or to surrender any right or power conferred upon the Company or any Guarantor; (g) make
any change that would provide any additional rights or benefits to the Holders of all of the Notes or the Note Guarantees or, in the good faith opinion of the Company, that does not adversely affect the legal rights hereunder of any Holder of the
Notes or any Guarantor; (h) comply with the requirements of applicable Gaming Laws or to provide for requirements imposed by applicable Gaming Authorities; (i) comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (j) conform the text of the Indenture, the Notes or the Note Guarantees to any provision of the “Description of Notes” contained in any prospectus or supplemental prospectus relating to
the initial offering of all of the Notes, to the extent that such provision in that “Description of Notes” was intended to be a verbatim recitation of a provision of the Indenture or such Notes (as evidenced by an Officers’
Certificate of the Company and Opinion of Counsel); (k) provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture as of the date hereof; (l) evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Notes and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 7.08 of the Indenture; (m) change the Registrar or Paying Agent; and (n) remove redemption provisions included in any Notes that are no longer in effect.
13. DEFAULTS AND REMEDIES. An Event of Default occurs if: (i) the
Company defaults in the payment of interest (including Additional Interest, if any) on any of the Notes when it becomes due and payable and such default continues for a period of 30 days; (ii) the Company defaults in the payment when due of
principal of or premium, if any, on any Note when due at maturity, upon acceleration, required purchase or otherwise; (iii) the Company fails to observe, perform or comply with the covenants and agreements of Section 5.01(a) of the
Indenture; (iv) the Company or any Guarantor fails to observe, perform or comply with any of the other covenants and agreements in the Indenture, the Notes, or the Note Guarantees and such failure to observe, perform or comply continues for a
period of 60 days after receipt by the Company of a written notice from the Trustee or the Holders of at least 30% in aggregate principal amount of Notes then outstanding; (v) the Company or any Guarantor that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law: (a) commences a voluntary case, (b) consents to the entry of an order for relief against
it in an involuntary case, (c) consents to the appointment of a custodian of it or for all or substantially all of its property, or (d) makes a general assignment for the benefit of its creditors; (vi) a court of competent
jurisdiction enters an order or decree with respect to the Company or any Guarantor that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary under any Bankruptcy Law
that: (a) is for relief against such Person(s) in an involuntary case, (b) appoints a custodian of such Person(s) or for all or substantially all of the property of such Person, or (c) orders the liquidation of such Person(s);
provided the order or decree remains unstayed and in effect for 60 consecutive days; (vii) except as permitted by the Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any
reason to be in full force and effect, or any Guarantor, or any Person controlling such Guarantor denies or disaffirms its obligations under its Note Guarantee, and such default continues for a period of 30 days; (viii) Indebtedness of the
Company or any Restricted Subsidiary is not paid when due or within any applicable grace period or is accelerated by the holders thereof and, in either case, the total amount of such unpaid or accelerated Indebtedness exceeds $75,000,000;
(ix) the entry by a court of competent jurisdiction of one or more judgments or orders against the Company or any Restricted Subsidiary in an uninsured aggregate amount in excess of $75,000,000 and such judgment or order is not discharged,
waived, stayed or satisfied for a period of 60 consecutive days after such judgment or judgments become final and non-appealable; and (x) any revocation, suspension or loss of
5
any Gaming License which results in the cessation of business for a period of more than 90 consecutive days of the business of any Gaming Facility or Gaming Facilities owned, leased or operated
directly by the Company or any of its Restricted Subsidiaries, which, taken together, collectively contribute more than 10% of the Company’s Consolidated EBITDA (other than any voluntary relinquishment of a Gaming License if such relinquishment
is, in the reasonably good faith judgment of the Board of Directors and evidenced by a Board Resolution, desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole). A Default under clause (viii), (ix) or
(x) is not an Event of Default until the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes notify the Company of the Default; provided that any Default under clause (viii) above resulting from a default or
acceleration with respect to Indebtedness will not be considered an Event of Default if such default or acceleration is cured or annulled, respectively, within 30 days of the receipt by the Company of such notice of default from the Trustee or
Holders of not less than 30% in aggregate principal amount of the Notes. Subject to the following paragraph, If an Event of Default (other than an Event of Default resulting from subclauses (v) or (vi) above) shall have occurred and be
continuing, the Trustee or the Holders of not less than 30% in aggregate principal amount of the Notes then outstanding may accelerate the maturity of all the Notes by a notice in writing to the Company (and to the Trustee, if given by the Holders)
specifying the Event of Default and that it is a “notice of acceleration” and on the fifth Business Day after delivery of such notice, the principal amount, together with any accrued and unpaid interest and premium and Additional Interest,
if any, on all of the Notes then outstanding, will become immediately due and payable. Notwithstanding the foregoing, in case an Event of Default resulting from subclauses (v) or (vi) above shall occur, the Notes then Outstanding
(including any accrued interest and, if applicable, Additional Interest, thereon) shall be due and payable immediately without any declaration or other act on the part of the Trustee or the Holders; provided, however, that, the Holders
of a majority in aggregate principal amount of the Notes then Outstanding, may, by written notice to the Trustee, rescind and annul such acceleration if all Events of Default, other than the nonpayment of accelerated principal, premium or Additional
Interest, if any, or interest on the Notes, have been cured or waived as provided in the Indenture and such rescission and annulment would not conflict with any judgment or decree. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority in the aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee in its exercise of any trust or power.
The sole remedy for an Event of Default relating to the failure to comply with the
reporting obligations described in Section 4.03 of the Indenture and for any failure to comply with the requirements of TIA§314(a), will for the 365 days after the occurrence of such an Event of Default consist exclusively of the right to
receive Additional Interest on the principal amount of the Notes at a rate equal to 0.50% per annum. The Additional Interest will be payable in the same manner and subject to the same terms as other interest payable under the Indenture. The
Additional Interest will accrue on all outstanding Notes from and including the date on which an Event of Default relating to a failure to comply with the reporting obligations under Section 4.03 of the Indenture or TIA § 314(a) first
occurs to but excluding the 365th day thereafter (or such earlier date on which the Event of Default relating to such reporting obligations is cured or waived). If the Event of Default resulting from such failure to comply with the reporting
obligations is continuing on such 365th day, such Additional Interest will cease to accrue and the Notes will be subject to the other remedies provided under Article 6 of the Indenture.
Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes. The Holders of a majority in principal amount of the Notes then
outstanding by notice to the Trustee may waive an existing Default and its consequences hereunder (including rescission of acceleration as a result thereof) except (i) a Default in the payment of principal of or interest on a Note or
6
(ii) a Default in respect of a provision that under Section 9.02 of the Indenture cannot be amended without the consent of each affected Holder of Notes. Upon any such waiver, such Default
shall cease to exist and shall be deemed to have been cured for every purpose of the Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest (as defined in the Trust Indenture Act) it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties.
14. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture and the Note Guarantees, where
applicable, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may
be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. CUSIP NUMBERS; ISINS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers and ISINs to be printed on the Notes and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
18. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to Boyd Gaming
Corporation, 3883 Howard Hughes Parkway, 9th Floor, Las Vegas, Nevada 89169, Attention: General Counsel.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
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(Insert assignee’s legal name) |
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name,
address and zip code)
and irrevocably appoint
to transfer this Note
on the books of the Company. The agent may substitute another to act for him.
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(Sign exactly as your name appears on the face of this Note) |
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note, have been made:
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Principal Amount of
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Principal Amount of
this Global Note |
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Principal Amount
of this Global Note following
such decrease (or increase) |
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officer of Trustee or
Note Custodian |
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all of this Note purchased by the Company pursuant to Section 4.10 or 4.11 of the Indenture, check the box:
If you want to elect to have only part of this Note purchased by the Company pursuant to Section 4.10 or
4.11 of the Indenture, state the principal amount:
$
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Your signature: |
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(Sign exactly as your name appears on the other side of this Note) |
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Exhibit 5.1
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425 MARKET STREET SAN FRANCISCO
CALIFORNIA 94105-2482
TELEPHONE: 415.268.7000 FACSIMILE: 415.268.7522
WWW.MOFO.COM |
|
MORRISON FOERSTER LLP
BEIJING, BERLIN, BRUSSELS, DENVER,
HONG KONG, LONDON, LOS ANGELES, NEW YORK,
NORTHERN VIRGINIA, PALO ALTO, SACRAMENTO, SAN DIEGO,
SAN FRANCISCO, SHANGHAI, SINGAPORE, TOKYO,
WASHINGTON, D.C. |
May 21, 2015
Boyd Gaming
Corporation
3883 Howard Hughes Parkway, Ninth Floor
Las
Vegas, Nevada 89169
| Re: |
Boyd Gaming Corporation Prospectus Supplement to Registration Statement on Form S-3 |
Ladies and
Gentlemen:
We have acted as counsel for Boyd Gaming Corporation, a Nevada corporation (the “Company”), and the
Guarantors (as defined below) in connection with the issuance and sale by the Company of $750 million aggregate principal amount of the Company’s 6.875% Senior Notes due 2023 (the “Notes”), pursuant to the terms of an
Underwriting Agreement, dated as of May 7, 2015, among the Company, the guarantors of the notes named in Schedule B thereto (the “Guarantors”) and the several underwriters named in Schedule A thereto (the
“Underwriters”). The Notes are to be issued, and the guarantees thereof (the “Guarantees” and together with the Notes, the “Securities”) are to be given, pursuant to the terms and conditions of, and
in the form set forth in, a base indenture entered into on May 7, 2015 by and among the Company, the Guarantors and Wilmington Trust, National Association, as trustee (the “Trustee”) as modified by the supplemental indenture
entered into on May 21, 2015 by and among the Company, the Guarantors and the Trustee (collectively, the “Indenture”). This opinion is furnished to you in connection with the shelf registration statement on Form S-3 (File
No. 333-203814) (the “Registration Statement”) of the Company filed with the Securities and Exchange Commission (the “Commission”), in accordance with the provisions of the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder (collectively, the “Act”), relating to the issuance and sale of the Securities.
In connection with this opinion, we have examined originals, copies or forms of: (i) the Registration Statement; (ii) the
prospectus, dated May 1, 2015 (the “Base Prospectus”), which forms a part of the Registration Statement; (iii) the preliminary prospectus supplement, dated May 7, 2015, relating to the Securities (together with the
Base Prospectus,
Boyd Gaming Corporation
May
21, 2015
Page Two
the “Preliminary Prospectus”); (iv) the prospectus supplement, dated May 7, 2015 (together with the Base Prospectus, the “Prospectus”), relating to the
Securities; and the Indenture (such documents the “Documents”). In addition, we have examined such records, documents, certificates of public officials and of the Company and the Guarantors, made such inquiries of officials of the
Company and the Guarantors, and considered such questions of law as we have deemed necessary for the purpose of rendering the opinions set forth herein.
In connection with this opinion, we have assumed the genuineness of all signatures, the authenticity of all items submitted to us as
originals, and the conformity with originals of all items submitted to us as copies. In making our examination of the Documents, we have also assumed that each party to the Documents (other than the Company and the Guarantors) has the power and
authority to execute and deliver, and to perform and observe the provisions of, the Documents, and has duly authorized, executed and delivered such Documents, and that such Documents constitute the legal, valid and binding obligations of each such
party (other than the Company and the Guarantors) enforceable against each such party in accordance with their terms; that the Indenture constitutes the legal, valid and binding obligations of the Trustee; and that the Indenture has been duly
authenticated by the Trustee and will be duly qualified under the Trust Indenture Act of 1939, as amended. We have also assumed compliance with all applicable state securities and “Blue Sky” laws.
The opinions hereinafter expressed are subject to the following further qualifications and exceptions:
| (1) |
We express no opinion as to the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally, including, without limitation,
laws relating to fraudulent transfers or conveyances, preferences and equitable subordination. |
| (2) |
We express no opinion as to limitations imposed by general principles of equity upon the availability of equitable remedies or the enforcement of provisions of the Documents; and the effect of judicial decisions which
have held that certain provisions are unenforceable where their enforcement would violate the implied covenant of good faith and fair dealing, or would be commercially unreasonable, or where a default under the Documents is not material.
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We express no opinion as to the effect of judicial decisions permitting the introduction of extrinsic evidence to supplement the terms or aid in the interpretation of the Documents. |
| (4) |
Enforceability of the Guarantees may be limited by statutes or principles of law applicable to guaranties. Those statutes and provisions may, inter
alia, limit the right of a creditor to alter materially the original obligation of the principal, to elect |
Boyd Gaming Corporation
May
21, 2015
Page Three
remedies on default that impair the subrogation rights of the guarantor against the principal, or to take other action that materially prejudices the guarantor. In this connection, we advise you
that failure to comply with such statutes or principles may operate to exonerate the Guarantors from their obligations under the Guarantees.
| (5) |
We express no opinion as to the effect on the opinions expressed herein of (i) the compliance or non-compliance of any party to the Documents with any law, regulation or order applicable to it, or (ii) the
legal or regulatory status or the nature of the business of any such party. |
| (6) |
We express no opinion regarding the gaming laws of any jurisdiction or as to the effect of any gaming laws on the opinions expressed herein. |
| (7) |
We express no opinion as to the enforceability of provisions of the Documents providing for indemnification or contribution, to the extent such indemnification or contribution is against public policy.
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We express no opinion as to the enforceability of provisions of the Documents imposing or which are construed as effectively imposing a penalty. |
| (9) |
We express no opinion as to the enforceability of any provision of the Documents which purports to establish evidentiary standards or to make determinations conclusive or powers absolute. |
| (10) |
We express no opinion as to the enforceability of the waiver of stay or extension laws contained in Section 4.05 of the Indenture. |
| (11) |
We express no opinion as to the enforceability of any choice of law provisions contained in the Documents or the enforceability of any provisions which purport to establish a particular court as the forum for
adjudication of any controversy relating to the Documents or which purport to cause any party to waive or alter any right to a trial by jury or which waive objection to jurisdiction. |
Our opinion is based upon current statutes, rules, regulations, cases and official interpretive opinions, and it covers certain items that are
not directly or definitively addressed by such authorities.
Based upon and subject to the limitations and qualifications set forth
herein, we are of the opinion that:
The Notes, when issued, executed and authenticated in accordance with the provisions of the Indenture
and the terms of the Registration Statement, will be legally issued and binding obligations of the Company, and the Guarantees, pursuant to the terms of the Indenture, will be valid and binding obligations of the Guarantors.
Boyd Gaming Corporation
May
21, 2015
Page Four
We express no opinion as to matters governed by any laws other than the substantive laws of
the State of New York, Nevada, Mississippi, Louisiana, Indiana, New Jersey and Illinois, the General Corporation Law of the State of Delaware and the federal laws of the United States (in each case, without reference to choice of law rules),
which are in effect on the date hereof. As to the laws of each of Nevada, Mississippi, Louisiana, Indiana, New Jersey and Illinois, we have solely relied on the opinions from the law firms listed in the following sentences, and our opinions set
forth herein are subject to all of the qualifications, assumptions and limitations that are set forth in such opinions. As to the laws of Nevada, we have relied on the opinion of McDonald Carano Wilson LLP. As to the laws of Mississippi, we have
relied on the opinion of Jones Walker LLP. As to the laws of Louisiana, we have relied on the opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. As to the laws of Indiana, we have relied on the opinion of Ice Miller LLP. As to
the laws of New Jersey, we have relied on the opinion of Brownstein Hyatt Farber Schreck, LLP. As to the laws of Illinois, we have relied on the opinion of Greenberg Traurig, LLP.
We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement and any amendments thereto and to the reference
to our firm under the caption “Legal Matters” in the prospectus included therein. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Morrison & Foerster LLP
Exhibit 5.2
[Letterhead of McDonald Carano Wilson LLP]
May 21, 2015
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105-2482
| |
Re: |
Boyd Gaming Corporation |
Prospectus Supplement to Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted
as special Nevada counsel to Boyd Gaming Corporation, a Nevada corporation (the “Company”), and to its Nevada subsidiaries, California Hotel and Casino, California Hotel Finance Corporation, Coast Casinos, Inc., Coast Hotels and Casinos,
Inc., M.S.W., Inc., and Sam-Will, Inc. (collectively, the “Nevada Guarantors”), in connection with the sale of $750,000,000 aggregate principal amount of the Company’s 6.875% Senior Notes due 2023 (the “Notes”). This
statement of opinions is provided to you with reference to the opinion your firm is giving on this date to the Company regarding the above-referenced matter.
In order to express the opinions contained herein, we have examined such records, documents, certificates of public officials and of the
Company and the Guarantors, made such inquiries of officials of the Company and the Guarantors, and considered such questions of law as we have deemed necessary for the purpose of rendering the opinions set forth herein, including copies of the
Underwriting Agreement; the Base Indenture dated as of May 21, 2015, among the Company, the Guarantors, and Wilmington Trust National Association, as trustee, as supplemented by the Supplemental Indenture (collectively, the “Indenture”);
the guarantees, whose terms are set forth in the Indenture (the “Guarantees”); the DTC Agreement; and the Company’s registration statement on Form S-3 filed under the Securities Act of 1933, as amended (the “Securities
Act”), with the Securities and Exchange Commission (the “Commission”) on May 1, 2015 (File No. 333-203814) (the “Registration Statement”), including the base prospectus contained therein, as supplemented by a prospectus
supplement, dated May 7, 2015 (collectively, the “Prospectus”), as filed with the Commission pursuant to Rule 424(b)(5) of the Securities Act. For the purposes of this statement of opinions, the term “Transaction Documents” shall
include the Underwriting Agreement, the Indenture, the DTC Agreement, the Guarantees, and the Notes.
We have assumed the genuineness of
all signatures, the authenticity of all items submitted to us as originals, and the conformity with originals of all items submitted to us as copies. We have also assumed that the Indenture, the DTC Agreement, the Guarantees and the Underwriting
Agreement have been or will be duly authorized, executed, and delivered by all parties thereto (other than by the Company and the Nevada Guarantors).
Morrison & Foerster LLP
May 21, 2015
Page 2
Based upon the foregoing and subject to the qualifications set forth herein, we are of the following opinions:
1. The Company and each of the Nevada Guarantors have been duly organized and are validly existing and in good standing under the laws of the
State of Nevada with all necessary corporate power to enter into the Transaction Documents.
2. Each of the Transaction Documents have
been duly and validly authorized, executed, and delivered by the Company and the Nevada Guarantors, and the guarantee of each Nevada Guarantor will constitute a binding obligation of such Nevada Guarantor.
We note that the parties to the Transaction Documents have chosen the laws of the State of New York to be the governing laws of the Notes. We
are licensed to practice law only in the State of Nevada and our opinions are therefore limited only to matters of Nevada law and should not be construed as expressions of opinions as to the laws of any other jurisdiction.
Our opinions are furnished to Morrison & Foerster LLP. Neither this letter nor any opinion expressed herein may be relied upon, nor may
copies be delivered or disclosed to, any person or entity for any purpose without our prior written consent; provided, however, that Morrison & Foerster LLP may rely on this letter and the opinions set forth herein in connection with its Opinion
Letter to the Company relating to the validity of the Notes, as filed with the Commission as an exhibit to the Registration Statement, and may file a copy of this letter as an exhibit to a Form 8-K in connection therewith.
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| Sincerely, |
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| /s/ McDonald Carano Wilson LLP |
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| McDONALD CARANO WILSON LLP |
Exhibit 5.3
May 21, 2015
Morrison & Foerster
LLP
425 Market St.
San Francisco, CA 94105
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Re: |
Boyd Gaming Corporation / $750,000,000 Senior Notes Due 2023 |
Ladies and Gentlemen:
We have acted as special counsel in the State of Mississippi (the “State”) to Boyd Gaming Corporation, a Nevada corporation (the
“Company”), and its wholly-owned subsidiaries, Boyd Tunica, Inc., a Mississippi corporation doing business as Sam’s Town Hotel and Gambling Hall (“Sam’s Town”) and Boyd Biloxi, LLC, a Mississippi limited liability
company doing business as IP Casino Resort Spa (“IP Casino,” and collectively with Sam’s Town, the “Mississippi Subsidiaries,” and each individually a “Mississippi Subsidiary”) in connection with the transactions
relating to an offering of $750,000,000 aggregate principal amount of 6.875% Senior Notes due 2023 (the “Senior Notes”) to be issued pursuant to a base indenture dated as of May 21, 2015 among the Company, the guarantors party to the
Underwriting Agreement (as defined below) (collectively, the “Guarantors”) and Wilmington Trust, National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture (collectively, the
“Indenture”). This opinion is being issued and delivered to you at the request of the Company. Capitalized terms used herein, unless otherwise defined, shall have the same meanings ascribed to such terms in that certain Underwriting
Agreement dated as of May 7, 2015 (the “Underwriting Agreement”), by and among the Company, the Guarantors and the several Underwriters, and relating to the issuance of the Senior Notes.
In rendering these opinions we have examined copies of the following documents identified to us as the forms of such documents which have been
executed or which are to be executed at the closing of the transactions described in such documents or used or to be used in connection with the issuance and sale of the Senior Notes:
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the Underwriting Agreement; |
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(iv) |
the Guarantee, the terms of which are set forth in the Indenture; |
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(v) |
the Registration Statement; |
Morrison & Foerster LLP
May 21, 2015
Page
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(vii) |
the Prospectus Supplement; |
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(viii) |
the certificates dated as of the date hereof of the duly elected, qualified and authorized officer of each of the Mississippi Subsidiaries as to certain factual matters (collectively, the “Officer
Certificates” and each individually an “Officer Certificate”); |
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(ix) |
the articles of incorporation and bylaws of Sam’s Town, each as amended through the date hereof and as certified by an Officer Certificate; |
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(x) |
the certificate of formation and the limited liability company operating agreement of IP Casino, each as amended through the date hereof and as certified by an Officer Certificate; |
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(xi) |
the resolutions adopted by the board of directors, the members and/or the managers, as applicable, of each of the Mississippi Subsidiaries dated as of April 29, 2015 with respect to the transactions referred to
herein and as certified by an Officer Certificate (the “Resolutions”); |
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(xii) |
the certificate of existence for each of the Mississippi Subsidiaries, as issued by the Secretary of State of the State on May 5, 2015 (collectively, the “Good Standing Certificates” and each individually
a “Good Standing Certificate”); and |
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(xiii) |
the minutes of the November 20, 2013 meeting of the Mississippi Gaming Commission (the “Commission”), approving the issuance of a “shelf offering approval” to the Company and its subsidiaries,
including Sam’s Town and IP Casino. |
The documents referred to in the foregoing clauses (i) through
(vii) above are hereinafter collectively referred to as the “Transaction Documents.” The execution and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby are hereinafter collectively
referred to as the “Transactions.” The documents referred to in the foregoing clauses (ix) through (x) above are hereinafter collectively referred to as the “Organizational Documents”.
We have made such legal and factual examinations and inquiries as we have deemed necessary or appropriate for purposes of this opinion, except
where a statement is qualified as to knowledge or awareness, in which case we have made no or limited inquiry as specified below. We have been furnished with, and with your consent have relied upon, the Officer Certificates and assurances of the
officers and other representatives of the Company and each Mississippi Subsidiary and of public officials as we have deemed necessary for the purpose of rendering the opinions set forth herein. As to questions of fact material to our opinions, we
have also relied upon the statements of fact and the representations and warranties as to factual matters contained in the documents we have examined; however, except as otherwise expressly indicated, we have not been requested to conduct, nor have
we undertaken, any independent investigation to verify
Morrison & Foerster LLP
May 21, 2015
Page
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the content or veracity thereof or to determine the accuracy of any statement, and no inference as to our knowledge of any matters should be drawn from the fact of our representation of the
Company or the Mississippi Subsidiaries.
Without limiting the generality of the foregoing, in rendering this opinion, we have, with your
permission, assumed without independent verification the following:
(i) the genuineness of all signatures and the legal capacity of all
persons executing any document on behalf of any party, the power and authority of each party to execute, deliver and perform the documents or certificates to which such party is the signatory, the authenticity of all documents submitted to us as
originals, the conformity with originals of all documents submitted to us as copies and that there are no oral or written agreements or understandings that would in any manner vary the terms and provisions of the documents that we have examined or
which would have an effect on the opinions expressed herein;
(ii) the correctness and accuracy through the date hereof of all records
reviewed, of all facts (other than legal conclusions) set forth in the Officer Certificates and Good Standing Certificates, and of the representations and warranties set forth, and the statements of fact made, in the Transaction Documents, and we
have not undertaken any independent review or investigation to determine the existence or absence of such factual matters;
(iii) that all
authorizations, approvals, actions, orders, licenses, permits and consents of or from, and all notices to or filings or registrations with, any governmental authority in any jurisdiction other than the State and from, to or with any third party,
that are required in connection with the performance of any party’s obligations under the Transaction Documents and the consummation of the Transactions, have been obtained, taken, received or made, and are in full force and effect;
(iv) that, other than the Mississippi Subsidiaries, each party to any Transaction Document:
(a) is duly incorporated or formed, validly existing and in good standing under the laws of its jurisdiction of incorporation
or formation, as the case may be,
(b) is duly qualified to do business in the State, if such qualification is necessary,
and
(c) has the requisite corporate or other organizational power and authority to conduct the business contemplated by
and to perform its obligations under the Transaction Documents;
(v) that the Transaction Documents and the performance of the parties
thereunder have been duly authorized by each party thereto, other than the Mississippi Subsidiaries, and that the Transaction Documents have been executed and delivered by the parties thereto, other than the Mississippi Subsidiaries, for good
consideration received by each such party;
Morrison & Foerster LLP
May 21, 2015
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(vi) that each of the Transaction Documents constitutes the legal, valid and binding
obligation of each party to such Transaction Documents, other than the Mississippi Subsidiaries;
(vii) that the authorization, execution,
delivery and performance of the Transaction Documents by the parties thereto, other than the Mississippi Subsidiaries, do not and will not violate the corporate articles and bylaws or other organizational documents of the respective parties and do
not or will not violate or conflict with any law, order, writ, injunction, or decree of any court, administrative agency or other governmental authority applicable to such parties, other than the Mississippi Subsidiaries;
(viii) that no material mistake of fact or misunderstanding, fraud, duress or undue influence has been involved in the negotiation of the
Transaction Documents or the consummation of the Transactions contemplated thereby;
(viii) that each Mississippi Subsidiary will derive
substantial benefit from the Transactions;
(ix) other than as set forth in Opinion paragraph 1. below, that the business conducted by
each of the Mississippi Subsidiaries in the State (except for the execution and delivery by each Mississippi Subsidiary of the Transaction Documents to which it is a party, and its performance of the Transactions contemplated thereby) and the
ownership, lease or other use of any property by the Mississippi Subsidiaries in connection with such business, does not violate any applicable requirement of State law; and
(x) that each of the Transaction Documents executed by the parties thereto prior to the date hereof remains in full force and effect and has
not been cancelled, rescinded, or otherwise modified by any such parties except as described above.
Whenever our opinion with respect to
the existence or absence of facts is qualified by the phrase “to our knowledge”, “known to us” or a similar phrase indicating or implying a limitation on our knowledge, such phrase means that those attorneys presently in our firm
who have devoted substantive attention to the representation of the Company and the Mississippi Subsidiaries do not have actual current knowledge that the facts as stated herein are untrue. While we periodically represent the Company and the
Mississippi Subsidiaries with respect to specific matters as to which we have been retained, other law firms routinely represent the Company and the Mississippi Subsidiaries and may have knowledge or information of which we are unaware with respect
to matters for which the other firms have been retained by the Company or one or more of the Mississippi Subsidiaries. Furthermore, in reaching certain of the legal conclusions set forth herein, our knowledge of certain relevant factual matters is
based on the representations and warranties contained in the Transaction Documents, Organizational Documents and Officer Certificates.
We
also note that certain Transaction Documents designate the laws of the State of New York as the governing law.
Morrison & Foerster LLP
May 21, 2015
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Based upon the foregoing and in reliance thereon, and subject to the qualifications,
limitations, exceptions and assumptions set forth herein, we are of the opinion that:
1. Each Mississippi Subsidiary has been duly
organized and, based solely upon the Good Standing Certificates, is validly existing and in good standing under the laws of the State, with the requisite corporate or limited liability company power and authority to enter into the Transaction
Documents.
2. Each of the Transaction Documents to which a Mississippi Subsidiary is a party has been duly and validly authorized,
executed and delivered by such Mississippi Subsidiary, and the Guarantee of each Mississippi Subsidiary will constitute a binding obligation of such Mississippi Subsidiary.
The foregoing opinions are subject to the following conditions, exceptions and qualifications:
A. We express no opinion as to compliance with any environmental laws; ERISA or other pension and employee benefit laws and regulations;
federal patent, trademark and copyright laws and regulations; federal and state securities laws and regulations, including but not limited to any “blue sky” laws; federal reserve board margin regulations; or federal and state anti-trust
and unfair competition laws and regulations.
B. We express no opinion as to the validity, binding effect, enforceability or performance
of any provision in any of the Transaction Documents to the extent that such provision (i) purports to select the jurisdiction or venue for litigation in any state or court, purports to alter or waive requirements for valid service of process
or purports to waive the right to a jury trial; (ii) purports to waive any requirement of reasonable or diligent performance or other care on the part of any party with respect to the recognition or preservation of the rights of such party to
or interest in any property subject to any security interest or lien granted thereby; (iii) provides that delays by any party will not operate as a waiver; (iv) attempts to define commercial reasonableness or otherwise modify or waive any
requirements of commercial reasonableness or notice; or (v) provide for indemnity of any party.
C. We express no opinion on the
irrevocability of licenses or of powers of attorney, regardless whether “coupled with an interest”.
D. The enforceability of
any party’s obligations under any of the Transaction Documents is subject to the following:
(i) The effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally (including such limitations as may deny giving effect to waivers of a debtor’s or guarantor’s rights) and the effect of any
statutory or other law regarding fraudulent conveyances, preferential transfers or similar avoidance remedies;
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(ii) General principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and we express no opinion as to whether any provision is specifically enforceable in equity;
(iii) The
obligation of the parties to act reasonably, in good faith and with fairness in exercising rights under the Transaction Documents;
(iv)
Certain remedial provisions of the Transaction Documents may be unenforceable in whole or in part under the laws of the State, but the inclusion of such provisions does not affect the validity thereof, taken as a whole, and, in our opinion, the
Transaction Documents contain adequate provisions for the practical realization of the rights and benefits intended to be provided thereby;
(v) Any choice of the laws of a jurisdiction other than the State to govern any document will not be effective to the extent that such choice
of law relates to matters of title or procedural matters related to perfection and enforcement of rights and remedies in the State and will be enforceable only if the transactions contemplated by such document have a substantial relation to the
jurisdiction whose laws are chosen (i.e., negotiations, acceptance of contracts, payment of any obligations, execution of any documents and the place of business of the lender occur in or are located in the other state) and the choice of such
laws is made in good faith and not for the purpose of evading the laws of any state;
(vi) The appointment of a party such as a lender as
attorney-in-fact or as proxy for an adverse party such as a borrower may not be enforceable under principles of equity or as a result of a conflict between the obligations of an attorney-in-fact or proxy holder and the adverse interests of the
parties;
(vii) The appointment of a receiver for the property of any debtor will not be authorized, except as an ancillary part of a
separate action on the debt, whether the debt is secured or unsecured;
(viii) To the extent that any of the Transaction Documents purport
to waive or to affect the rights of third parties who are not signatories to the Transaction Documents, such provisions of the Transaction Documents are not enforceable against such third parties; and
(ix) The waiver of any applicable statute of limitations is not enforceable; and
(x) We express no opinion as to the right of any party to enforce any of its rights without notice to the appropriate other parties and
without judicial hearing or without bond, nor do we express any opinion as to whether the periods of notice set forth in the Transaction Documents are enforceable.
E. We advise you of the following:
(1) Commission Regulation Title 13, Part 2 Licensing, Chapter 9 Transfers of Ownership; Loans; Leases, Rule 9.11 Loans to
Licensees and Other Reportable
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Transactions, Subsection (g) requires the filing of a loan to licensees report with the Commission within thirty (30) days of certain loan transactions involving a State gaming
licensee. Pursuant to such regulation, the Commission may require rescission of any such loan transaction that is inimical to the public health, safety, morals, good order or general welfare of the people of the State or would reflect, or tend to
reflect, discredit upon the State or the gaming industry, and the Commission may require lenders to a gaming licensee to be found suitable. The Commission takes the position that the issuance and sale of securities such as the Senior Notes are
subject to the reporting requirements of Commission Regulation Title 13, Part 2 Licensing, Chapter 9 Transfers of Ownership; Loans; Leases, Rule 9.11 Loans to Licensees and Other Reportable Transactions, Subsection (g).
(2) While the Company and the Mississippi Subsidiaries (i) have received a waiver granted by the Commission from the prior
approval requirements under the Mississippi Gaming Control Act and the rules and regulations promulgated thereunder with respect to private placements and public offerings of its securities, and (ii) the Commission has approved of restrictions
on the transfer of, and agreements not to encumber, the stock or other equity interests of the Mississippi Subsidiaries and related guarantees by the Mississippi Subsidiaries with respect to such offerings, the Commission retains the ability to
issue a “stop order” with respect to any such offerings. Such an order may be issued for any cause deemed reasonable by the Executive Director of the Commission.
F. We note that:
(1) The Trustee, the Underwriters or any holder of a Senior Note (collectively the “Participants” and each a
“Participant”) are subject to being called forward by the Commission, in its discretion, to apply for licensing or a finding of suitability in order to remain entitled to the benefits of the Transaction Documents, as applicable. In this
regard, we express no opinion as to whether the Commission would call any Participant forward for such a finding and, if it were so to do, if the Commission would find such Participant suitable.
(2) We have assumed that none of the Participants will exercise significant influence (as set forth in Section 75-76-61 of
the Mississippi Gaming Control Act and other provisions of the Gaming Laws of the State, as defined in the Indenture) over the gaming activities or operations of the Company or either Mississippi Subsidiary without first securing the requisite
approvals required under the Gaming Laws of the State.
(3) The Commission has substantial discretion with respect to the
interpretation of the Gaming Laws of the State.
(4) The exercise of certain rights and remedies by any Participant may
require the prior approval of the Commission.
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The opinions expressed herein are based upon the applicable laws, regulations and ordinances
in effect as of the date of this opinion. Our opinions as to compliance with certain statutes, rules and regulations and as to the lack of any required authorization, approval, consent or order of any court or governmental agency, body or
administrative agency of the State are based upon a review of those statutes, rules and regulations which, in our experience, are normally applicable to transactions of the type contemplated by the Transaction Documents. In delivering this letter to
you, we are not undertaking to apprise you of any transactions, events or occurrences taking place after the date of this letter of which we may acquire any knowledge or of any change in any applicable laws taking place after the date of this letter
which may affect our opinions set forth herein.
We are members of the Bar of the State and this opinion relates only to the laws of the
State. We do not opine on the laws of any other jurisdiction or federal laws of the United States, including federal securities law, or any blue sky laws or state securities law, including securities laws of the State. References herein to courts,
governmental authorities, bodies or administrative agencies, and governmental authorizations, laws and regulations shall be limited to those of the State, excluding, however, its political subdivisions and their respective agencies, bodies and
authorities (as to which we express no opinion).
This opinion is solely for the benefit of Morrison & Foerster LLP, and may not
be quoted to or relied on by, nor may copies be circulated, furnished or delivered to, any other person or used for any other purpose or any other transaction, without our prior written consent; provided, however, that Morrison & Foerster
LLP may rely on this letter and the opinions set forth herein in connection with its Opinion Letter to the Company relating to the validity of the Notes, as filed with the Commission as Exhibit 5.1 to the Registration Statement and may file a copy
of this letter as an exhibit to a Form 8-K in connection therewith.
Very truly yours,
/s/ Jones Walker LLP
JONES WALKER LLP
Exhibit 5.4
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201 ST. CHARLES AVENUE SUITE 3600
NEW ORLEANS, LOUISIANA 70170
PHONE: 504.566.5200
FAX: 504.636.4000
www.bakerdonelson.com |
May 21, 2015
VIA EMAIL
Morrison &
Foerster LLP
425 Market St.
San Francisco, CA 94105
| |
Re: |
Offering of Boyd Gaming Corporation 6.875% Senior Notes due 2023 |
Ladies and Gentlemen:
We have acted as special Louisiana counsel for Boyd Gaming Corporation, a Nevada corporation (the “Company”), Boyd Louisiana
Racing, L.L.C., a Louisiana limited liability company (“Boyd Louisiana Racing”), Treasure Chest Casino, L.L.C., a Louisiana limited liability company (“Treasure Chest”), Boyd Racing, L.L.C., a Louisiana limited
liability company (“Boyd Racing”), and Red River Entertainment of Shreveport, L.L.C., a Louisiana limited liability company (“Red River Entertainment” and, together with Boyd Louisiana Racing, Treasure Chest and
Boyd Racing, the “Louisiana Subsidiaries”) with the filing by the Louisiana Subsidiaries (and certain other subsidiaries of the Company) of a shelf registration statement on Form S-3 (the “Registration Statement”)
with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) and prospectus supplement dated May 7, 2015 (the “Prospectus Supplement”), relating
to the offering of $750,000,000 aggregate principal amount of the Company’s 6.875% Senior Notes due 2023 (the “Notes”). The transaction contemplated under the Registration Statement is referred to as the
“Offering”.
ARTICLE I
BACKGROUND
1.1 Proceedings. In our
capacity as special Louisiana counsel, we are familiar with the proceedings taken and proposed to be taken by the Louisiana Subsidiaries in connection with the Offering and the authorization and issuance of the guarantees of the Notes, all as
referenced in the Registration Statement. For purposes of this Opinion Letter, and except to the extent set forth in the opinions expressed below, we have assumed all such proceedings have been or will be timely completed in the manner presently
proposed and the terms of such issuance will be in compliance with applicable laws.
1.2 Transaction Documents. We have acted as local Louisiana
counsel to the Louisiana Subsidiaries in connection with the review or preparation of the following documents relating to the Offering:
ALABAMA — FLORIDA
— GEORGIA — LOUISIANA —
MISSISSIPPI — TENNESSEE — TEXAS —
WASHINGTON, D.C.
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(a) |
the Registration Statement; |
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(b) |
the Prospectus Supplement |
| |
(c) |
the Base Indenture among the Company, the Guarantors and Wilmington Trust, National Association, as Trustee, as supplemented by the Supplemental Indenture (the “Indenture”); and |
| |
(d) |
the Note Guarantees, whose terms are set forth in the Indenture. |
The documents described in items
(b) through (d) above are referred to in this Opinion Letter as the “Transaction Documents.”
1.3 Authority
Documents. For purposes of rendering our opinion set forth herein, we have also examined originals or copies of the following documents (collectively, the “Authority Documents”):
| |
(a) |
Certificates of Good Standing of each of the Louisiana Subsidiaries, dated April 7, 2015, issued by the Louisiana Secretary of State, copies of which are attached hereto as Exhibit A (the “Certificates of
Good Standing”); |
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(b) |
Certified Copies of the Articles of Organization and all amendments thereto of each of the Louisiana Subsidiaries, certified by the Louisiana Secretary of State on April 7, 2015; |
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(c) |
Operating Agreement of each of the Louisiana Subsidiaries, certified by each Louisiana Subsidiary as being true and correct; |
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(d) |
Resolutions of each of the Louisiana Subsidiaries dated April 29, 2015; and |
| |
(e) |
such other documents, agreements, instruments, certificates and records as we have deemed necessary or appropriate for the purpose of issuing this opinion letter. |
1.4 Opining Jurisdiction. The law covered by the opinions expressed in this Opinion Letter (the “Law”) is limited to the Law of the
State of Louisiana (the “State”). We express no opinion concerning the Laws of any other jurisdiction, or the effect thereof. We further express no opinion concerning the statutes and ordinances, the administrative decisions, and
the rules and regulations of counties, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the federal, state or regional level) and judicial decisions to the extent that they deal with
any of the foregoing.
1.5 Scope of Review. In connection with the opinions hereinafter set forth, we have limited the scope of our review of the
documents related to the Offering to photocopies of the Transaction Documents. In addition, in connection with the opinions hereinafter set forth, we have reviewed and relied conclusively upon originals or copies, certified or otherwise identified
to our satisfaction, of such records, agreements, documents and instruments, including the Authority Documents and certificates of representatives of the Company, as we have deemed appropriate as a basis for the opinions hereinafter set forth.
Additionally, we have given consideration to such matters of law and fact, as we have deemed appropriate, in our professional judgment, to render such opinions.
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1.6 Reliance Without Investigation. Except to the extent expressly set forth herein, we have made no
independent investigations with regard to matters of fact, and, accordingly, we do not express any opinion as to matters that might have been disclosed by independent verification.
1.7 Actual Knowledge. As used in this Opinion Letter, the phrase “Actual Knowledge” means the conscious awareness of facts or other
information, without inquiry, by the lawyer(s) in this firm primarily responsible for the representation of the Louisiana Subsidiaries.
ARTICLE II
ASSUMPTIONS
2.1 Assumptions. In rendering the opinions expressed herein, we have relied, without investigation, upon the assumptions set forth below unless in a
given case the particular assumption states, directly or in practical effect, any legal conclusion expressed in the opinion:
| |
(a) |
Natural persons who are involved in the Offering on behalf of the Louisiana Subsidiaries have sufficient legal capacity to enter into and perform the Offering or to carry out their role in it. |
| |
(b) |
The obligations of each party set forth in the documents we have reviewed are its valid and binding obligations, enforceable against such party in accordance with their respective terms. |
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(c) |
Each document submitted to us for review is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each
such document are genuine. The form and content of all Transaction Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this Opinion Letter from the form and content of such Transaction Documents as executed and
delivered. |
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(d) |
Each Authority Document is accurate, complete, and authentic and all official public records (including their proper indexing and filing) are accurate and complete. |
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(e) |
There are no agreements or understandings among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties that would, in either case, define, supplement or qualify the
terms of the Authority Documents. |
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(f) |
The Transaction Documents were duly authorized, executed and delivered by the parties thereto (other than the Louisiana Subsidiaries). |
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(g) |
Adequate value has been given to each Louisiana Subsidiary pursuant to the Transaction Documents. |
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(h) |
Each party has acted in good faith and without notice of any defense against the enforcement of any rights created by, or adverse claim to any property or security interest transferred or created as part of, the
transactions contemplated by the Transaction Documents, and the parties will act at all times in good faith and in a commercially reasonable manner. |
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(i) |
Except with regard to the Louisiana Subsidiaries, each party to the Transaction Documents is duly organized, validly existing and in good standing under the laws of its respective jurisdiction of organization.
|
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(j) |
The absence of any other documents, instruments, records, agreements or understandings that alter, modify or change in any way the validity or accuracy of the representations made to us orally or as set forth in any
documents, instruments, records or agreements provided to or reviewed by us. |
We have no Actual Knowledge that the foregoing assumptions are
false. We have no Actual Knowledge of facts that, under the circumstances, would make our reliance on the foregoing assumptions unreasonable.
ARTICLE III
OPINIONS
Based on the foregoing and subject to the limitations, assumptions and qualifications set forth herein, we are of the following opinions:
3.1 Based solely on the Authority Documents, each of the Louisiana Subsidiaries is validly existing and in good standing under the laws of the State of
Louisiana.
3.2 Each of the Louisiana Subsidiaries has the limited liability company power and authority to execute and deliver the Transaction Documents
to which it is a party and to perform its obligations thereunder, including the guarantee of the Notes.
3.3 The execution and delivery by each of the
Louisiana Subsidiaries of the Transaction Documents to which it is a party and the performance by such Louisiana Subsidiary of its obligations thereunder, including the guarantee of the Notes, (a) have been duly authorized by such Louisiana
Subsidiary and (b) do not violate the Authority Documents of such Louisiana Subsidiary.
3.4 Each of the Louisiana Subsidiaries has duly executed and
delivered the Transaction Documents to which it is a party.
3.5 The guarantee of the Notes set forth in the Transaction Documents will constitute a
binding obligation of such Louisiana Guarantor.
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ARTICLE IV
QUALIFICATIONS
Notwithstanding
any provision in this Opinion Letter to the contrary, the foregoing opinions are subject to the following additional qualifications:
4.1 This Opinion
Letter is subject to the effect of bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance, receivership, moratorium and other similar laws affecting the rights and remedies of creditors generally.
4.2 This Opinion Letter is subject to the effect of general principles of equity, whether applied by a court of law or equity. No opinion is rendered herein
regarding the availability of the remedies of specific performance or receivership.
4.3 We express no opinion on the enforceability of the Transaction
Documents except as set forth in Opinion 3.5. We express no opinion as to the availability of any remedies contained in the Transaction Documents.
4.4 To
the extent that any of the Transaction Documents purport to waive or to affect the rights of third parties who are not signatories to the Transaction Documents, such provisions of the Transaction Documents are not enforceable against such third
parties.
4.5 We also advise, but in doing so do not limit our foregoing opinions, that LAC Title 42 Parts VII and XIII Chapter 25 contains
specific regulations concerning loans and restrictions on licensees. Pursuant to these and other regulations and its plenary power to regulate gaming, the Louisiana Gaming Control Board (the “Board”) may require rescission of any
such loan transaction that is inimical to the public health, safety, morals, good order or general welfare of the people of the State of Louisiana or would reflect, or tend to reflect, discredit upon the State of Louisiana or the gaming industry. We
are not aware of any facts or circumstances that would cause us to believe the Board would require such a rescission with respect to guarantee of the Notes.
4.6 We express no opinion herein concerning, and we assume no responsibility as to laws or judicial decisions related to, or any orders, consents or other
authorizations or approvals as may be required by, any federal laws, rules or regulations, including, without limitation, any federal securities or bankruptcy laws, rules or regulations, or any state securities or “blue sky” laws, rules or
regulations.
ARTICLE V
ADDITIONAL CONSIDERATIONS
5.1 Disclaimer of
Implied Opinions. This Opinion Letter is presumed to deal only with the specific legal issues that are addressed by it. Accordingly, any express opinion concerning a particular legal issue is presumed not to address any other matters. Even if
this presumption against opinion by implication can be overcome by compelling rebuttal, the legal issues specified in the foregoing paragraphs are covered only if and to the extent any such issue is specifically addressed in this Opinion Letter.
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5.2 Expression of Professional Judgment. The opinions contained in this Opinion Letter are expressions
of professional judgment regarding the legal matters addressed and not guarantees that a court will reach any particular result.
5.3 Effective Date;
No Obligation to Update. This Opinion Letter is rendered as of its date, and we express no opinion as to circumstances or events which may occur subsequent to the date that the Registration Statement is declared effective. Further, we undertake
no, and hereby disclaim any, obligation to advise you of any changes in or any new developments which might affect any matters or Opinions set forth herein.
5.4 Reliance. We hereby consent to the filing of this Opinion Letter as an exhibit to the Registration Statement. In giving such consent, we do not
admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. The addressee hereof may rely on this Opinion Letter for the sole
purpose of rendering its Opinion Letter to the Company relating to the validity of the Notes, as filed with the Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ Baker, Donelson, Bearman, Caldwell &
Berkowitz, PC
Baker, Donelson, Bearman, Caldwell &
Berkowitz, PC
Exhibit 5.5
May 21, 2015
Morrison & Foerster
LLP
425 Market Street
San Francisco, CA 94105
| |
Re: |
Registration Statement on Form S-3 of Boyd Gaming Corporation |
Ladies and Gentlemen:
We have acted as special Indiana counsel to Blue Chip Casino, LLC, an Indiana limited liability company (the “Indiana
Guarantor”), in connection with the Registration Statement (including the related (i) prospectus forming a part thereof and (ii) prospectus supplement) on Form S-3 (the “Registration Statement”) being filed by
Boyd Gaming Corporation, a Nevada corporation (the “Company”), with the United States Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Act”), in respect to (a) the
issuance and sale of U.S. $750,000,000 aggregate principal amount of the Company’s 6.875% Senior Notes due 2023 (the “Notes”), and (b) the issuance of full and unconditional guarantees, on a senior unsecured basis, as to
the payment of principal and interest on the Notes (the guarantees, together with the Notes, the “Securities”, and the guarantee by the Indiana Guarantor, the “Guarantee”) by certain subsidiaries of the Company as
guarantors, including the Indiana Guarantor (the “Guarantors”). Capitalized terms used in this opinion letter that are not specifically defined herein have the meanings ascribed to them in Exhibit A.
Except as described in this letter, we are not generally familiar with the Indiana Guarantor’s business, records, transactions or
activities. Our knowledge of its business, records, transactions, and activities is limited to the information that is set forth below and on Exhibit A and that otherwise has been brought to our attention by a certificate executed and
delivered to us by an officer of the Indiana Guarantor in connection with our engagement. We have examined copies, certified or otherwise identified to our satisfaction, of the documents listed in the attached Exhibit A, which is made a part
hereof. For the purposes of this opinion letter, the documents listed as items 2 through 4 in Exhibit A are hereinafter referred to collectively as the “Transaction Documents” and the documents listed as items 5 through 10 in
Exhibit A are hereinafter referred to collectively as the “Authorization Documents”.
In rendering our opinion, we
also have examined such certificates of public officials, organizational documents and records and other certificates and instruments as we have deemed necessary for the purposes of the opinions herein expressed and, with your permission, have
relied upon and assumed the accuracy of such certificates, documents, records and instruments. We have made such examination of the laws of the State of Indiana as we deemed relevant for purposes of this opinion letter, but we have not made a review
of, and express no opinion concerning, the laws of any jurisdiction other than the laws of the State of Indiana. In addition, no opinion expressed herein is intended or shall be construed to be an opinion on choice of law or conflicts of law.
We have relied upon and assumed the truth, accuracy and completeness of the factual
Morrison & Foerster LLP
May 21, 2015
representations, statements, certifications and warranties made in the Transaction Documents and the Authorization Documents and have not made any independent investigation or verification of any
factual matters stated or represented therein. Except to the extent expressly set forth herein, we have not undertaken any independent investigation to determine the existence or absence of such facts or circumstances or the assumed facts set forth
herein, we accept no responsibility to make any such investigation, and no inference as to our knowledge of the existence or absence of such facts or circumstances or of our having made any independent review thereof should be drawn from our
representation of the Indiana Guarantor. Our representation of the Indiana Guarantor is limited to the transactions contemplated by the Indenture and the Guarantee and other matters specifically referred to us by them.
In rendering this opinion letter to you, we have assumed with your permission:
(a) The genuineness of all signatures, the legal capacity and competency of natural persons executing the Transaction Documents and the
Authorization Documents (in each case, whether on behalf of themselves or other persons or entities), the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified,
conformed or photostatic copies, and the authenticity of the originals of such copies.
(b) The documents that have or will be executed and
delivered in consummation of the transactions contemplated by the Transaction Documents will be identical in all material and relevant respects to the copies of the documents we have examined and on which this opinion is based.
(c) Each of the Transaction Documents has been completed, executed and delivered in the forms submitted to us for review, with all required
schedules and exhibits attached and all blanks appropriately filled in.
(d) The Authorization Documents are accurate and have not been
amended or rescinded.
(e) The factual representations, statements, certifications and warranties of the Indiana Guarantor in the
Transaction Documents and the Authorization Documents, and in the other documents that we have reviewed, and upon which we have relied, are accurate, complete and truthful.
(f) All official public records (including their proper indexing and filing) furnished to or obtained by us, electronically or otherwise, were
accurate, complete and authentic when delivered or issued and remain accurate, complete and authentic as of the date of this opinion letter.
(g) We have not examined and render no opinion regarding any transaction document incorporated by reference into any of the Transaction
Documents (other than as set forth above), and we have assumed, with your permission, that any such document so incorporated does not affect the opinions hereby given.
Morrison & Foerster LLP
May 21, 2015
Based on the foregoing and upon such investigation as we have deemed necessary, and subject
to the assumptions, qualifications, exceptions and limitations set forth herein, we are of the opinion that:
1. The Indiana Guarantor has
been duly organized and is validly existing and in good standing under the laws of the State of Indiana. For purposes of this opinion, the term “good standing” means that the Indiana Guarantor is validly existing under the laws of the
State of Indiana, that the most recent required biennial report has been filed with the Secretary of State of Indiana and that no Articles of Dissolution appear as filed in the records of the Secretary of State of Indiana.
2. The Indiana Guarantor has all requisite limited liability company power and limited liability company authority under the law of the State
of Indiana to enter into and deliver the Indenture and the Guarantee and to perform its respective obligations thereunder.
3. The
execution and delivery by the Indiana Guarantor of the Indenture and the Guarantee and the performance by the Indiana Guarantor of its respective obligations thereunder have been duly authorized by all requisite limited liability company action on
the part of such Indiana Guarantor.
4. The Transaction Documents have been duly and validly executed by an authorized officer of the
Indiana Guarantor and delivered by the Indiana Guarantor.
Each of the opinions set forth above is limited by its terms and subject to the
assumptions hereinabove stated and is further subject to the following qualifications, exceptions and limitations, none of which shall limit the generality of any other assumption, qualification, exception or limitation or expand any opinion
rendered herein.
A. We have not considered and do not express an opinion with respect to any Federal or state (including Indiana) securities, tax, or
antitrust laws and regulations. Our opinions set forth in this letter are expressly subject to the effect of the application of all Federal and state (including Indiana) securities, tax and antitrust laws and regulations.
B. We express no opinion as to the legality, validity, binding effect and/or enforceability of any Transaction Document.
C. We express no opinion and make so statements concerning or with respect to any statutes, ordinances, administrative decisions, rules, and regulations of
counties, towns, municipalities, and special political subdivisions.
The opinions expressed herein are matters of professional judgment,
are not a guarantee of result and are effective only as of the date hereof. We do not undertake to advise you of any matter within the scope of this letter that comes to our attention after the date of this letter and disclaim any responsibility to
advise you of any future changes in law or fact that may affect the opinions set forth herein. We express no opinion other than as hereinbefore expressly set forth. No expansion of the opinions expressed herein may or should be made by implication
or otherwise.
Morrison & Foerster LLP
May 21, 2015
We hereby consent to the filing of this letter as an exhibit to the Registration Statement.
In giving this consent, we do not imply or admit that we are included within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. Subject to the foregoing, this opinion
letter is furnished to Morrison & Foerster LLP and may be relied upon by Morrison & Foerster LLP in connection with its opinion letter to the Company related to the issuance of the Securities pursuant to the Registration Statement.
Very truly yours,
/s/ Ice Miller LLP
EXHIBIT A
LIST OF DOCUMENTS REVIEWED
| 1. |
The Registration Statement. |
| 2. |
Underwriting Agreement by and among the Company, the underwriters party thereto and certain subsidiaries of the Company as guarantors, including the Indiana Guarantor, dated May 7, 2015. |
| 3. |
Indenture, dated as of May 21, 2015, by and among the Company, the Guarantors and Wilmington Trust National Association, as Trustee, as supplemented by a supplemental indenture, dated as of May 21, 2015, by
and among the Company, the Guarantors and Wilmington Trust National Association, as Trustee (the “Indenture”). |
| 4. |
The Guarantee, whose terms are set forth in the Indenture. |
| 5. |
Certificate of Existence of the Indiana Guarantor issued by the Indiana Secretary of State on May 20, 2015. |
| 6. |
Articles of Organization of the Indiana Guarantor as certified by the Indiana Secretary of State on April 28, 2015. |
| 7. |
Third Amended and Restated Operating Agreement of the Indiana Guarantor, effective as of November 3, 2004, as certified by the Secretary of the Indiana Guarantor as of the date hereof, to be a true and complete
copy of such Operating Agreement, as amended. |
| 8. |
Unanimous Written Consent of the Sole Member of the Indiana Guarantor, dated April 29, 2015. |
| 9. |
Officer’s Opinion Certificate of the Indiana Guarantor, dated the date hereof. |
| 10. |
Letter issued by the Executive Director of the Indiana Gaming Commission granting a request to waive the two meeting rule and granting interim approval allowing the Company and the Indiana Guarantor to proceed with the
financing and the closing of the financing, dated April 8, 2015. |
Exhibit A
Exhibit 5.6
May 21, 2015
Boyd Gaming Corporation
Boyd Atlantic City, Inc.
3883 Howard Hughes Parkway, 9th Floor
Las Vegas, NV 89169
Ladies and Gentlemen:
We have acted as special New Jersey counsel to Boyd Gaming Corporation, a Nevada corporation (the “Company”), and Boyd
Atlantic City, Inc., a New Jersey corporation (the “NJ Guarantor”), in connection with the registration under the Securities Act of 1933, as amended (the “Act”), pursuant to a registration statement on Form S-3
(File No. 333-203814) (the “Registration Statement”), filed with the Securities and Exchange Commission, including the base prospectus contained therein, as supplemented by a prospectus supplement, dated May 7, 2015
(collectively, the “Prospectus”), of $750,000,000 aggregate principal amount of the Company’s 6.875% Senior Notes due 2023 (the “Notes”) and guarantees thereof issued pursuant to that certain Indenture, dated
as of the date hereof, by and among the Company, certain of the Company’s subsidiaries, including the NJ Guarantor, and Wilmington Trust, National Association, as trustee (in such capacity, the “Trustee”), as modified
and supplemented by the First Supplemental Indenture, dated as of the date hereof, by and among the Company, certain of the Company’s subsidiaries, including the NJ Guarantor, and the Trustee (the “Indenture”).
For purposes of issuing this opinion letter, we have made such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction as being true copies of the Registration Statement, the Prospectus, the Indenture, the Notes, the certificate of incorporation and bylaws, each as amended to date, of the NJ
Guarantor, the resolutions of the board of directors of the NJ Guarantor with respect to the Notes, the Certificate of Good Standing issued by the New Jersey Department of the Treasury on May 20, 2015, with respect to the good standing in New
Jersey of the NJ Guarantor on that date (the “Good Standing Certificate”), and such other documents, agreements, instruments and corporate records and proceedings, as we have deemed necessary or appropriate for purposes of this
opinion letter. We have also obtained from officers and other representatives of the Company and from public officials, and have relied upon, such certificates, representations and assurances as we have deemed necessary or appropriate for the
purpose of issuing the opinions set forth herein.
Without limiting the generality of the foregoing, in issuing this opinion letter, we
have, with your permission, assumed without independent verification that: (i) the statements of fact and all representations and warranties set forth in the documents we have examined are true and correct as to factual matters, in each case as
of the date or dates of such documents and as of the date hereof; (ii) each natural person executing a document has sufficient legal capacity to do so; (iii) all documents submitted to us as originals are authentic, the signatures on all
documents that we have examined are genuine and all documents submitted to us as certified, conformed, photostatic, facsimile or electronic copies conform to the original document; and (iv) all corporate records made available to us by the NJ
Guarantor, and all public records we have reviewed, are accurate and complete.
We are qualified to practice law in the State of New
Jersey. The opinions set forth herein are expressly limited to the general corporate laws of the State of New Jersey in effect on the date hereof, and we do not purport to be experts on, or to express any opinion with respect to the applicability
thereto or to the effect thereon of, the laws of any other jurisdiction. We express no opinion herein concerning, and we assume no responsibility as to laws or judicial decisions related to, or any orders, consents or other
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707 White Horse Pike, Suite C-5 Absecon, NJ
08201 main 609.241.0057 |
Boyd Gaming Corporation
Boyd Atlantic City, Inc.
May 21, 2015
Page 2
authorizations or approvals as may be required by, any federal laws, rules or regulations, including, without limitation, any federal securities laws, rules or regulations, or any state
securities or “Blue Sky” laws, rules or regulations.
Based on the foregoing, and in reliance thereon, and having regard to
legal considerations and other information that we deem relevant, we are of the opinion that:
1. Based solely on our review of the Good
Standing Certificate, the NJ Guarantor is validly existing as a corporation in good standing under the laws of the State of New Jersey.
2. The NJ Guarantor has the corporate power and authority to execute and deliver the Indenture, perform its obligations thereunder and
consummate the transactions contemplated thereby.
3. The NJ Guarantor has duly authorized, executed and delivered the Indenture.
In delivering this opinion letter to you, we disclaim any obligation to update or supplement the opinions set forth herein or to apprise you
of any changes in any laws or facts after the later of the date hereof and the filing date of the Prospectus Supplement. No opinion is offered or implied as to any matter, and no inference may be drawn, beyond the strict scope of the specific issues
expressly addressed by the opinions set forth herein.
We hereby consent to your filing this opinion letter as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Subject to
all of the qualifications, limitations, exceptions, restrictions and assumptions set forth herein, Morrison & Foerster LLP may rely on this opinion letter as if it were an addressee hereof on this date for the sole purpose of issuing its
opinion letter to the Company relating to the registration and issuance of the Notes and guarantees thereof, as filed with the Commission.
Very truly
yours,
/s/ Brownstein Hyatt Farber Schreck, LLP
Exhibit 5.7
Mason Drake
Tel. 312-456-8402
Fax 312-899-0454
DrakeM@gtlaw.com
Martha A. Sabol
Tel. 312-476-5114
Fax 312-899-0335
SabolM@gtlaw.com
May 21, 2015
Morrison & Foerster LLP
as counsel to Boyd Gaming Corporation
425 Market St.
San Francisco, CA 94105
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RE: |
Par-A-Dice Gaming Corporation, an Illinois corporation, and Boyd Gaming Corporation, a Nevada corporation $750M 6.875% Senior Notes due 2023. |
Ladies and Gentlemen:
We have acted as special
regulatory counsel for Boyd Gaming Corporation, a Nevada corporation (the “Company”) and Par-A-Dice Gaming Corporation, an Illinois corporation (the “Illinois Subsidiary”) in the State of Illinois in connection with
the Company’s issuance and sale of Senior Notes (the “Notes”) in accordance with the terms of the Base Indenture, dated May 21, 2015 among the Company, the Guarantors and Wilmington Trust, National Association, as Trustee (the
“Trustee”) as supplemented by the Supplemental Indenture (collectively, the “Indenture”), in a transaction (the “Transaction”) described in that certain registration statement on Form S-3 filed
under the Securities Act of 1933, as amended (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”) on May 1, 2015 (File No. 333-203814) (the “Registration
Statement”), including the base prospectus contained therein, as supplemented by a prospectus supplement, dated May 7, 2015 (collectively, the “Prospectus”), as filed with the Commission pursuant to Rule 424(b)(5) of the
Securities Act. This opinion is being furnished to you at the request of the Company in connection with Section 6(d) of that certain Underwriting Agreement, dated as of May 7, 2015 (the “Underwriting Agreement”), by and among
Boyd Gaming Corporation, the Guarantors, and J.P. Morgan Securities LLC as Representative of the several underwriters (the “Underwriters”). Capitalized terms used herein without definition shall have the meanings provided for such
terms in the Underwriting Agreement.
In preparation for issuing our opinion, we have reviewed the following documents: (1) the
Underwriting Agreement; (2) the Registration Statement, including the Prospectus, (3) the Indenture, (4) the Guarantees, the terms of which are set forth in the Indenture and (5) the form of the Notes attached to the Indenture. The Underwriting
Agreement, the Indenture and the Guarantees are collectively referred to herein as the “Transaction Documents”.
Morrison & Foerster LLP
May 21, 2015
Page -
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In connection with the opinion, we have examined originals or copies of documents which have
been represented to us, to our satisfaction, as true copies of the Transaction Documents. In addition, we have, with your permission, relied upon the following statements and certificates of public authorities and of the Illinois Subsidiary:
1. Copies of the Certificate of Incorporation of the Illinois Subsidiary certified by the Secretary of State of the State of
Illinois, dated as of April 29, 2015;
2. Copies of corporate By-Laws of the Illinois Subsidiary certified by the Secretary
of the Illinois Subsidiary as true, correct and accurate (the documents referred to herein together with those in 1 above, shall be referred to as the “Organizational Documents”);
3. Good Standing Certificate, dated, May 20, 2015, of the Illinois Subsidiary, issued by the Secretary of State of the State of
Illinois (the “Good-Standing Certificate”);
4. Resolutions of the Board of Directors of the Illinois
subsidiary (the “Resolutions”) certified by the Secretary of the Illinois Subsidiary as true, correct and accurate; and
5. Certificate of incumbency for the Illinois Subsidiary (together, with the Resolutions, the “Authorization
Documents”).
In addition, in order to render this opinion we have relied upon, without any independent investigation or inquiry,
on the following assumptions:
1) The Notes are unsecured obligations of Boyd and the Illinois Subsidiary;
2) The proceeds from the sale of the Notes will not be directly used in the State of Illinois; and
3) The proceeds from the sale of the Notes will not be paid to or on behalf of the Illinois Subsidiary.
In rendering this opinion we have neither reviewed nor do we express any opinion concerning, the laws or regulations of any jurisdiction other
than the State of Illinois and the laws of the United States as applicable to transactions in the State of Illinois.
In addition, we have
relied upon and assumed the truth and accuracy of the representations, certifications and warranties made in the Transaction Documents and Authorization Documents and we have not made any independent investigations or verification of any factual
matters stated or represented therein.
Morrison & Foerster LLP
May 21, 2015
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1) Each party to the Transaction Documents (other than the Illinois
Subsidiary) (i) has been organized, is validly existing, and where applicable is in good standing under its jurisdiction of incorporation or organization, (ii) has the legal, corporate or other organization power and authority to enter into,
execute, deliver, receive and perform each of the Transaction Documents, and (iii) is qualified, to the extent that qualification is necessary, and authorized to do business in the State of Illinois.
2) The entry into, execution, delivery, receipt and performance of the Transaction Documents by each party thereto (other than
the Illinois Subsidiary) has been duly authorized by all requisite action on the party of such parties.
3) Each of the
Transaction Documents has been or will be duly entered into, executed, received and delivered by each party thereto (other than the Illinois Subsidiary), and upon such execution and delivery constitute the legal, valid and binding obligations of
each such party, so that all of such instruments have mutuality of binding effect.
4) The provisions of the Transaction
Documents which are expressly stated to be governed by the laws of any state other than the State of Illinois constitute the valid, legal, binding and enforceable obligations of the parties thereto in accordance with the terms thereof under the laws
of such other state, and no provision of the laws of any other state that are applicable to the Transaction Documents violates the public policy of the State of Illinois or the purpose of any Illinois law that a court would determine that the public
policy of Illinois would require to be applied in any specific instance.
5) To the extent any of the Transaction Documents
and any applicable provision thereof are governed by the laws of any other state and the laws of such other state are applicable to any matters opined herein, such laws are identical to the laws of Illinois applied by us herein.
6) Each of the Transaction Documents has been appropriately completed, executed and delivered in the forms submitted to us for
review, with all appropriate schedules and exhibits attached and all blanks appropriately filled in, and where appropriate, all acknowledgements duly completed before a licensed notary public.
7) The execution, delivery and performance of the Transaction Documents by the parties thereto (other than the Illinois
Subsidiary) do not and will not contravene, conflict with, violate or result in a breach of, or constitute a default under (i) any term or provision of any organization document of that party; (ii) any law, statute or ordinance of any jurisdiction;
(iii) any approval, consent, license, order, writ, judgment, injunction or decree of any court, arbitrator, administrative agency or other governmental authority; or (iv) any indenture, trust agreement, mortgage, deed of trust, agreement, lease,
ground lease or other instrument applicable to that party or by which that party or any of its property or assets is bound.
Morrison & Foerster LLP
May 21, 2015
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While we make no representation that we have conducted any other factual investigation, we
have undertaken such inquiries and investigations as we have deemed pertinent or necessary for the purpose of rendering the opinions set forth herein.
Subject to the foregoing, and the limitations set forth below, we are of the opinion that:
(i) The Illinois Subsidiary has been duly organized and is validly existing in good standing under the laws of the State of
Illinois, with full corporate power to enter into the Transaction Documents; and
(ii) Each of the Transaction Documents
have been duly and validly authorized, executed and delivered by the Illinois Subsidiary to the extent that the Illinois Subsidiary is a party thereto; and the guarantee of the Illinois Subsidiary will constitute a binding obligation of such
Illinois Subsidiary.
The above opinions, in addition to being expressly limited by their own terms and the preceding assumptions, are
also limited and/or qualified by the following restrictions and exceptions:
(1) Our opinion in paragraph (i) regarding the
good standing of the Illinois Subsidiary is based solely on our review of a good standing certificate from the Secretary of State of the State of Illinois dated May 20, 2015.
(2) We have considered and do not express an opinion with respect to (i) any Federal or state (including Illinois) securities
laws and regulations, (ii) Federal tax laws or the tax laws of any state (including Illinois), or (iii) any Federal or state (including Illinois) antitrust laws and regulations.
Our opinions expressed above are limited to the laws of the State of Illinois and we do not express any opinion herein concerning any other
law, including the applicability or effect thereof. Notwithstanding the foregoing, we expressly disclaim any opinion regarding state or federal securities laws, rules and regulations, including state “blue sky” laws. In addition, our
opinion is subject to, and we render no opinion with respect to limitations imposed by reason of generally applicable public policy principles or considerations or limitations imposed by or resulting from the exercise by any court of its discretion.
This opinion letter is given as of the date hereof and we assume no obligation to advise you of any facts, circumstances, events or changes that may hereafter be brought to our attention after the date hereof, even if they might affect or modify the
opinions expressed herein.
This opinion letter is solely for the information of the addressees hereof and is not to be quoted in whole or
in part or otherwise referred to, nor is it to be filed with or furnished to any governmental agency or any other person, without our prior written
Morrison & Foerster LLP
May 21, 2015
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consent; provided, however, that Morrison & Foerster LLP may rely on this letter and the opinions set forth herein in connection with its Opinion Letter to the Company relating to the
validity of the Notes, as filed with the Commission as an exhibit to the Registration Statement and may file a copy of this letter as an exhibit to a Form 8-K in connection therewith. This opinion letter is rendered solely for purposes of the
Transaction and should not be relied upon by anyone other than the addressees hereof for this or any other purpose. We note that this opinion letter is a matter of professional judgment and not a guarantee of result.
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| Very truly yours, |
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| /s/ Greenberg Traurig, LLP |
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| GREENBERG TRAURIG, LLP |
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