Exhibit 4.1


 


EXECUTION VERSION


 


 




 


 





POSTER FINANCIAL GROUP, INC.


 


83⁄4% SENIOR SECURED NOTES DUE 2011


 


 


INDENTURE


 


Dated as of December 3, 2003


 


 


HSBC Bank USA,


as Trustee


 




 





 








 


This INDENTURE dated as of December 3, 2003, is by and
among Poster Financial Group, Inc., a Nevada corporation, each Guarantor from
time to time party hereto, and HSBC Bank USA, as trustee (the “Trustee”).


 


The Company, each Guarantor and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the 83⁄4% Senior Secured Notes due 2011 (the “Notes”) issued under this Indenture:


 


ARTICLE
1.


 


DEFINITIONS AND INCORPORATION BY
REFERENCE


 


Section
1.01.       Definitions.


 


For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:


 


“144A Global Note”
means a Global Note in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with and registered in
the name of the Depositary or its nominee that shall be issued in a
denomination equal to the outstanding principal amount of the Notes sold for
initial resale in reliance on Rule 144A.


 


“Acquired Debt”
means, with respect to any specified Person:


 


(1)          Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of, such specified
Person; and


 


(2)          Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.


 


“Acquisition”
means the purchase by the Company of all the issued and outstanding shares of
Capital Stock of GNLV, CORP., and GNL, CORP. pursuant to the Stock Purchase
Agreement.


 


“Acquisition Date”
means the date on which the Acquisition is closed.


 


“Additional
Interest” has the meaning set forth in a Registration Rights
Agreement relating to amounts to be paid in the event the Company and the
Guarantors fail to satisfy certain conditions set forth therein.  For all purposes of this Indenture, the term
“interest” shall include Additional Interest, if any, with respect to the
Notes.


 


“Additional Notes”
means any Notes (other than Initial Notes, the related Exchange Notes to be
issued pursuant to the Registration Rights Agreement and Notes issued under
Sections 2.06, 2.07, 2.10 and 3.06 hereof) issued under this Indenture in
accordance with Sections 2.02, 2.15 and 4.09 hereof, as part of the same series
as the Initial Notes or as an additional series.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person.  For purposes of
this definition, “control,” as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10%
or more of the Voting Stock of a Person shall be deemed to be control.  For purposes of this definition, the terms
“controlling,” “controlled by” and “under common control with” have correlative
meanings.


 


“Agent”
means any Registrar, co-registrar, Paying Agent or additional paying agent.


 

















 


“Applicable
Procedures” means, with respect to any transfer, redemption or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer, redemption or exchange.


 


“Applicable Tax
Percentage” means the highest aggregate effective marginal rate of
federal tax, and state and local income tax, if payable with respect to the
interest in the Company, or, when applicable, alternative minimum tax, to which
any direct holder of Capital Stock of Parent would be subject (or if such
direct holder of Capital Stock of Parent is not subject to tax then any indirect
holder as is subject to tax) in the relevant year of determination (as
certified to the Trustee by an Officers’ Certificate).


 


“Asset Sale”
means:


 


(1)          the
sale, lease, conveyance or other disposition of any assets or rights, other
than sales of inventory, equipment, accounts receivable or other assets in the
ordinary course of business; provided
that the sale, conveyance or other disposition of all or substantially all of
the assets of the Company and its Restricted Subsidiaries taken as a whole
shall be governed by Section 4.18 and/or Section 5.01 and not by Section 4.12;
and


 


(2)          the
issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or
the sale of Equity Interests by the Company in any of its Restricted
Subsidiaries.


 


Notwithstanding the preceding, the following items
shall not be deemed to be Asset Sales:


 


(1)          any
single transaction or series of related transactions that involves assets
having a fair market value (as determined in good faith by the Company’s Board
of Directors) of less than $1.0 million;


 


(2)          a
transfer of assets between or among the Company and its Restricted
Subsidiaries,


 


(3)          an
issuance of Equity Interests by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary;


 


(4)          a
Restricted Payment or Permitted Investment that is not prohibited by Section
4.10;


 


(5)          a
sale or other disposition of cash or Cash Equivalents;


 


(6)          a
transfer of property or assets that are obsolete, damaged or worn out and that
are no longer useful in the conduct of the Company’s or its Restricted
Subsidiaries’ business;


 


(7)          sales,
transfers or other dispositions of assets for consideration at least equal to
the fair market value of the assets sold or disposed of, but only if the
consideration received consists of property or assets (other than cash, except
to the extent used as a bona fide means of equalizing the value of the property
or assets involved in the swap transaction) of a nature or type, or that are,
used in, a business having property or assets of such nature or type or that is
engaged in a Permitted Business; and


 


(8)          grants
of licenses to use intellectual property in the ordinary course of business.


 


“Attributable Debt”
in respect of a sale and leaseback transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such sale and
leaseback transaction, including any period for which such lease has been
extended or may, at the option of the lessor, be extended.  Such present value shall be calculated using
a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with GAAP.


 


“Bankruptcy Law”
means Title 11, U.S. Code or any similar federal or state law for the relief of
debtors, or the law of any other jurisdiction relating to bankruptcy,
insolvency, winding up, liquidation, reorganization or relief of debtors.


 


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“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial ownership of any
particular “person” (as that term is used in Section 13(d)(3) of the Exchange
Act), such “person” shall be deemed to have beneficial ownership of all
securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition.  The terms “Beneficially
Owns” and “Beneficially Owned”
have a corresponding meaning.


 


“Board of Directors”
means (1) with respect to a corporation, the board of directors of the
corporation; (2) with respect to a partnership, the Board of Directors of the
general partner of the partnership; and (3) with respect to a limited liability
company or any other Person, the board or committee of such Person serving a
similar function.


 


“Board Resolution”
means a copy of a resolution certified by the secretary or an assistant
secretary (or individual performing comparable duties) of the applicable Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.


 


“Business Day”
means any day other than a Legal Holiday.


 


“Capital Lease
Obligation” means, at the time any determination is to be made, the
amount of the liability in respect of a capital lease that would at that time
be required to be capitalized on a balance sheet in accordance with GAAP.


 


“Capital Stock”
means:


 


(1)          in
the case of a corporation, corporate stock;


 


(2)          in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;


 


(3)          in
the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and


 


(4)          any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.


 


“Cash Equivalents”
means:


 


(1)          United
States dollars;


 


(2)          securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that the full faith and credit of
the United States is pledged in support of those securities) having maturities
of not more than six months from the date of acquisition;


 


(3)          certificates
of deposit and eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers’ acceptances with maturities not
exceeding six months and overnight bank deposits, in each case, with any lender
party to the Credit Agreement or with any domestic commercial bank having
capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating
of “B” or better;


 


(4)          repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;


 


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(5)          commercial
paper having the highest rating obtainable from Moody’s or S&P and in each
case maturing within six months after the date of acquisition; and


 


(6)          money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (1) through (5) of this definition.


 


“Casino Properties”
means the real property comprising the Golden Nugget - Las Vegas, located at
129 E.  Fremont Street, Las Vegas,
Nevada 89101, the Golden Nugget - Laughlin, located at 2300 South Casino Drive,
Laughlin, Nevada 89028, the Nevada Club Inn, located at 336 Lee Street, Bullhead
City, Arizona 86429, until such time as the same are no longer owned or leased
by the Company or any of its Restricted Subsidiaries, and any future real
property owned or leased by the Company or any of its Restricted Subsidiaries
for the purpose of conducting a Permitted Business.


 


“Change of Control”
means the occurrence of any of the following:


 


(1)          the
direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries, taken as a whole, to any “person” (as that term is
used in Section 13(d)(3) of the Exchange Act) other than to a direct or
indirect wholly owned Subsidiary of Parent;


 


(2)          the
adoption by the Board of Directors or holders of Capital Stock of the Company
of a plan relating to the liquidation or dissolution of the Company;


 


(3)          prior
to an Initial Public Offering, the Principals, a Permitted Group and their
respective Related Parties cease to collectively Beneficially Own more than 50%
of the Voting Stock of the Company, measured by voting power rather than number
of shares, unless, as a result of such transaction, the ultimate direct or
indirect ownership of the Company is substantially the same immediately after
such transaction as it was immediately prior to such transaction;


 


(4)          after
an Initial Public Offering, (a) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that
any “person” (as defined above), other than the Principals and their Related
Parties, becomes the Beneficial Owner, directly or indirectly, of more than 35%
of the Voting Stock of the Company, measured by voting power rather than number
of shares and (b) the Principals and their Related Parties Beneficially Own,
directly or indirectly, in the aggregate, a lesser percentage of the total
voting power of the Voting Stock of the Company than such other person and do not
have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Company,
unless, as a result of such transaction, the ultimate direct or indirect
ownership of the Company is substantially the same immediately after such
transaction as it was immediately prior to such transaction;


 


(5)          the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors; or


 


(6)          the
Company consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of the
Company or such other Person is converted into or exchanged for cash,
securities or other property, other than any such transaction where the Voting
Stock of the Company outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified Stock) of
the surviving or transferee Person constituting a majority of the outstanding
shares of such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance).


 


“Clearstream”  means Clearstream Banking S.A. and any
successor thereto.


 


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“Code”
means the U.S. Internal Revenue Code of 1986, as amended.


 


“Collateral”
means all of the property in which the Company or any Guarantor now or
hereafter has rights or the power to pledge, or transfer a security interest
in, to secure Obligations relating to the Notes pursuant to the Collateral
Documents.


 


“Collateral Agent”
means the collateral agent under the Collateral Documents.


 


“Collateral
Documents” means, collectively, all agreements, deeds of trust,
instruments, documents, pledges or filings executed in connection with
granting, or that otherwise evidence, the Lien of the Collateral Agent in the
Collateral as set forth in Exhibits F through L hereto, and all other documents
entered into by the Company and the Guarantors on or after the Acquisition Date
relating to the creation of the security interest in, the perfection of the
security interest in, or that otherwise relate to, the Collateral.


 


“Commission”
means the U.S. Securities and Exchange Commission.


 


“Company”
means Poster Financial Group, Inc., and any successor thereto.


 


“Consolidated Cash
Flow” means, with respect to any specified Person for any period,
the Consolidated Net Income of such Person for such period plus:


 


(1)          an
amount equal to any extraordinary loss plus any net loss realized by such
Person or any of its Subsidiaries in connection with an Asset Sale, to the
extent such losses were deducted in computing such Consolidated Net Income; plus


 


(2)          provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
deducted in computing such Consolidated Net Income; plus


 


(3)          consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers’ acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations), to the extent that
any such expense was deducted in computing such Consolidated Net Income; plus


 


(4)          depreciation,
amortization (excluding amortization of prepaid cash expenses that were paid in
a prior period) and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period) of such Person and its Restricted Subsidiaries
for such period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net Income; minus


 


(5)          non-cash
items increasing such Consolidated Net Income for such period, other than the
accrual of revenue in the ordinary course of business,


 


in each case, on a
consolidated basis and determined in accordance with GAAP.


 


“Consolidated Net
Income” means, with respect to any specified Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP; provided that:


 


(1)          the
Net Income of any Person that is not a Restricted Subsidiary or that is accounted
for by the equity method of accounting shall be included only to the extent of
the amount of dividends or distributions


 


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paid in cash to the specified Person or a Restricted
Subsidiary of the Person, excluding any dividends or distributions distributed
to Parent pursuant to clause (8) of the second paragraph of Section 4.10;


 


(2)          the
Net Income of any Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders; and


 


(3)          the
cumulative effect of a change in accounting principles shall be excluded.


 


“Continuing
Directors” means, as of any date of determination, any member of the
Board of Directors of the Company who: 
(1) was a member of such Board of Directors on the Issue Date or (2) was
nominated for election or elected or appointed to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such
Board of Directors at the time of such nomination or election.


 


“Corporate Trust
Office of the Trustee” shall be at the address of the Trustee
specified in Section 13.02 hereof, or such other address as to which the
Trustee may give notice to the Company.


 


“Credit Agreement”
means that certain Loan and Security Agreement, dated as of the Acquisition
Date, by and among the Company, GNLV, CORP., GNL, CORP., Wells Fargo Foothill,
Inc., as administrative agent, the lenders named therein and Lehman Brothers
Inc., as syndication agent, providing for up to $20.0 million of term loan
borrowings and $15.0 million of revolving credit borrowings, including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, modified,
renewed, refunded, replaced or refinanced or otherwise restructured in whole or
in part from time to time, whether by the same or any other agent, lender or
group of lenders.


 


“Credit Facilities”
means one or more debt facilities, indentures or other agreements (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case with banks or other institutional lenders or investors providing for
revolving credit loans, term loans, notes, receivables financing (including
through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables) or letters of
credit, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced or otherwise restructured in whole or in part from time
to time, whether by the same or any other agent, lender or group of lenders.


 


“Custodian”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03(c) as Custodian with respect
to the Notes, and any and all successors thereto appointed as custodian
hereunder and having become such pursuant to the applicable provisions of this
Indenture.


 


“Default”
means any event that is, or with the passage of time or the giving of notice 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 2.06 or 2.10 hereof, in substantially the
form of Exhibit A hereto except that such 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(b) hereof 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
provisions of this Indenture.


 


“Disqualified Stock”
means any Capital Stock that, by its terms (or by the terms of any security
into which it is convertible, or for which it is exchangeable, in each case at
the option of the holder of the Capital


 


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Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder of the Capital Stock, in whole or in part, on or
prior to the date that is 91 days after the date on which the Notes
mature.  Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders of the Capital Stock have the right to require the Company
to repurchase such Capital Stock upon the occurrence of a change of control, an
asset sale or an event of loss shall not constitute Disqualified Stock if the
terms of such Capital Stock provide that the Company may not repurchase or
redeem any such Capital Stock pursuant to such provisions unless such
repurchase or redemption complies with Section 4.10.


 


“Distribution
Compliance Period” means the 40-day distribution compliance period
as defined in Regulation S.


 


“Domestic
Subsidiary”  means any
Restricted Subsidiary of the Company that is formed under the laws of the
United States, or any state or commonwealth of the United States, or the
District of Columbia.


 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).


 


“Estimation Period”
means the period for which a stockholder of Parent is required to estimate for
federal income tax purposes his allocation of taxable income from a Subchapter
S corporation or any entity that is treated as a pass-through entity for
federal income tax purposes in connection with determining his estimated
federal income tax liability for such period.


 


“Euroclear”
means Euroclear Bank, S.A./N.V., as operator of the Euroclear systems, and any
successor thereto.


 


“Event of Loss”
means, with respect to any asset, any (1) loss, destruction or damage of such
asset, (2) condemnation, seizure or taking by exercise of the power of eminent
domain or otherwise of such property or asset, or confiscation of such asset or
the requisition of the use of such asset or (3) settlement in lieu of clause (2)
above.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 


“Exchange Notes”
means notes issued in exchange for the Initial Notes or any Additional Notes
pursuant to a Registration Rights Agreement.


 


“Exchange Offer”
has the meaning set forth in a Registration Rights Agreement relating to an
exchange of Notes registered under the Securities Act for Notes not so
registered.


 


“Exchange Offer
Registration Statement” has the meaning set forth in a Registration
Rights Agreement.


 


“First Lien Agent”
means the agent under the Intercreditor Agreement.


 


“First Lien Debt”
means:


 


(1)          the
Obligations under the Credit Agreement which, when advanced (or, in the case of
any reimbursement obligation for a letter of credit issued under the Credit
Agreement, when such letter of credit was issued), either (a) was permitted to
be incurred by clause (1) or (9) (or constitutes Permitted Refinancing
Indebtedness of First Lien Debt incurred pursuant to clause (4)) of the
definition of “Permitted Debt” or (b) was advanced (or, in the case of any such
reimbursement obligation, relates to a letter of credit that was issued) upon
delivery to the Trustee and the Collateral Agent of an Officers’ Certificate to
the effect that such Indebtedness was permitted to be incurred by clause (1) or
(9) (or constitutes Permitted Refinancing Indebtedness of First Lien Debt
incurred pursuant to clause (4)) of the definition of “Permitted Debt,”
including without limitation any such Indebtedness incurred in any insolvency
or liquidation


 


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proceeding to the extent permitted by clause (1) or
(9) (or that constitutes Permitted Refinancing Indebtedness of First Lien Debt
incurred pursuant to clause (4)) of the definition of “Permitted Debt;”


 


(2)          Hedging
Obligations permitted to be incurred by clause (6) of the definition of
“Permitted Debt” that, pursuant to the Credit Agreement, are equally and
ratably secured by any and all Liens securing Indebtedness outstanding under
the Credit Agreement; and


 


(3)          the
principal of and interest on Indebtedness under any Credit Facility other than
the Credit Agreement to the extent such Indebtedness was permitted to be
incurred by clause (1) or (9) (or constitutes Permitted Refinancing
Indebtedness of First Lien Debt incurred pursuant to clause (4)) of the
definition of “Permitted Debt” and by the Credit Agreement but only if on or
before the day on which such Indebtedness was incurred, such Indebtedness is
designated by the Company, in an Officers’ Certificate delivered to the Trustee
and the Collateral Agent on or before such date, as First Lien Obligations for
the purposes of this Indenture.


 


“First Lien
Documents” means the Credit Agreement, the First Lien Security
Documents and all other agreements governing, securing or relating to any First
Lien Obligations.


 


“First Lien
Obligations” means the First Lien Debt and all other Obligations of
the Company or any Guarantor under the First Lien Documents.


 


“First Lien
Security Documents” means one or more security agreements, pledge
agreements, collateral assignments, control agreements, mortgages, deeds of
trust or other grants or transfers for security executed and delivered by the
Company or any Guarantor creating a Lien upon property owned or to be acquired
by the Company or such Guarantor in favor of any holder or holders of First
Lien Debt, or any trustee, agent or representative acting for any such holders,
as security for any First Lien Obligations.


 


“Fixed Charge
Coverage Ratio” means with respect to any specified Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. 
In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated and on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such
incurrence, assumption, guarantee, repayment, repurchase or redemption of
Indebtedness, or such issuance, repurchase or redemption of preferred stock,
and the use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period.


 


In addition, for purposes of calculating the Fixed
Charge Coverage Ratio:


 


(1)          acquisitions
that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be given pro forma effect
(calculated in accordance with Regulation S-X) as if they had occurred on the
first day of the four-quarter reference period and Consolidated Cash Flow for
such reference period shall be calculated without giving effect to clause (3)
of the proviso set forth in the definition of Consolidated Net Income;


 


(2)          the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded; and


 


(3)          the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only


 


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to the extent that the obligations giving rise to such
Fixed Charges will not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Calculation Date.


 


 “Fixed Charges” means, with respect to any
specified Person for any period, the sum, without duplication, of:


 


(1)          the
consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations; plus


 


(2)          the
consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus


 


(3)          any
interest expense on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries, whether or not such
guarantee or Lien is called upon; plus


 


(4)          the
product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely in Equity
Interests of the Company (other than Disqualified Stock) or to the Company or a
Restricted Subsidiary of the Company, times (b) 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 tax rate of such Person, expressed
as a decimal, in each case, on a consolidated basis and in accordance with
GAAP.


 


“Foreign Subsidiary”
means a Restricted Subsidiary that is not a Domestic Subsidiary.


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, which
are in effect from time to time.  All
ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP.


 


“Gaming Authority”
means any agency, authority, board, bureau, commission, department, office or
instrumentality of any nature whatsoever of the United States federal
government, any foreign government, any state, province or city or other
political subdivision or otherwise, whether now or hereafter in existence, or
any officer or official thereof, including, without limitation, the Nevada
Gaming Authorities, with authority to regulate any gaming operation (or
proposed gaming operation) owned, managed or operated by the Company or any of
its subsidiaries.


 


“Gaming Law”
means any gaming law or regulation of any jurisdiction or jurisdictions to
which the Company or any of its Subsidiaries is, or may at any time after the
Issue Date be, subject.


 


“Gaming License”
means any license, permit, franchise or other authorization from any Gaming
Authority necessary on the Issue Date or at any time thereafter to own, lease
or operate the assets of or otherwise conduct the business of the Company or
any of its Restricted Subsidiaries.


 


“Global Note Legend”
means the legend set forth in Section 2.06(g)(ii), which is required to be
placed on all Global Notes issued under this Indenture.


 


9

















 


“Global Notes”
means the global Notes in the form of Exhibit A hereto issued in accordance
with Article 2 hereof.


 


“Government
Securities” means direct obligations (or certificates representing
an ownership interest in such obligations) of, or obligations guaranteed by,
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.


 


“guarantee”
means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any
manner including, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.  The term
“guarantee” used as a verb has a corresponding meaning.


 


“Guarantee”
means the Guarantee of the Notes by each of the Guarantors pursuant to Article
10 and in the form of the Guarantee attached as Exhibit E and any additional
Guarantee of the Notes to be executed by any Restricted Subsidiary of the
Company pursuant to Section 4.19.


 


“Guarantors”
means each of:


 


(1)          GNLV,
CORP., a Nevada corporation, GNL, CORP., a Nevada corporation, and Golden
Nugget Experience, LLC, a Nevada limited liability company; and


 


(2)          any
other Domestic Subsidiary that executes a Guarantee in accordance with the
provisions of this Indenture;


 


and their
respective successors and assigns.


 


“Hedging
Obligations” means, with respect to any specified Person, the
obligations of such Person under:


 


(1)          interest
rate swap agreements, interest rate cap agreements and interest rate collar
agreements;


 


(2)          other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates; or


 


(3)          other
agreements or arrangements designed to manage, protect or hedge such Person
against fluctuations in currency exchange rates or commodity prices.


 


“Holder”
means a Person in whose name a Note is registered.


 


“IAI Global Note”
means a Global Note in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with and registered in
the name of the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold to Institutional
Accredited Investors, if any, to the extent required by the Applicable
Procedures.


 


“Indebtedness”
means (without duplication), with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:


 


(1)          in
respect of borrowed money;


 


(2)          evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);


 


(3)          in
respect of banker’s acceptances;


 


10

















 


(4)          representing
Capital Lease Obligations;


 


(5)          representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable; or


 


(6)          representing
any Hedging Obligations,


 


if and to the
extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified
Person prepared in accordance with GAAP. 
In addition, the term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such
Indebtedness is assumed by the specified Person) and, to the extent not
otherwise included, the guarantee by the specified Person of any indebtedness
of any other Person.


 


The amount of any Indebtedness outstanding as of any
date shall be:


 


(1)          the
accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount; and


 


(2)          the
principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other
Indebtedness.


 


“Indenture”
means this instrument, as originally executed or as it may from time to time be
supplemented or amended in accordance with Article 9 hereof.


 


“Independent
Director” means a member of the Company’s Board of Directors who (1)
is not a legal or Beneficial Owner, directly or indirectly, of more than 10% of
the outstanding Equity Interests of the Company, (2) is not a director,
officer, employee, manager or general partner of the Company or any of its
Affiliates (other than in respect of his or her service as an Independent Director
of the Company), (3) is not a general partner in, or a controlling stockholder,
director or executive officer of, any for-profit business organization to which
the Company or any of its Affiliates made, or from which the Company or any of
its Affiliates received, payments for property or services in the last four
fiscal quarters (other than those arising solely from Investments in the
securities of the Company or any of its Affiliates) that exceed 5% of the
consolidated gross revenues of such for-profit business organization or the
Company and its Affiliates, taken as a whole, for the last four fiscal quarters
and (4) is not a parent, spouse, sibling or child of any Person described in
clauses (1), (2) or (3) above.


 


“Indirect
Participant” means a Person who holds a beneficial interest in a
Global Note through a Participant.


 


“Initial Notes”
means $155,000,000 aggregate principal amount of Notes issued under this
Indenture on the Issue Date.


 


“Initial Public
Offering” means the first underwritten public offering of common
stock of Parent or any Subsidiary of Parent (other than a Subsidiary of the
Company), so long as the proceeds thereof are contributed to the Company or any
successor of the foregoing, in any case, in which the gross proceeds to the issuer
are at least $20.0 million.


 


“Institutional
Accredited Investor” means an institution that is an “accredited
investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.


 


“Intercreditor
Agreement” means the Intercreditor and Lien Subordination Agreement,
dated as of the Acquisition Date, among the First Lien Agent, the Collateral
Agent, the Company and the Guarantors.


 


“Interest Payment
Dates” shall have the meaning set forth in paragraph 1 of each Note.


 


“Internal Revenue
Service” means the U.S. Internal Revenue Service.


 


11

















 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
guarantees or other obligations), advances or capital contributions, purchases
or other acquisitions for consideration of Indebtedness, Equity Interests or
other securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.  If the Company or any Restricted Subsidiary
of the Company sells or otherwise disposes of any Equity Interests of any
direct or indirect Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person is no longer a Subsidiary of the
Company, the Company shall be deemed to have made an Investment on the date of
any such sale or disposition equal to the fair market value of the Equity
Interests of such Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.10.  The acquisition by the Company or any Restricted Subsidiary of
the Company of a Person that holds an Investment in a third Person shall be
deemed to be an Investment by the Company or such Restricted Subsidiary in such
third Person in an amount equal to the fair market value of the Investment held
by the acquired Person in such third Person in an amount determined as provided
in the final paragraph of Section 4.10.


 


“Issue Date”
means December 3, 2003.


 


“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in the City
of New York, the city in which the Corporate Trust Office of the Trustee is
located or any other place of payment on the Notes are authorized by law,
regulation or executive order to remain closed.


 


“Letter of
Transmittal” means the letter of transmittal, or its electronic
equivalent in accordance with the Applicable Procedures, to be prepared by the
Company and sent to all Holders of the Initial Notes or any Additional Notes
for use by such Holders in connection with an Exchange Offer.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or grant a security interest.


 


“Moody’s”
means Moody’s Investors Service, Inc. or any successor to the rating agency
business of Moody’s Investors Service, Inc.


 


“Net Income”
means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect
of preferred stock dividends, excluding, however:


 


(1)          any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with: (a) any Asset Sale; or (b) the disposition
of any securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries;


 


(2)          any
extraordinary gain (but not loss), together with any related provision for
taxes on such extraordinary gain (but not loss); and


 


(3)          the
effect of non-cash accounting adjustments resulting from a change in the tax
status of a pass-through tax entity to a “C-corporation” or other entity taxed
similarly.


 


“Net Loss Proceeds”
means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Event of Loss (including, without
limitation, insurance proceeds, proceeds from condemnation awards or damages
awarded by any judgment), net of the direct costs in recovery of such proceeds,
including, without limitation, legal, accounting, appraisal and insurance
adjuster fees and any relocation expenses incurred as a result of the Event of
Loss, amounts required to be applied to the repayment of Indebtedness secured
by a Lien on the asset or assets that were the subject of such Event of Loss,
and any taxes or Permitted Quarterly Tax Distributions attributable to such
Event of Loss paid or payable as a result thereof.


 


12

















 


“Net Proceeds”
means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting
and investment banking fees, and sales commissions, any relocation expenses
incurred as a result of the Asset Sale, and taxes paid or payable and Permitted
Quarterly Tax Distributions due as a result of the Asset Sale, in each case,
after taking into account any available tax credits or deductions, and amounts
required to be applied to the repayment of Indebtedness secured by a Lien on
the asset or assets that were the subject of such Asset Sale, and any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP.


 


“Nevada Gaming Authorities”
means the Nevada State Gaming Control Board and the Nevada Gaming Commission.


 


“Non-Recourse Debt”
means  Indebtedness:


 


(1)          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), (b) is directly or indirectly
liable as a guarantor or otherwise, or (c) constitutes the lender; and


 


(2)          no
default with respect to which would permit upon notice, lapse of time or both
any holder of any other Indebtedness (other than the Notes) of the Company or
any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.


 


“Notes”
has the meaning assigned to it in the preamble to this Indenture.  Initial Notes and Additional Notes shall be
treated as a single class for all purposes under this Indenture.


 


“Obligations”
means any principal, interest, penalties, fees, indemnifications, reimbursements,
premiums, expenses, damages and other liabilities payable under the
documentation governing any Indebtedness.


 


“Offering Memorandum”
means the offering memorandum, dated November 18, 2003, relating to the sale of
the Initial Notes.


 


“Officer”
means the Chief Executive Officer, the President, the Chief Financial Officer
or any Executive Vice President of the Company.


 


“Officers’
Certificate” means a certificate, in form and substance reasonably
satisfactory to the Trustee, signed by two Officers of the Company, at least
one of whom shall be the principal executive officer or principal financial
officer of the Company, and delivered to the Trustee.


 


“Opinion of Counsel”
means a written opinion, in form and substance reasonably satisfactory to the
Trustee, from legal counsel who is acceptable to the Trustee and which meets
the requirements of Section 13.05 hereof. 
The counsel may be an employee of or counsel to the Company or the
Trustee.


 


“Parent”
means PB Gaming, Inc. and its successors and assigns.


 


“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 Business”
means the gaming and hotel businesses conducted by the Company and its
Restricted Subsidiaries as of the Acquisition Date and any and all businesses
that in the good faith judgment of the Board of Directors of the Company are
materially related thereto.


 


13

















 


“Permitted Group”
means any group of investors that is deemed to be a “person” (as that term is
used in Section 13(d)(3) of the Exchange Act) at any time prior to the Initial
Public Offering, by virtue of the Stockholders Agreement; provided, however, that no single Person
(other than the Principals and their Related Parties) Beneficially Owns
(together with its Affiliates) more of the Voting Stock of the Company than is
then collectively Beneficially Owned by the Principals and their Related
Parties.


 


“Permitted
Investments” means:


 


(1)          any
Investment in the Company or in a Restricted Subsidiary of the Company;


 


(2)          any
Investment in Cash Equivalents;


 


(3)          any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:


 


(a)          such
Person becomes a Restricted Subsidiary of the Company; or


 


(b)          such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Restricted Subsidiary of the Company;


 


(4)          any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale or Event of Loss that was made pursuant to and in compliance with Section
4.12 or Section 4.21;


 


(5)          any
acquisition of assets solely in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Company;


 


(6)          any
Investments received in compromise of obligations of trade creditors or
customers that were incurred in the ordinary course of business, including
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer;


 


(7)          Hedging
Obligations;


 


(8)          any
Investment made in settlement of gambling debts incurred by patrons of Casino
Properties which settlements have been entered into in the ordinary course of
business;


 


(9)          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; 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;


 


(10)        commissions,
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;


 


(11)        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;


 


(12)        other
Investments in any Person having an aggregate fair market value (measured on
the date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (12) since the Issue Date  not
to exceed $10.0 million.


 


(13)        Investments
existing on the Acquisition Date; and


 


14

















 


(14)        Investments
consisting of or evidencing the extension of credit to customers or suppliers
of the Company and the Restricted Subsidiaries in the ordinary course of
business.


 


“Permitted Liens”
means:


 


(1)          Liens
on assets of the Company and the Guarantors created by this Indenture and the
Collateral Documents securing the Notes and the Guarantees;


 


(2)          Liens
on assets of the Company and any of its Subsidiaries securing obligations that
were incurred under clause (1) or (9) of the second paragraph of Section 4.09;


 


(3)          Liens
in favor of the Company or any of its Subsidiaries;


 


(4)          Liens
on property of a Person existing at the time such Person is merged with or into
or consolidated with the Company or any Restricted Subsidiary of the Company; provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company or the Restricted Subsidiary;


 


(5)          Liens
on property existing at the time of acquisition of the property by the Company
or any Restricted Subsidiary of the Company; provided
that such Liens were in existence prior to the contemplation of such
acquisition;


 


(6)          Liens
to secure Indebtedness (including Capital Lease Obligations) permitted by
clause (3) of the second paragraph of Section 4.09 covering only the assets
acquired with such Indebtedness; provided,
however, that such Liens shall be created within 120 days of the
acquisition of such assets and the amount of Indebtedness secured thereby is
not increased;


 


(7)          Liens
to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the
ordinary course of business and customary rights of set off upon deposits of
cash in favor of banks or other depositary institutions in which such cash is
maintained in the ordinary course of business;


 


(8)          Liens
existing on the Acquisition Date; provided,
however, that such Liens do not cover any additional Property after
the Acquisition Date and, if applicable, the amount of Indebtedness relating to
such Liens is not increased;


 


(9)          Liens
for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as is required in conformity
with GAAP has been made therefor;


 


(10)        Liens
on assets of Unrestricted Subsidiaries that secure Non-Recourse Debt of
Unrestricted Subsidiaries;


 


(11)        ground
leases in respect of the real property on which facilities owned or leased by
the Company or any of its Subsidiaries are located;


 


(12)        Liens
arising from Uniform Commercial Code financing statements regarding property
leased by the Company or any of its Subsidiaries;


 


(13)        Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and
other similar Liens on the Property of the Company or any Subsidiary of the
Company which secure payment of obligations arising in the ordinary course of
business and which are not overdue for a period of more than


 


15

















 


30 days or are being contested in good faith and by
appropriate proceedings promptly instituted and diligently conducted;


 


(14)        pledges
or deposits by the Company 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 Subsidiary of the Company is a party, or
deposits to secure public or statutory obligations of the Company or any
Subsidiary of the Company, or deposits for the payment of rent, in each case
incurred in the ordinary course of business;


 


(15)        easements,
rights-of-way, minor defects, encroachments, restrictions or irregularities in
title and other similar charges or encumbrances that in the aggregate are not
substantial in amount and which do not interfere in any material respect (a)
with the use or value of such property as a whole or (b) with the business or
assets of the Company or any Subsidiary of the Company; 


 


(16)        other
Liens on the Property of the Company or any of its Restricted Subsidiaries
incidental to the conduct of their respective businesses or the ownership of
their respective 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 their respective
Properties or materially impair the use thereof in the operation of their
respective businesses;


 


(17)        Liens
incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations, including First Lien
Obligations, that do not exceed $5.0 million at any one time outstanding;


 


(18)        any
interest or title of a lessor or sublessor and any restriction or encumbrance
to which the interest or title of such lessor or sublessor may be subject that
is incurred in the ordinary course of business; and


 


(19)        Liens
in favor of customs and revenue authorities arising as a matter of law or
pursuant to a bond to secure payment of customs duties in connection with the
importation of goods.


 


“Permitted
Quarterly Tax Distributions” means quarterly distributions of Tax
Amounts for the related Estimation Period, as set forth in a statement filed
with the Trustee; provided, however,
that (1) prior to any distributions of Tax Amounts, the Company shall deliver
an Officers’ Certificate to the effect that Parent qualifies as a Subchapter S
corporation under the Code or a substantially similarly treated pass-through
entity for federal income tax purposes and that the Company qualifies as a
qualified Subchapter S subsidiary under the Code or a substantially similarly
treated pass-through entity for federal income tax purposes and (2) at the time
of such distributions, the most recent audited financial statements of the
Company reflect that the Company was treated as a qualified Subchapter S
subsidiary under the Code or a substantially similarly treated pass-through
entity for federal income tax purposes; provided
further, however, that for an Estimation Period that includes a
True-Up Determination Date, (1) if the True-Up Amount is due to the
stockholders, the Permitted Quarterly Tax Distribution payable by the Company
for the Estimation Period shall be increased by such True-Up Amount, and (2) if
the True-Up Amount is due to the Company, the Permitted Quarterly Tax
Distribution payable by the Company for the Estimation Period shall be reduced
by such True-Up Amount and the excess, if any, of the True-Up Amount over such
Permitted Quarterly Tax Distribution shall be applied to reduce the immediately
following Permitted Quarterly Tax Distribution(s) until such True-Up Amount is
entirely offset.  The amount of
Permitted Quarterly Tax Distributions relating to an Estimation Period
including a True-Up Determination Date shall be determined by a Tax Amounts
CPA, and the amount of Permitted Quarterly Tax Distributions relating to all
other Estimation Periods shall be determined in good faith by the Company.


 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the Company or
any of its Restricted Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or any of its Restricted Subsidiaries (other than
intercompany Indebtedness); provided that:


 


16

















 


(1)          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 extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued interest
on the Indebtedness and the amount of all expenses and premiums incurred in
connection therewith);


 


(2)          in
the case of Indebtedness other than First Lien Debt, such Permitted Refinancing
Indebtedness has a final maturity date the same as or later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;


 


(3)          if
the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders in all material respects as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and


 


(4)          such
Indebtedness is incurred either by the Company, if the Company is the obligor
on the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded, or by the Company or a Guarantor, if a Guarantor is the obligor on
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.


 


“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.


 


“Predecessor Note”  of any particular Note means every
previous Note evidencing all or a portion of the same Indebtedness as that
evidenced by such particular Note; and any Note authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Note shall be deemed
to evidence the same Indebtedness as the lost, destroyed or stolen Note.


 


“Principals”
means Timothy Poster and Thomas Breitling.


 


“Private Placement
Legend” means the legend set forth in Section 2.06(g)(i)(A) hereof
to be placed on all Notes issued under this Indenture except as otherwise permitted
by the provisions of this Indenture.


 


“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
Offering” means any underwritten public offering of common stock of
Parent or any Subsidiary of Parent (other than a Subsidiary of the Company), so
long as the proceeds thereof are contributed to the Company or any successor of
the foregoing, in any case, in which the gross proceeds to the issuer are at
least $20.0 million.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.


 


“Quarterly Payment
Date” means the tenth day of each month in which federal estimated
tax payments are due; provided, however,
that payments in respect of estimated state income taxes due in January may
instead, at the option of the Company, be paid during the last five days of the
immediately preceding December.


 


“Registration
Rights Agreement” means the Registration Rights Agreement dated as
of the Issue Date, among the Issuer, the Guarantors from time to time party
thereto and the initial purchaser named therein, as such agreement may be
amended, modified or supplemented from time to time and, with respect to any
Additional Notes, one or more registration rights agreements between the
Company and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the


 


17

















 


Company to the purchasers of Additional Notes to
register such Additional Notes, or exchange such Additional Notes for
registered Notes, under the Securities Act.


 


“Regular Record
Date” for the interest payable on any Interest Payment Date means
the applicable date specified as a “Record Date” on the face of the Note.


 


“Regulation S”
means Regulation S promulgated under the Securities Act.


 


“Regulation S
Global Note” means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.


 


“Regulation S
Permanent Global Note” means a permanent Global Note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with and registered in the name of the Depositary or its
nominee that will be issued in a denomination equal to the outstanding
principal amount of the Regulation S Temporary Global Note upon expiration of
the Distribution Compliance Period.


 


“Regulation S
Temporary Global Note” means a temporary Global Note in the form of
Exhibit A hereto bearing the Global Note Legend, the Private Placement Legend
and Regulation S Temporary Global Note Legend and deposited with and registered
in the name of the Depository or its nominee, issued in a denomination equal to
the outstanding principal amount of the Notes sold for initial resale in
reliance on Rule 903 of Regulation S.


 


“Regulation S
Temporary Global Note Legend” means the legend set forth in Section
2.06(g)(iii) hereof to be placed on all Regulation S Temporary Global Notes
issued under this Indenture.


 


“Related Party”
means:


 


(1)          any
controlling stockholder, 80% (or more) controlled Subsidiary, or immediate
family member (in the case of an individual) of any Principal; or


 


(2)          any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of any one or more Principals and/or such
other Persons referred to in the immediately preceding clause (1).


 


“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) with direct responsibility for the administration of this Indenture
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.


 


“Restricted
Definitive Note” means one or more Definitive Notes bearing the
Private Placement Legend.


 


“Restricted Global
Notes” means 144A Global Notes, IAI Global Notes and Regulation S
Global Notes.


 


“Restricted
Investment” means an Investment other than a Permitted Investment.


 


“Restricted
Subsidiary” means any direct or indirect Subsidiary of the Company
that is not an Unrestricted Subsidiary.


 


“Rule 144”
means Rule 144 promulgated under the Securities Act.


 


“Rule 144A”
means Rule 144A promulgated under the Securities Act.


 


“Rule 903”
means Rule 903 promulgated under the Securities Act.


 


18

















 


“Rule 904”
means Rule 904 promulgated under the Securities Act.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc.,
or any successor to the rating agency business thereof.


 


“Securities Act”
means the Securities Act of 1933, as amended.


 


“Shelf Registration
Statement” means the registration statement relating to the
registration of the Notes under Rule 415 of the Securities Act, as may be
referred to in a Registration Rights Agreement.


 


“Significant
Subsidiary” means any Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the Issue
Date.


 


“Stated Maturity”
means, with respect to any installment of interest or principal on any series
of Indebtedness, the date on which the payment of interest or principal was
scheduled to be paid in the original documentation governing such Indebtedness,
and shall not include any contingent obligations to repay, redeem or repurchase
any such interest or principal prior to the date originally scheduled for the
payment thereof.


 


“Stock Purchase
Agreement” means the stock purchase agreement entered into on June
24, 2003 among the Company, MGM MIRAGE, Mirage Resorts, Incorporated, GNLV,
CORP., GNL, CORP. and Golden Nugget Experience, LLC in which the Company agreed
to purchase all the issued and outstanding shares of Capital Stock of GNLV,
CORP. and GNL, CORP.


 


“Stockholders
Agreement” means the agreement entered into on or prior to the
Acquisition Date among the holders of Equity Interests and securities
convertible, exercisable, redeemable or exchangeable into Equity Interests of
Parent, as the same may be amended, modified or supplemented from time to time.


 


“Subordinated
Obligations” means any Indebtedness of the Company (whether outstanding
on the Issue Date or thereafter incurred) that is subordinate or junior in
right of payment to the Notes pursuant to a written agreement to that effect.


 


“Subsidiary”
means, with respect to any specified Person:


 


(1)          any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees of the corporation, association or other business entity is at the
time owned or controlled, directly or indirectly, by that Person or one or more
of the other Subsidiaries of that Person (or a combination thereof); and


 


(2)          any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are that Person or one or more Subsidiaries of that Person
(or any combination thereof).


 


“Tax Amount”
means, with respect to an Estimation Period or a taxable year, as the case may
be, an amount equal to (1) the product of (a) the taxable income (including all
separately stated items of income) of the Company (including any taxable income
attributable to the Company’s interest in any other entity for federal income
tax purposes) that is taxable income to the direct holders of Capital Stock of
Parent (or if such direct holder of Capital Stock of Parent is not subject to
tax then any indirect holder as is subject to tax) for such Estimation Period or
taxable year, as the case may be, and (b) the Applicable Tax Percentage,
reduced by (2) to the extent not previously taken into account, any income tax
benefit attributable to the Company which could be utilized by the stockholders
of Parent in the current or any prior taxable year, or portion thereof, to
offset taxable income attributable to the Company from and after the Issue Date
(including any tax losses or tax credits), computed at the Applicable Tax
Percentage of the year that such benefit is taken into account for purposes of
this computation; provided, however,
that the computation of the Tax Amount shall also take into account (a) the
deductibility of state


 


19

















 


and local taxes for federal income tax purposes and
(b) any difference in the Applicable Tax Percentage resulting from the nature
of taxable income (such as long-term capital gain as opposed to ordinary
income).


 


“Tax Amounts CPA”
means a nationally recognized certified public accounting firm.


 


“TIA”
means the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder.


 


“True-Up Amount”
means, in respect of a particular taxable year, an amount determined by the Tax
Amounts CPA equal to the difference between (1) the aggregate Permitted
Quarterly Tax Distributions actually distributed in respect of such taxable
year, without taking into account any adjustment to such Permitted Quarterly
Tax Distributions made with respect to any other taxable year (including any
adjustment to take into account a True-Up Amount for the immediately preceding
taxable year) and (2) the Tax Amount permitted to be distributed in respect of
such year as determined by reference to the Internal Revenue Service Form
1120-S or other applicable form of the Company’s direct or indirect parent
entity, as applicable, filed for such year; provided,
however, that if there is an audit or other adjustment with respect
to a return filed by Parent or the Company (including a filing of an amended
return), upon a final determination or resolution of such audit or other
adjustment, the Tax Amounts CPA shall redetermine the True-Up Amount for the
relevant taxable year.  The amount equal
to the excess, if any, of the amount described in clause (1) above over the
amount described in clause (2) above shall be referred to as the “True-Up
Amount due to the Company,” and the excess, if any, of the amount described in
clause (2) above over the amount described in clause (1) above shall be
referred to as the “True-Up Amount due to the stockholders.”


 


“True-Up
Determination Date” means the date on which the Tax Amounts CPA
delivers a statement to the Trustee indicating the True-Up Amount; provided, however, that the True-Up
Determination Date shall not be later than 30 days after the occurrence of an
event requiring the determination of the True-Up Amount (including the filing
of the federal and state tax returns or the final determination or resolution
of an audit or other adjustment, as the case may be).


 


“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean
such successor Trustee.


 


“Unrestricted Definitive
Notes” means one or more Definitive Notes that do not and are not
required to bear the Private Placement Legend.


 


“Unrestricted
Global Notes” means one or more Global Notes that do not and are not
required to bear the Private Placement Legend and are deposited with and
registered in the name of the Depositary or its nominee.


 


“Unrestricted
Subsidiary” means any Subsidiary of the Company or any successor to
it that is designated by the Board of Directors of the Company as an
Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent
that such Subsidiary:


 


(1)          has
no Indebtedness other than Non-Recourse Debt;


 


(2)          is
not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any
such agreement, contract, arrangement or understanding are no less favorable to
the Company or such Restricted Subsidiary (as determined in good faith by the
Board of Directors of the Company) than those that might be obtained at the
time from Persons who are not Affiliates of the Company; and


 


(3)          is
a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of
operating results.


 


20

















 


Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.10.  If, at any time, any Unrestricted Subsidiary
should fail to meet the preceding requirements as an Unrestricted Subsidiary,
it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of the Company as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section
4.09, the Company shall be in default of such covenant.  The Board of Directors of the Company may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall 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 shall only be permitted if (1) such Indebtedness is permitted
under Section 4.09, calculated on a pro
forma basis as if such designation had occurred at the beginning of
the four-quarter reference period; and (2) no Default or Event of Default would
be in existence following such designation.


 


“Voting Stock”
of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such
Person.


 


“Weighted Average
Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing:


 


(1)          the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect of the
Indebtedness, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment;
by


 


(2)          the
then outstanding principal amount of such Indebtedness.


 


Section
1.02.       Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Acceleration
  Notice”

  	
   

  	
  6.02

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.14

  
	
  “Asset Sale
  Offer”

  	
   

  	
  4.12

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Benefited
  Party”

  	
   

  	
  10.01

  
	
  “Change of
  Control Amount”

  	
   

  	
  4.18

  
	
  “Change of
  Control Offer”

  	
   

  	
  4.18

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “defeasance
  trust”

  	
   

  	
  8.04

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of
  Default”

  	
   

  	
  6.01

  
	
  “Event of Loss
  Offer”

  	
   

  	
  4.21

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.12

  
	
  “Excess Loss
  Proceeds”

  	
   

  	
  4.21

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “losses”

  	
   

  	
  7.07

  
	
  “Offer Amount”

  	
   

  	
  3.10

  
	
  “Offer Period”

  	
   

  	
  3.10

  
	
  “Offer to
  Purchase”

  	
   

  	
  3.10

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment
  Default”

  	
   

  	
  6.01

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  
	
  “Purchase Date”

  	
   

  	
  3.10

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.10

  



 


21

















 


	
  “Security
  Register”

  	
   

  	
  2.03

  
	
  “Subject
  Property”

  	
   

  	
  4.21

  
	
  “Surviving
  Person”

  	
   

  	
  5.02

  
	
   

  	
   

  	
   

  



Section
1.03.       Incorporation by Reference of Trust Indenture Act.


 


(a)        Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.


 


(b)        The
following TIA terms used in this Indenture have the following meanings:


 


“indenture
securities” means the Notes and the Guarantees;


 


“indenture security
holder” means a Holder;


 


“indenture to be
qualified” means this Indenture;


 


“indenture trustee”
or “institutional trustee” means
the Trustee; and


 


“obligor”
on the Notes means the Company and any successor obligor upon the Notes.


 


(c)        All
other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule under the TIA and
not otherwise defined herein have the meanings so assigned to them either in
the TIA, by another statute or Commission rule, as applicable.


 


Section
1.04.       Rules of Construction.


 


(a)        Unless
the context otherwise requires:


 


(i)           a
term has the meaning assigned to it;


 


(ii)          an
accounting term not otherwise defined herein has the meaning assigned to it in
accordance with GAAP;


 


(iii)        “or” is not exclusive;


 


(iv)         words
in the singular include the plural, and in the plural include the singular;


 


(v)          all
references in this instrument to “Articles,” “Sections” and other subdivisions are
to the designated Articles, Sections and subdivisions of this instrument as
originally executed;


 


(vi)         the
words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision.


 


(vii)        “including” means “including without
limitation;”


 


(viii)       provisions apply to successive events and
transactions; and


 


(ix)         references
to sections of or rules under the Securities Act, the Exchange Act or the TIA
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time thereunder.


 


22

















 


ARTICLE
2.


 


THE NOTES


 


Section
2.01.       Form and Dating.


 


(a)        General.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form included in Exhibit A hereto,
which is hereby incorporated in and expressly made part of this Indenture.  The Notes may have notations, legends or
endorsements required by law, exchange rule or usage in addition to those set
forth on Exhibit A.  Each Note shall be
dated the date of its authentication. 
The Notes shall be in denominations of $1,000 and integral multiples
thereof.  The terms and provisions
contained in the Notes shall constitute a part of this Indenture, and the
Company, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.  To the extent any provision of
any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.


 


(b)        Form of Notes.  Notes shall be issued initially in global
form and shall be substantially in the form of Exhibit A attached hereto
(including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto).  Notes issued in definitive form shall be substantially in the
form of Exhibit A attached hereto (but without the Global Note Legend thereon
and without the “Schedule of Exchanges of Interests in the Global Note”
attached thereto).  Each Global Note
shall represent such aggregate principal amount 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 thereof and transfers of
interests therein.  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 hereof.


 


(c)        Temporary Global Notes. 
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, at its New York office, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or
Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided.  The Distribution
Compliance Period shall be terminated upon the receipt by the Trustee of an
Officers’ Certificate from the Company. 
Following the termination of the Distribution Compliance Period,
beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in the Regulation S Permanent Global Note
pursuant to the Applicable Procedures. 
Simultaneously with the authentication of the Regulation S Permanent
Global Note, the Trustee shall cancel the Regulation S Temporary Global
Note.  The aggregate principal amount of
the Regulation S Temporary Global Note and the Regulation S Permanent Global
Notes may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary or its nominee, as the case may
be, in connection with transfers of interests as hereinafter provided.


 


(d)        Book-Entry Provisions.  This Section 2.01(d) shall apply only to
Global Notes deposited with the Trustee, as custodian for the Depositary.  Participants and Indirect Participants shall
have no rights under this Indenture or any Global Note with respect to any
Global Note held on their behalf by the Depositary or by the Trustee as
custodian for the Depositary, and the Depositary shall be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Participants or Indirect Participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of
the rights of a holder of a beneficial interest in any Global Note.


 


23

















 


(e)        Euroclear and Clearstream Procedures
Applicable.  The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream” and “Customer Handbook” of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.


 


(f)         Certificated Securities.


 


(i)           The
Company shall issue Definitive Notes to all owners of beneficial interests in
Global Notes if: (1) at any time the Depositary notifies the Company that it is
unwilling or unable to continue to act as Depositary for the Global Notes or if
at any time the Depositary shall no longer be eligible to act as such because
it ceases to be a clearing agency registered under the Exchange Act, and, in
either case, the Company shall not have appointed a successor Depositary within
120 days after the Company receives such notice or becomes aware of such
ineligibility or (2) the Company, at its option, determines that the Global
Notes shall be exchanged for Definitive Notes and delivers a written notice to
such effect to the Trustee.  Upon the
occurrence of any of the events set forth in clauses (1) or (2) above, the
Company shall execute, and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver, Definitive Notes, in authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Notes in exchange
for such Global Notes.  Upon the
exchange of a Global Note for Definitive Notes, such Global Note shall be
cancelled by the Trustee or an agent of the Company or the Trustee.


 


(ii)          The
Company shall issue Definitive Notes to a Holder of, or an owner of a
beneficial interest in, a Global Note in exchange for such Global Note or
beneficial interest, as the case may be, upon written request from a Holder of,
or an owner of a beneficial interest in, a Global Note if a Default or Event of
Default shall have occurred and be continuing. 
Upon the occurrence of the foregoing, the Company shall execute, and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver, Definitive Notes, in authorized
denominations, in an aggregate principal amount equal to the principal amount
of the Global Note owned by such Holder or such owner of a beneficial
interest.  Upon the exchange of all or a
portion of a Global Note for Definitive Notes, such Global Note shall be
cancelled or correspondingly reduced by the Trustee or an agent of the Company
or the Trustee.  In the event that the
Definitive Notes are not issued to an owner of a beneficial interest in a
Global Note promptly after the Company has received a request from such owner,
the Company expressly acknowledges, with respect to the right of any Holder to
pursue a remedy pursuant to this Indenture, the right of any such owner to
pursue such remedy with respect to the portion of the Global Note that
represents such owner’s beneficial interest as if such Definitive Notes had
been issued.


 


(iii)        In no event shall the Regulation S Temporary
Global Note be exchanged by the Company for Definitive Notes prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act.


 


(iv)         Definitive
Notes issued in exchange for a Global Note pursuant to this Section 2.01 shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its Participants or its Applicable
Procedures, shall instruct the Trustee or an agent of the Company or the
Trustee in writing.  The Trustee or such
agent shall deliver such Definitive Notes to or as directed by the Persons in
whose names such Definitive Notes are so registered or to the Depositary.


 


Section
2.02.       Execution and Authentication.


 


(a)        One
Officer shall execute the Notes on behalf of the Company by manual or facsimile
signature.


 


(b)        If
an Officer whose signature is on a Note no longer holds that office at the time
a Note is authenticated by the Trustee, the Note shall nevertheless be valid.


 


24

















 


(c)        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)        The
Trustee shall, upon a written order of the Company signed by an Officer (an “Authentication Order”),
authenticate Notes for issuance.


 


(e)        The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes.  Unless otherwise
provided in such appointment, 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 shall have the same rights as the Trustee to deal with
Holders, the Company or an Affiliate of the Company.


 


Section
2.03.       Registrar and Paying Agent.


 


(a)        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 (the “Security 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.


 


(b)        The
Company initially appoints The Depository Trust Company (“DTC”) to act as
Depositary with respect to the Global Notes.


 


(c)        The
Company initially appoints the Trustee to act as Registrar and Paying Agent and
to act as Custodian with respect to the Global Notes, and the Trustee hereby
agrees so to initially act.


 


(d)        The
Company shall enter into an appropriate agency agreement with any Registrar or
Paying Agent (that is not also the Trustee). 
The agreement shall implement the provisions of this Indenture that
relate to such Agent.


 


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 shall 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, or interest on the Notes, and shall
notify the Trustee of any default by the Company in making any such
payment.  While any such default
continues, the Trustee may require a Paying Agent to pay all funds held by it
relating to the Notes to the Trustee. 
The Company at any time may require a Paying Agent to pay all funds held
by it to the Trustee.  Upon payment over
to the Trustee, the Paying Agent (if other than the Company or a Subsidiary)
shall have no further liability for such funds.  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
funds held by it as Paying Agent.  Upon
any Event of Default under Sections 6.01(j) and (k) hereof relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.


 


Section
2.05.       Holder Lists.


 


(a)        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 or cause
to be furnished to the Trustee at least seven 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 or such shorter time as the
Trustee may allow, as the Trustee may reasonably require of the names and
addresses of the Holders and the Company shall otherwise comply with TIA
§312(a).


 


25

















 


(b)        The
Trustee will provide a list of the Holders or Beneficial Owners of Notes to any
Gaming Authority upon request.


 


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.  Upon the occurrence of any of the events set
forth in Section 2.01(f) above, Definitive Notes shall be issued in
denominations of $1,000 or integral multiples thereof and in such names as the
Depositary shall instruct the Trustee in writing.  Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10 hereof.  Except as provided above, 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 hereof, 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), and beneficial
interests in a Global Note may not be transferred and exchanged other than as
provided in Section 2.06(b), (c) or (i) hereof.


 


(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. 
Beneficial interests in the Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the extent required
by the Securities Act.  Transfers of
beneficial interests in Global Notes also shall require compliance with either
clause (i) or (ii) below, as applicable, as well as one or more of the other
following clauses, as applicable:


 


(i)           Transfer
of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the transfer restrictions
set forth in the Private Placement Legend and any Applicable Procedures; provided, however,
that prior to the expiration of the Distribution Compliance Period, transfers
of beneficial interests in the Regulation S Temporary Global Note may not be made
to or for the account or benefit of a “U.S. Person” (as defined in Rule 902(k)
of Regulation S) (other than a “distributor” (as defined in Rule 902(d) of the
Regulation S)).  Beneficial interests in
any Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note.  Except as may be required by any
Applicable Procedures, 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).


 


(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) if permitted under Section 2.06(a),
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 (B)(1) above; provided
that in no event shall Definitive Notes be issued upon the transfer or exchange
of beneficial interests in the Regulation S Temporary Global Note prior to (x)
the expiration of the Distribution Compliance Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act.  Upon consummation
of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in the
Letter of Transmittal delivered by the Holder of such beneficial interests in
the Restricted Global


 


26

















 


Notes.  Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.


 


(iii)        Transfer of Beneficial Interests in a
Restricted Global Note to Another Restricted Global Note.  A holder of a beneficial interest in a
Restricted Global Note may transfer such beneficial interest to a Person who
takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of
Section 2.06(b)(ii) above and the Registrar receives the following:


 


(A)   if
the transferee will take delivery in the form of a beneficial interest in the
144A Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof or, if
permitted by the Applicable Procedures, item (3) thereof;


 


(B)   if
the transferee will take delivery in the form of a beneficial interest in the
Regulation S Temporary Global Note or the Regulation S Permanent Global Note,
as the case may be, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (2) thereof; and


 


(C)   if
the transferee is required by the Applicable Procedures to take delivery in the
form of a beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by item (3)
thereof, if applicable.


 


(iv)         Transfer
or Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note. 
A holder of a beneficial interest in a Restricted Global Note may
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note only if the exchange or transfer complies with the requirements of Section
2.06(b)(ii) above and:


 


(A)   such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with a Registration Rights Agreement and the holder of the beneficial interest,
in the case of an exchange, or the transferee, in the case of a transfer, makes
any and all certifications required in the applicable Letter of Transmittal (or
is deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights
Agreement;


 


(B)   such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)   such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)   the
Registrar receives the following:


 


(1)    if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or


 


27

















 


(2)    if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;


 


and, in each such case set forth in this clause (D),
if the Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer complies with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


If any such transfer is effected pursuant to clause
(B) or (D) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall execute and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
clause (B) or (D) above.


 


(v)          Transfer
or Exchange of Beneficial Interests in an Unrestricted Global Note for
Beneficial Interests in a Restricted Global Note Prohibited.  Beneficial interests in an Unrestricted
Global Note may not be exchanged for, or transferred to Persons who take
delivery thereof in the form of, beneficial interests in a Restricted Global
Note.


 


(c)      Transfer and Exchange of Beneficial
Interests in Global Notes for Definitive Notes.


 


(i)           Transfer
or Exchange of Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes.  Subject to
Section 2.06(a) hereof, if any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Restricted Definitive Note, then, upon
receipt by the Registrar of the following documentation:


 


(A)   if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;


 


(B)   if
such beneficial interest is being transferred to a QIB in accordance with Rule
144A, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;


 


(C)   if
such beneficial interest is being transferred to a “Non-U.S. Person” in an
offshore transaction (as defined in Section 902(h) of Regulation S) in
accordance with Rule 903 or Rule 904, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)   if
such beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;


 


(E)    if
such beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in clauses (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d)
thereof, if applicable; or


 


28

















 


(F)    if
such beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,


 


the Trustee shall reduce or cause to be reduced in a
corresponding amount pursuant to Section 2.06(h) hereof, the aggregate
principal amount of the applicable Restricted Global Note, and the Company
shall execute and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate and deliver a Restricted
Definitive Note in the appropriate principal amount to the Person designated by
the holder of such beneficial interest in the instructions delivered to the
Registrar by the Depositary and the applicable Participant or Indirect
Participant on behalf of such holder. 
Any Restricted Definitive Note issued in exchange for beneficial
interests in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall designate in such
instructions.  The Trustee shall deliver
such Restricted Definitive Notes to the Persons in whose names such Notes are
so registered.  Any Restricted
Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained
therein.


 


(ii)          Notwithstanding
Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Regulation
S Temporary Global Note may not be exchanged for a Definitive Note or
transferred to a Person who takes delivery thereof in the form of a Definitive
Note prior to (x) the expiration of the Distribution Compliance Period and (y)
the receipt by the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer
pursuant to an exemption from the registration requirements of the Securities
Act other than Rule 903 or Rule 904.


 


(iii)        Transfer or Exchange of Beneficial Interests
in Restricted Global Notes to Unrestricted Definitive Notes.  Subject to Section 2.06(a) hereof, a holder
of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:


 


(A)   such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such Registration
Rights Agreement;


 


(B)   such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)   such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)   the
Registrar receives the following:


 


(1)  if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or


 


(2)  if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of an


 


29

















 


Unrestricted Definitive
Note, a certificate from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;


 


and, in each such case set forth in this clause (D),
if the Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer complies with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


Upon satisfaction of any of the conditions of any of
the clauses of this Section 2.06(c)(iii), the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive Note in the
appropriate principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on behalf of
such holder, and the Trustee shall reduce or cause to be reduced in a
corresponding amount pursuant to Section 2.06(h), the aggregate principal amount
of the applicable Restricted Global Note.


 


(iv)         Transfer
or Exchange of Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. 
Subject to Section 2.06(a) hereof, if any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note, then, upon satisfaction of the applicable conditions set forth
in Section 2.06(b)(ii) hereof, the Trustee shall reduce or cause to be reduced
in a corresponding amount pursuant to Section 2.06(h) hereof, the aggregate
principal amount of the applicable Unrestricted Global Note, and the Company shall
execute, and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate and deliver an Unrestricted
Definitive Note in the appropriate principal amount to the Person designated by
the holder of such beneficial interest in instructions delivered to the
Registrar by the Depositary and the applicable Participant or Indirect
Participant on behalf of such holder. 
Any Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iv) shall be registered in such name
or names and in such authorized denomination or denominations as the holder of
such beneficial interest shall designate in such instructions.  The Trustee shall deliver such Unrestricted
Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Unrestricted Definitive
Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) shall not bear the Private Placement Legend.


 


(d)   Transfer and Exchange of Definitive
Notes for Beneficial Interests in the Global Notes.


 


(i)           Transfer
or Exchange of Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes.  If any
holder of a Restricted Definitive Note proposes to exchange such Restricted Definitive
Note for a beneficial interest in a Restricted Global Note or to transfer such
Restricted Definitive Notes to a Person who takes delivery thereof in the form
of a beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:


 


(A)   if
the holder of such Restricted Definitive Note proposes to exchange such
Restricted Definitive Note for a beneficial interest in a Restricted Global
Note, a certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;


 


(B)   if
such Restricted Definitive Note is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;


 


(C)   if
such Restricted Definitive Note is being transferred to a “non-U.S. Person” in
an offshore transaction (as defined in Rule 902(h) of Regulation S) in
accordance with Rule 903 or Rule 904, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;


 


30

















 


(D)   if
such Restricted Definitive Note is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule 144, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;


 


(E)    if
such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in clauses (B)
through (D) above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3)(d) thereof, if applicable; or


 


(F)    if
such Restricted Definitive Note is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,


 


the Trustee shall cancel the Restricted Definitive
Note, increase or cause to be increased in a corresponding amount pursuant to
Section 2.06(h) hereof, the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, a 144A Global Note, in the case of clause (C) above, a Regulation S
Global Note, and in all other cases, a IAI Global Note.


 


(ii)          Transfer
or Exchange of Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes.  A holder
of a Restricted Definitive Note may exchange such Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note or transfer such
Restricted Definitive Note to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note only if:


 


(A)         such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such Registration
Rights Agreement;


 


(B)         such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)         such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)         the
Registrar receives the following:


 


(1)  if
the holder of such Restricted Definitive Note proposes to exchange such
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof; or


 


(2)  if
the holder of such Restricted Definitive Note proposes to transfer such
Restricted Definitive Note to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;


 


and, in each such case set forth in this clause (D),
if the Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer shall be effected in compliance with the
Securities Act and


 


31

















 


that the restrictions on transfer contained herein and
in the Private Placement Legend shall no longer be required in order to
maintain compliance with the Securities Act.


 


Upon satisfaction of the conditions of any of the
clauses in this Section 2.06(d)(ii), the Trustee shall cancel such Restricted
Definitive Note and increase or cause to be increased in a corresponding amount
pursuant to Section 2.06(h) hereof, the aggregate principal amount of the
Unrestricted Global Note.


 


(iii)        Transfer or Exchange of Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A holder of an Unrestricted Definitive Note
may exchange such Unrestricted Definitive Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. 
Upon receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Unrestricted Definitive Note and increase or cause
to be increased in a corresponding amount pursuant to Section 2.06(h) hereof
the aggregate principal amount of one of the Unrestricted Global Notes.


 


(iv)         Transfer
or Exchange of Unrestricted Definitive Notes to Beneficial Interests in
Restricted Global Notes Prohibited. 
An Unrestricted Definitive Note may not be exchanged for, or transferred
to Persons who take delivery thereof in the form of, beneficial interests in a
Restricted Global Note.


 


(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. 
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).


 


(i)           Transfer
of Restricted Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Registrar receives the
following:


 


(A)  if
the transfer will be made pursuant to Rule 144A, a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof;


 


(B)  if
the transfer will be made pursuant to Rule 903 or Rule 904, a certificate in
the form of Exhibit B hereto, including the certifications in item (2) thereof;
and


 


(C)  if
the transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable.


 


(ii)          Transfer
or Exchange of Restricted Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note only if:


 


(A)  such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder, in the case of an
exchange, or the transferee, in the case of a transfer, makes any and all
certifications in the applicable Letter of Transmittal (or is deemed to have
made such certifications if delivery is made through the Applicable Procedures)
as may be required by a Registration Rights Agreement;


 


32

















 


(B)  any
such transfer is effected pursuant to a Shelf Registration Statement in
accordance with a Registration Rights Agreement;


 


(C)  any
such transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)  the
Registrar receives the following:


 


(1)  if
the holder of such Restricted Definitive Note proposes to exchange such
Restricted Definitive Notes for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including the certifications
in item (1)(d) thereof; or


 


(2)  if
the holder of such Restricted Definitive Notes proposes to transfer such
Restricted Definitive Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth in this clause (D),
if the Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer complies
with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


Upon satisfaction of the conditions of any of the clauses
of this Section 2.06(e)(ii), the Trustee shall cancel the prior Restricted
Definitive Note and the Company shall execute, and upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate and deliver an Unrestricted Definitive Note in the appropriate
aggregate principal amount to the Person designated by the holder of such prior
Restricted Definitive Note in instructions delivered to the Registrar by such
holder.


 


(iii)        Transfer of Unrestricted Definitive Notes to
Unrestricted Definitive Notes.  A
holder of Unrestricted Definitive Notes may transfer such Unrestricted
Definitive Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note.  Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the holder
thereof.


 


(f) Exchange Offer.  Upon the occurrence of an Exchange Offer in
accordance with a Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate (A) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of the
beneficial interests in the applicable Restricted Global Notes (1) tendered for
acceptance by Persons that make any and all certifications in the applicable
Letters of Transmittal (or are deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be required by such
Registration Rights Agreement and (2) accepted for exchange in such Exchange
Offer and (B) Unrestricted Definitive Notes in an aggregate principal amount
equal to the aggregate principal amount of the Restricted Definitive Notes
tendered for acceptance by Persons who made the foregoing certifications and
accepted for exchange in the Exchange Offer. 
Concurrently with the issuance of such Notes, the Trustee shall reduce
or cause to be reduced in a corresponding amount the aggregate principal amount
of the applicable Restricted Global Notes, and the Company shall execute and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver to the Persons designated by the
holders of Restricted Definitive Notes so accepted Unrestricted Definitive
Notes in the appropriate aggregate principal amount.


 


(g) Legends.  The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.


 


33

















 


(i)           Private
Placement Legend.


 


(A)   Except
as permitted by clause (B) below, each Global Note and each Definitive Note
(and all Notes issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:


 


“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR OTHER SECURITIES LAWS. 
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.  THE HOLDER OF THIS NOTE BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING ITS NOTE IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR
TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF
THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION
TERMINATION DATE”), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED,
HOWEVER, THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE
IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE.  THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.  AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.”


 


(B)   Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to clauses
(b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.


 


34

















 


(ii)          Global
Note Legend.  Each Global Note shall
bear a legend 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.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.  UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO.  OR IN SUCH OTHER NAME AS
MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO.  OR TO SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.”


 


(iii)        Regulation S Temporary Global Note Legend.  Each Regulation S Temporary Global Note
shall bear a legend in substantially the following form:


 


“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”


 


(h)        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 cancelled in whole and not in part, each such Global Note shall be returned
to or retained and cancelled by the Trustee in accordance with Section 2.11
hereof.  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
aggregate 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, the aggregate principal amount of 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.


 


(i)         General Provisions Relating to
Transfers and Exchanges.


 


(i)           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


 


35

















 


therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 3.09, 4.12, 4.18, 4.21 and 9.05 hereof).


 


(ii)          All
Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of
the Company, evidencing the same debt as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


 


(iii)        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 hereof and ending at
the close of business on the date 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 (including a
Regular Record Date) and the next succeeding Interest Payment Date.


 


(iv)         Prior
to due presentment for the registration of 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, premium, if any, and interest on such Note and for all
other purposes, in each case regardless of any notice to the contrary.


 


(v)          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.


 


(vi)         The
Trustee is hereby authorized and directed to enter into a letter of
representation with the Depositary in the form provided by the Company and to
act in accordance with such letter.


 


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, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate a replacement Note. 
If required by the Trustee or the Company, the Holder of such Note shall
provide indemnity that is sufficient, in the judgment of the Trustee or the
Company, to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer in connection with such
replacement.  If required by the
Company, such Holder shall reimburse the Company for its reasonable expenses in
connection with such replacement.


 


Every replacement Note issued in accordance with this
Section 2.07 shall be the valid obligation of the Company, evidencing the same
debt as the destroyed, lost or stolen Note, 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.


 


(a)        The
Notes outstanding at any time shall be the entire principal amount of Notes
represented by all of the Global Notes and Definitive Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those subject to reductions in beneficial interests effected by
the Trustee in accordance with Section 2.06 hereof, and those described in this
Section 2.08 as not outstanding.  Except
as set forth in Section 2.09 hereof, a Note shall not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note; provided, however,
that Notes held by the Company or a Subsidiary of the Company shall be deemed
not to be outstanding for purposes of Section 3.07(b) hereof.


 


(b)        If
a Note is replaced pursuant to Section 2.07 hereof, it shall cease to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced note is held by a bona fide purchaser.


 


36

















 


(c)        If
the principal amount of any Note is considered paid under Section 4.01 hereof,
it shall cease to be outstanding and interest on it shall cease to accrue.


 


(d)        If
the Paying Agent (other than the Company, a Subsidiary of the Company or an
Affiliate of any thereof) holds, on a redemption date, a Purchase Date or a
maturity date, funds sufficient to pay in full 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, or by any Affiliate of the Company, 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 the Trustee 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, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate
temporary Notes.  Temporary Notes shall
be substantially in the form of Definitive 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 Global Notes or Definitive Notes in exchange for temporary Notes,
as applicable.


 


Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.


 


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. 
Upon sole direction of the Company, the Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy cancelled Notes (subject to the
record retention requirements of the Exchange Act or other applicable laws)
unless by written order, signed by an Officer of the Company, the Company
directs them to be returned to it.  Certification
of the destruction of all cancelled Notes shall be delivered to the Company
from time to time upon request.  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.       Payment of Interest; 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 and in Section 4.01 hereof.  The Company shall 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 Interest 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
mail or cause to be mailed to Holders a notice that states the special record
date, the related Interest Payment Date and the amount of such interest to be
paid.


 


37

















 


Section
2.13.       CUSIP or ISIN Numbers.


 


The Company in issuing the Notes may use “CUSIP”
and/or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall
use “CUSIP” and/or “ISIN” numbers in notices of redemption or Offers to
Purchase as a convenience to Holders; provided,
however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption or notice of an Offer to Purchase and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption or Offer to Purchase shall not be affected
by any defect in or omission of such numbers. 
The Company shall promptly notify the Trustee of any change in the
“CUSIP” and/or “ISIN” numbers.


 


Section
2.14.       Additional Interest.


 


If Additional Interest is payable by the Company
pursuant to a Registration Rights Agreement and paragraph 1 of the Notes, the
Company shall deliver to the Trustee a certificate to that effect stating (i)
the amount of such Additional Interest that is payable and (ii) the date on
which such interest is payable pursuant to Section 4.01 hereof.  Unless and until a Responsible Officer of
the Trustee receives such a certificate or instruction or direction from the
Company in accordance with the terms of this Indenture, the Trustee may assume without
inquiry that no Additional Interest is payable.  The foregoing shall not prejudice the rights of the Holders with
respect to their entitlement to Additional Interest as otherwise set forth in
this Indenture or the Notes and pursuing any action against the Company
directly or otherwise directing the Trustee to take any such action in
accordance with the terms of this Indenture and the Notes.  If the Company has paid Additional Interest
directly to the Persons entitled to it, the Company shall deliver to the
Trustee an Officers’ Certificate setting forth the details of such payment.


 


Section
2.15.       Issuance of Additional Notes.


 


The Company shall be entitled, subject to its
compliance with Section 4.09 hereof, to issue Additional Notes under this
Indenture which shall have identical terms as the Initial Notes issued on the
Issue Date, other than with respect to the date of issuance, issue price and
rights under a related Registration Rights Agreement, if any.  The Initial Notes issued on the Issue Date, any
Additional Notes and all Exchange Notes issued in exchange therefor shall be
treated as a single class for all purposes under this Indenture, including
directions, waivers, amendments, consents, redemptions and Offers to Purchase.


 


With respect to any Additional Notes, the Company
shall set forth in a Board Resolution and an Officers’ Certificate, a copy of
each 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;


 


(b)        the
issue price, the issue date and the CUSIP and/or ISIN number of such Additional
Notes; and


 


(c)        whether
such Additional Notes shall be subject to the restrictions on transfer set
forth in Section 2.06 hereof relating to Restricted Global Notes and Restricted
Definitive Notes.


 


Section
2.16.       Record Date.


 


The record date for purposes of determining the
identity of Holders of Notes entitled to vote or consent to any action by vote
or consent or permitted under this Indenture shall be determined as provided
for in TIA Section 316(c).


 


38

















 


Section
2.17.       Tax Matters.


 


(a)        Any
Holder that incurs any documentary or other taxes, charges or assessments made
by a governmental agency by reason of the execution and delivery of the Notes
or any document related thereto shall pay any such amounts to the relevant
governmental agency in accordance with applicable law.


 


(b)        Each
Holder of a Definitive Note shall certify that it is either not subject to
United States withholding or is entitled to an exemption from or reduction in
United States withholding with respect to all amounts payable to such Holder
under this Indenture by delivering to the Company and the Paying Agent at any
time or times as reasonably requested by the Company or the Paying Agent,
properly completed and executed documentation (if required under applicable
law) to permit all payments under this Indenture to be made to it without
withholding or at a reduced rate of withholding pursuant to an applicable
income tax treaty.  Such documentation
may include, but not be limited to, a properly completed and duly executed
United States Internal Revenue Form W-9 (or Form W-8 for Holders who are not
United States persons) or any successor form, certifying that such Holder of
the Definitive Note is exempt from or entitled to a reduction in United States
withholding with respect to payments pursuant to this Indenture.  In the event that a Holder of a Definitive
Note becomes subject to United States withholding initially or at an increased
rate, then for so long as such rate of withholding is required by law to be
made by the Company or the Paying Agent, appropriate amounts shall be withheld
from all amounts payable to such Holder under this Indenture and remitted to
the appropriate governmental agency.  In
the event that any Holder is subject to United States withholding and such
withholding is required by law to be made by the Company or the Paying Agent,
then such amounts will be so withheld and remitted to the appropriate
governmental agency.  The Company and
the Paying Agent shall not be required to gross up any amount payable to any
Holder under this Indenture from which taxes are withheld.


 


(c)        In
the event that a Holder of a Definitive Note transfers a Definitive Note, any
assignee or transferee of the Note shall be bound by this Section 2.17, so that
such assignee or transferee will have all of the obligations and provide all
forms and statements required by this Section 2.17.


 


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 Section 3.07 hereof, it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption date
(or such shorter period as allowed by the Trustee), an Officers’ Certificate
setting forth (a) the applicable section of this Indenture pursuant to which
the redemption shall occur, (b) the redemption date, (c) the principal amount
of Notes to be redeemed and (d) the redemption price.


 


Section
3.02.       Selection of Notes to Be Redeemed or Repurchased.


 


If less than all of the Notes are to be redeemed or
repurchased at any time, the Trustee shall select the Notes for redemption or
repurchase among the Holders of the Notes as follows:  (1) if the Notes are listed on any national securities exchange,
in compliance with the requirements of the principal national securities exchange
on which the Notes are listed; or (2) if the Notes are not listed on any
national securities exchange, on a pro rata
basis, by lot or by such method as the Trustee deems fair and appropriate.  In the event of partial redemption or
repurchase by lot, the particular Notes to be redeemed or repurchased shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption or repurchase date by the Trustee from the
outstanding Notes not previously called for redemption or repurchase.


 


The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption or repurchase and, in the case of
any Note selected for partial redemption or repurchase, the principal amount
thereof to be redeemed or repurchased. 
Notes and portions of Notes selected shall be in amounts of $1,000 or
integral multiples thereof, except that if all of the Notes of a Holder are to
be redeemed or repurchased, the entire


 


39

















 


outstanding amount
of Notes held by such Holder, even if not an integral multiple of $1,000, shall
be redeemed or repurchased.  Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption or repurchase also apply to portions of Notes
called for redemption or repurchase.


 


Section
3.03.       Notice of Redemption.


 


At least 30 days but not more than 60 days prior to a
redemption or repurchase date, the Company shall mail or cause to be mailed, by
first class mail, a notice of redemption or repurchase to each Holder whose
Notes are to be redeemed or repurchased at such Holder’s registered address
appearing in the Security Register; provided,
however, that redemption or repurchase notices may be mailed more
than 60 days prior to a redemption or repurchase date if the notice is issued
in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture.


 


The notice shall identify the Notes to be redeemed and
shall state:


 


(a)        the
redemption date;


 


(b)        the
appropriate calculation of the redemption price, but need not include the
redemption price itself; the actual redemption price shall be set forth in an
Officers’ Certificate delivered to the Trustee no later than two (2) Business
Days prior to the redemption date;


 


(c)        if
any Note is being redeemed or repurchased 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, if applicable, a new Note or Notes in principal amount
equal to the unredeemed or unpurchased portion 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
applicable 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 of the CUSIP and/or ISIN
numbers, 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 the Company’s expense; provided, however, that the Company shall
have delivered to the Trustee, at least 45 days (or such shorter period allowed
by the Trustee), prior to the redemption date, an Officers’ Certificate
requesting that the Trustee give such notice (in the name and at the expense of
the Company) and setting forth the information to be stated in such notice as
provided in this Section 3.03.


 


Section
3.04.       Effect of Notice of Redemption.


 


Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption shall become irrevocably due
and payable on the redemption date at the redemption price.  A notice of redemption may not be
conditional.


 


40

















 


Section
3.05.       Deposit of Redemption Price.


 


On or prior to 11:00 a.m. Eastern time on any
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and, if applicable,
accrued and unpaid interest on all Notes to be redeemed on that date.  The Trustee or the Paying Agent shall
promptly, and in any event within two (2) Business Days after the redemption
date, 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 and unpaid 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 purchase or redemption
in accordance with Section 2.08(d) hereof, whether or note such Notes are
presented for payment.  If a Note is
redeemed on or after a Regular Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid interest, if any, shall be
paid to the Person in whose name such Note was registered at the close of
business on such Regular 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 hereof.


 


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 clause (b) of this Section 3.07, the Notes shall not be
redeemable at the Company’s option prior to December 1, 2007.  On or after December 1, 2007, the Company
may redeem all or a part of the Notes, at once or over time, after giving the
notice required pursuant to Section 3.03 hereof, 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 right of Holders of record on
the relevant Regular Record Date to receive interest due on the relevant
Interest Payment Date), if redeemed during the twelve-month period beginning on
December 1 of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2007

  	
   

  	
  104.375

  	
  %

  
	
  2008

  	
   

  	
  102.188

  	
  %

  
	
  2009 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)        At
any time prior to December 1, 2006, the Company may on one or more occasions
redeem up to 35% of the aggregate principal amount of the Notes issued under
this Indenture at a redemption price (expressed as a percentage of principal
amount) of 108.750% of the principal amount thereof, plus accrued and unpaid
interest and Additional Interest, if any, to the redemption date (subject to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date), with the net cash proceeds
of one or more Public Equity Offerings; provided,
however, that (1) at least 65% of
the aggregate principal amount of the Notes issued under this Indenture remains
outstanding immediately after the occurrence of such redemption (excluding
Notes held by the Company and its Subsidiaries); and (2) the redemption occurs
within 60 days of the date of the closing of such Public Equity Offering.


 


(c)        Any
prepayment pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.


 


41

















 


Section
3.08.       Mandatory Redemption.


 


Except as set forth in Sections 3.09, 4.12, 4.18 or
4.21 hereof, the Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.


 


Section
3.09.       Mandatory Disposition Pursuant to Gaming Laws.


 


If any Gaming Authority requires that a Holder or
Beneficial Owner of Notes be licensed, qualified or found suitable under any
applicable Gaming Law and such Holder or Beneficial Owner:


 


(a)        fails
to apply for a license, qualification or a finding of suitability within 30
days (or such shorter period as may be required by the applicable Gaming
Authority) after being requested to do so by the Gaming Authority; or


 


(b)        is
denied such license or qualification or not found suitable;


 


the Company shall
then have the right, at its option:


 


(1)          to
require each such Holder or Beneficial Owner to dispose of its Notes within 30
days (or such earlier date as may be required by the applicable Gaming
Authority) of the occurrence of the event described in clause (a) or (b) above,
or


 


(2)          to
redeem the Notes of each such Holder or Beneficial Owner, in accordance with
Rule 14e-1, if applicable, at a redemption price equal to the lowest of:


 


(a)          the
principal amount thereof, together with accrued and unpaid interest and
Additional Interest, if any, to the earlier of the date of redemption or the
date of the denial of license or qualification or of the finding of
unsuitability by such Gaming Authority;


 


(b)          the
price at which such Holder or Beneficial Owner acquired the Notes, together
with accrued and unpaid interest and Additional Interest, if any, to the earlier
of the date of redemption or the date of the denial of license or qualification
or of the finding of unsuitability by such Gaming Authority; and


 


(c)          such
other lesser amount as may be required by any Gaming Authority.


 


Immediately upon a determination by a Gaming Authority
that a Holder or Beneficial Owner of the Notes will not be licensed, qualified
or found suitable and must dispose of the Notes, the Holder or Beneficial Owner
will, to the extent required by applicable Gaming Laws, have no further right:


 


(1)          to
exercise, directly or indirectly, through any trustee or nominee or any other
Person or entity, any right conferred by the Notes, the Guarantees or this
Indenture; or


 


(2)          to
receive any interest, dividend, economic interests or any other distributions
or payments with respect to the Notes and the Guarantees or any remuneration in
any form with respect to the Notes and the Guarantees from the Company, the
Guarantors or the Trustee, except the redemption price referred to above.


 


The Company shall notify the Trustee in writing of any
redemption pursuant to this Section 3.09 as soon as practicable.  Any Holder or Beneficial Owner that is
required to apply for a license, qualification or a finding of suitability
shall be responsible for all fees and costs of applying for and obtaining the
license, qualification or finding of suitability and of any investigation by
the applicable Gaming Authorities.


 


42

















 


Section
3.10.       Offer To Purchase.


 


(a)        In
the event that, pursuant to Section 4.12, 4.18 or 4.21 hereof, the Company
shall be required to commence an Asset Sale Offer, Change of Control Offer or
Event of Loss Offer (each, an “Offer to Purchase”), it shall follow the procedures
specified below.


 


(b)        The
Company shall cause a notice of the Offer to Purchase to be sent at least once
to the Dow Jones News Service or
similar business news service in the United States.


 


(c)        The
Company shall commence the Offer to Purchase by sending, by first-class mail,
with a copy to the Trustee, to each Holder at such Holder’s address appearing
in the Security Register, a notice the terms of which shall govern the Offer to
Purchase stating:


 


(i)           that
the Offer to Purchase is being made pursuant to this Section 3.10 and Section
4.12, 4.18 or 4.21, as the case may be, and, in the case of a Change of Control
Offer, that a Change of Control has occurred, the circumstances and relevant
facts regarding the Change of Control and that a Change of Control Offer is
being made pursuant to Section 4.18;


 


(ii)          the
principal amount of Notes required to be purchased pursuant to Section 4.12,
4.18 or 4.21, as the case may be (the “Offer Amount”), the purchase price set forth
in Section 4.12, 4.18 or 4.21, as applicable, the Offer Period and the Purchase
Date (each as defined below);


 


(iii)        except as provided in clause (ix), that all
Notes timely tendered and not withdrawn shall be accepted for payment;


 


(iv)         that
any Note not tendered or accepted for payment shall continue to accrue interest
and Additional Interest, if any;


 


(v)          that,
unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Offer to Purchase shall cease to accrue interest and
Additional Interest, if any, after the Purchase Date;


 


(vi)         that
Holders electing to have a Note purchased pursuant to an Offer to Purchase may
elect to have Notes purchased in integral multiples of $1,000 only;


 


(vii)        that Holders electing to have a Note purchased
pursuant to any Offer to Purchase shall be required to surrender the Note, with
the form entitled “Option of Holder to Elect Purchase” on the reverse of the
Note completed, or transfer by book-entry transfer, to the Company, the
Depositary, if appointed by the Company, or a Paying Agent at the address specified
in the notice before the close of business on the third Business Day before the
Purchase Date;


 


(viii)       that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the case may
be, receives, not later than the expiration of the Offer Period, a telegram,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note (or portions thereof) the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to have
such Note purchased;


 


(ix)         that,
in the case of an Asset Sale Offer or Event of Loss Offer, if the aggregate
principal amount of Notes surrendered by Holders exceeds the Offer Amount, the
Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000 or
integral multiples thereof shall be purchased);


 


(x)          that
Holders whose Notes were purchased in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer); and


 


43

















 


(xi)         any
other procedures the 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.


 


(d)        The
Offer to Purchase shall remain open for a period of at least 30 days but no
more than 60 days following its commencement, except to the extent that a
longer period is required by applicable law (the “Offer Period”).  No later than five (5) Business Days (and in
any event no later than the 60th day following the date of mailing of the
notice with respect to a Change of Control) after the termination of the Offer
Period (the “Purchase
Date”), the Company shall purchase the Offer Amount or, if less
than the Offer Amount has been tendered, all Notes tendered in response to the
Offer to Purchase.  Payment for any
Notes so purchased shall be made in the same manner as interest payments are
made.  The Company shall publicly
announce the results of the Offer to Purchase on or as soon as practicable
following the Purchase Date.


 


(e)        On
or prior to the Purchase Date, the Company shall, to the extent lawful:


 


(i)           accept
for payment (on a pro rata basis
to the extent necessary in connection with an Asset Sale Offer or Event of Loss
Offer), the Offer Amount of Notes or portions of Notes properly tendered and
not withdrawn pursuant to the Offer to Purchase, or if less than the Offer
Amount has been tendered, all Notes tendered;


 


(ii)          deposit
with the Paying Agent funds in an amount equal to the purchase price as set
forth in Section 4.12, 4.18 or 4.21, as applicable, in respect of all Notes or
portions of Notes properly tendered; and


 


(iii)        deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased by the
Company and that such Notes or portions thereof were accepted for payment by
the Company in accordance with the terms of this Section 3.10.


 


(f)         The
Depositary or the Paying Agent (or the Company, if acting as the Paying Agent),
as the case may be, shall promptly (but in the case of a Change of Control, not
later than 60 days from the date of the mailing of the notice with respect to
the Change of Control) deliver to each tendering Holder the purchase price as set
forth in Section 4.12, 4.18 or 4.21, as applicable.  In the event that any portion of the Notes surrendered is not
purchased by the Company, the Company shall promptly execute and issue a new
Note in a principal amount equal to such unpurchased portion of the Note
surrendered, and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate and deliver (or cause to be
transferred by book-entry) such new Note to such Holder; provided, however,
that each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof.


 


(g)        If
the Purchase Date is on or after a Regular Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid to
the Person in whose name a Note is registered at the close of business on such
Regular Record Date, and no additional interest shall be payable to Holders who
tender Notes pursuant to the Offer to Purchase.


 


(h)        The
Company shall comply, to the extent applicable, 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 Offer to Purchase. 
To the extent that the provisions of any securities laws or regulations
conflict with Sections 4.12, 4.18 or 4.21, as applicable, this Section 3.10 or
other provisions of this Indenture, the Company shall comply with applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under Sections 4.12, 4.18 or 4.21, as applicable, this Section 3.10
or such other provisions of this Indenture by virtue of such conflict.


 


(i)         Other
than as specifically provided in this Section 3.10, any purchase pursuant to
this Section 3.10 shall be made in accordance with the provisions of Section
3.01 through 3.06 hereof.


 


44

















 


ARTICLE
4.


 


COVENANTS


 


Section
4.01.       Payment of Notes.


 


The Company shall pay or cause to be paid the principal
of, premium, if any, and interest on, the Notes on the dates and in the manner
provided in this Indenture and the Notes. 
Principal, premium, if any, and interest 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. Eastern Time on the due date money deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due.  Such Paying Agent shall return to the
Company promptly, and in any event, no later than three (3) Business Days
following the date of payment, any money (including accrued interest) that
exceeds such amount of principal, premium, if any, and interest paid on the
Notes.  The Company shall pay Additional
Interest, if any, in the same manner, on the dates and in the amounts set forth
in a Registration Rights Agreement, the Notes and the Indenture.  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.


 


The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) 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
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest (without regard to any applicable grace
periods), from time to time on demand at the same rate to the extent lawful.


 


Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.


 


Section
4.02.       Maintenance of Office or Agency.


 


(a)        The
Company shall maintain in the Borough of Manhattan, The City of New York, an
office or agency (which may be an office or drop facility of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
presented or surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served.  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, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.


 


(b)        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.  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.


 


(c)        The
Company hereby designates the Corporate Trust Office of the Trustee, as one
such office, drop facility or agency of the Company in accordance with Section
2.03 hereof.


 


Section
4.03.       Reports.


 


After the Acquisition Date, whether or not required by
the Commission, so long as any Notes are outstanding, the Company shall furnish
to the Trustee and registered Holders, within 15 days of the date on which the
Company would be required to file such information with the Commission, if the
Company were subject to Sections 13 or 15(d) of the Exchange Act, including any
extension periods available under the Commission’s rules and regulations and
excluding any requirement and time periods applicable to “accelerated filers”
(as defined in Rule 12b-2 under the Exchange Act) under such rules and
regulations:


 


45

















 


(1)          all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission 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 on the annual financial statements by the
Company’s certified independent accountants; and


 


(2)          all
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports.


 


If the Company has designated any of its Subsidiaries
as Unrestricted Subsidiaries, then the quarterly and annual financial
information required by the preceding paragraph shall include a reasonably
detailed presentation, either on the face of the financial statements or in the
footnotes thereto, and in Management’s Discussion and Analysis of Financial
Condition and Results of Operations, of the financial condition and results of
operations of the Company and its Restricted Subsidiaries separate from the
financial condition and results of operations of the Unrestricted Subsidiaries
of the Company.


 


In addition, following the consummation of the
Exchange Offer contemplated by the Registration Rights Agreement, whether or
not required by the Commission, the Company shall file a copy of all of the
information and reports referred to in clauses (1) and (2) above with the
Commission for public availability within the time periods specified in the
Commission’s rules and regulations (unless the Commission will not accept such
a filing).  In addition, the Company
agrees, and, as of the Acquisition Date, the Guarantors will agree, that, only
until consummation of the Exchange Offer and, in the event that, 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, they will furnish to
the Holders upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act, to the extent such
information is electronically filed with the Commission and is electronically
available to the public free of cost.


 


The Company will be deemed to have furnished such
reports to the Trustee and registered Holders if it has filed such reports with
the Commission via the EDGAR filing system and such reports are publicly
available.


 


Section
4.04.       Compliance Certificate.


 


(a)        The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers’ Certificate stating that a review of the activities of
the Company, the Guarantors and their respective Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company, the Guarantors and
their respective Subsidiaries have kept, observed, performed and fulfilled
their 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, the Guarantors and their respective Subsidiaries have kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
are 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).


 


(b)        The
Company shall otherwise comply with TIA §314(a)(2).


 


(c)        The
Company shall deliver to the Trustee, within 30 days after the Company becomes
aware of the occurrence thereof, written notice in the form of an Officers’
Certificate of any Default or Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto.


 


Section
4.05.       Taxes.


 


The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments and
governmental levies, except such as are being contested in good faith and by


 


46

















 


appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders.


 


Section
4.06.       Stay, Extension and Usury 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,
extension or usury 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
4.07.       Corporate Existence.


 


Subject to Article 5 hereof, 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 Restricted Subsidiary, 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 Restricted Subsidiary, if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes, or that such
preservation is not necessary in connection with any transaction not prohibited
by this Indenture.


 


Section
4.08.       Payments for Consent.


 


The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, 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 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.       Incurrence of Indebtedness and Issuance of Preferred
Stock.


 


The Company shall not, and shall not permit any
Subsidiary to, incur any Indebtedness (including Acquired Debt), and the
Company shall not issue any Disqualified Stock and shall not permit any
Subsidiary to issue any shares of preferred stock; provided, however,
that the Company may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock, and any of the Guarantors may incur Indebtedness, if the
Fixed Charge Coverage Ratio for the Company’s most recently ended four full
fiscal quarters for which financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 2.0 to 1.0, determined on
a pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred or the
preferred stock or Disqualified Stock had been issued, as the case may be, at
the beginning of such four-quarter period.


 


The first paragraph of this Section 4.09 shall not
prohibit the incurrence of any of the following items of Indebtedness
(collectively, “Permitted Debt”):


 


(1)          the
incurrence by the Company and the Guarantors of additional Indebtedness and
letters of credit under one or more Credit Facilities and guarantees thereof; provided, however, that the aggregate
principal amount of all Indebtedness of the Company and the Guarantors incurred
pursuant to this clause (1) (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Company and
the Guarantors thereunder) does not exceed an amount equal to $45.0 million;


 


47

















 


(2)          the
incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes to be issued on the Issue Date (and the related Exchange Notes to be
issued pursuant to the Registration Rights Agreement) and the incurrence by the
Guarantors of the Guarantees of those Notes;


 


(3)          the
incurrence by the Company and the Guarantors of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case incurred for the purpose of financing all or any part of the
purchase price or cost of acquisition, construction or improvement of property,
plant or equipment used or to be used in the business of the Company or such
Guarantor, in an aggregate principal amount, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (3), not to exceed $10.0 million
at any time outstanding;


 


(4)          the
incurrence by the Company and the Guarantors of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness) that
was incurred under the first paragraph of this Section 4.09 or clauses (2),
(3), (4) or (9) of this paragraph;


 


(5)          the
incurrence by the Company and its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries;
provided, however, that:


 


(a)          if
the Company is the obligor on such Indebtedness, such Indebtedness must be
expressly subordinated to the prior payment in full in cash of all Obligations
with respect to the Notes;


 


(b)          if
a Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of its Guarantee; and


 


(c)          (i)
any subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company  and (ii)
any sale or other transfer of any such Indebtedness to a Person that is not
either the Company or a Restricted Subsidiary of the Company shall be deemed,
in each case, to constitute an incurrence of such Indebtedness by the Company
or such Restricted Subsidiary, as the case may be, that was not permitted by
this clause (5);


 


(6)          the
incurrence by the Company and any of its Restricted Subsidiaries of Hedging
Obligations that are incurred in the normal course of business;


 


(7)          the
guarantee by the Company or any of the Guarantors of Indebtedness of the
Company or a Guarantor that was permitted to be incurred by another provision
of this Section 4.09;


 


(8)          the
incurrence by the Company’s Unrestricted Subsidiaries of Non-Recourse Debt; provided, however, that if any such
Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such
event shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company that was not permitted by this clause (8);


 


(9)          the
incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to refund, refinance
or replace any Indebtedness incurred pursuant to this clause (9), not to exceed
$5.0 million at any one time outstanding; and


 


(10)        Indebtedness
of the Company and the Guarantors outstanding on the Acquisition Date other
than Indebtedness outstanding under the Credit Agreement;


 


48

















 


provided,
however, that with respect to clause (9) above, no Default or
Event of Default has occurred and is continuing or would occur as a consequence
of such incurrence of Indebtedness.


 


The Company and its Restricted Subsidiaries shall not
incur any Indebtedness (including Permitted Debt) that is contractually
subordinated in right of payment to any other Indebtedness of the Company or
its Restricted Subsidiaries unless such Indebtedness is also contractually
subordinated in right of payment to the Notes or the applicable Guarantee on
substantially identical terms; provided,
however, that no Indebtedness of the Company and its Restricted
Subsidiaries shall be deemed to be contractually subordinated in right of
payment to any other Indebtedness of the Company or its Restricted Subsidiaries
solely by virtue of being unsecured or secured to a lesser extent.


 


For purposes of determining compliance with this
Section 4.09, in the event that an item of Indebtedness meets the criteria of
more than one of the categories of Permitted Debt described in clauses (1)
through (9) above or is entitled to be incurred pursuant to the first paragraph
of this Section 4.09, in each case, as of the date of incurrence thereof, the
Company shall, in its sole discretion, classify (or later reclassify in whole
or in part, in its sole discretion) such item of Indebtedness in any manner
that complies with this Section 4.09 and such Indebtedness shall be treated as
having been incurred pursuant to such clauses or the first paragraph of this
Section 4.09, as the case may be, designated by the Company; provided, however,
that any incurrences of Indebtedness under Credit Facilities must be first
applied to clause (1) above.  Accrual of
interest or dividends, the accretion of accreted value or liquidation
preference and the payment of interest or dividends in the form of additional
Indebtedness or Disqualified Stock shall not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09.


 


Section
4.10.       Restricted Payments.


 


The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly:


 


(1)          declare
or pay any dividend or make any other payment or distribution on account of the
Company’s or any Restricted Subsidiary’s Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation
involving the Company or any Restricted Subsidiary) or to the direct or
indirect holders of the Company’s or any Restricted Subsidiary’s Equity
Interests in their capacity as such (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company or
to the Company or a Restricted Subsidiary of the Company);


 


(2)          purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving the Company) any
Equity Interests of the Company or any direct or indirect parent of the
Company;


 


(3)          make
any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Subordinated Obligations, other than
Subordinated Obligations owed to the Company or any Restricted Subsidiary,
except payments of interest or principal at the Stated Maturity thereof; or


 


(4)          make
any Restricted Investment (all such payments and other actions set forth in
these clauses (1) through (4) above being collectively referred to as “Restricted Payments”),


 


unless, at the
time of and after giving effect to such Restricted Payment:


 


(1)          no
Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;


 


(2)          the
Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the most recently ended
four-quarter period for which financial statements are available, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.09; and


 


49

















 


(3)          such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and the Restricted Subsidiaries after the Issue
Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (6),
(7), (8) and (10) of the next succeeding paragraph) is less than the sum,
without duplication, of:


 


(a)          50%
of (i) the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
after the Issue Date to the end of the Company’s most recently ended fiscal
quarter for which financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit) minus (ii) the amount paid or to be paid in
respect of such period pursuant to clause (7) of the next paragraph to
stockholders other than the Company, plus


 


(b)          100%
of the aggregate net cash proceeds received by the Company since the Issue Date
(other than contributions to the Company by Parent to fund the closing of the
Acquisition, up to an amount of $50.0 million) as a contribution to its common
equity capital or from the issue or sale of Equity Interests of the Company
(excluding Disqualified Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt securities
of the Company that have been converted into or exchanged for such Equity
Interests (other than Equity Interests or Disqualified Stock or debt securities
sold to a Subsidiary of the Company), plus


 


(c)          100%
of the aggregate amount received in cash and the fair market value, as
determined in good faith by the Board of Directors of the Company, of property
and marketable securities received by means of (A) the sale or other disposition
(other than to the Company or a Restricted Subsidiary) of Restricted
Investments made by the Company or its Restricted Subsidiaries and repurchases
and redemptions of such Restricted Investments from the Company or its
Restricted Subsidiaries and repayments of loans or advances which constitute
Restricted Investments by the Company or its Restricted Subsidiaries or (B) the
sale (other than to the Company or a Restricted Subsidiary) of the Capital
Stock of an Unrestricted Subsidiary or a distribution from an Unrestricted
Subsidiary (other than in each case to the extent the Investment in such
Unrestricted Subsidiary was made by a Restricted Subsidiary pursuant to clause
(11) of the next succeeding paragraph or to the extent such Investment constituted
a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus


 


(d)          in
case, after the Issue Date, any Unrestricted Subsidiary has been redesignated
as a Restricted Subsidiary under the terms of this Indenture or has been
merged, consolidated or amalgamated with or into, or transfers or conveys
assets to, or is liquidated into the Company or a Restricted Subsidiary, an
amount equal to the fair market value of the Investments owned by the Company
and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of
the redesignation, combination or transfer (or of the assets transferred or
conveyed, as applicable).


 


So long as no Default or Event of Default has occurred
and is continuing or would be caused thereby, the preceding provisions will not
prohibit:


 


(1)          the
payment of any dividend within 60 days after the date of declaration of the
dividend, if at the date of declaration the dividend payment would have
complied with the provisions of this Indenture;


 


(2)          the
redemption, repurchase, retirement, defeasance or other acquisition of any
Equity Interests or Subordinated Obligations of the Company or any Restricted
Subsidiary in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company) of, Equity Interests of the Company (other than Disqualified Stock); provided,
however, that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from clause (3) (b) of the preceding paragraph;


 


50

















 


(3)          the
defeasance, redemption, repurchase or other acquisition of Subordinated
Obligations of the Company or any Guarantor with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness;


 


(4)          the
payment of any dividend by a Restricted Subsidiary of the Company to the
holders of its Equity Interests on a pro
rata basis;


 


(5)          the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company
held by any member of the Company’s (or any of its Restricted Subsidiaries’)
management pursuant to any management equity subscription agreement, stock
option agreement or similar agreement; provided
that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests shall not exceed $2.0 million;


 


(6)          the
redemption or repurchase of any Equity Interests or Indebtedness of the Company
or any of its Subsidiaries to the extent required by any Gaming Authority or,
if determined in the good faith judgment of the Board of Directors of the
Company as evidenced by a Board Resolution that has been delivered to the
Trustee, required to prevent the loss or to secure the grant or establishment
of any Gaming License or other right to conduct lawful gaming operations;


 


(7)          for
so long as Parent is a corporation under Subchapter S of the Code or a
substantially similarly treated pass-through entity for federal income tax
purposes and for so long as the Company is a qualified Subchapter S subsidiary
of Parent under the Code or a substantially similarly treated pass-through
entity for federal income tax purposes (as evidenced by an Officers’
Certificate of the Company and confirmed by a Tax Amounts CPA delivered
annually to the Trustee), the Company may make cash distributions to Parent for
distribution to its stockholders, on each Quarterly Payment Date, in an
aggregate amount not to exceed the Permitted Quarterly Tax Distribution in
respect of the related Estimation Period, and if any portion of the Permitted
Quarterly Tax Distribution is not distributed on such Quarterly Payment Date,
the Permitted Quarterly Tax Distribution payable on the immediately following
Quarterly Payment Date shall be increased by such undistributed portion;


 


(8)          in
the event that Parent becomes a corporation under Subchapter C of the Code and
either (i) Parent files consolidated, combined or unitary tax returns with the
Company or (ii) the Company is a pass-through entity for federal income tax
purposes (as evidenced by an Officers’ Certificate of the Company to the
Trustee), then the Company may pay dividends to Parent, including in an amount
sufficient to pay the cash tax liabilities of Parent, including federal, state
and local income taxes, which taxes are directly attributable to the Company
and its subsidiaries, except that dividends can only be paid with respect to
the taxable income of an Unrestricted Subsidiary to the extent of dividends
from such subsidiary;


 


(9)          dividends
in an amount up to $500,000 in any calendar year to be used by its direct or
indirect parent entities solely to pay its franchise taxes and other fees
required to maintain its corporate existence and to pay for general corporate
and overhead expenses (including salaries and other compensation of employees)
incurred by such entity in the ordinary course of its business;


 


(10)        payments
made in accordance with contractual obligations under the Second Amended and
Restated Operating Agreement of The Fremont Street Experience Limited Liability
Company dated as of June 6, 1995 by and among the members of The Fremont Street
Experience Limited Liability Company signatory thereto; and


 


(11)        other
Restricted Payments in an aggregate amount since the Issue Date not to exceed
$2.5 million.


 


The amount of all Restricted Payments (other than
cash) shall be the fair market value on the date of the Restricted Payment of
the assets, property or securities proposed to be transferred or issued by the
Company or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment.  The fair market
value of any assets or securities that are required to be valued by this
Section 4.10 shall be determined in good faith by the Company’s Board of
Directors.  Other than with respect to
any payment described in clauses (1) through (11) of the


 


51

















 


preceding
paragraph, not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers’ Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.10 were computed.


 


Section
4.11.       Liens.


 


The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind on any asset now owned or hereafter acquired, except
Permitted Liens.


 


Section
4.12.       Asset Sales.


 


The Company shall not, and shall not permit any
Restricted Subsidiary to, consummate an Asset Sale unless:


 


(1)          no
Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Asset Sale;


 


(2)          the
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the fair market
value of the assets sold, leased, transferred, conveyed or otherwise disposed
of or Equity Interests issued or sold or otherwise disposed of;


 


(3)          with
respect to any Asset Sale involving consideration or property in excess of $2.5
million, such fair market value is determined in good faith by the Company’s
Board of Directors and evidenced by a Board Resolution set forth in an
Officers’ Certificate delivered to the Trustee;


 


(4)          at
least 75% of the consideration received in the Asset Sale by the Company or
such Restricted Subsidiary is in the form of cash or Cash Equivalents.  For purposes of this provision, each of the
following shall be deemed to be cash:


 


(a)          any
liabilities, as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet, of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any Guarantee) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases the Company or
such Restricted Subsidiary from further liability; and


 


(b)          any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash within 30 days, to the extent of the cash
received in that conversion; and


 


(5)          the
Board of Directors of the Company has determined in good faith that the Asset
Sale complies with the provisions of this Indenture set forth in clauses (2),
(3) and (4) above.


 


Within one year after the receipt of any Net Proceeds
from an Asset Sale, the Company or the Restricted Subsidiary may apply those
Net Proceeds at its option:


 


(1)          to
repay First Lien Debt;


 


(2)          to
acquire all or substantially all of the assets of, or a majority of the Voting
Stock of, another Permitted Business;


 


(3)          to
make an Investment in or expenditures for properties and assets that replace
the properties and assets that were the subject of the Asset Sale; or


 


52

















 


(4)          to
acquire other assets or property, other than current assets, that are used or
useful in a Permitted Business;


 


provided,
however, that with respect to any assets that are acquired or
constructed or Voting Stock that is acquired with such Net Proceeds, the
Company or the applicable Restricted Subsidiary, as the case may be, promptly
grants to the Collateral Agent, on behalf of the Holders, a second priority
security interest in any such assets or Voting Stock on the terms set forth in
this Indenture, the Collateral Documents and the Intercreditor Agreement.  Pending the final application of any Net
Proceeds, the Company or the applicable Restricted Subsidiary may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.


 


Any Net Proceeds from Asset Sales that are not applied
or invested as provided in the preceding paragraph will constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $5.0 million, the Company shall make an offer (an “Asset Sale Offer”)
to all Holders to purchase the maximum principal amount of Notes and, if the
Company is required to do so under the terms of any other Indebtedness that is pari passu with the Notes, such other
Indebtedness on a pro rata basis
with the Notes, that may be purchased out of the Excess Proceeds.  The offer price in any Asset Sale Offer
shall be equal to 100% of principal amount plus accrued and unpaid interest and
Additional Interest, if any, to the date of purchase (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due
on the relevant Interest Payment Date), and shall be payable in cash.  If any Excess Proceeds remain after
consummation of the purchase of all properly tendered and not withdrawn Notes
pursuant to an Asset Sale Offer, the Company may use such remaining Excess
Proceeds for any purpose not otherwise prohibited by this Indenture and the
Collateral Documents.  If the aggregate
principal amount of Notes and other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on
a pro rata basis based on the
principal amount of Notes and such other Indebtedness tendered.  Upon completion of any Asset Sale Offer, the
amount of Excess Proceeds shall be reset at zero.


 


Section
4.13.       Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.


 


The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability of
any Restricted Subsidiary to:


 


(1)          pay
dividends or make any other distributions on its Capital Stock to the Company
or any Restricted Subsidiary, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to
the Company or any Restricted Subsidiary;


 


(2)          make
loans or advances to the Company or any Restricted Subsidiary; or


 


(3)          transfer
any of its properties or assets to the Company or any Restricted Subsidiary.


 


However, the preceding restrictions will not apply to
encumbrances or restrictions existing under or by reason of:


 


(1)          agreements
in effect on the Acquisition Date and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of those agreements; provided,
however, that the amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are not
materially more restrictive, taken as a whole, with respect to such dividend
and other payment restrictions than those contained in those agreements on the
Acquisition Date;


 


(2)          this
Indenture, the Notes, the Guarantees, the Credit Agreement and the Collateral
Documents;


 


(3)          applicable
law;


 


53

















 


(4)          any
instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any Restricted Subsidiary as in effect at the time of such
acquisition (except to the extent such Indebtedness or Capital Stock was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person, or the property or assets of
the Person, so acquired; provided that,
in the case of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred;


 


(5)          customary
non-assignment provisions in leases entered into in the ordinary course of
business;


 


(6)          purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions on that property of the nature described in clause (3) of
the preceding paragraph;


 


(7)          any
agreement for the sale or other disposition of a Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary pending its sale or other
disposition; or


 


(8)          Permitted
Refinancing Indebtedness; provided,
however, that the restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are not materially more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced;


 


(9)          Liens
securing Indebtedness otherwise permitted to be incurred under Section 4.11;
and


 


(10)        provisions
with respect to the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, stock sale agreements and other
similar agreements entered into in the ordinary course of business.


 


Section
4.14.       Transactions with Affiliates.


 


The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:


 


(1)          the
terms of such Affiliate Transaction are set forth in writing and are not
materially less favorable to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the Company
or such Restricted Subsidiary with an unrelated Person, as determined by a
majority of the Independent Directors; and


 


(2)          the
Company delivers to the Trustee:


 


(a)          with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $1.5 million, a Board Resolution
set forth in an Officers’ Certificate certifying that such Affiliate
Transaction complies with this Section 4.14 and that such Affiliate Transaction
has been approved by a majority of the Independent Directors; and


 


(b)          with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $5.0 million, an
opinion as to the fairness to the Holders of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment
banking firm of national standing.


 


The following items shall not be deemed to be
Affiliate Transactions and, therefore, shall not be subject to the provisions
of the prior paragraph:


 


(1)          (a)          any employment
agreements to which the Company and/or any of its Restricted Subsidiaries is a
party and which are described in the Offering Memorandum, as such employment


 


54

















 


agreements are in effect on the Issue Date, and
transactions contemplated thereby, and any renewals, modifications or
replacements of such employment agreements on substantially the same economic
terms, and transactions contemplated thereby, and (b) additional bonuses or
other similar arrangements not to exceed $1.0 million per annum in the
aggregate paid to all Affiliates under employment agreements or arrangements;


 


(2)          transactions
between or among the Company and/or its Restricted Subsidiaries;


 


(3)          transactions
with a Person that is an Affiliate of the Company solely because the Company
owns an Equity Interest in such Person;


 


(4)          payment
of reasonable directors fees to Persons who are not otherwise Affiliates of the
Company or any of its Restricted Subsidiaries and payment of indemnities to any
Person who is an Affiliate;


 


(5)          sales
of Equity Interests (other than Disqualified Stock) to Affiliates of the
Company or contributions to the common equity capital of the Company; and


 


(6)          Restricted
Payments that are not prohibited by Section 4.10.


 


Section
4.15.       Sale and Leaseback Transactions.


 


The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction; provided that the Company or any of its
Restricted Subsidiaries may enter into a sale and leaseback transaction if:


 


(1)          the
Company or that Restricted Subsidiary could have (a) incurred Indebtedness in
an amount equal to the Attributable Debt relating to such sale and leaseback
transaction under Section 4.09 and (b) incurred a Lien to secure such
Indebtedness pursuant to Section 4.11;


 


(2)          the
gross cash proceeds of that sale and leaseback transaction are at least equal
to the fair market value, as determined in good faith by the Company’s Board of
Directors and set forth in an Officers’ Certificate delivered to the Trustee,
of the property that is the subject of that sale and leaseback transaction; and


 


(3)          the
transfer of assets in that sale and leaseback transaction is permitted by, and
the Company applies the proceeds of such transaction in compliance with,
Section 4.12.


 


Section
4.16.       Issuances and Sales of Capital Stock of Restricted
Subsidiaries.


 


The Company (a) shall not, and shall not permit any
Restricted Subsidiary to, transfer, convey, sell, lease or otherwise dispose of
any Capital Stock of any Restricted Subsidiary to any Person (other than to the
Company or to any Restricted Subsidiary), unless:


 


(1)          such
transfer, conveyance, sale, lease or other disposition is of all the Capital Stock
of such Restricted Subsidiary, and


 


(2)          the
Net Proceeds from such transfer, conveyance, sale, lease or other disposition
are applied in accordance with Section 4.12;


 


provided,
however, that this clause (a) shall not apply to any pledge
of Capital Stock of any Restricted Subsidiary securing Indebtedness under
Credit Facilities, including the Credit Agreement, or any exercise of remedies
in connection therewith; and


 


(b) shall not permit any Restricted Subsidiary to
issue any of its Equity Interests (other than, if necessary, shares of its
Capital Stock constituting directors’ qualifying shares and shares of Capital
Stock of foreign


 


55

















 


Subsidiaries
issued to foreign nationals to the extent required under applicable law) to any
Person other than the Company or any Restricted Subsidiary.


 


Section
4.17.       Designation of Restricted and Unrestricted
Subsidiaries.


 


The Company’s Board of Directors may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if that designation
would not cause a Default.  If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate fair market value (as determined in good faith by the Company’s Board
of Directors) of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary properly designated shall be deemed
to be an Investment made as of the time of the designation and shall reduce the
amount available for Restricted Payments under the first paragraph of Section
4.10 or the definition of “Permitted Investments,” as determined by the
Company.  That designation shall 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.”  The Company’s Board of
Directors may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary if the redesignation would not cause a Default.


 


Section
4.18.       Repurchase at the Option of Holders Upon a Change of
Control.


 


(a)        If
a Change of Control occurs, the Company shall, within 30 days of such Change of
Control, make an offer (the “Change of Control Offer”) pursuant to the procedures set
forth in Section 3.10.  Each Holder
shall have the right to accept such Change of Control Offer and require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple
of $1,000) of that Holder’s Notes pursuant to the Change of Control Offer at a
purchase price, in cash (the “Change of Control Amount”), 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
Purchase Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on the relevant Interest Payment
Date).


 


(b)        The
Company shall 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 times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes properly tendered and not withdrawn under the Change of
Control Offer.


 


Section
4.19.       Additional Guarantees.


 


If the Company or any of its Restricted Subsidiaries
acquires or creates a Domestic Subsidiary after the Issue Date, then that newly
acquired or created Domestic Subsidiary shall become a Guarantor and execute a
supplemental indenture and an assumption agreement with respect to all
Collateral Documents securing the Guarantee and deliver an Opinion of Counsel
satisfactory to the Trustee within 60 days of the date on which it was acquired
or created; provided, however,
that the foregoing shall not apply to Subsidiaries that have properly been
designated as Unrestricted Subsidiaries in accordance with this Indenture for
so long as they continue to constitute Unrestricted Subsidiaries.


 


Section
4.20.       Business Activities.


 


The Company shall not, and shall not permit any
Restricted Subsidiary to, engage in any business other than Permitted
Businesses, except to such extent as would not be material to the Company and
its Restricted Subsidiaries taken as a whole. 
Neither the Company nor any of its Restricted Subsidiaries may conduct
Permitted Businesses in any gaming jurisdiction in which the Company or such
Restricted Subsidiary is not licensed on the Acquisition Date if the Holders
would be required to be licensed as a result thereof; provided, however, that the provisions
described in this sentence shall not prohibit the Company or any of its
Restricted Subsidiaries from conducting Permitted Businesses in any
jurisdiction that does not require the licensing or qualification of all the
Holders, but reserves the discretionary right to require the licensing or
qualification of any Holders.


 


56

















 


Section
4.21.       Events of Loss.


 


Within one year after any Event of Loss with respect
to (1) either Golden Nugget - Laughlin or any other asset or property with a
fair market value (or replacement cost, if greater) in excess of $15.0 million,
the Company or the affected Restricted Subsidiary, as the case may be, may
apply the Net Loss Proceeds from such Event of Loss in any manner permitted by
clauses (1) through (4) of the second paragraph of Section 4.12 or (2) any
other Event of Loss, the Company or the affected Restricted Subsidiary, as the
case may be, may apply the Net Loss Proceeds from such Event of Loss to repay
First Lien Debt or to the rebuilding, repair, replacement or construction of
improvements to the property affected by such Event of Loss (the “Subject Property”),
with no concurrent obligation to make any purchase of any Notes; provided, however, that:


 


(1)          the
Company delivers to the Trustee within either (i) 150 days of such Event of
Loss a written opinion from a reputable contractor that the Subject Property
can be rebuilt, repaired, replaced or constructed in, and operating in,
substantially the same condition (or better) as existed prior to the Event of
Loss within 24 months of the Event of Loss or (ii) 60 days of such Event of
Loss a written opinion from a reputable contractor that the Subject Property
can be rebuilt, repaired, replaced or constructed in, and operating in,
substantially the same condition (or better) as existed prior to the Event of
Loss within 24 months of the receipt of Net Loss Proceeds; and


 


(2)          an
Officers’ Certificate certifying that the Company has available from Net Loss
Proceeds or other sources sufficient funds to complete the rebuilding, repair,
replacement or construction referred to in clause (1) above.


 


Any Net Loss Proceeds from any Event of Loss that are
not applied or permitted to be reinvested as provided in the preceding
paragraph shall constitute “Excess Loss Proceeds.” 
When the aggregate amount of Excess Loss Proceeds exceeds $5.0 million,
the Company shall make an offer (an “Event of Loss Offer”) to all Holders to
purchase the maximum principal amount of Notes and, if the Company is required
to do so under the terms of any other Indebtedness that is pari passu with the Notes, such other
Indebtedness on a pro rata basis
with the Notes, that may be purchased out of the Excess Loss Proceeds.  The offer price in any Event of Loss Offer
shall be equal to 100% of principal amount plus accrued and unpaid interest and
Additional Interest, if any, to the date of purchase (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due
on the relevant Interest Payment Date), and shall be payable in cash.  If any Excess Loss Proceeds remain after
consummation of the purchase of all properly tendered and not withdrawn Notes
pursuant to an Event of Loss Offer, the Company may use such remaining Excess
Loss Proceeds for any purpose not otherwise prohibited by this Indenture and
the Collateral Documents.  If the
aggregate principal amount of Notes and other pari
passu Indebtedness tendered into such Event of Loss Offer exceeds
the amount of Excess Loss Proceeds, the Trustee shall select the Notes and such
other pari passu Indebtedness to
be purchased on a pro rata basis
based on the principal amount of Notes and such other Indebtedness
tendered.  Upon completion of any such
Event of Loss Offer, the amount of Excess Loss Proceeds shall be reset at zero.


 


In the event of an Event of Loss pursuant to clause
(3) of the definition of “Event of Loss” with respect to any property or assets
that have a fair market value (or replacement cost, if greater) in excess of
$5.0 million, the Company or the affected Restricted Subsidiary, as the case
may be, shall be required to receive consideration (1) at least equal to the
fair market value (evidenced by a Board Resolution set forth in an Officers’
Certificate delivered to the Trustee) of the property or assets subject to the
Event of Loss and (2) with respect to any Event of Loss of any portion of the
hotel, casino or parking structure and other property comprising the Casino
Properties, at least 75% of which is in the form of cash or Cash Equivalents.


 


Section
4.22.       Additional Collateral; Acquisition of Assets or
Property.


 


Concurrently with the acquisition by the Company or
any Guarantor of any assets or property that either (a) secures First Lien
Obligations (other than membership interests in The Fremont Street Experience
Limited Liability Company) or (b) has a fair market value (as determined in
good faith by the Board of Directors of the Company) in excess of $2.0 million
individually or $10.0 million in a series of one or more related transactions,
subject to the approval by Gaming Authorities or to the extent not prohibited
by applicable Gaming Laws, the Company shall, or shall cause the applicable
Guarantor to:


 


57

















 


(1)          in
the case of personal property, execute and deliver to the Collateral Agent such
Uniform Commercial Code financing statements or take such other actions as
shall be necessary or (in the opinion of the Collateral Agent) desirable to
perfect and protect the Collateral Agent’s security interest in such assets or
property;


 


(2)          in
the case of real property, execute and deliver to the Collateral Agent:


 


(A)         a
deed of trust or a leasehold deed of trust, as appropriate, substantially in
the form of the deeds of trust or leasehold deeds of trust, as appropriate,
executed in connection with the Liens on the Casino Properties (with such
modifications as are necessary to comply with applicable law) under which such
Restricted Subsidiary shall grant a security interest to the Collateral Agent
in such real property and any related fixtures; and


 


(B)         title
and extended coverage insurance covering such real property in an amount at
least equal to the purchase price of such real property; and


 


(3)          promptly
deliver to the Collateral Agent such opinions of counsel, if any, as the
Collateral Agent may reasonably require with respect to the foregoing
(including opinions as to enforceability and perfection of security interests);


 


provided,
however, that (i) the Company and the Guarantors shall not be
required to provide a security interest in any assets or property (x) that are
pledged as collateral in accordance with clause (6) or (10) of the definition
of Permitted Liens, (y) that are pledged as collateral in accordance with the definition
of Permitted Liens, to the extent prohibited by applicable law or (z) that are
designated as “Excluded Property” or “Excluded Assets” in the Collateral
Documents and (ii) no more than 65% of the Capital Stock of any Foreign
Subsidiary shall be required to be pledged as Collateral.


 


Also, if the granting of a security interest in such
property requires the consent of a third party, the Company shall use
commercially reasonable efforts to obtain such consent with respect to the
second priority security interest for the benefit of the Collateral Agent.


 


Any future Foreign Subsidiary of the Company that is a
direct borrower with respect to the Indebtedness described in clause (1) of the
second paragraph of Section 4.09 may, to the extent otherwise permitted by this
Indenture, grant a security interest in its property to the lenders therein
with respect to such Indebtedness, or to an agent or trustee on behalf of such
lenders, to secure Obligations with respect to such Indebtedness, without being
required to provide a second priority security interest upon such property as
security for the Notes and the Guarantees; provided
however, that no such security interest shall secure any
Indebtedness of the Company, any Domestic Subsidiary or any Guarantor.


 


Section
4.23.       Insurance.


 


From and after the Acquisition Date, the Company
shall, and shall cause its Restricted Subsidiaries to, maintain insurance with
carriers against such risks and in such amounts as is customarily carried by
similar businesses with such deductibles, retentions, self insured amounts,
limits, sublimits and coinsurance provisions as are customarily carried by
similar businesses of similar size, including, without limitation, property and
casualty.  Customary insurance coverage
shall be deemed to include, without limitation, the following:


 


(1)          business
interruption insurance at all times; and


 


(2)          property
insurance protecting the property against losses or damages as is customarily
covered by an “all-risk” policy or a property policy covering “special” causes
of loss for a business of similar type and size; provided, however, that such insurance shall provide
coverage of not less than the lesser of (a) 120% of the outstanding principal
amount of the Notes plus accrued and unpaid interest and (b) 100% of actual
replacement value (as determined at each policy renewal based on the F.W. Dodge
Building Index or some other recognized means) of any improvements customarily
insured consistent with industry standards and, in each case, with a deductible
no greater than 5% of the insured value of the Casino Properties or such


 


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greater amount as is available on commercially
reasonable terms (other than earthquake or flood insurance, for which the deductible
may be up to 15% of such replacement value).


 


All insurance required by this Section 4.23 (except
worker’s compensation) shall name the Collateral Agent as an additional insured
or loss payee, as the case may be, with losses in excess of $1.0 million
payable jointly to the Company and the Collateral Agent (unless a Default or
Event of Default has occurred and is then continuing, in which case all losses
are payable solely to the Collateral Agent), with no recourse against the
Collateral Agent for the payment of premiums, deductibles or commissions, and
for at least 30 days notice of cancellation. 
All such insurance policies shall be issued by carriers having an A.M.
Best & Company, Inc. rating of A- or higher and a financial size category
of not less than X, or if such carrier is not rated by A.M. Best & Company,
Inc., having the financial stability and size deemed appropriate by an opinion
from a reputable insurance broker.


 


Section
4.24.       Further Assurances.


 


The Company shall, and shall cause each of its
Restricted Subsidiaries to, execute and deliver such additional instruments,
certificates or documents, and take all such actions as may be reasonably
required from time to time in order to:


 


(1)          carry
out more effectively the purposes of the Collateral Documents;


 


(2)          create,
grant, perfect and maintain the validity, effectiveness and priority of any of
the Collateral Documents and the Liens created, or intended to be created, by
the Collateral Documents; and


 


(3)          ensure
the protection and enforcement of any of the rights granted or intended to be
granted to the Trustee or the Collateral Agent under any other instrument
executed in connection therewith.


 


Upon the exercise by the Trustee, the Collateral Agent
or any Holder of any power, right, privilege or remedy under this Indenture or
any of the Collateral Documents which requires any consent, approval,
recording, qualification or authorization of any governmental authority
(including any Gaming Authority), the Company shall, and shall cause each of its
Restricted Subsidiaries to, execute and deliver all applications,
certifications, instruments and other documents and papers that may be required
of the Company or any of its Restricted Subsidiaries for such governmental
consent, approval, recording, qualification or authorization.


 


Section
4.25.       Independent Directors.


 


The Company’s Board of Directors shall, subject only
to required approvals from applicable Gaming Authorities, appoint two
Independent Directors within 60 days after the Acquisition Date.  The Company shall, at all times after such
Independent Directors are appointed, have at least two Independent Directors,
other than during (1) one or more periods not in any one case to exceed 120
consecutive days due to the Independent Director’s death, disability,
resignation or retirement and (2) any period during which a nominee is
undergoing review by applicable Gaming Authorities.


 


ARTICLE
5.


 


SUCCESSORS


 


Section
5.01.       Merger, Consolidation and Sale of Assets.


 


(a)        Neither
the Company nor any Guarantor may, directly or indirectly: (1) consolidate or
merge with or into another Person (whether or not the Company or such
Guarantor, as the case may be, is the surviving corporation) or (2) sell,
assign, transfer, convey or otherwise dispose of all or substantially all of
the properties or assets of the Company or any Guarantor, in one or more
related transactions, to another Person; unless:


 


(1)        either: (a) the Company or
such Guarantor, as the case may be, is the surviving corporation, or (b) the
Person formed by or surviving any such consolidation or merger (if other


 


59

















 


than the Company or such Guarantor, as the case may
be) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a corporation organized or existing under the laws
of the United States, any state of the United States or the District of
Columbia;


 


(2)        the Person formed by or
surviving any such consolidation or merger (if other than the Company or such
Guarantor, as the case may be) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the
obligations of the Company or such Guarantor, as the case may be, under the
Notes, the Guarantees, this Indenture, the Registration Rights Agreement and
the Collateral Documents, as applicable;


 


(3)        immediately after such
transaction no Default or Event of Default exists;


 


(4)        the Company or such
Guarantor, as the case may be, or the Person formed by or surviving any such
consolidation or merger (if other than the Company or such Guarantor, as the
case may be), or to which such sale, assignment, transfer, conveyance or other
disposition has been made will, on the date of such transaction after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.09;


 


(5)        such transaction would not
result in the loss or suspension or material impairment of any of the Company’s
or any Guarantor’s Gaming Licenses, unless a comparable replacement Gaming
License is effective prior to or simultaneously with such loss, suspension or
material impairment;


 


(6)        such transaction would not
require any Holder or Beneficial Owner of Notes to obtain a Gaming License or
be qualified or found suitable under the law of any applicable gaming jurisdiction;
provided that such Holder or
Beneficial Owner would not have been required to obtain a Gaming License or be
qualified or found suitable under the laws of any applicable gaming
jurisdiction in the absence of such transaction; and


 


(7)        the Company has delivered
to the Trustee an Officers’ Certificate and Opinion of Counsel, each stating
that such transaction complies with the terms of this Indenture.


 


(b)        In
addition, the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.  In
the case of a lease of all or substantially all of the assets of the Company,
the Company shall not be released from its obligations under the Notes or this
Indenture, as applicable.


 


(c)        Notwithstanding
the preceding clauses (a)(1) through (a)(7), any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company or a Guarantor whereby the Company or such Guarantor is
the surviving entity.


 


(d)        Except
as described with respect to the release of Guarantees of Guarantors under
Section 10.05, the entity or person formed by or surviving any consolidation or
merger (if other than the Company or a Guarantor, as the case may be) shall
succeed to, and be substituted for, and may exercise every right and power of
the Company or such Guarantor, as the case may be, under this Indenture.


 


Section
5.02.       Successor Corporation Substituted.


 


Upon any consolidation or merger or any sale,
assignment, transfer, conveyance or other disposition in accordance with
Section 5.01, the successor corporation formed by such consolidation or into
which the Company or such Restricted Subsidiary is merged or to which such
sale, assignment, transfer, conveyance or other disposition is made (the “Surviving Person”)
shall succeed to, and be substituted for, and may exercise every right and
power of the Company or a Guarantor, as applicable, under this Indenture; provided, however,
that the


 


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predecessor entity
shall not be released from any of the obligations or covenants under this
Indenture, including with respect to the payment of the Notes and obligations
under the Guarantee, as the case may be, in the case of:


 


(a)        a
sale, transfer, assignment, conveyance or other disposition (unless such sale,
transfer, assignment, conveyance or other disposition is of all or
substantially all of the assets of the Company, taken as a whole or, in the
case of a Guarantor, such sale, transfer, assignment, conveyance or other
disposition is of all or substantially all of the assets of such Guarantor to a
Person that is not (either before or after giving effect to such transaction) a
Subsidiary of the Company, or such portion of the Capital Stock of such
Guarantor ceases to be a Subsidiary of the Company), or


 


(b)        a
lease.


 


ARTICLE
6.


 


DEFAULTS AND REMEDIES


 


Section
6.01.       Events of Default.


 


Each of the following is an “Event of Default”
with respect to the Notes:


 


(a)        failure
to make the payment of any interest or Additional Interest, if any, on the
Notes when the same becomes due and payable, and such failure continues for a
period of 30 days;


 


(b)        failure
to make the payment of any principal of, or premium, if any, on, the Notes when
the same becomes due and payable at its Stated Maturity, upon acceleration,
redemption, optional redemption, required repurchase or otherwise;


 


(c)        failure
by the Company or any of its Restricted Subsidiaries to comply with Sections
4.12, 4.18, 4.21 or 5.01 after written notice from the Trustee or Holders of
not less than 25% in aggregate principal amount of the Notes then outstanding;


 


(d)        failure
by the Company or any of its Restricted Subsidiaries to comply with any
covenant or agreement in the Notes or in this Indenture (other than a failure
that is the subject of the foregoing clause (a), (b) or (c)), and such failure
continues for 60 days after written notice from the Trustee or Holders of not
less than 25% in aggregate principal amount of the Notes then outstanding;


 


(e)        default
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Restricted Subsidiaries), whether
such Indebtedness or guarantee now exists, or is created after the Issue Date,
if that default:


 


(A)   is
caused by a failure to pay principal of such Indebtedness at its Stated
Maturity prior to the expiration of any grace period provided in such
Indebtedness (a “Payment
Default”); or


 


(B)   results
in the acceleration of such Indebtedness prior to its express maturity,


 


and, in each case,
the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $5.0
million or more;


 


(f)         failure
by the Company or any of its Subsidiaries to pay final judgments in an
uninsured aggregate amount in excess of $5.0 million, which judgments are not
paid, discharged, waived, satisfied or stayed for a period of 60 consecutive
days;


 


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(g)        except
as permitted by this Indenture, any Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be
in full force and effect or any Guarantor, or any Person acting on behalf of
any Guarantor, shall deny or disaffirm its obligations under its Guarantee;


 


(h)        breach
by the Company or any of the Guarantors in any material respect of any
representation or warranty or agreement in any of the Collateral Documents or
in any certificates delivered in connection therewith, the repudiation by any
of them of any of their respective obligations under any of the Collateral
Documents, or the unenforceability of the Collateral Documents against any of
them for any reason which continues for 30 days after written notice from the
Trustee or Holders of at least 25% in outstanding principal amount of Notes;


 


(i)         the
revocation, termination, suspension or other cessation of effectiveness of any
Gaming License which results in the cessation or suspension of gaming
operations at the Casino Properties for more than 90 consecutive days, in
either case, other than as a result of an Asset Sale or any voluntary
relinquishment that is, in the judgment of the Board of Directors of the
Company, both desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and not disadvantageous in any
material respect to the Holders;


 


(j)         the
Company, any Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, when taken together, would constitute a
Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:


 


(A)   commences
a voluntary case or gives notice of intention to make a proposal under any
Bankruptcy Law;


 


(B)   consents
to the entry of an order for relief against it in an involuntary case or
consents to its dissolution or winding up;


 


(C)   consents
to the appointment of a receiver, interim receiver, receiver and manager,
liquidator, trustee or custodian of it or for all or substantially all of its
property;


 


(D)   makes
a general assignment for the benefit of its creditors; or


 


(E)    admits
in writing its inability to pay its debts as they become due or otherwise
admits its insolvency; and


 


(k)        a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:


 


(A)   is
for relief against the Company, any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, when taken together,
would constitute a Significant Subsidiary in an involuntary case; or


 


(B)   appoints
a receiver, interim receiver, receiver and manager, liquidator, trustee or
custodian of the Company, any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, when taken together,
would constitute a Significant Subsidiary or for all or substantially all of
the property of the Company, any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, when taken together,
would constitute a Significant Subsidiary; or


 


(C)   orders
the liquidation of the Company, any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, when taken together,
would constitute a Significant Subsidiary;


 


62

















 


and such order or decree remains unstayed and in
effect for 60 consecutive days.


 


Section
6.02.       Acceleration.


 


If any Event of Default (other than those of the type
described in Section 6.01(j) or (k)) occurs and is continuing, the Trustee may,
and the Trustee upon the request of Holders of at least 25% in principal amount
of the outstanding Notes shall, or the Holders of at least 25% in principal
amount of outstanding Notes may, declare the principal of all the Notes,
together with all accrued and unpaid interest, premium, if any, to be due and
payable by notice in writing to the Company and the Trustee specifying the
respective Event of Default and that such notice is a notice of acceleration
(the “Acceleration
Notice”), and the same shall become immediately due and payable.


 


In the case of an Event of Default specified in
Section 6.01(j) or (k), all outstanding Notes shall become due and payable
immediately without any further declaration or other act on the part of the
Trustee or the Holders.  Holders may not
enforce this Indenture or the Notes except as provided in this Indenture.


 


At any time after a declaration of acceleration with
respect to the Notes, the Holders of a majority in principal amount of the
Notes then outstanding (by notice to the Trustee) may rescind and cancel such
declaration and its consequences if:


 


(a)        the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction;


 


(b)        all
existing Defaults and Events of Default have been cured or waived except
nonpayment of principal of or interest on the Notes that has become due solely
by reason of such declaration of acceleration;


 


(c)        to
the extent the payment of such interest is lawful, interest (at the same rate
specified in the Notes) on overdue installments of interest and overdue
payments of principal which has become due otherwise than by such declaration
of acceleration has been paid;


 


(d)        the
Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its reasonable expenses, disbursements and advances; and


 


(e)        in
the event of the cure or waiver of an Event of Default of the type described in
Section 6.01(j) or (k), the Trustee has received an Officers’ Certificate and
Opinion of Counsel that such Event of Default has been cured or waived.


 


In the case of an Event of Default with respect to the
Notes occurring by reason of any willful action or inaction taken or not taken
by the Company or on the Company’s behalf with the intention of avoiding
payment of the premium that the Company would have been required to pay if the
Company had then elected to redeem the Notes pursuant to Section 3.07 hereof,
an equivalent premium shall also become and be immediately due and payable to
the extent permitted by law upon the acceleration of the Notes.  If an Event of Default occurs prior to
December 1, 2007, by reason of any willful action or inaction taken or not
taken by the Company or on the Company’s behalf with the intention of avoiding
the premium required upon a redemption of the Notes prior to December 1, 2007,
then the premium specified in Section 3.07(a) shall also become immediately due
and payable to the extent permitted by law upon acceleration of the Notes.


 


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,
premium, if any, 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 in exercising any right or


 


63

















 


 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 shall be cumulative to the
extent permitted by law.


 


Section
6.04.       Waiver of Defaults.


 


The Holders of at least a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes, waive any existing Default or Event
of Default, and its consequences, except a continuing Default or Event of
Default (i) in the payment of the principal of, premium, if any, or interest,
on the Notes and (ii) in respect of a covenant or provision which under this
Indenture cannot be modified or amended without the consent of the Holder of
each Note affected by such modification or amendment.  In the event of any Event of Default specified in Section
6.01(e), such Event of Default and all consequences of that Event of Default,
including without limitation any acceleration or resulting payment default,
shall be annulled, waived and rescinded, automatically and without any action
by the Trustee or the Holders of the Notes, if after the Event of Default
arose:


 


(a)        the
Indebtedness that is the basis for the Event of Default has been discharged;


 


(b)        the
holders of such Indebtedness have rescinded or waived the acceleration, notice
or action, as the case may be, giving rise to the Event of Default; or


 


(c)        the
default that is the basis for such Event of Default has been cured.


 


Upon any waiver of
a Default or Event of Default, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed cured for every purpose of this
Indenture but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereon.


 


Section
6.05.       Control by Majority.


 


Subject to Section 6.02, Section 7.01, Section 7.02
and Section 7.07 hereof, in case an Event of Default shall occur and be
continuing, the Holders of a majority in aggregate principal amount of the
Notes then outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Notes.


 


Section
6.06.       Limitation on Suits.


 


No Holder shall have any right to institute any
proceeding with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any remedy thereunder, unless:


 


(a)        such
Holder has previously given to the Trustee written notice of a continuing Event
of Default or the Trustee receives the notice from the Company,


 


(b)        Holders
of at least 25% in aggregate principal amount of the Notes then outstanding
have made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee, and


 


(c)        the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of the Notes then outstanding a direction inconsistent with
such request and shall have failed to institute such proceeding within 60 days.


 


The preceding limitations shall not apply to a suit
instituted by a Holder for enforcement of payment of principal of, and premium,
if any, or interest on, a Note on or after the respective due dates for such
payments set forth in such Note.


 


A Holder may not use this Indenture to affect, disturb
or prejudice the rights of another Holder or to obtain a preference or priority
over another Holder.


 


64

















 


Section
6.07.       Rights of Holders to Receive Payment.


 


Notwithstanding any other provision of this Indenture
(including Section 6.06), the right of any Holder to receive payment of
principal, premium, if any, and interest on the Notes held by such Holder, on
or after the respective due dates expressed in the Notes (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, if any, and interest then due and owing
(together with 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 shall be 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 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  hereof.  To the extent
that the payment of any such compensation, expenses, disbursements and advances
of the Trustee and its agents and counsel, and any other amounts due to the
Trustee under Section 7.07 hereof 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, moneys, securities and
any 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 pursuant to this
Article 6, it shall pay out the money in the following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, 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 for amounts due and unpaid on the
Notes for principal, premium, if any, and interest ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, 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 pursuant to this Section 6.10.


 


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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 such suit of an undertaking to pay the costs of such
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant.  This Section 6.11 shall not
apply to a suit by the Trustee, a suit by the Company, a suit by a Holder
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.


 


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:


 


(1)       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


 


(2)       in the absence of bad faith
on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture.  However, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).


 


(c)        The
Trustee may not be relieved from liabilities for its own grossly negligent
action, its own grossly negligent failure to act, or its own willful
misconduct, except that:


 


(1)       this paragraph does not
limit the effect of paragraph (b) of this Section;


 


(2)       the Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was grossly negligent in ascertaining the
pertinent facts; and


 


(3)       the Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.05 hereof.


 


(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) and (c) 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 liability.  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 Holder shall
have offered to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.


 


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(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.


 


Subject to TIA §315:


 


(a)        The
Trustee may conclusively rely upon any document believed by it to be genuine
and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or
matter stated in any such 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 and the written 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 thereon.


 


(c)        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.


 


(d)        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.


 


(e)        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 is received by a Responsible Officer of the Trustee at the Corporate
Trust Office of the Trustee from the Company or the Holders of 25% in aggregate
principal amount of the outstanding Notes, and such notice references the
specific Default or Event of Default, the Notes and this Indenture.


 


(f)         The
Trustee shall not be required to give any bond or surety in respect of the
performance of its power and duties hereunder.


 


(g)        The
Trustee shall have no duty to inquire as to the performance of the Company’s
covenants herein.


 


(h)        The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.


 


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 Commission for permission to continue as
Trustee or resign.  Any Agent may do the
same with like rights and duties.  The
Trustee shall also be subject to Sections 7.10 and 7.11 hereof.


 


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


 


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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 known to the Trustee, the Trustee shall mail to Holders
a notice of the Default or Event of Default within 90 days after it
occurs.  Except in the case of a Default
or Event of Default in payment 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.


 


Section
7.06.       Reports by Trustee to Holders.


 


Within 60 days after each June 15 beginning with the
June 15 following the Issue Date, and for so long as Notes remain outstanding,
the Trustee shall mail to the Holders 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 transmit by mail all reports as required by TIA §313(c).


 


A copy of each report at the time of its mailing to
the Holders shall be mailed to the Company and filed with the Commission and
each stock exchange on which the Notes are listed in accordance with TIA
§313(d).  The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange and any
delisting thereof.


 


Section
7.07.       Compensation and Indemnity.


 


The Company shall pay to the Trustee 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 disbursements, advances and
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 indemnify the Trustee (in its
capacity as Trustee, Registrar and Paying Agent) or any predecessor Trustee (in
its capacity as Trustee, Registrar and Paying Agent) against any and all
losses, claims, damages, penalties, fines, liabilities or expenses, including
incidental and out-of-pocket expenses and reasonable attorneys fees (for
purposes of this Article, “losses”)
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 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 such losses may be attributable to its willful misconduct, gross negligence
or bad faith.  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 under this Section
7.07, to the extent the Company has been prejudiced thereby.  The Company shall defend the claim, and the
Trustee shall cooperate in the defense. 
The Trustee may have separate counsel if the Trustee has been reasonably
advised by counsel that there may be one or more legal defenses available to it
that are different from or additional to those available to the Company and in
the reasonable judgment of such counsel it is advisable for the Trustee to
engage 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
Company need not reimburse any expense or indemnify against any loss incurred
by the Trustee through the Trustee’s own willful misconduct, gross negligence
or bad faith.


 


The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this Indenture, the resignation
or removal of the Trustee and payment in full of the Notes through the
expiration of the applicable statute of limitations.


 


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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, premium, if any, 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(j) or (k) hereof 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.


 


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 7.08.


 


The Trustee may resign in writing at any time upon 30
days’ prior notice to the Company and be discharged from the trust hereby
created by so notifying the Company. 
The Holders of a majority in aggregate 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 hereof;


 


(b)        the
Trustee is adjudged bankrupt or 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 Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.  Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.


 


If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company, or the Holders of at least 10% in aggregate principal amount of
the then outstanding Notes may petition 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 hereof, 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 mail a notice of
its succession to Holders.  Subject to
the Lien provided for in Section 7.07 hereof, the retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee; provided, however,
that all sums owing to the retiring Trustee hereunder shall have been
paid.  Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company’s obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.


 


In the case of an appointment hereunder of a separate
or successor Trustee with respect to the Notes, the Company, the Guarantors,
any retiring Trustee and each successor or separate Trustee with respect to the
Notes shall execute and deliver an Indenture supplemental hereto (1) which
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of any retiring Trustee
with


 


69

















 


respect to the
Notes as to which any such retiring Trustee is not retiring shall continue to
be vested in such retiring Trustee and (2) that shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any such other 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
banking association without any further act shall, if such successor
corporation or banking association is otherwise eligible hereunder, be the
successor Trustee.


 


Section
7.10.       Eligibility; Disqualification.


 


There shall at all times be a Trustee hereunder that
is a Person 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 $50.0 million (or a wholly-owned subsidiary of a bank or trust company,
or of a bank holding company, the principal subsidiary of which is a bank or
trust company having a combined capital and surplus of at least $50.0 million)
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 and at any time, elect
to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes
and Guarantees upon compliance with the conditions set forth 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 on the
date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”)
and each Guarantor shall be released from all of its obligations under its
Guarantee.  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 of its other obligations under the Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments 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, interest and Additional Interest, if any,
on such Notes when such payments are due, (b) the Company’s obligations with
respect to such Notes under


 


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Article 2 and
Sections 4.01 and 4.02, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company’s and the Guarantors’ obligations in
connection therewith and (d) this Article 8. 
If the Company exercises under Section 8.01 the option applicable to
this Section 8.02, subject to the satisfaction of the conditions set forth in
Section 8.04, payment of the Notes may not be accelerated because of an Event
of Default.  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 4.08 through 4.25 hereof,
and the operation of Section 5.01(a), 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 each Guarantor shall be released from all of
its obligations under its Guarantee with respect to such covenants in
connection with such outstanding Notes and the Notes shall thereafter be deemed
not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (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, 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.  If
the Company exercises under Section 8.01 the option applicable to this Section
8.03, subject to the satisfaction of the conditions set forth in Section 8.04,
payment of the Notes may not be accelerated because of an Event of Default
specified in clause (c) (with respect to the covenants contained in Sections
4.12, 4.18, 4.21 or 5.01), clause (d) (with respect to the covenants contained
in Sections 4.08 through 4.11, 4.13 through 4.17, 4.19, 4.20 and 4.22 through
4.25 hereof), and clauses (e), (f), (g), (h), (i), (j) and (k) (but in the case
of clauses (j) and (k), with respect to Restricted Subsidiaries that are
Significant Subsidiaries or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary only).


 


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.


 


The Legal Defeasance or Covenant Defeasance may be
exercised only if:


 


(a)        the
Company irrevocably deposits with the Trustee, in trust (the “defeasance trust”),
for the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination of cash in U.S. dollars and non-callable
Government Securities, in an amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of, or
interest and premium and Additional Interest, if any, on the outstanding Notes
on the Stated Maturity or on the next redemption date, as the case may be, and
the Company shall specify whether the Notes are being defeased to maturity or
to such particular redemption date;


 


(b)        in
the case of Legal Defeasance, the Company shall deliver to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) subsequent to the Issue Date, 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 Covenant Defeasance, the Company shall deliver to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not


 


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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
borrowing of funds to be applied to such deposit);


 


(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 Restricted
Subsidiary is a party or by which the Company or any Restricted Subsidiary is
bound;


 


(f)         the
Company shall deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders
over other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding such other creditors; and


 


(g)        the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.


 


Section
8.05.       Deposited Cash and U.S. Government Securities to be
Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 8.06, all cash and non-callable
U.S. Government Securities (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 all sums due and to become due thereon in respect of principal,
premium, if any, and interest but such cash and securities 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 Securities deposited pursuant to Section 8.04
hereof or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the outstanding 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 cash or non-callable U.S. Government
Securities held by it as provided in Section 8.04 which, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee (which
may be the certification 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.


 


The Trustee shall promptly, and in any event, no later
than three (3) Business Days, pay to the Company after request therefor, any
excess money held with respect to the Notes at such time in excess of amounts
required to pay any of the Company’s Obligations then owing with respect to the
Notes.


 


Any cash or non-callable U.S. Government Securities
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal, premium, if any, or interest on any
Note and remaining unclaimed for one year after such principal, premium, 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 shall thereafter, as an unsecured creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such cash and securities, and all liability of the


 


72

















 


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 cash and securities 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 cash
and securities then remaining shall be repaid to the Company.


 


Section
8.07.       Reinstatement.


 


If the Trustee or Paying Agent is unable to apply any
cash or non-callable U.S. Government Securities 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 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 cash and securities 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, or
interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders to receive such
payment from the cash and securities 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 of this Indenture, the
Company, the Guarantors and the Trustee may amend or supplement this Indenture,
the Notes or the Guarantees without the consent of any Holder to:


 


(a)        cure
any ambiguity, defect, omission, mistake or inconsistency;


 


(b)        provide
for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code, or in a
manner such that the uncertificated Notes are described in Section 163(f)(2)(B)
of the Code);


 


(c)        provide
for the assumption by a Surviving Person of the obligations of the Company or a
Guarantor under the Notes and the Guarantees, as applicable, to Holders under
this Indenture pursuant to Section 5.01;


 


(d)        add
Guarantors or additional obligors with respect to the Notes or release
Guarantors from Guarantees as permitted by the terms of this Indenture and such
Guarantees;


 


(e)        make
any change that would provide any additional rights or benefits to the Holders
or that does not adversely affect the legal rights hereunder of any such
Holder;


 


(f)         make
any change to comply with any requirement of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA; or


 


(g)        enter
into additional or supplemental Collateral Documents.


 


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 or the Guarantees with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes, including Additional
Notes, if any, then outstanding voting as a single class (including consents
obtained in connection with a purchase of or tender offer or exchange offer for
the


 


73

















 


Notes), and,
subject to Sections 6.04 and 6.07, any existing Default or Event of Default
(except a continuing Default or Event of Default in (i) the payment of
principal, premium, if any, or interest or Additional Interest, if any, on the
Notes and (ii) in respect of a covenant or provision which under this Indenture
cannot be modified or amended without the consent of the Holder of each Note
affected by such modification or amendment) or compliance with any provision of
this Indenture or the Notes may be waived with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes, including
Additional Notes, if any, then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange
offer for the Notes).


 


Without the consent of each Holder affected, an
amendment 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 principal of, or change the Stated Maturity of, any Note or alter the
provisions with respect to the redemption of the Notes (other than provisions
relating to Sections 4.12, 4.18 or 4.21);


 


(c)        reduce
the rate of, or extend the time for payment of, interest on any Note;


 


(d)        waive
a Default or Event of Default in the payment of principal of, or interest or
premium, or Additional Interest, if any, on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration);


 


(e)        make
any Note payable in money other than that stated in the Note;


 


(f)         make
any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders to receive payments of principal of, or
interest or premium or Additional Interest, if any, on the Notes;


 


(g)        waive
a redemption payment with respect to any Note (other than a payment required by
Sections 4.12, 4.18 or 4.21);


 


(h)        release
any Guarantor from any of its obligations under its Guarantee or this
Indenture, except in accordance with the terms of this Indenture;


 


(i)         release
all or substantially all of the Collateral from the Lien of this Indenture or
the Collateral Documents, except in accordance with the provisions thereof; or


 


(j)         make
any change in the preceding amendment and waiver provisions.


 


The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to consent to
any supplemental indenture.  If a record
date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture, whether or not such Holders remain Holders after such
record date; provided that unless
such consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 120 days after such record
date, any such consent previously given shall automatically and without further
action by any Holder be cancelled and of no further effect.


 


It shall not be necessary for the consent of the
Holders 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 under this
Section 9.02 becomes effective, the Company shall mail to the Holder of each
Note affected thereby to such Holder’s address appearing in the Security


 


74

















 


Register a notice
briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail 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.


 


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 is a continuing consent by the Holder of
a Note and every subsequent Holder of a Note or portion thereof 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 or subsequent Holder may revoke the consent as to its Note or
portion thereof if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective.  An amendment, supplement or waiver shall
become effective in accordance with its terms and thereafter shall bind every
Holder.


 


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, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall 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.   None of the Company nor any
Guarantor may sign an amendment or supplemental indenture until its Board of
Directors (or committee serving a similar function) approves it.  In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon 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 and that
such amended or supplemental indenture is the valid and binding obligation of
the Company enforceable against it in accordance with its terms, subject to
customary exceptions and that such amended or supplemental indenture complies
with the provisions hereof (including Section 9.03).


 


ARTICLE
10.


 


GUARANTEES


 


Section
10.01.     Guarantee.


 


The provisions of this Article 10 shall become
effective upon the Acquisition Date.


 


Subject to this Article 10, the Guarantors hereby
unconditionally guarantee to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns:  (a) the due and punctual payment of the
principal of, premium, if any, and interest and Additional Interest, if any, on
the Notes, subject to any applicable grace period, whether at Stated Maturity,
by acceleration, redemption or otherwise, the due and punctual payment of
interest on the overdue principal of and premium, if any, and, to the extent
permitted by


 


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law, interest, and
the due and punctual performance of all other obligations of the Company to the
Holders or the Trustee under this Indenture, the Registration Rights Agreement
or any other agreement with or for the benefit of the Holders or the Trustee,
all in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration pursuant to Section 6.02, redemption or
otherwise.  Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors shall be jointly and severally obligated to pay the same
immediately.  Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.


 


Each Guarantor hereby agrees that its obligations with
regard to its Guarantee shall be joint and several, unconditional, irrespective
of the validity or enforceability of the Notes or the obligations of the
Company under this Indenture, the absence of any action to enforce the same,
the recovery of any judgment against the Company or any other obligor with
respect to this Indenture, the Notes or the Obligations of the Company under
this Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.  Each Guarantor further, to the extent
permitted by law, waives and relinquishes all claims, rights and remedies
accorded by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but not limited
to:  (a) any right to require any of the
Trustee, the Holders or the Company (each a “Benefited Party”), as a condition of
payment or performance by such Guarantor, to (1) proceed against the Company,
any other guarantor (including any other Guarantor) of the Obligations under
the Guarantees or any other Person, (2) proceed against or exhaust any security
held from the Company, any such other guarantor or any other Person, (3)
proceed against or have resort to any balance of any deposit account or credit
on the books of any Benefited Party in favor of the Company or any other
Person, or (4) pursue any other remedy in the power of any Benefited Party
whatsoever; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of the Company including any
defense based on or arising out of the lack of validity or the unenforceability
of the Obligations under the Guarantees or any agreement or instrument relating
thereto or by reason of the cessation of the liability of the Company from any
cause other than payment in full of the Obligations under the Guarantees; (c)
any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (d) any defense based upon any
Benefited Party’s errors or omissions in the administration of the Obligations
under the Guarantees, except behavior which amounts to bad faith; (e)(1) any
principles or provisions of law, statutory or otherwise, which are or might be
in conflict with the terms of the Guarantees and any legal or equitable
discharge of such Guarantor’s obligations hereunder, (2) the benefit of any
statute of limitations affecting such Guarantor’s liability hereunder or the
enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims
and (4) promptness, diligence and any requirement that any Benefited Party
protect, secure, perfect or insure any security interest or Lien or any property
subject thereto; (f) notices, demands, presentations, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including
acceptance of the Guarantees, notices of Default under the Notes or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Obligations under the Guarantees or any agreement related
thereto, and notices of any extension of credit to the Company and any right to
consent to any thereof; (g) to the extent permitted under applicable law, the
benefits of any “One Action” rule and (h) any defenses or benefits that may be
derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms of the Guarantees.  Except to the extent expressly provided
herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby
covenants that its Guarantee shall not be discharged except by complete
performance of the obligations contained in its Guarantee and this Indenture.


 


If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors or any custodian,
trustee, liquidator or other similar official acting in relation to either the
Company or the Guarantors any amount paid either to the Trustee or such Holder,
this Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.


 


Each Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all Obligations
guaranteed hereby.  Each Guarantor
further agrees that, as between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Section 6.02


 


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hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such obligations as provided in Section 6.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Guarantee. 
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantee.


 


Section
10.02.     Limitation on Guarantor Liability.


 


(a)        Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any
guarantee.  To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that each Guarantor’s liability shall be that amount from time to time equal to
the aggregate liability of such Guarantor under the guarantee, but shall be
limited to the lesser of (a) the aggregate amount of the Company’s obligations
under the Notes and this Indenture or (b) the amount, if any, which would not
have (1) rendered the Guarantor “insolvent” (as such term is defined in the
Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New
York) or (2) left it with unreasonably small capital at the time its guarantee
with respect to the Notes was entered into, after giving effect to the
incurrence of existing Indebtedness immediately before such time; provided,
however, it shall be a presumption in any lawsuit or proceeding in
which a Guarantor is a party that the amount guaranteed pursuant to the
guarantee with respect to the Notes is the amount described in clause (a) above
unless any creditor, or representative of creditors of the Guarantor, or debtor
in possession or Trustee in bankruptcy of the Guarantor, otherwise proves in a
lawsuit that the aggregate liability of the Guarantor is limited to the amount
described in clause (b).


 


(b)        In
making any determination as to the solvency or sufficiency of capital of a
Guarantor in accordance with the proviso of Section 10.2(a), the right of each
Guarantor to contribution from other Guarantors and any other rights such
Guarantor may have, contractual or otherwise, shall be taken into account.


 


Section
10.03.     Execution and Delivery of Guarantee.


 


To evidence its Guarantee set forth in Section 10.01,
each Guarantor hereby agrees that a notation of such Guarantee in substantially
the form included in  Exhibit E
attached hereto shall be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by its President or one of its Vice
Presidents.


 


Each Guarantor hereby agrees that its Guarantee set
forth in Section 10.01 shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Guarantee.


 


If an Officer whose signature is on this Indenture or
on the Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.


 


The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of the Guarantors.


 


The Company hereby agrees that it shall cause each
Person that becomes obligated to provide a Guarantee pursuant to Section 4.19
to execute a supplemental indenture in form and substance reasonably
satisfactory to the Trustee, pursuant to which such Person provides the
guarantee set forth in this Article 10 and otherwise assumes the obligations
and accepts the rights of a Guarantor under this Indenture, in each case with
the same effect and to the same extent as if such Person had been named herein
as a Guarantor.  The Company also hereby
agrees to cause each such new Guarantor to evidence its guarantee by endorsing
a notation of such guarantee on each Note as provided in this Section 10.03.


 


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Section
10.04.     Guarantors May Consolidate, etc., on Certain Terms.


 


Except as otherwise provided in Section 10.05, no
Guarantor may consolidate with or merge with or into (whether or not such
Guarantor is the Surviving Person) another Person whether or not affiliated
with such Guarantor unless:


 


(a)          subject
to Section 10.05, the Person formed by or surviving any such consolidation or
merger (if other than a Guarantor or the Company) unconditionally assumes all
the obligations of such Guarantor, pursuant to a supplemental indenture in form
and substance reasonably satisfactory to the Trustee, under this Indenture, the
Guarantee and any Registration Rights Agreements on the terms set forth herein
or therein; and


 


(b)        the
Guarantor complies with the requirements of Article 5 hereof.


 


In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and reasonably satisfactory in
form to the Trustee, of the Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.  Such successor
Person thereupon may cause to be signed any or all of the Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee.  All the Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Guarantees had been issued at the date of
the execution hereof.


 


Except as set forth in Articles 4 and 5, and
notwithstanding clauses (a) and (b) above, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.


 


Section
10.05.     Releases Following Merger, Consolidation or Sale of
Assets, Etc.


 


(1) In connection with any transaction permitted by
this Indenture after which a Guarantor ceases to be a Restricted Subsidiary of
the Company; provided, however,
that any sale or other disposition of the Capital Stock or assets of that
Guarantor complies with Section 4.12; (2) if the Company designates any
Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in
accordance with Section 4.17; or (3) in connection with the discharge of all
obligations under that Guarantee or this Indenture as described under Article 8
or Article 12, the Guarantee of such Guarantor shall be released and
discharged.  Upon delivery by the
Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to
the effect that such sale or other disposition, designation or discharge was
made by the Company in accordance with the provisions of this Indenture,
including without limitation Sections 4.12 and 4.17, Article 8 and Article 12,
the Trustee shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its Guarantee.


 


Any Guarantor not released from its obligations under
its Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article 10.


 


ARTICLE
11.


 


COLLATERAL AND SECURITY


 


Section
11.01.     Collateral Documents.


 


The provisions of this Article 11 shall become
effective upon the Acquisition Date.


 


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The due and punctual payment of the principal of and
interest and Additional Interest, if any, on the Notes when and as the same
shall be due and payable, whether on an Interest Payment Date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes and performance of all other obligations
of the Company and the Guarantors to the Holders or the Trustee under this
Indenture, the Notes and the Guarantees, according to the terms hereunder or
thereunder, shall be secured as provided in the Collateral Documents which the
Company and the Guarantors shall enter into on the Acquisition Date, in
substantially the forms attached as Exhibits F through L hereto, together with
such changes as may be reasonably necessary to accurately reflect the
Collateral referred to therein, and which the Company and the Guarantors may
enter into on or after the Acquisition Date in accordance with the terms
hereof.  Each Holder authorizes the
Trustee to appoint Wells Fargo Bank, N.A. as Collateral Agent for the Holders
under the Collateral Documents.  Each
Holder, by its acceptance thereof, consents and agrees to the terms of the
Collateral Documents and the Intercreditor Agreement (including, without
limitation, the provisions providing for foreclosure and release of Collateral)
as the same may be in effect or may be amended from time to time in accordance
with its terms and the terms of this Indenture and authorizes and directs the
Collateral Agent to enter into the Collateral Documents and the Intercreditor
Agreement, in substantially the form attached as Exhibit M hereto, and to
perform its obligations and exercise its rights thereunder in accordance
therewith.  The Company and the
Guarantors shall deliver to the Collateral Agent copies of all documents
executed pursuant to this Indenture or the Collateral Documents and shall do or
cause to be done all such acts and things as may be necessary or proper, or as
may be required by the provisions of the Collateral Documents, to assure and
confirm to the Collateral Agent the security interest in the Collateral
contemplated hereby, by the Collateral Documents or any part thereof, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Notes and the Guarantees secured
hereby, according to the intent and purposes herein expressed.  The Company shall take, and shall cause its
Subsidiaries to take, upon request of the Collateral Agent, any and all actions
reasonably required to cause the Collateral Documents to create and maintain,
as security for the Obligations of the Company and the Guarantors hereunder, a
valid and enforceable perfected second priority security interest in and
continuing Lien on all the Collateral, in favor of the Collateral Agent for the
benefit of the Holders, superior to and prior to the rights of all third
Persons, except for holders of First Lien Obligations, and subject to no Liens
other than Permitted Liens and the Liens permitted by the Collateral Documents.


 


Section
11.02.     Recording and Opinions.


 


The Company and the Guarantors shall furnish to the
Trustee on December 1 in each year beginning with December 1, 2004, an Opinion
of Counsel, dated as of such date, either:


 


(a)        stating
that, in the opinion of such counsel, action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and re-filing of
all supplemental indentures, financing statements, continuation statements or
other instruments of further assurance as is necessary to maintain the Lien of
the Collateral Documents and reciting with respect to the security interest in
the Collateral the details of such action or referring to prior Opinions of
Counsel in which such details are given, and (B) stating that, in the opinion
of such counsel, based on relevant laws as in effect on the date of such
Opinion of Counsel, all financing statements and continuation statements have
been executed and filed that are necessary as of such date and during the
succeeding 12 months fully to preserve and protect, to the extent such
protection and preservation are possible by filing, the rights of the Holders,
the Collateral Agent and the Trustee hereunder and under the Collateral
Documents with respect to the security interest in the Collateral; or


 


(b)        stating
that, in the opinion of such counsel, no such action is necessary to maintain
such Lien.


 


The Company will otherwise comply with the provisions
of TIA §314(b).


 


Section
11.03.     Release of Collateral.


 


(a)        Subject
to subsections (b), (c) and (d) of this Section 11.03 and the Intercreditor
Agreement, Collateral may be released from the Lien and security interest
created by the Collateral Documents at any time or from time to time in
accordance with the provisions of the Collateral Documents, the Intercreditor
Agreement or as provided hereby.  In
addition, subject to the terms of the Intercreditor Agreement, upon the request
of the Company


 


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pursuant to an Officers’ Certificate certifying that
all conditions precedent under the Indenture have been met, then (at the sole
cost and expense of the Company) the Collateral Agent shall release (or cause
to be released) Collateral:  (1) to
enable the Company to consummate asset dispositions permitted or not prohibited
under Section 4.12; (2) if the Company provides substitute Collateral with at
least an equivalent fair value, as determined in good faith by the Board of
Directors of the Company; (3) if any Subsidiary that is a Guarantor is released
from its Guarantee in accordance with the terms of this Indenture, that
Subsidiary’s assets will also be released; (4) as described under Article 9; or
(5) upon satisfaction and discharge or this Indenture as described under
Article 12.  Upon receipt of such
Officers’ Certificate the Collateral Agent shall promptly execute, deliver or
acknowledge any necessary or proper instruments of termination, satisfaction or
release to evidence the release of any Collateral permitted to be released
pursuant to this Indenture, the Collateral Documents or the Intercreditor
Agreement.


 


(b)        No
Collateral may be released from the Lien and security interest created by the
Collateral Documents pursuant to the provisions of the Collateral Documents and
the Intercreditor Agreement unless the certificate required by this Section
11.03 has been delivered to the Collateral Agent.


 


(c)        At
any time when a Default or Event of Default has occurred and is continuing and
the maturity of the Notes has been accelerated (whether by declaration or
otherwise) and the Trustee shall have delivered a notice of acceleration to the
Collateral Agent, no release of Collateral pursuant to the provisions of the
Collateral Documents and the Intercreditor Agreement will be effective as
against the Holders.


 


(d)        The
release of any Collateral from the terms of this Indenture, the Collateral
Documents and the Intercreditor Agreement shall not be deemed to impair the
security under this Indenture in contravention of the provisions hereof if and
to the extent the Collateral is released pursuant to the terms of the
Collateral Documents, this Indenture and the Intercreditor Agreement.  To the extent applicable, the Company shall
cause TIA § 313(b), relating to reports, and TIA § 314(d), relating to the
release of property or securities from the Lien and security interest of the
Collateral Documents and relating to the substitution therefor of any property
or securities to be subjected to the Lien and security interest of the
Collateral Documents, to be complied with. 
Any certificate or opinion required by TIA § 314(d) may be made by an
Officer of the Company except in cases where TIA § 314(d) requires that such
certificate or opinion be made by an independent Person, which Person shall be
an independent engineer, appraiser or other expert selected or approved by the
Trustee and the Collateral Agent in the exercise of reasonable care.


 


Section
11.04.     Certificates of the Company.


 


(a)        The
Company shall furnish to the Trustee and the Collateral Agent, prior to each
proposed release of Collateral pursuant to the Collateral Documents and the
Intercreditor Agreement:


 


(1)        all documents required by
TIA §314(d); and


 


(2)        an Opinion of Counsel,
which may be rendered by internal counsel to the Company, to the effect that
such accompanying documents constitute all documents required by TIA §314(d) to
be delivered as a condition precedent to the release of such Collateral.


 


(b)        The
Trustee, to the extent permitted by Sections 7.01 and 7.02 hereof, and the
Collateral Agent may accept as conclusive evidence of compliance with the
foregoing provisions the appropriate statements contained in such documents and
such Opinion of Counsel.


 


(c)        Notwithstanding
anything to the contrary in this Section 11.04, the Company shall not be
required to comply with all or any portion of TIA §314(d) if it determines, in
good faith based on advice of counsel, that under the terms of TIA §314(d)
and/or any interpretation or guidance as to the meaning thereof of the
Commission or its staff, including “no action” letters or exemptive orders, all
or any portion of TIA §314(d) is inapplicable to one or a series of releases of
Collateral or the Commission will not take any action against the Company for
failure to comply with, or that the Company is exempt from, all or any portion
of TIA §314(d).


 


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Section
11.05.     Certificates of the Trustee.


 


In the event that the Company wishes to release
Collateral in accordance with the Collateral Documents and the Intercreditor
Agreement and has delivered the certificates and documents required by the
Collateral Documents, the Intercreditor Agreement and Sections 11.03 and 11.04
hereof, the Trustee will determine whether it has received all documentation
required by TIA §314(d) in connection with such release.


 


Section
11.06.     Authorization of Actions to Be Taken by the Trustee
and the Collateral Agent Under the Collateral Documents.


 


Subject to the provisions of Section 7.01 and 7.02
hereof, the Trustee may, in its sole discretion and without the consent of the
Holders, direct, on behalf of the Holders, the Collateral Agent to take all
actions it deems necessary or appropriate in order to:


 


(a)          enforce
any of the terms of the Collateral Documents and the Intercreditor Agreement;
and


 


(b)          collect
and receive any and all amounts payable in respect of the Obligations of the
Company and the Guarantors hereunder and under the Notes and the Guarantees.


 


The Collateral Agent shall have the power to institute
and maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation
of the Collateral Documents, this Indenture or the Intercreditor Agreement, and
such suits and proceedings as the Collateral Agent may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of, or compliance with, any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or
order would impair the security interest hereunder or be prejudicial to the
interests of the Holders or of the Collateral Agent).


 


Section
11.07.     Authorization of Receipt of Funds by the Collateral
Agent Under the Collateral Documents.


 


The Collateral Agent is authorized to receive any
funds for the benefit of the Holders distributed under the Collateral Documents
and the Intercreditor Agreement, and to make further distributions of such
funds to the Holders according to the provisions of this Indenture, the
Collateral Documents and the Intercreditor Agreement.


 


Section
11.08.     Termination of Security Interest.


 


Subject to the Intercreditor Agreement, upon the full
and final payment and performance of all Obligations of the Company and the
Guarantors under this Indenture, the Notes and the Guarantees or in connection
with the discharge of all Obligations under the Notes, the Guarantees and this
Indenture as described under Article 8 and Article 12, the Trustee shall, at the
request of the Company, deliver an Officers’ Certificate to the Collateral
Agent stating that such Obligations have been paid in full or discharged, as
the case may be, and instruct the Collateral Agent to release the Liens
pursuant to this Indenture, the Intercreditor Agreement and the Collateral
Documents.


 


Section
11.09.     Conflicts Between Indenture and Collateral Documents.


 


If any conflict or inconsistency exists between this
Indenture and any of the Collateral Documents, this Indenture shall govern; provided, however, that to the extent a
Collateral Document is governed by a law other than the internal laws of the
State of New York, this Indenture shall not require that the internal laws of
the State of New York govern such Collateral Document.


 


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ARTICLE
12.


 


SATISFACTION AND DISCHARGE


 


Section
12.01.     Satisfaction and Discharge.


 


This Indenture shall be discharged and shall cease to
be of further effect, except as to surviving rights of registration of transfer
or exchange of the Notes, as to all Notes and Guarantees issued hereunder,
when:


 


(a)        either:


 


(i)         all Notes that have been
previously authenticated and delivered (except lost, stolen or destroyed Notes
that have been replaced or paid and Notes for whose payment money has
previously been deposited in trust or segregated and held in trust by the
Company and is thereafter repaid to the Company or discharged from the trust)
have been delivered to the Trustee for cancellation; or


 


(ii)        (A) all Notes that have
not been previously delivered to the Trustee for cancellation, have become due
and payable by their terms, have been called for redemption or otherwise will
become due and payable within one year, and the Company 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 Securities, or a combination thereof, in such amounts as shall be
sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire Indebtedness on the Notes not previously delivered to the
Trustee for cancellation or redemption for principal, premium, if any, and
interest on the Notes to the date of deposit, in the case of Notes that have
become due and payable, or to the Stated Maturity or redemption date, as the
case may be; (B) the Company has paid all other sums payable by the Company
with respect to the Notes under this Indenture; and (C) the Company has
delivered irrevocable instructions to the Trustee to apply the deposited money
toward the payment of the Notes at Stated Maturity or on the redemption date,
as the case may be; and


 


in the case of either clause (i) or (ii):


 


(x)          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 (other than this Indenture)
to which the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound; and


 


(y)          the
Company shall have delivered to the Trustee an Officers’ Certificate and
Opinion of Counsel stating that all conditions precedent relating to the
satisfaction and discharge of this Indenture have been satisfied.


 


Section
12.02.     Deposited Cash and U.S. Government Securities to be
Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 12.03, all cash and non-callable
U.S. Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
12.02, the “Trustee”) pursuant to Section 12.01 hereof 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, and interest but such cash and securities need not be
segregated from other funds except to the extent required by law.


 


82

















 


Section
12.03.     Repayment to Company.


 


Any cash or non-callable U.S. Government Securities
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, or interest on, any
Note and remaining unclaimed for one year after such principal, and premium, 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 shall thereafter, as an unsecured creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such cash and securities, 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 cash and
securities 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 cash and securities then remaining shall be
repaid to the Company.


 


ARTICLE
13.


 


MISCELLANEOUS


 


Section
13.01.     Trust Indenture Act Controls.


 


If any provision of this Indenture limits, qualifies
or conflicts with another provision which is required to be included in this
Indenture by the TIA, the provision required by the TIA shall control.


 


Section
13.02.     Notices.


 


Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested),
facsimile transmission or overnight air courier guaranteeing next-day delivery,
to the other’s address:


 


If to the Company:


 


Poster Financial Group, Inc.


2960 West Sahara Avenue, Suite 200


Las Vegas, Nevada 89102


Attention: 
Timothy N. Poster


Facsimile No.: 
(702) 367-6143


 


With a copy to:


 


Skadden, Arps, Slate, Meagher & Flom LLP


Four Times Square


New York, New York 10036


Attention:  Phyllis G. 
Korff, Esq.


Facsimile No.: 
(212) 735-2000


 


If to the Trustee:


 


HSBC Bank USA


452 Fifth Avenue


New York, New York 10018


Attention: 
Issuer Services


Facsimile No.: 
(212) 525-1300


 


The Company or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.


 


83

















 


All notices and communications (other than those sent
to the Trustee or 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 sent by facsimile transmission; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next-day
delivery.  All notices and
communications to the Trustee or Holders shall be deemed duly given and
effective only upon receipt.


 


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 Security Register.  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 mailed in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.


 


If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same time.


 


Section
13.03.     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 Trustee, the
Registrar and anyone else shall have the protection of TIA §312(c).


 


Section
13.04.     Certificate and Opinion as to Conditions Precedent.


 


Upon any request or application by the Company to the
Trustee to take any action under any provision of 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 13.05 hereof)
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 complied with; and


 


(b)        an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 13.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.


 


Section
13.05.     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 such Person to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and


 


84

















 


(d)        a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.


 


With respect to
matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate,
certificates of public officials or reports or opinions of experts.


 


Section
13.06.     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
13.07.     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 of the
Guarantors under the Notes, this Indenture, the Guarantees or the Collateral
Documents 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 and the Guarantees.   The waiver and release may not be effective
to waive or release liabilities under the federal securities laws.


 


Section
13.08.     Governing Law.


 


THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES 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
13.09.     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 (other than the Notes and the Guarantees).  Any such indenture, loan or debt agreement
(other than the Notes and the Guarantees) may not be used to interpret this
Indenture.


 


Section
13.10.     Successors.


 


All covenants and agreements of the Company in this
Indenture and the Notes shall bind its successors.  All covenants and agreements of the Trustee in this Indenture
shall bind its successors.


 


Section
13.11.     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
13.12.     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
13.13.     Table of Contents, Headings, etc.


 


The Table of Contents, Cross-Reference Table and
Headings in 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.


 


85

















 


Section
13.14.     Qualification of this Indenture.


 


The Company shall qualify this Indenture under the TIA
in accordance with the terms and conditions of any Registration Rights
Agreement and shall pay all reasonable costs and expenses (including attorneys’
fees and expenses for the Company, the Trustee and the Holders) incurred in
connection therewith, including, but not limited to, costs and expenses of
qualification of this Indenture and the Notes and printing this Indenture and
the Notes.  The Trustee shall be
entitled to receive from the Company any such Officers’ Certificates, Opinions
of Counsel or other documentation as it may reasonably request in connection
with any such qualification of this Indenture under the TIA.


 


[Signatures on following page]


 


86

















 


	
  SIGNATURES

  
	
   

  	
   

  
	
  Dated as of
  December 3, 2003

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  POSTER FINANCIAL
  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Timothy N. Poster

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Timothy N.
  Poster

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive
  Officer

  
					



 


SIGNATURE PAGES TO THE
SENIOR NOTE INDENTURE


 

















 


	
   

  	
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  HSBC BANK USA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Deirdra N. Ross

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Deirdra N. Ros

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice
  President

  
					



 


SIGNATURE PAGES TO THE
SENIOR NOTE INDENTURE


 

















 


EXHIBIT
A


 


(Face of Note)


 


83⁄4% Senior Secured Notes due 2011


 


 


	
   

  	
  CUSIP

  	
   

  
	
  No.    

  	
  $

  	
   

  



 


POSTER FINANCIAL GROUP, INC.


 


promises to pay to
CEDE & CO., INC. or registered assigns, the principal sum of [amount]
dollars
($                   )
on December 1, 2011.


 


Interest Payment
Dates:  June 1 and December 1,
commencing June 1, 2004.


 


Record Dates:  May 15 and November 15.


 


Dated:  [               ].


 


A-1

















 


IN WITNESS WHEREOF, the Company has caused this Note
to be signed manually or by facsimile by its duly authorized officer.


 


 


	
   

  	
  Poster Financial
  Group, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  This is one of
  the [Global]

  	
   

  
	
  Notes referred
  to in the

  within-mentioned Indenture:

  	
   

  
	
   

  	
   

  
	
  HSBC Bank USA,

  	
   

  
	
  as Trustee

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
  Dated
  [                          ]

  	
   

  
						



 


A-2

















 


(Back of Note)


 


83⁄4% Senior Secured Notes due 2011


 


[Insert
the Global Note Legend, if applicable pursuant to the terms of the Indenture]


 


[Insert
the Private Placement Legend, if applicable pursuant to the terms of the
Indenture]


 


[Insert
the Regulation S Temporary Global Note Legend, if applicable pursuant to the
terms of the Indenture]


 


Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.


 


1.            Interest.  Poster Financial Group, Inc., a Nevada
corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 83⁄4% per annum
until maturity and shall pay Additional Interest, if any, as provided in
Section 5 of the Registration Rights Agreement.  The Company shall pay interest semi-annually on June 1 and
December 1 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 shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from December 3, 2003; provided,
however, 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 the first of June 1 or December 1
to occur after the date of issuance, unless such June 1 or December 1 occurs within
one calendar month of such date of issuance, in which case the first Interest
Payment Date shall be the second of June 1 and December 1 to occur after the
date of issuance.  The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time at
a rate that is 1% per annum in excess of the interest rate then in effect under
the Indenture and this Note; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
and Additional Interest, if any (without regard to any applicable grace
periods), from time to time at the same rate to the extent lawful.  Interest shall be computed on the basis of a
360-day year of twelve 30-day months.


 


[Until this Regulation S Temporary Global Note is
exchanged for one or more Regulation S Permanent Global Notes, the Holder
hereof shall not be entitled to receive payments of interest hereon; until so exchanged
in full, this Regulation S Temporary Global Note shall in all other respects be
entitled to the same benefits as other Notes under the Indenture.]


 


2.            Method of Payment.  The Company shall pay interest on the Notes
(except defaulted interest) to the Persons in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on the May 15 or
November 15 next preceding the Interest Payment Date (each, a “Record Date”), even
if such Notes are cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest.  The
Notes shall be payable as to principal, premium, if any, and interest and
Additional Interest, if any, at the office or agency of the Paying Agent and
Registrar within the city and state of New York, or, at the option of the
Company, payment of interest may be made by check mailed to the Holders at
their addresses set forth in the Security Register; provided, however,
that payment by wire transfer of immediately available funds shall be required
with respect to principal of, and interest and Additional Interest, if any, and
premium, if any, on, all Global Notes and all other Notes the Holders of which
own at least $2.5 million aggregate principal amount of Notes and 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.


 


3.            Paying Agent and Registrar.  Initially, HSBC Bank USA, the Trustee under
the Indenture, shall 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.            Indenture, Collateral Documents and
Intercreditor Agreement. 
The Company issued the Notes under an Indenture dated as of December 3,
2003 (“Indenture”)
among the Company, the guarantors from time to


 


A-3

















 


time party thereto
(the “Guarantors”)
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.  The Notes are obligations of the Company
unlimited in aggregate principal amount. 
The Notes are secured by the Collateral set forth in the Collateral Documents,
subject to the terms of the Intercreditor Agreement.


 


5.            Optional Redemption.


 


(a)          Except
as set forth in clause (b) of this Paragraph 5, the Notes shall not be
redeemable at the Company’s option prior to December 1, 2007.  On or after December 1, 2007, the Company
may redeem all or a part of the Notes, at once or over time, after giving the
notice required pursuant to Section 3.03 of the Indenture.  The Notes may be redeemed 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 right of Holders of
record on the relevant Regular Record Date to receive interest due on the relevant
Interest Payment Date), if redeemed during the twelve-month period beginning on
December 1 of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2007

  	
   

  	
  104.375

  	
  %

  
	
  2008

  	
   

  	
  102.188

  	
  %

  
	
  2009 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)          At
any time prior to December 1, 2006, the Company may on one or more occasions
redeem up to 35% of the aggregate principal amount of the Notes issued under
the Indenture at a redemption price (expressed as a percentage of principal
amount) of 108.750% of the principal amount thereof, plus accrued and unpaid
interest and Additional Interest, if any, to the redemption date (subject to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date), with the net cash proceeds
of one or more Public Equity Offerings; provided,
however, that (1) at least 65% of the aggregate principal amount of
the Notes issued under the Indenture remains outstanding immediately after the
occurrence of such redemption (excluding Notes held by the Company and its
Subsidiaries); and (2) the redemption occurs within 60 days of the date of the
closing of such Public Equity Offering.


 


(c)          Any
prepayment pursuant to this Paragraph 5 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 of the Indenture.


 


6.            Mandatory Redemption.  Except as set forth in Sections 3.09, 4.12,
4.18 and 4.21 of the Indenture, the Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


7.            Repurchase at Option of Holder.


 


(a)   If a
Change of Control occurs, each Holder shall have the right to require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple
of $1,000) of that Holder’s Notes (a “Change of Control Offer”) at a purchase
price, 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 Purchase Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on the
relevant Interest Payment Date).


 


(b)   If the
Company or one of its Restricted Subsidiaries consummates any Asset Sales, they
shall not be required to apply any Excess Proceeds in accordance with the
Indenture until the aggregate amount of Excess Proceeds exceeds $5.0
million.  Thereafter, the Company shall
make an offer to purchase the maximum principal amount of Notes and, if the
Company is required to do so under the terms of any other Indebtedness that is pari passu with the Notes, such other
Indebtedness on a pro rata basis
with the Notes, that may be purchased out of the Excess Proceeds.  The offer price in any Asset Sale Offer
shall be equal to 100% of principal amount plus accrued


 


A-4

















 


and unpaid
interest and Additional Interest, if any, to the date of purchase (subject to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date), and shall be payable in
cash.  If any Excess Proceeds remain
after consummation of the purchase of all properly tendered and not withdrawn
Notes pursuant to an Asset Sale Offer, the Company may use such remaining Excess
Proceeds for any purpose not otherwise prohibited by this Indenture and the
Collateral Documents.  If the aggregate
principal amount of Notes and other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on
a pro rata basis based on the
principal amount of Notes and such other Indebtedness tendered.  Holders of Notes that are the subject of an
Asset Sale Offer will receive notice from the Company prior to any related
Purchase Date and may elect to have such Notes purchased by completing the form
entitled “Option of Holder to Elect Purchase” on the reverse of the Notes.


 


(c)   If there
is an Event of Loss with respect to any of the Casino Properties, the Company and
its Restricted Subsidiaries shall not be required to apply any Event of Loss
Proceeds in accordance with the Indenture until the aggregate amount of Excess
Loss Proceeds exceeds $5.0 million. 
Thereafter, the Company shall make an offer to purchase the maximum
principal amount of Notes and, if the Company is required to do so under the
terms of any other Indebtedness that is pari
passu with the Notes, such other Indebtedness on a pro rata basis with the Notes, that may be
purchased out of the Excess Loss Proceeds. 
The offer price in any Event of Loss Offer shall be equal to 100% of
principal amount plus accrued and unpaid interest and Additional Interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant Regular Record Date to receive interest due on the relevant Interest
Payment Date), and shall be payable in cash. 
If any Excess Loss Proceeds remain after consummation of the purchase of
all properly tendered and not withdrawn Notes pursuant to an Event of Loss Offer,
the Company may use such remaining Excess Loss Proceeds for any purpose not
otherwise prohibited by this Indenture and the Collateral Documents.  If the aggregate principal amount of Notes
and other pari passu Indebtedness
tendered into such Event of Loss Offer exceeds the amount of Excess Loss
Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on
a pro rata basis based on the
principal amount of Notes and such other Indebtedness tendered.  Holders of Notes that are the subject of an
Event of Loss Offer will receive notice from the Company prior to any related
Purchase Date and may elect to have such Notes purchased by completing the form
entitled “Option of Holder to Elect Purchase” on the reverse of the Notes.


 


8.            Notice of Redemption.  Notices of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address.  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. 
On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.


 


9.            Denominations, Transfer, Exchange.  The Notes are in registered form without
coupons in denominations of $1,000 and integral multiples of $1,000.  [This Note shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed hereon and the
aggregate principal amount of Notes represented hereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges, redemptions and
transfers of interests herein.]  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 and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture.  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.  Also, 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.


 


[This Regulation S Temporary Global Note is
exchangeable in whole or in part for one or more Global Notes only (i) on or
after the termination of the Distribution Compliance Period and (ii) upon
presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture.  Upon exchange of this Regulation S Temporary Global Note for one
or more Global Notes, the Trustee shall cancel this Regulation S Temporary
Global Note.]


 


10.          Persons Deemed Owners.  The registered Holder of a Note shall be
treated as its owner for all purposes, except as provided in Section
2.01(f)(ii) of the Indenture.


 


A-5

















 


11.          Amendment, Supplement and Waiver.  Subject to certain exceptions, the Company,
the Guarantors and the Trustee may amend or supplement the Indenture, the Notes
or the Guarantees with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes, including Additional
Notes, if any, then outstanding voting as a single class (including consents
obtained in connection with a purchase of or tender offer or exchange offer for
the Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any
existing Default or Event of Default (except a continuing Default or Event of
Default in the payment of principal, premium, if any, or interest or Additional
Interest, if any, on the Notes) or compliance with any provision of the
Indenture or the Notes (except for certain covenants and provisions of the
Indenture which cannot be amended without the consent of each Holder) may be
waived with the consent of the Holders of at least a majority in aggregate
principal amount of the Notes, including Additional Notes, if any, then
outstanding voting as a single class (including consents obtained in connection
with a purchase of or tender offer or exchange offer for the Notes).  Without the consent of any Holder, the
Company, the Guarantors and the Trustee may amend or supplement the Indenture,
the Notes or the Guarantees to cure any ambiguity, defect, omission, mistake or
inconsistency; provide for uncertificated Notes in addition to or in place of
certificated Notes (provided that
the uncertificated Notes are issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the uncertificated Notes are
described in Section 163(f)(2)(B) of the Code); provide for the assumption by a
Surviving Person of the obligations of the Company or a Guarantor under the
Notes and the Guarantees, as applicable, to Holders under the Indenture
pursuant to Section 5.01 of the Indenture; add Guarantees or additional
obligors with respect to the Notes or release Guarantors from Guarantees as
permitted by the terms of the Indenture and such Guarantees; make any change
that would provide any additional rights or benefits to the Holders or that
does not adversely affect the legal rights under the Indenture of any such
Holder; make any change to comply with any requirement of the Commission in
order to effect or maintain the qualification of the Indenture under the TIA;
or enter into additional or supplemental Collateral Documents.


 


12.          Defaults and Remedies.  Each of the following is an Event of Default
under the Indenture: (a) failure to make the payment of any interest or
Additional Interest, if any, on the Notes when the same becomes due and
payable, and such failure continues for a period of 30 days; (b) failure to
make the payment of any principal of, or premium, if any, on, the Notes when
the same becomes due and payable at its Stated Maturity, upon acceleration,
redemption, optional redemption, required repurchase or otherwise; (c) failure
by the Company or any of its Restricted Subsidiaries to comply with Sections
4.12, 4.18, 4.21 or 5.01 of the Indenture after written notice from the Trustee
or Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding; (d) failure by the Company or any of its Restricted Subsidiaries
to comply with any covenant or agreement in the Notes or in the Indenture
(other than a failure that is the subject of the foregoing clause (a), (b) or
(c)), and such failure continues for 60 days after written notice from the
Trustee or Holders of not less than 25% in aggregate principal amount of the
Notes then outstanding; (e) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the Issue Date, if that default: (A) is caused by a
failure to pay principal of such Indebtedness at its Stated Maturity prior to
the expiration of any grace period provided in such Indebtedness (a “Payment Default”);
or (B) results in the acceleration of such Indebtedness prior to its express
maturity, and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $5.0 million or more; (f) failure by the Company or any
of its Subsidiaries to pay final judgments in an uninsured aggregate amount in
excess of $5.0 million, which judgments are not paid, discharged, waived,
satisfied or stayed for a period of 60 consecutive days; (g) except as
permitted by this Indenture, any Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be
in full force and effect or any Guarantor, or any Person acting on behalf of
any Guarantor, shall deny or disaffirm its obligations under its Guarantee; (h)
breach by the Company or any of the Guarantors in any material respect of any
representation or warranty or agreement in any of the Collateral Documents or
in any certificates delivered in connection therewith, the repudiation by any
of them of any of their respective obligations under any of the Collateral
Documents, or the unenforceability of the Collateral Documents against any of
them for any reason which continues for 30 days after written notice from the
Trustee or Holders of at least 25% in outstanding principal amount of Notes;
(i) the revocation, termination, suspension or other cessation of effectiveness
of any Gaming License which results in the cessation or suspension of gaming
operations at the Casino Properties for more than 90 consecutive days, in
either case, other than as a result of an Asset Sale or any voluntary
relinquishment that is, in the judgment of the Board of Directors of the
Company, both desirable in the conduct of


 


A-6

















 


the business of
the Company and its Restricted Subsidiaries, taken as a whole, and not
disadvantageous in any material respect to the Holders; and (j) certain events
of bankruptcy, insolvency or reorganization affecting the Company, any
Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, when taken together, would constitute a
Significant Subsidiary.


 


If any Event of Default (other than those arising from
certain events of bankruptcy or insolvency described in the Indenture) occurs
and is continuing, the Trustee upon the request of Holders of at least 25% in
principal amount of the outstanding Notes shall, or the Holders of at least 25%
in principal amount of outstanding Notes may, declare all the Notes to be due
and payable.  Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency described in the Indenture, all outstanding Notes shall become due
and payable immediately without further action or notice.  Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. 
Subject to certain limitations, Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power.  The
Trustee may withhold from Holders notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest or Additional Interest, if any) if it determines that
withholding notice is in their interest. 
The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest or Additional Interest on, or the principal
of, the Notes and in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of each affected
Holder.  The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required within 30 days after becoming aware of
any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.


 


13.          Trustee Dealings with Company.  Subject to certain limitations, 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.


 


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 of the
Guarantors under the Indenture, the Notes, the Guarantees or the Collateral
Documents 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.


 


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.          Additional Rights of Holders of
Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes that are Initial Notes shall have all the rights
set forth in the Registration Rights Agreement, dated as of December 3, 2003,
among the Company, the Guarantors from time to time party thereto and the
initial purchaser or, in the case of Additional Notes, Holders of Restricted
Global Notes and Restricted Definitive Notes shall have the rights set forth in
one or more registration rights agreements, if any, among the Company and the
other parties thereto, relating to rights given by the Company to the
purchasers of any Additional Notes.


 


18.          CUSIP Numbers.  Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Holders.  No representation is made as to the
correctness 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.


 


A-7

















 


The Company shall furnish to any Holder upon written
request and without charge a copy of the Indenture.  Requests may be made to: 
Poster Financial Group, Inc., 2960 West Sahara Avenue, Suite 200, Las
Vegas, Nevada 89102, Attention: 
Secretary.


 


19.          Governing Law.  The internal law of the State of New York
shall govern and be used to construe this Note without giving effect to
applicable principals of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.


 


A-8

















 


Option of Holder to Elect Purchase


 


If you want to
elect to have this Note purchased by the Company pursuant to Section 4.12, 4.18
or 4.21 of the Indenture, check the box below:


 


o           Section 4.12


 


o           Section 4.18


 


o           Section 4.21


 


If you want to
elect to have only part of the Note purchased by the Company pursuant to
Section 4.12, 4.18 or 4.21 of the Indenture, state the amount you elect to have
purchased:  $                                    


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
  (Sign exactly as
  your name appears on the Note)

  
	
   

  	
   

  
	
   

  	
  Tax
  Identification No.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIGNATURE
  GUARANTEE:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signatures must
  be guaranteed by an “eligible guarantor institution” meeting the requirements
  of the Registrar, which requirements include membership or participation in
  the Security Transfer Agent Medallion Program (“STAMP”) or such other
  “signature guarantee program” as may be determined by the Registrar in
  addition to, or in substitution for, STAMP, all in accordance with the
  Securities Exchange Act of 1934, as amended.

  
								



 


A-9

















 


Assignment Form


 


To assign this
Note, fill in the form below:


 


(I) or (we) assign
and transfer this Note to


 


 


(Insert assignee’s social security or other tax I.D.
no.)


 


 


 


(Print or type assignee’s name, address and zip code)


 


and irrevocably
appoint


as agent to
transfer this Note on the books of the Company.  The agent may substitute another to act for him.


 


	
  Date: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	 

	
   

  	
  Your Signature:

  	
   

  	
   

  	 

	
   

  	
  (Sign exactly as
  your name appears on the face of this Note)

  	 

	
   

  	
   

  	 

	
   

  	
  Signature
  Guarantee:

  	
   

  	
   

  	 

									



 


A-10

















 


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:


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount

  of this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized signatory

  of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT
B


 


FORM OF CERTIFICATE OF TRANSFER


 


Poster Financial
Group, Inc.


2960 West Sahara
Avenue, Suite 200


Las Vegas, Nevada
89102


Attention:  Timothy N. Poster


 


HSBC Bank USA


452 Fifth Avenue


New York, New York
10018


Attention: Issuer
Services


Telecopier
No.:  (212) 525-1300


 


Re:         83⁄4%
Senior Secured Notes due 2011


 


Reference is hereby made to the Indenture, dated as of
December 3, 2003 (the “Indenture”),
among Poster Financial Group, Inc., as issuer (the “Company”), the Guarantors from time to time party thereto
and HSBC Bank USA, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                            (the
“Transferor”) owns and proposes
to transfer the Note[s] or interest in such Note[s] specified in Annex A
hereto, in the principal amount of
$                   
in such Note[s] or interests (the “Transfer”),
to 
                                       
(the “Transferee”), as further
specified in Annex A hereto.  In
connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.  o  Check
if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Definitive Note Pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a “qualified institutional buyer” within
the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A
and such Transfer is in compliance with any applicable blue sky securities laws
of any state of the United States.  Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.


 


2.  o  Check
if Transferee will take delivery of a beneficial interest in the Regulation S
Global Note or a Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a Person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(a) or Rule 904(a) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Distribution Compliance Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than the Initial Purchaser).  Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on


 


B-1

















 


Transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Note, the Temporary Regulation S Global Note and/or the Definitive Note and in
the Indenture and the Securities Act.


 


3.  o  Check
and complete if Transferee will take delivery of a beneficial interest in the
IAI Global Note or a Definitive Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any
state of the United States, and accordingly the Transferor hereby further
certifies that (check one):


 


(a)          o  such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)          o  such Transfer is being effected to the
Company or a subsidiary thereof;


 


or


 


(c)          o  such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)          o  such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D under
the Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture and (2) if such Transfer is in respect
of a principal amount of Notes at the time of transfer of less than $250,000,
an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Note and/or the Definitive Notes and
in the Indenture and the Securities Act.


 


4.  o  Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.


 


(a)  o  Check if
Transfer is pursuant to Rule 144. 
(i) The Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


(b)  o  Check if
Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not


 


B-2

















 


required in order
to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


(c)  o  Check if
Transfer is Pursuant to Other Exemption.  (i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.


 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Company.


 


 


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
					



 


B-3

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.            The
Transferor owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)          o   a beneficial interest in the:


 


(i)        o   144A Global Note (CUSIP
              ),
or


 


(ii)       o   Regulation S Global Note (CUSIP
              ),
or


 


(iii)      o   IAI Global Note (CUSIP
              );
or


 


(b)          o   a Restricted Definitive Note.


 


2.            After
the Transfer the Transferee will hold:


 


[CHECK ONE OF (a), (b) OR (c)]


 


(a)          o   a beneficial interest in the:


 


(i)        o   144A Global Note (CUSIP
              ),
or


 


(ii)       o   Regulation S Global Note (CUSIP
              ),
or


 


(iii)      o   IAI Global Note (CUSIP
              );
or


 


(iv)      o   Unrestricted Global Note (CUSIP
              );
or


 


(b)          o   a Restricted Definitive Note; or


 


(c)          o   an Unrestricted Definitive Note,


 


in accordance with the terms of the Indenture.


 


B-4

















 


EXHIBIT
C


 


FORM OF CERTIFICATE OF EXCHANGE


 


Poster Financial
Group, Inc.


2960 West Sahara
Avenue, Suite 200


Las Vegas, Nevada
89102


Attention:  Timothy N. Poster


 


HSBC Bank USA


452 Fifth Avenue


New York, New York
10018


Attention:  Issuer Services


Telecopier
No.:  (212) 525-1300


 


Re:            83⁄4% Senior Secured Notes due 2011


 


Reference is hereby made to the Indenture, dated as of
December 3, 2003 (the “Indenture”),
among Poster Financial Group, Inc., as issuer (the “Company”), the Guarantors from time to time party thereto
and HSBC Bank USA, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                      (the
“Owner”) owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of
$                  
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.            Exchange of Restricted Definitive Notes or Beneficial
Interests in a Restricted Global Note for Unrestricted Definitive Notes or
Beneficial Interests in an Unrestricted Global Note.


 


(a)  o  Check if
Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note.  In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note for a beneficial interest in an
Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Note and
pursuant to and in accordance with the United States Securities Act of 1933, as
amended (the “Securities Act”),
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global Note
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.


 


(b)  o  Check if
Exchange is from beneficial interest in a Restricted Global Note to Unrestricted
Definitive Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i)
the Unrestricted Definitive Note is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Note and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(c)  o  Check if
Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note.  In
connection with the Owner’s Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in


 


C-1

















 


order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.


 


(d)  o  Check if
Exchange is from Restricted Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.


 


2.            Exchange of Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes for Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes.


 


(a)  o  Check if
Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Note is being acquired
for the Owner’s own account without transfer. 
Upon consummation of the proposed Exchange in accordance with the terms
of the Indenture, the Restricted Definitive Note issued will continue to be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Definitive Note and in the Indenture and the
Securities Act.


 


(b)  o  Check if
Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note.  In
connection with the Exchange of the Owner’s Restricted Definitive Note for a
beneficial interest in the [CIRCLE ONE] 144A Global Note, Regulation S Global
Note, IAI Global Note with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Definitive Note and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the beneficial interest issued
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.


 


C-2

















 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Company.


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
					



 


C-3

















 


EXHIBIT
D


 


FORM OF CERTIFICATE FROM


ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR


 


Poster Financial
Group, Inc.


2960 West Sahara
Avenue, Suite 200


Las Vegas, Nevada
89102


Attention:  Timothy N. Poster


 


HSBC Bank USA


452 Fifth Avenue


New York, New York
10018


Attention:  Issuer Services


Telecopier
No.:  (212) 525-1300


 


Re:            83⁄4% Senior Secured Notes due 2011


 


Reference is hereby made to the Indenture, dated as of
December 3, 2003 (the “Indenture”),
among Poster Financial Group, Inc., as issuer (the “Company”), the Guarantors from time to time party thereto
and HSBC Bank USA, as trustee.  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.


 


In connection with our proposed purchase of
$                    
aggregate principal amount of:


 


(a)  o    a beneficial interest in a Global Note, or


 


(b)  o    a Definitive Note,


 


we confirm that:


 


1.            We
understand that any subsequent transfer of the Notes or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the United States Securities Act of 1933, as
amended (the “Securities Act”).


 


2.            We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should
sell the Notes or any interest therein, we will do so only (A) to the Company
or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a “qualified institutional buyer” (as defined therein), (C)
to an institutional “accredited investor” (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and, if such transfer is in respect of a principal amount
of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel
in form reasonably acceptable to the Company to the effect that such transfer
is in compliance with the Securities Act, (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant
to the provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any Person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.


 


3.            We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions.  We further
understand that the Notes purchased by us will bear a legend to the foregoing
effect.


 


4.            We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Notes, and we and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment.  We have had access to such


 


D-1

















 


financial and
other information and have been afforded the opportunity to ask such questions
of representatives of the Company and receive answers thereto, as we deem
necessary in connection with our decision to purchase the Notes.


 


5.            We
are acquiring the Notes or beneficial interest therein purchased by us for our
own account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion and are not acquiring the Notes with a view to any distribution
thereof in a transaction that would violate the Securities Act or the
securities laws of any state of the United States or any other applicable
jurisdiction.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.  This letter shall be governed by, and construed in accordance
with, the laws of the State of New York.


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Accredited Investor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


D-2

















 


EXHIBIT
E


 


FORM OF NOTATION OF GUARANTEE


 


For value received, each Guarantor (which term
includes any successor Person under the Indenture), jointly and severally,
unconditionally guarantees, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, dated as of December 3, 2003 (the “Indenture”), among Poster Financial Group,
Inc., as issuer (the “Company”),
the Guarantors from time to time party thereto and HSBC Bank USA, as trustee
(the “Trustee”), (a) the due and
punctual payment of the principal of, premium, if any, and interest and
Additional Interest, if any, on the Notes, whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal and premium, if any, and, to the extent permitted by law, interest
and Additional Interest, if any, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.  The
obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article
10 of the Indenture and reference is hereby made to the Indenture for the
precise terms of the Guarantee.  This
Guarantee is subject to release as and to the extent set forth in Sections
8.02, 8.03 and 10.05 of the Indenture.  Each Holder of a Note, by accepting the same agrees to and shall
be bound by such provisions. 
Capitalized terms used herein and not defined are used herein as so
defined in the Indenture.


 


	
   

  	
  GNLV, CORP.

  
	
   

  	
  GNL, CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
  GOLDEN NUGGET
  EXPERIENCE, LLC

  
	
   

  	
   

  
	
   

  	
  By: GNLV, CORP.,
  as Sole Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 

















 


 


TABLE
OF CONTENTS


 


	
  ARTICLE 1.

  	
   

  	
  DEFINITIONS AND
  INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 1.01.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.02.

  	
  Other Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.03.

  	
  Incorporation by
  Reference of Trust Indenture Act

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.04.

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2.

  	
   

  	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.01.

  	
  Form and Dating

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.02.

  	
  Execution and
  Authentication

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.03.

  	
  Registrar and Paying
  Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.04.

  	
  Paying Agent to Hold
  Money in Trust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.05.

  	
  Holder Lists

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.06.

  	
  Transfer and Exchange

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.07.

  	
  Replacement Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.08.

  	
  Outstanding Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.09.

  	
  Treasury Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.10.

  	
  Temporary Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.11.

  	
  Cancellation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.12.

  	
  Payment of Interest;
  Defaulted Interest

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.13.

  	
  CUSIP or ISIN Numbers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.14.

  	
  Additional Interest

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.15.

  	
  Issuance of Additional
  Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.16.

  	
  Record Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.17.

  	
  Tax Matters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3.

  	
   

  	
  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.01.

  	
  Notices to Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.02.

  	
  Selection of Notes to
  Be Redeemed or Repurchased

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.03.

  	
  Notice of Redemption

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.04.

  	
  Effect of Notice of
  Redemption

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.05.

  	
  Deposit of Redemption
  Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.06.

  	
  Notes Redeemed in Part

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.07.

  	
  Optional Redemption

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.08.

  	
  Mandatory Redemption

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.09.

  	
  Mandatory Disposition
  Pursuant to Gaming Laws

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.10.

  	
  Offer To Purchase

  	
   

  
							



 


i

















 


	
  ARTICLE 4.

  	
   

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.01.

  	
  Payment of Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.02.

  	
  Maintenance of Office
  or Agency

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.03.

  	
  Reports

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.04.

  	
  Compliance Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.05.

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.06.

  	
  Stay, Extension and
  Usury Laws

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.07.

  	
  Corporate Existence

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.08.

  	
  Payments for Consent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.09.

  	
  Incurrence of
  Indebtedness and Issuance of Preferred Stock

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.10.

  	
  Restricted Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.11.

  	
  Liens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.12.

  	
  Asset Sales

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.13.

  	
  Dividend and Other
  Payment Restrictions Affecting Restricted Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.14.

  	
  Transactions with
  Affiliates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.15.

  	
  Sale and Leaseback
  Transactions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.16.

  	
  Issuances and Sales of
  Capital Stock of Restricted Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.17.

  	
  Designation of
  Restricted and Unrestricted Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.18.

  	
  Repurchase at the
  Option of Holders Upon a Change of Control

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.19.

  	
  Additional Guarantees

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.20.

  	
  Business Activities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.21.

  	
  Events of Loss

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.22.

  	
  Additional Collateral;
  Acquisition of Assets or Property

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.23.

  	
  Insurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.24.

  	
  Further Assurances

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.25.

  	
  Independent Directors

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5.

  	
   

  	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.01.

  	
  Merger, Consolidation
  and Sale of Assets

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.02.

  	
  Successor Corporation
  Substituted

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6.

  	
   

  	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.01.

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.02.

  	
  Acceleration

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.03.

  	
  Other Remedies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.04.

  	
  Waiver of Defaults

  	
   

  
						



 


ii

















 


	
   

  	
  Section 6.05.

  	
  Control by Majority

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.06.

  	
  Limitation on Suits

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.07.

  	
  Rights of Holders to
  Receive Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.08.

  	
  Collection Suit by
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.09.

  	
  Trustee May File
  Proofs of Claim

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.10.

  	
  Priorities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.11.

  	
  Undertaking for Costs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7.

  	
   

  	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.01.

  	
  Duties of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.02.

  	
  Rights of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.03.

  	
  Individual Rights of
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.04.

  	
  Trustee’s Disclaimer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.05.

  	
  Notice of Defaults

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.06.

  	
  Reports by Trustee to
  Holders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.07.

  	
  Compensation and
  Indemnity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.08.

  	
  Replacement of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.09.

  	
  Successor Trustee by
  Merger, etc

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  	
   

  	
  LEGAL DEFEASANCE AND
  COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.01.

  	
  Option to Effect Legal
  Defeasance or Covenant Defeasance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.02.

  	
  Legal Defeasance and
  Discharge

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.03.

  	
  Covenant Defeasance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.04.

  	
  Conditions to Legal or
  Covenant Defeasance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.05.

  	
  Deposited Cash and
  U.S. Government Securities to be Held in Trust; Other Miscellaneous
  Provisions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.06.

  	
  Repayment to Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.07.

  	
  Reinstatement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9.

  	
   

  	
  AMENDMENT, SUPPLEMENT AND
  WAIVER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.01.

  	
  Without Consent of
  Holders of Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.02.

  	
  With Consent of
  Holders of Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.03.

  	
  Compliance with Trust
  Indenture Act

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.04.

  	
  Revocation and Effect
  of Consents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.05.

  	
  Notation on or
  Exchange of Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.06.

  	
  Trustee to Sign
  Amendments, etc.

  	
   

  
						



 


iii

















 


	
  ARTICLE 10.

  	
   

  	
  GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.01.

  	
  Guarantee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.02.

  	
  Limitation on
  Guarantor Liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.03.

  	
  Execution and
  Delivery of Guarantee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.04.

  	
  Guarantors May
  Consolidate, etc., on Certain Terms

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.05.

  	
  Releases Following
  Merger, Consolidation or Sale of Assets, Etc

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11.

  	
   

  	
  COLLATERAL AND SECURITY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.01.

  	
  Collateral Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.02.

  	
  Recording and
  Opinions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.03.

  	
  Release of
  Collateral

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.04.

  	
  Certificates of the
  Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.05.

  	
  Certificates of the
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.06.

  	
  Authorization of
  Actions to Be Taken by the Trustee and the Collateral Agent Under the
  Collateral Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.07.

  	
  Authorization of
  Receipt of Funds by the Collateral Agent Under the Collateral Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.08.

  	
  Termination of
  Security Interest

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.09.

  	
  Conflicts Between
  Indenture and Collateral Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12.

  	
   

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 12.01.

  	
  Satisfaction and
  Discharge

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 12.02.

  	
  Deposited Cash and
  U.S. Government Securities to be Held in Trust; Other Miscellaneous
  Provisions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 12.03.

  	
  Repayment to Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13.

  	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.01.

  	
  Trust Indenture Act
  Controls

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.02.

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.03.

  	
  Communication by
  Holders of Notes with Other Holders of Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.04.

  	
  Certificate and
  Opinion as to Conditions Precedent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.05.

  	
  Statements Required
  in Certificate or Opinion

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.06.

  	
  Rules by Trustee and
  Agents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.07.

  	
  No Personal
  Liability of Directors, Officers, Employees and Stockholders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.08.

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.09.

  	
  No Adverse
  Interpretation of Other Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.10.

  	
  Successors

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.11.

  	
  Severability

  	
   

  
						



 


iv

















 


	
   

  	
  Section 13.12.

  	
  Counterpart
  Originals

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.13.

  	
  Table of Contents,
  Headings, etc

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.14.

  	
  Qualification of
  this Indenture

  	
   

  



 


v

















 


	
  EXHIBIT LIST

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Form of Note

  	
   

  
	
  Exhibit B

  	
   

  	
  Form of Certificate of
  Transfer

  	
   

  
	
  Exhibit C

  	
   

  	
  Form of Certificate of
  Exchange

  	
   

  
	
  Exhibit D

  	
   

  	
  Form of Certificate of
  Acquiring Institutional Accredited Investor

  	
   

  
	
  Exhibit E

  	
   

  	
  Form of Notation of
  Guarantee

  	
   

  
	
  Exhibit F

  	
   

  	
  Form of Security
  Agreement

  	
   

  
	
  Exhibit G

  	
   

  	
  Form of Stock
  Pledge Agreement

  	
   

  
	
  Exhibit H

  	
   

  	
  Form of Deed of
  Trust (Arizona)

  	
   

  
	
  Exhibit I

  	
   

  	
  Form of Deed of
  Trust (Fee and Leasehold) (Nevada)

  	
   

  
	
  Exhibit J

  	
   

  	
  Form of Deed of
  Trust (Nevada)

  	
   

  
	
  Exhibit K

  	
   

  	
  Form of
  Trademark Security Agreement

  	
   

  
	
  Exhibit L

  	
   

  	
  Form of
  Copyright Security Agreement

  	
   

  
	
  Exhibit M

  	
   

  	
  Form of
  Intercreditor and Lien Subordination Agreement

  	
   

  



 

















 


CROSS-REFERENCE TABLE


 


	
  TIA Section

  Reference

  	
   

  	
  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)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  13.03

  
	
  (c)

  	
   

  	
  13.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  11.03

  
	
  (b)(2)

  	
   

  	
  7.06, 11.03

  
	
  (c)

  	
   

  	
  7.06, 13.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)(1)

  	
   

  	
  N.A.

  
	
  (a)(2)

  	
   

  	
  4.04

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  13.05

  
	
  (b)

  	
   

  	
  11.02

  
	
  (c)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  11.03, 11.04,
  11.05

  
	
  (e)

  	
   

  	
  13.05

  
	
  315

  	
   

  	
  7.02

  
	
  316(a)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  2.16

  
	
  317

  	
   

  	
  N.A.

  
	
  318

  	
   

  	
  N.A.

  



 


N.A. means Not
Applicable.


 


Note:  This Cross-Reference Table shall not, for
any purpose, be deemed to be part of this Indenture.