Exhibit 4.1


 


INDENTURE


 


Dated as of May 30, 2003


 


Between


 


HARD ROCK HOTEL, INC.


 


as Company,


 


and


 


U.S. BANK NATIONAL ASSOCIATION, as Trustee


 












 


up to $200,000,000


 


87/8% Second Lien Notes
due 2013


 

















 


TABLE OF CONTENTS


 


 


	
  Article
  I DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
  Section 1.1

  	
  DEFINITIONS.

  
	
  Section 1.2

  	
  OTHER
  DEFINITIONS.

  
	
  Section 1.3

  	
  INCORPORATION
  BY REFERENCE OF TRUST INDENTURE ACT.

  
	
  Section 1.4

  	
  RULES
  OF CONSTRUCTION.

  
	
   

  	
   

  
	
  Article
  II THE SECURITIES

  
	
  Section 2.1

  	
  FORM
  AND DATING.

  
	
  Section 2.2

  	
  EXECUTION
  AND AUTHENTICATION.

  
	
  Section 2.3

  	
  REGISTRAR
  AND PAYING AGENT.

  
	
  Section 2.4

  	
  AGENT
  TO HOLD MONEY IN TRUST.

  
	
  Section 2.5

  	
  HOLDER
  LISTS.

  
	
  Section 2.6

  	
  TRANSFER
  AND EXCHANGE.

  
	
  Section 2.7

  	
  REPLACEMENT
  SECURITIES.

  
	
  Section 2.8

  	
  OUTSTANDING
  SECURITIES.

  
	
  Section 2.9

  	
  TREASURY
  SECURITIES.

  
	
  Section 2.10

  	
  TEMPORARY
  SECURITIES.

  
	
  Section 2.11

  	
  CANCELLATION.

  
	
  Section 2.12

  	
  DEFAULTED
  INTEREST.

  
	
  Section 2.13

  	
  CUSIP
  NUMBERS.

  
	
  Section 2.14

  	
  RECORD
  DATE.

  
	
   

  	
   

  
	
  Article
  III REDEMPTION

  
	
  Section 3.1

  	
  NOTICE
  TO TRUSTEE.

  
	
  Section 3.2

  	
  SELECTION
  OF SECURITIES TO BE REDEEMED.

  
	
  Section 3.3

  	
  NOTICE
  OF REDEMPTION.

  
	
  Section 3.4

  	
  EFFECT
  OF NOTICE OF REDEMPTION.

  
	
  Section 3.5

  	
  DEPOSIT
  OF REDEMPTION PRICE.

  
	
  Section 3.6

  	
  SECURITIES
  REDEEMED IN PART.

  
	
  Section 3.7

  	
  OPTIONAL
  AND REGULATORY REDEMPTION.

  
	
  Section 3.8

  	
  NO
  MANDATORY REDEMPTION OR SINKING FUND.

  
	
   

  	
   

  
	
  Article
  IV COVENANTS

  
	
  Section 4.1

  	
  PAYMENT
  OF SECURITIES.

  
	
  Section 4.2

  	
  MAINTENANCE
  OF OFFICE OR AGENCY; EXCHANGE LISTING.

  
	
  Section 4.3

  	
  LIMITATION
  ON TRANSACTIONS WITH AFFILIATES.

  
	
  Section 4.4

  	
  LIMITATION
  ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK.

  
	
  Section 4.5

  	
  LIMITATION
  ON ASSET SALES.

  
	
  Section 4.6

  	
  LIMITATION
  ON RESTRICTED PAYMENTS.

  
	
  Section 4.7

  	
  CORPORATE
  EXISTENCE.

  
	
  Section 4.8

  	
  PAYMENT
  OF TAXES AND OTHER CLAIMS.

  



 


i

















 


	
  Section 4.9

  	
  NOTICE
  OF DEFAULTS.

  
	
  Section 4.10

  	
  MAINTENANCE
  OF PROPERTIES.

  
	
  Section 4.11

  	
  COMPLIANCE
  CERTIFICATE.

  
	
  Section 4.12

  	
  PROVISION
  OF FINANCIAL INFORMATION.

  
	
  Section 4.13

  	
  WAIVER
  OF STAY, EXTENSION OR USURY LAWS.

  
	
  Section 4.14

  	
  CHANGE
  OF CONTROL.

  
	
  Section 4.15

  	
  INSURANCE

  
	
  Section 4.16

  	
  LIMITATION
  ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.

  
	
  Section 4.17

  	
  LIMITATION
  ON LIENS.

  
	
  Section 4.18

  	
  LIMITATION
  ON BUSINESS ACTIVITIES.

  
	
  Section 4.19

  	
  PAYMENTS
  FOR CONSENT.

  
	
  Section 4.20

  	
  SUBSIDIARY
  GUARANTEES

  
	
  Section 4.21

  	
  FURTHER
  ASSURANCES

  
	
   

  	
   

  
	
  Article
  V MERGERS; SUCCESSOR CORPORATION

  
	
  Section 5.1

  	
  RESTRICTION
  ON MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS.

  
	
  Section 5.2

  	
  SUCCESSOR
  CORPORATION SUBSTITUTED.

  
	
   

  	
   

  
	
  Article
  VI DEFAULT AND REMEDIES

  
	
  Section 6.1

  	
  EVENTS
  OF DEFAULT.

  
	
  Section 6.2

  	
  ACCELERATION.

  
	
  Section 6.3

  	
  OTHER
  REMEDIES.

  
	
  Section 6.4

  	
  WAIVER
  OF PAST DEFAULT.

  
	
  Section 6.5

  	
  CONTROL
  BY MAJORITY.

  
	
  Section 6.6

  	
  LIMITATION
  ON SUITS.

  
	
  Section 6.7

  	
  RIGHTS
  OF HOLDERS TO RECEIVE PAYMENT.

  
	
  Section 6.8

  	
  COLLECTION
  SUIT BY TRUSTEE.

  
	
  Section 6.9

  	
  TRUSTEE
  MAY FILE PROOFS OF CLAIM.

  
	
  Section 6.10

  	
  PRIORITIES.

  
	
  Section 6.11

  	
  UNDERTAKING
  FOR COSTS.

  
	
  Section 6.12

  	
  MANAGEMENT
  OF THE HOTEL/CASINO PROPERTY.

  
	
  Section 6.13

  	
  RESTORATION
  OF RIGHTS AND REMEDIES.

  
	
   

  	
   

  
	
  Article
  VII TRUSTEE

  
	
  Section 7.1

  	
  DUTIES
  OF TRUSTEE.

  
	
  Section 7.2

  	
  RIGHTS
  OF TRUSTEE.

  
	
  Section 7.3

  	
  INDIVIDUAL
  RIGHTS OF TRUSTEE.

  
	
  Section 7.4

  	
  TRUSTEE’S
  DISCLAIMER.

  
	
  Section 7.5

  	
  NOTICE
  OF DEFAULTS.

  
	
  Section 7.6

  	
  REPORTS
  BY TRUSTEE TO HOLDERS.

  
	
  Section 7.7

  	
  COMPENSATION
  AND INDEMNITY.

  
	
  Section 7.8

  	
  REPLACEMENT
  OF TRUSTEE.

  
	
  Section 7.9

  	
  SUCCESSOR
  TRUSTEE BY MERGER, ETC.

  
	
  Section 7.10

  	
  ELIGIBILITY;
  DISQUALIFICATION.

  



 


ii

















 


	
  Section 7.11

  	
  PREFERENTIAL
  COLLECTION OF CLAIMS AGAINST THE COMPANY.

  
	
  Section 7.12

  	
  MONEY
  HELD IN TRUST.

  
	
  Section 7.13

  	
  AUTHORIZATION
  OF TRUSTEE TO TAKE OTHER ACTIONS.

  
	
   

  	
   

  
	
  Article
  VIII DISCHARGE OF INDENTURE; DEFEASANCE

  
	
  Section 8.1

  	
  TERMINATION
  OF COMPANY’S OBLIGATIONS.

  
	
  Section 8.2

  	
  APPLICATION
  OF TRUST MONEY.

  
	
  Section 8.3

  	
  REPAYMENT
  TO THE COMPANY.

  
	
  Section 8.4

  	
  REINSTATEMENT.

  
	
   

  	
   

  
	
  Article
  IX AMENDMENTS, SUPPLEMENTS AND WAIVERS

  
	
  Section 9.1

  	
  WITHOUT
  CONSENT OF HOLDERS.

  
	
  Section 9.2

  	
  WITH
  CONSENT OF HOLDERS.

  
	
  Section 9.3

  	
  COMPLIANCE
  WITH TRUST INDENTURE ACT.

  
	
  Section 9.4

  	
  REVOCATION
  AND EFFECT OF CONSENTS.

  
	
  Section 9.5

  	
  NOTATION
  ON OR EXCHANGE OF SECURITIES.

  
	
  Section 9.6

  	
  TRUSTEE
  TO SIGN AMENDMENTS, ETC.

  
	
   

  	
   

  
	
  Article
  X COLLATERAL AND SECURITY

  
	
  Section 10.1

  	
  COLLATERAL
  AND COLLATERAL DOCUMENTS; ADDITIONAL COLLATERAL.

  
	
  Section 10.2

  	
  RECORDING,
  REGISTRATION AND OPINIONS.

  
	
  Section 10.3

  	
  RELEASE
  OF COLLATERAL.

  
	
  Section 10.4

  	
  POSSESSION
  AND USE OF COLLATERAL.

  
	
  Section 10.5

  	
  SPECIFIED
  RELEASES OF COLLATERAL.

  
	
  Section 10.6

  	
  DISPOSITION
  OF COLLATERAL WITHOUT RELEASE.

  
	
  Section 10.7

  	
  FORM
  AND SUFFICIENCY OF RELEASE.

  
	
  Section 10.8

  	
  PURCHASER
  PROTECTED.

  
	
  Section 10.9

  	
  AUTHORIZATION
  OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE COLLATERAL DOCUMENTS AND THE
  INTERCREDITOR AGREEMENT.

  
	
  Section 10.10

  	
  AUTHORIZATION
  OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE COLLATERAL DOCUMENTS.

  
	
  Section 10.11

  	
  CERTAIN
  TIA REQUIREMENTS.

  
	
   

  	
   

  
	
  Article
  XI MISCELLANEOUS

  
	
  Section 11.1

  	
  TRUST
  INDENTURE ACT CONTROLS.

  
	
  Section 11.2

  	
  NOTICES.

  
	
  Section 11.3

  	
  COMMUNICATIONS
  BY HOLDERS WITH OTHER HOLDERS.

  
	
  Section 11.4

  	
  CERTIFICATE
  AND OPINION AS TO CONDITIONS PRECEDENT.

  
	
  Section 11.5

  	
  STATEMENTS
  REQUIRED IN CERTIFICATE OR OPINION.

  
	
  Section 11.6

  	
  RULES
  BY TRUSTEE, PAYING AGENT, REGISTRAR.

  
	
  Section 11.7

  	
  GOVERNING
  LAW.

  
	
  Section 11.8

  	
  NO
  RECOURSE AGAINST OTHERS.

  
	
  Section 11.9

  	
  SUCCESSORS.

  
	
  Section 11.10

  	
  COUNTERPART
  ORIGINALS.

  



 


iii

















 


	
  Section 11.11

  	
  SEVERABILITY.

  
	
  Section 11.12

  	
  NO
  ADVERSE INTERPRETATION OF OTHER AGREEMENTS.

  
	
  Section 11.13

  	
  LEGAL
  HOLIDAYS.

  
	
  Section 11.14

  	
  SUBMISSION
  TO JURISDICTION.

  



 












NOTE:  This Table of Contents
shall not, for any purpose, be deemed to be a part of this Indenture.


 


iv

















 


CROSS-REFERENCE TABLE


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  Section 310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.8; 7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  Section 311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  Section 312(a)

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
  11.3

  
	
  (c)

  	
   

  	
  11.3

  
	
  Section 313(a)

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.6; 11.3

  
	
  (c)

  	
   

  	
  7.6; 11.2; 11.3

  
	
  (d)

  	
   

  	
  7.6

  
	
  Section 314(a)

  	
   

  	
  4.11; 4.12

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  11.4

  
	
  (c)(2)

  	
   

  	
  11.4

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)(1)

  	
   

  	
  10.11

  
	
  (e)

  	
   

  	
  11.5

  
	
  (f)

  	
   

  	
  N.A.

  
	
  Section 315(a)

  	
   

  	
  7.1(b)

  
	
  (b)

  	
   

  	
  7.5; 11.2

  
	
  (c)

  	
   

  	
  7.1(a)

  
	
  (d)

  	
   

  	
  7.3(c)

  
	
  (e)

  	
   

  	
  6.11

  
	
  Section 316(a)(last sentence)

  	
   

  	
  2.9

  
	
  (a)(1)(A)

  	
   

  	
  6.5

  
	
  (a)(1)(B)

  	
   

  	
  6.4

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
  2.14; 10.4

  
	
  Section 317(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
  2.4

  



 


v

















 


	
  Section 318(a)

  	
   

  	
  11.1

  



 












N.A. means Not Applicable.


 


NOTE:  This Cross-Reference
Table shall not, for any purpose, be deemed to be a part of this Indenture.


 


vi

















 


INDENTURE dated as of May 30, 2003 between HARD ROCK HOTEL, INC. (the
“COMPANY,” as more specifically defined herein) and U.S. Bank National
Association, a national banking organization, as trustee (the “TRUSTEE” as more
specifically defined herein).


 


The parties hereto hereby agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the
Company’s 87/8% Second Lien Notes due 2013, Series A
(the “INITIAL SECURITIES”) and the Company’s 87/8% Second
Lien Notes due 2013, Series B (the “EXCHANGE SECURITIES,” as more specifically
defined herein and, together with the Initial Securities, the “SECURITIES”):


 


ARTICLE I


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.1                                      DEFINITIONS.


 


“144A GLOBAL SECURITY” means the Global Security in the form of Exhibit
A hereto bearing the Global Security Legend and the Private Placement Legend
and deposited with or on behalf of 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 Securities sold in reliance on Rule 144A.


 


“ACQUIRED INDEBTEDNESS” means with respect to any specified Person,
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.


 


“ADDITIONAL NOTES” means the additional notes the Company is permitted
to issue pursuant to this Indenture from time to time, having identical terms
and provisions to the Securities, provided that the aggregate principal
amount of the Securities and such Additional Notes shall not exceed
$200,000,000.


 


“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”
(including, with correlative meanings, the terms “controlling,” “controlled by”
and “under common control with”), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.


 


“AGENT” means any Registrar, Paying Agent or Co-Registrar.


 


“APPLICABLE PROCEDURES” means, with respect to any transfer or exchange
of or for beneficial interests in any Global Security, the rules and procedures
of the DTC, Euroclear or Clearstream that apply to such transfer or exchange.


 


“ASSET SALE” means (i) the voluntary sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback)


 

















 


other than in the ordinary course of business (provided that the
sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole will be governed by
Section 4.14 and/or Article V and not by Section 4.5, and (ii) the issue or
sale by the Company or any of its Restricted Subsidiaries of Equity Interests
of any of the Company’s Restricted Subsidiaries, in the case of either clause
(i) or (ii), whether in a single transaction or a series of related
transactions that have a Fair Market Value (as determined in good faith by the
Board of Directors) in excess of $1.0 million or for net cash proceeds in
excess of $1.0 million. Notwithstanding the foregoing: (i) a transfer of assets
by the Company to a Restricted Subsidiary or by a Restricted Subsidiary to the
Company or to another Restricted Subsidiary, (ii) an issuance of Equity
Interests by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary, (iii) a Restricted Payment that is permitted by Section 4.6, (iv) a
disposition of cash or Cash Equivalents; (v) a disposition of either obsolete
equipment or equipment that is damaged, worn out or otherwise no longer useful
in the business; (vi) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary; (vii) any sale and leaseback of an
asset within 90 days after the completion of construction or acquisition of
such asset; and (viii) any surrender or waiver of contract rights or a
settlement, release or surrender of contract, tort or other claims of any kind
or a grant of any Lien not prohibited by this Indenture shall not be considered
an Asset Sale.


 


“BANKRUPTCY LAW” means (i) Title 11 of the U.S. Code or (ii) any other
law of the United States, any political subdivision thereof or any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors or composition with creditors.


 


“BOARD OF DIRECTORS” means the board of directors of the Company or any
duly authorized committee thereof.


 


“BOARD RESOLUTION” means a copy of a resolution certified by the
secretary, an assistant secretary or director of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.


 


“BUSINESS DAY” means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.


 


“CALCULATION DATE” has the meaning given to such term in the definition
of “Fixed Charge Coverage Ratio” in this Indenture.


 


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


 


“CAPITAL STOCK” means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and


 


2

















 


(iv) 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” Cash Equivalents” means, when used in
connection with any Person, that Person’s Investments in:


 


(a)                                  Government Securities
due within one year after the date of the making of the Investment;


 


(b)                                 readily marketable
direct obligations of any State of the United States of America or any
political subdivision of any such State or any public agency or instrumentality
thereof given on the date of such Investment a credit rating of at least Aa by
Moody’s or AA by S&P, in each case due within one year from the making of
the Investment;


 


(c)                                  certificates of
deposit issued by, bank deposits in, eurodollar deposits through, bankers’
acceptances of, and repurchase agreements covering Government Securities
executed by, any lender under the New Credit Facility or any bank incorporated
under the laws of the United States of America, any state thereof or the
District of Columbia and having on the date of such Investment combined
capital, surplus and undivided profits of at least $250,000,000, in each case
due within one year after the date of the making of the Investment;


 


(d)                                 certificates of
deposit issued by, bank deposits in, eurodollar deposits through, bankers’
acceptances of, and repurchase agreements covering Government Securities
executed by, any branch or office located in the United States of America of a
bank incorporated under the laws of any jurisdiction outside the United States
of America having on the date of such Investment combined capital, surplus and
undivided profits of at least $500,000,000, in each case due within one year
after the date of the making of the Investment; and


 


(e)                                  readily marketable
commercial paper of corporations doing business in and incorporated under the
laws of the United States of America or any state thereof or of any corporation
that is the holding company for a bank described in clause (c) or (d)
above given on the date of such Investment a credit rating of at least P-1
by Moody’s or A-1 by S&P, in each case due within 90 days after
the date of the making of the Investment.


 


“CASINO” means any gaming establishment and other property or assets
directly ancillary thereto or used in connection therewith, including any
building, restaurant, hotel theater, parking facilities, retail shops, land,
golf courses and other recreation and entertainment facilities, vessel, barge,
ship and equipment.


 


“CHANGE OF CONTROL” means the occurrence of any of the following:


 


(i)                                     the sale, lease,
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 assets of the Company and its Restricted Subsidiaries
taken as a


 


3

















 


whole to any “person” (as such term is used in Section 13(d)(3) of the
Exchange Act), other than to the Permitted Holders,


 


(ii)                                  the adoption of a
plan relating to the liquidation or dissolution of the Company,


 


(iii)                               prior to the first
Equity Offering, the Permitted Holders cease to be the “beneficial owner” (as
such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act),
directly or indirectly, of a majority of the Voting Stock of the Company (as
measured by voting power rather than number of shares),


 


(iv)                              after the first Equity
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 Permitted Holders, becomes the
“beneficial owner” (as defined above), directly or indirectly, of 35% or more
of the Voting Stock of the Company (measured by voting power rather than number
of shares) and (B) the Permitted Holders “beneficially own” (as defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, in the
aggregate a lesser percentage of the Voting Stock of the Company (measured by
voting power rather than number of shares) than such other person,


 


(v)                                 after the first Equity
Offering, Continuing Directors cease to constitute a majority of the members of
the Board of Directors, or


 


(vi)                              the Company consolidates
with, or merges with or into, any Person, other than the Permitted Holders, or
any Person, other than the Permitted Holders, consolidates with, or merges with
or into, the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company 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., or its successors.


 


“COLLATERAL” means all “collateral” referred to in the Collateral
Documents and all other property or assets that become subject to a Lien in
favor of the Trustee or the Holders.


 


“COLLATERAL DOCUMENTS” means, collectively, all agreements,
instruments, documents, pledges or filings executed in connection with
granting, or that otherwise evidence, the Lien of the Trustee in the
Collateral.


 


“COMPANY” means the party named as the “Company” in the first paragraph
of this Indenture until a successor replaces such party pursuant to the
applicable provisions of Article V, and thereafter, “Company” shall mean such
successor.


 


4

















 


“COMPANY ORDER” means a written request or order signed in the name of
the Company by its Chairman of the Board, its President or a Vice President and
by its Treasurer or Controller, an Assistant Treasurer or Controller, its Secretary
or an Assistant Secretary, and delivered to the Trustee.


 


“CONSOLIDATED CASH FLOW” means, with respect to any Person for any
period, the sum of, without duplication, the Consolidated Net Income of such
Person for such period plus (i) provision for taxes based on income or profits
of such Person and its Subsidiaries for such period, to the extent that such
provision for taxes was included in computing such Consolidated Net Income,
plus (ii) consolidated interest expense of such Person and its Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of original issue discount, amortization of
deferred financing fees, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers’ acceptance
financings, and net payments (if any) pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income, plus (iii) consolidated
depreciation, amortization and other non-cash charges of the Person and its
Subsidiaries required to be reflected as expenses on the books and records of
the Person, minus (iv) cash payments with respect to any non-cash charges
previously added back pursuant to clause (iii), plus (v) preopening costs that
are required by GAAP to be charged as an expense prior to or upon opening, to
the extent that such preopening costs were deducted in computing such
Consolidated Net Income. Notwithstanding the foregoing, the provision for taxes
on the income or profits of, and the depreciation and amortization and other
non-cash charges of, a Subsidiary of the referent Person shall be added to
Consolidated Net Income to compute Consolidated Cash Flow only to the extent
(and in same proportion) that the Net Income of such Subsidiary was included in
calculating the Consolidated Net Income of such Person.


 


“CONSOLIDATED NET INCOME” means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP; provided
that (i) the Net Income (but not loss) of any Person that is not a Restricted
Subsidiary that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Restricted Subsidiary thereof, (ii) the Net
Income of any Subsidiary shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior
government 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
Subsidiary or its stockholders, (iii) the Net Income of any Person acquired in
a pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded, (iv) the cumulative effect of a change in
accounting principles shall be excluded, and (v) all other extraordinary gains
and extraordinary losses shall be excluded.


 


“CONTINUING DIRECTORS” means, as of any date of determination, any
member of the board of directors of the Company who (i) was a member of such
board of directors on the date hereof or (ii) was nominated for election or
elected to such board of


 


5

















 


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 11.2 or such other address as the Trustee may give
notice to the Company.


 


“CUSTODIAN” means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.


 


“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 SECURITY” means a certificated Security registered in the
name of the Holder thereof and issued in accordance with Section 2.6 hereof, in
the form of Exhibit A hereto except that such Security shall not bear the
Global Security Legend and shall not have the “Schedule of Exchanges of Interests
in the Global Security” attached thereto.


 


“DEPOSITARY” means, with respect to the Securities issuable or issued
in whole or in part in global form, the Person specified in Section 2.3 hereof
as the Depositary with respect to the Securities, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision 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 at the option of the holder thereof), 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 thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Securities mature, provided, however, that any Capital
Stock that would constitute Disqualified Stock solely because the holders
thereof (or of any security into which it is convertible or for which it is
exchangeable) have the right to require the issuer to repurchase such Capital
Stock (or such security into which it is convertible or for which it is
exchangeable) upon the occurrence of any of the events constituting an Asset
Sale or a Change of Control shall not constitute Disqualified Stock if such
Capital Stock (and all such securities into which it is convertible or for
which it is exchangeable) provides that the issuer thereof will not repurchase
or redeem any such Capital Stock (or any such security into which it is convertible or for which it is
exchangeable) pursuant to such provisions prior to compliance by the Company
with Section 4.5 or Section 4.14, as the case may be.


 


“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).


 


“EQUITY OFFERING” means any bona fide underwritten public offering of
common stock by the Company other than (i) issuances of Disqualified Stock,
(ii) issuances in payment of or to finance the purchase price of an acquisition
or (iii) issuances of common stock pursuant to employee benefit plans of the
Company or otherwise as compensation to employees of the Company.


 


6

















 


“EUROCLEAR” means Euroclear Bank S.A./N.V., or its successor, as
operator of the Euroclear system.


 


“EXCHANGE ACT” means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.


 


“EXCHANGE OFFER” has the meaning set forth in the Registration Rights
Agreement.


 


“EXCHANGE OFFER REGISTRATION STATEMENT” has the meaning set forth in
the Registration Rights Agreement.


 


“EXCHANGE SECURITIES” means the Securities issued in the Exchange Offer
pursuant to Section 2.6(f).


 


“EXISTING INDEBTEDNESS” means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the New Credit Facility) in
existence on the date hereof, until such amounts are repaid.


 


“EXISTING NOTES” means the Company’s 91⁄4% Senior Subordinated Notes due
2005.


 


“FAIR MARKET VALUE” means, unless otherwise specified, with respect to
any asset or property, the price which could be negotiated in an arm’s-length,
free market transaction, for cash, between a willing seller and a willing and
able buyer, neither of whom is under pressure or compulsion to complete the
transactions.  Fair market value shall
be determined by the Board of Directors acting reasonably and in good faith and
shall be evidenced by a Board Resolution.


 


“FF&E FINANCING” means Indebtedness represented by secured
financings, 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, lease or cost of construction or improvement of
property, plant or equipment (including without limitation, slot machines and
other gaming equipment) used in a Permitted Business.


 


“FIXED CHARGE COVERAGE RATIO” means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
Company or any of its Subsidiaries incurs, assumes, Guarantees, repays or redeems
any Indebtedness (other than revolving credit borrowings) or issues or redeems
preferred stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated but 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 or redemption of Indebtedness, or such issuance or redemption of
preferred stock, as if the same had occurred at the beginning of the applicable
four-quarter reference period and in the case of revolving credit borrowings,
the Fixed Charge Coverage Ratio shall be computed based on the average daily
balance of such Indebtedness during the applicable reference period. In
addition, for purposes of making the computation


 


7

















 


referred to above, (i) acquisitions that have been made by the Company or
any of its 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 deemed to have 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 (iii) of the proviso
set forth in the definition of Consolidated Net Income, (ii) 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, (iii) 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 to the extent that the obligations giving
rise to such Fixed Charges will not be obligations of the referent Person or
any of its Subsidiaries following the Calculation Date, and (iv) in the case of
Indebtedness bearing interest at a floating rate which is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligation applicable to such
Indebtedness).


 


“FIXED CHARGES” means, with respect to any Person for any period, (A)
the sum, without duplication, of (i) 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 (other than
amortization of debt issuance costs related to the Securities and the New
Credit Facility) 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, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
banker’s acceptance financings, and net payments (if any) pursuant to Hedging
Obligations), (ii) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period, (iii) 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) less (B) any interest expense related to the
accrual or payment in accordance with the terms of this Indenture of dividends
or interest on Qualified Securities.


 


“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 Accounts 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 on the Issue Date.


 


“GAMING AUTHORITY” means any Governmental Authority with the power to
regulate gaming in any Gaming Jurisdiction, and the corresponding Governmental Authorities with the responsibility to
interpret and enforce the laws and regulations applicable to gaming in any
Gaming Jurisdiction.


 


“GAMING JURISDICTION” means any Federal, state or local jurisdiction in
which any entity, in which the Company has a direct or indirect beneficial,
legal or voting interest, conducts casino gaming, now or in the future.


 


8

















 


“GAMING LAW” means any law, rule, regulation or ordinance governing
gaming activities (including, without limitation, The Riverboat Gambling Act of
Illinois, The Louisiana Riverboat Economic Development and Gaming Control Act,
the Missouri Riverboat Gaming Act (Mo. Rev. Stat. Section 313.800 et seq.) and
the Nevada Gaming Control Act (Nev. Rev. Stat. Section 463.010 et seq.), in
each case including all amendments or modifications thereof), any
administrative rules or regulations promulgated thereunder, and any of the
corresponding statutes, rules and regulations in each Gaming Jurisdiction.


 


“GAMING LICENSE” means every license, franchise or other authorization
required to own, lease, operate or otherwise conduct gaming activities of the
Company or any of its Subsidiaries, including without limitation, all such
licenses granted under the Nevada Gaming Control Act, and the regulations
promulgated pursuant thereto, and other applicable federal, state, foreign or
local laws.


 


“GLOBAL SECURITIES” means, individually and collectively, each of the
Restricted Global Securities and the Unrestricted Global Securities, in the
form of Exhibit A or Exhibit B hereto issued in accordance with Section 2.1,
2.6(b), 2.6(d) or 2.6(f) hereof.


 


“GLOBAL SECURITY LEGEND” means the legend set forth in Section
2.6(g)(ii), which is required to be placed on all Global Securities issued
under this Indenture.


 


“GOVERNMENT SECURITIES” means readily marketable (a) direct full faith
and credit obligations of the United States of America or obligations
guaranteed by the full faith and credit of the United States of America, or (b)
obligations of an agency or instrumentality of, or corporation owned,
controlled or sponsored by, the United States of America that are generally
considered in the securities industry to be implicit obligations of the United
States of America.


 


“GOVERNMENTAL AUTHORITY” means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or foreign government, any state, any province or any city or
other political subdivision or otherwise and whether now or hereafter in
existence, or any officer or official thereof, and any maritime authority.


 


“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, letters of credit and reimbursement agreements
in respect thereof), of all or any part of any Indebtedness.


 


“GUARANTOR” means each Restricted Subsidiary that has executed a Subsidiary
Guarantee, and their respective successors and assigns, unless and until
released therefrom, in each case in accordance with the applicable provisions
of the Indenture.


 


“HEDGING OBLIGATIONS” means with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements with respect to Indebtedness
that is permitted by the terms of this Indenture and (ii) other agreements or
arrangements designed to protect such Person against


 


9

















 


fluctuation in interest rates or the value of foreign currencies
purchased or received by such Person in the ordinary course of business.


 


“HOLDER” means a Person in whose name a Security is registered on the
books of the Registrar or any co-Registrar.


 


“HOTEL/CASINO PROPERTY” means that certain parcel of real property
together with the improvements thereof operated as the Hard Rock Hotel and
Casino located at 4455 Paradise Road in the city of Las Vegas, Nevada.


 


“INDEBTEDNESS” means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, (i) in respect of borrowed money, or
(ii) evidenced by bonds, notes, debentures or similar instruments or letters of
credit or reimbursement agreements in respect thereof (other than letters of
credit securing obligations not constituting Indebtedness that are issued in
the ordinary course of business by a Person to the extent not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than the
tenth Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit) or bankers’
acceptances, or (iii) representing Capital Lease Obligations or 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 (iv)
representing any Hedging Obligations, in each case if and to the extent any of
the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any Indebtedness of any other Person.


 


“INDENTURE” means this Indenture as amended or supplemented from time
to time.


 


“INDIRECT PARTICIPANT” means a Person who holds a beneficial interest
in a Global Security through a Participant.


 


“INITIAL PURCHASER” means Banc of America LLC, Comerica Securities and
Hibernia Southcoast Capital, Inc.


 


“INITIAL SECURITIES” has the meaning assigned to it in the preamble to
this Indenture.


 


“INTERCREDITOR AGREEMENT” means the Intercreditor Agreement between the
Trustee and the administrative agent under the New Credit Facility, dated as of
the date hereof, as such agreement may be amended, modified or supplemented in
accordance with the terms thereof.


 


“INTEREST PAYMENT DATE” means the stated maturity of an installment of
interest on the Securities.


 


“INVESTMENTS” means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including


 


10

















 


guarantees of Indebtedness or such other obligations), advances
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business) 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 Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition, such Person is
no longer a Restricted 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 Restricted Subsidiary not
sold or disposed of in an amount determined as provided in Section 4.6(d).


 


“ISSUE DATE” means May 30, 2003.


 


“LETTER OF TRANSMITTAL” means the letter of transmittal to be prepared
by the Company and sent to all Holders for use by such Holders in connection
with the 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 give a security
interest in and any filing of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).


 


“LIQUIDATED DAMAGES” has the meaning given to such term in the
Registration Rights Agreement.


 


“MATURITY DATE” means the date, which is set forth on the face of the
Securities, on which the Securities will mature.


 


“MOODY’S” means Moody’s Investors Service, Inc. and its successors.


 


“NET CASH PROCEEDS” with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys’ fees,
accountants’ fees, underwriters or placement agents’ fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.


 


“NET INCOME” means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends or the accrual of dividends or interest
with respect to Qualified Securities, excluding, however, (i) any gain or loss,
together with any related provision for taxes on such gain or loss, realized in
connection with (a) any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions) or (b) the disposition of any
securities by such Person or any of its Subsidiaries or the extinguishment of
any Indebtedness of such Person or any of its Subsidiaries (including any
losses or charges resulting from the redemption or repurchase of the Existing
Notes and the extinguishment of Indebtedness under that certain


 


11

















 


credit agreement dated as of March 23, 1998 by and among the Company,
Bank of America, N.A. and the other lenders named therein) and (ii) any
extraordinary or nonrecurring gain or loss, together with any related provision
for taxes on such extraordinary or nonrecurring gain or loss.


 


“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) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), 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.


 


“NEW CREDIT FACILITY” means that certain credit agreement, dated as of
the date hereof, by and among the Company and Bank of America, N.A., as
administrative agent and the lenders parties thereto, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced, extended, restated or refinanced from time to time, whether by the
same or any other agent, lender or group of lenders; provided that the
total amount of Indebtedness is not thereby increased beyond the amount that
may then be incurred at such time pursuant to Section 4.4.


 


“NON-RECOURSE DEBT” means Indebtedness (i) 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), as reflected in the express terms of the instrument governing
such Indebtedness, or (c) constitutes the lender; and (ii) no default with
respect to which (including any rights that the holders thereof may have to
take enforcement action against an Unrestricted Subsidiary) would permit (upon notice,
lapse of time or both) any holder of any Indebtedness (other than the
Securities being offered hereby) 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.


 


“NON-U.S. PERSON” means a person who is not a U.S. Person.


 


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


 


“OFFICER” means with respect to the Company, the Chairman, any Vice
Chairman, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Secretary or any director or manager
or similar position of the Company.


 


12

















 


“OFFICERS’ CERTIFICATE” means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of the Company
complying with Sections 11.4 and 11.5, to the extent applicable.


 


“OPINION OF COUNSEL” means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. 
The counsel may be an employee of or counsel to the Company or the
Trustee.


 


“OUTSTANDING PREFERRED STOCK” means the shares of the Company’s 91⁄4%
Series A Cumulative Preferred Stock and 91⁄4% Series B Cumulative Preferred Stock
issued and outstanding on the Issue Date.


 


“PARTICIPANT” means, with respect to DTC, Euroclear or Clearstream, a
Person who has an account with DTC, Euroclear or Clearstream, respectively
(and, with respect to DTC, shall include Euroclear and Clearstream).


 


“PERMITTED BUSINESS” means the gaming business and other businesses
necessary for, incident to, connected with or arising out of the gaming
business (including developing and operating lodging, dining and nightclub
facilities, sports or entertainment facilities, transportation services, retail
operations and other related activities or enterprises and any additions or improvements
thereto) or any business that is reasonably similar thereto or a reasonable
extension, development or expansion thereof or ancillary thereto, in each case
without regard to the geographic location of such business.


 


“PERMITTED HOLDERS” means Peter A. Morton and any of his Related
Parties.


 


“PERMITTED INVESTMENT” means


 


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


 


(b)                                 any
Investment in Cash Equivalents;


 


(c)                                  any
Investment by the Company or any Restricted Subsidiary in a Person, if as a
result of such Investment (i) such Person becomes a Restricted Subsidiary or
(ii) 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;


 


(d)                                 any Investment made as a result of the receipt
of non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.5;


 


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


 


(f)                                    any
Investment existing on the Issue Date;


 


(g)                                 any
Investment acquired by the Company or any of its Restricted Subsidiaries (A) in
exchange for any other Investment or accounts receivable held by the


 


13

















 


Company or any such Restricted Subsidiary in connection with or as a
result of a bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable or (B) as a result of
the transfer of title with respect to any secured investment in default as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries
with respect to such secured Investment;


 


(h)                                 Hedging
Obligations permitted under Section 4.4;


 


(i)                                     loans
and advances to officers, directors and employees for business-related travel
expenses, moving expenses and other similar expenses, in each case, incurred in
the ordinary course of business;


 


(j)                                     other
loans and advances to officers, directors and employees in an aggregate amount
not to exceed $250,000 outstanding at any time;


 


(k)                                  any
guarantees permitted to be made pursuant to Section 4.4;


 


(l)                                     credit
extensions to gaming customers in connection with their gambling activities at
facilities of the Company or its Subsidiaries;


 


(m)                               Investments
constituting (i) accounts receivables arising, (ii) trade debt granted or (iii)
deposits made in connection with the purchase price of goods or services, in
each case in the ordinary course of business; and


 


(n)                                 other
Investments in any Person primarily engaged in a Permitted Business 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 (n) that are at the
time outstanding, not to exceed $10.0 million.


 


“PERMITTED LIENS” means


 


(i)                                     Liens
on assets of the Company and any Guarantor created (a) by this Indenture and
the Collateral Documents securing the Securities and, to the extent that
Additional Notes are issued in respect of FF&E Financing permitted by
clause (iv) of Section 4.4(b) or to refinance amounts outstanding under the New
Credit Facility, such Additional Notes and the Subsidiary Guarantees or (b) by
the New Credit Facility;


 


(ii)                                  Liens
in favor of the Company;


 


(iii)                               Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any 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;


 


14

















 


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


 


(v)                                 Liens
to secure the performance of statutory or regulatory obligations, leases,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;


 


(vi)                              Liens
to secure FF&E Financing permitted by Section 4.4(b)(iv) covering only the
assets acquired with such Indebtedness;


 


(vii)                           Liens
existing on the date hereof;


 


(viii)                        Liens
securing Hedging Obligations with respect to Indebtedness incurred under the
New Credit Facility, provided that the counterparties with respect to
such Hedging Obligations are the lenders under the New Credit Facility;


 


(ix)                                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 shall be required in conformity with GAAP
shall have been made therefor;


 


(x)                                   Liens
incurred in the ordinary course of business of the Company or any Subsidiary of
the Company with respect to obligations that do not exceed $5.0 million at any
one time outstanding and that (A) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit (other than trade
credit in the ordinary course of business) and (B) do not in the aggregate
materially detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or such Subsidiary, each as
determined by the Board of Directors in good faith;


 


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


 


(xii)                             Liens
of carriers, warehousemen, mechanics, landlords, materialmen, repairmen and for
crew wages or salvage or other like Liens arising by operation of law in the
ordinary course of business and consistent with industry practices and Liens on
deposits made to obtain the release of such Liens if (A) the underlying
obligations are not overdue for a period of more than 60 days or (B) such Liens
are being contested in good faith and by appropriate proceedings by the Company
or its Subsidiary and adequate reserves with respect thereto are maintained on
the books of the Company or such Subsidiary, as the case may be, in accordance
with GAAP;


 


(xiii)                          easements,
rights-of-way, zoning and similar restrictions and other similar encumbrances
or title defects incurred or imposed, as applicable, in the ordinary course of
business and consistent with industry practices which, in the aggregate, are
not substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto (as such property is used by the
Company or its Subsidiary) or interfere with the ordinary conduct of the
business of the Company or such Subsidiary; provided, however,
that any such


 


15

















 


Liens are not incurred in connection with any borrowing of money or any
commitment to loan any money or to extend any credit;


 


(xiv)                         customary
Liens (other than any Lien imposed by ERISA) incurred or deposits made in the
ordinary course of business in connection with worker’s compensation,
unemployment insurance and other types of social security legislation;


 


(xv)                            Liens
arising by operation of law in connection with judgments, only to the extent,
for an amount and for a period not resulting in an Event of Default with
respect thereto;


 


(xvi)                         leases
or subleases granted to other Persons in the ordinary course of business not
materially interfering with the conduct of the business of the Company or any
of its Subsidiaries or materially detracting from the value of the relative
assets of the Company or any Subsidiary;


 


(xvii)                      Liens
arising from precautionary Uniform Commercial Code financing statement filings
regarding operating leases entered into by the Company or any of its
Subsidiaries in the ordinary course of business;


 


(xviii)                   a
Lien on the funds or securities deposited with the Trustee relating to the
Securities for the purpose of defeasing or redeeming the Securities on or prior
to the Maturity Date to the extent permitted or required by this Indenture; and


 


(xix)                           Liens
arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of setoff or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution.


 


“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 Indebtedness of the Company or any of its Restricted Subsidiaries; provided
that: (i) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount of (or
accreted value, if applicable), plus accrued interest on, the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses incurred in connection therewith including premiums paid,
if any, to the holders thereof); (ii) such Permitted Refinancing Indebtedness
has a final maturity date at 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; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Securities, 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 Securities on terms at least as favorable to the Holders of Securities
as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv) such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.


 


16

















 


“PERSON” means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.


 


“PRIVATE PLACEMENT LEGEND” means the legend set forth in Section
2.6(g)(i) to be placed on all Securities issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.


 


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


 


“QUALIFIED SECURITIES” means the Outstanding Preferred Stock and,
following the issuance of the Qualified Subordinated Notes in exchange for all
issued and outstanding shares of Outstanding Preferred Stock, the Qualified
Subordinated Notes.


 


“QUALIFIED SUBORDINATED NOTES” means the Company’s Junior Subordinated
Notes due 2014.


 


“REDEMPTION DATE” when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.


 


“REDEMPTION PRICE” when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as set forth in the form of Security annexed as Exhibit A or B.


 


“REGISTRATION RIGHTS AGREEMENT” means the Registration Rights Agreement
dated the date hereof between the Company and Banc of America Securities LLC,
as representative of the Initial Purchasers referred to therein, as the same
may be amended or supplemented from time to time.


 


“REGULATION S” means Regulation S promulgated under the Securities Act
(including any successor regulation thereto) as in effect on the date hereof.


 


“REGULATION S GLOBAL SECURITY” means a Regulation S Temporary Global
Security or Regulation S Permanent Global Security, as appropriate.


 


“REGULATION S PERMANENT GLOBAL SECURITY” means a permanent global
Security in the form of Exhibit A hereto bearing the Global Security Legend and
the Private Placement Legend and deposited with or on behalf of and registered
in the name of the Depositary or its nominee, issued in a denomination equal to
the outstanding principal amount of the Regulation S Temporary Global Security
upon expiration of the Restricted Period.


 


“REGULATION S TEMPORARY GLOBAL SECURITY” means a temporary global
Security in the form of Exhibit B hereto bearing the Global Security Legend,
the Private Placement Legend and the legend set forth in Section 2.6(g)(iii)
hereto, and deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the Securities initially sold in reliance on Rule 903 of Regulation
S.


 


17

















 


“RESPONSIBLE OFFICER” means any officer within the corporate trust
department (or any successor group) of the Trustee including any vice
president, assistant vice president, senior trust officer, trust officer,
assistant secretary or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at that time
shall be such officers, and also means, with respect to a particular corporate
trust matter, any other officer to whom such trust matter is referred because
of his knowledge of and familiarity with the particular subject.


 


“RESTRICTED BROKER-DEALER” has the meaning set forth in the
Registration Rights Agreement.


 


“RESTRICTED DEFINITIVE SECURITY” means a Definitive Security bearing
the Private Placement Legend.


 


“RESTRICTED GLOBAL SECURITY” means a Global Security bearing the
Private Placement Legend.


 


“RESTRICTED INVESTMENT” means an Investment other than a Permitted
Investment.


 


“RESTRICTED PERIOD” means the 40-day restricted period as defined in
Regulation S.


 


“RESTRICTED SUBSIDIARY” of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.


 


“RULE 144” means Rule 144 promulgated under the Securities Act, as it
may be amended from time to time, and any successor provision thereto.


 


“RULE 144A” means Rule 144A promulgated under the Securities Act, as it
may be amended from time to time, and any successor provision thereto.


 


“S&P” means Standard & Poor’s Corporation and its successors.


 


“SEC” or “COMMISSION” means the Securities and Exchange Commission.


 


“SECURITIES” has the meaning assigned to it in the preamble to this
Indenture.


 


“SECURITIES ACT” means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.


 


“SECURITY CUSTODIAN” means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.


 


“SHELF REGISTRATION STATEMENT” shall have the meaning set forth in the
Registration Rights Agreement.


 


18

















 


“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 date hereof.


 


“STATED MATURITY” means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such 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.


 


“SUBORDINATED INDEBTEDNESS” means all Indebtedness of the Company that
is contractually subordinated in right of payment to the Securities.


 


“SUBORDINATION AGREEMENTS” means the Subordination Agreements dated as
of the date hereof between the Company and Peter A. Morton, relating to the
subordination of the fees payable under the Supervisory Agreement.


 


“SUBSIDIARY” means, with respect to any Person, (i) 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 thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person (or a combination thereof) and (ii) 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 such Person or of one or more Subsidiaries of such Person
(or any combination thereof).


 


“SUPERVISORY AGREEMENT” means the Amended and Restated Supervisory
Agreement dated as of October 21, 1997 between the Company and Peter A. Morton
providing for the payment by the Company of a management fee to Peter A. Morton
in connection with the rendering of management services to or on behalf of the
Company, which obligation of the Company to pay such management fee will be
subordinated to the prior payment in full of all obligations with respect to
the Securities pursuant to the Subordination Agreement, and which obligation is
otherwise in lieu of the payment of any other compensation to Peter A. Morton
in respect of services rendered to the Company.


 


“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.3.


 


“TRUSTEE” means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.


 


“UNRESTRICTED DEFINITIVE SECURITY” means one or more Definitive
Securities that do not bear and are not required to bear the Private Placement
Legend.


 


“UNRESTRICTED GLOBAL SECURITY” means a permanent Global Security in the
form of Exhibit A attached hereto that bears the Global Security Legend and
that has the


 


19

















 


“Schedule of Exchanges of Interests in the Global Security” attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, but does not bear the Private Placement Legend.


 


“UNRESTRICTED SUBSIDIARY” means (i) any Subsidiary that is designated
by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no Indebtedness
other than Non-Recourse Debt; (b) 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 than those that might be obtained at the time from Persons who are
not Affiliates of the Company; (c) is a Person with respect to which neither
the Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to maintain
or preserve such Person’s financial condition or to cause such Person to
achieve any specified levels of operating results; and (d) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness
of the Company or any of its Restricted Subsidiaries. Any such designation by
the Board of Directors 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 foregoing conditions and was permitted by Section 4.6.  If, at any time, any Unrestricted Subsidiary
would fail to meet the foregoing conditions 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
4.4, the Company shall be in default of such covenant). The Board of Directors
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 (i) such Indebtedness is permitted under Section 4.4
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period, and (ii) no Default or Event of
Default would be in existence following such designation.


 


“U.S. GOVERNMENT OBLIGATIONS” means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of
which the full faith and credit of the United States of America is pledged.


 


“U.S. LEGAL TENDER” means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.


 


“U.S. PERSON” means (i) any individual resident in the United States,
(ii) any partnership or corporation organized or incorporated under the laws of
the United States, (iii) any estate of which an executor or administrator is a
U.S. Person (other than an estate governed by foreign law and of which at least
one executor or administrator is a Non-U.S. Person who has sole or shared investment which at least
one executor or administrator is a Non-U.S. Person who has sole or shared
investment discretion with respect to its assets), (iv) any trust of which any


 


20

















 


trustee
is a U.S. Person (other than a trust of which at least one trustee is a
Non-U.S. Person who has sole or shared investment discretion with respect to
its assets and no beneficiary of the trust (and no settler, if the trust is
revocable) is a U.S. Person), (v) any agency or branch of a foreign entity
located in the United States, (vi) any non-discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person, (vii) any discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States (other than
such an account held for the benefit or account of a Non-U.S. Person), (viii)
any partnership or corporation organized or incorporated under the laws of a
foreign jurisdiction and formed by a U.S. Person principally for the purpose of
investing in securities not registered under the Securities Act (unless it is
organized or incorporated and owned, by “accredited investors” within the
meaning of Rule 501(a) under the Securities Act who are not natural persons,
estates or trusts); provided, however, that the term “U.S. Person” shall not
include (A) a branch or agency of a U.S. Person that is located and operating
outside the United States for valid business purposes as a locally regulated
branch or agency engaged in the banking or insurance business, (B) any employee
benefit plan established and administered in accordance with the law, customary
practices and documentation of a foreign country and (C) the international
organizations set forth in Section 902(k)(vi) of Regulation S and any other
similar international organizations, and their agencies, affiliates and pension
plans.


 


“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 (i) 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
thereof, 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 (ii) the
then outstanding principal amount of such Indebtedness.


 


“WHOLLY OWNED RESTRICTED SUBSIDIARY” of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors’ qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.


 


“WHOLLY OWNED SUBSIDIARY” of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors’ qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person.


 


21

















 


Section 1.2                                      OTHER
DEFINITIONS.


 




	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Additional Collateral
  Documents”

  	
   

  	
  10.1(b)

  
	
  “Affiliate Transaction”

  	
   

  	
  4.3(a)

  
	
  “After-Acquired
  Property”

  	
   

  	
  10.1(b)

  
	
  “Asset Sale Offer”

  	
   

  	
  4.5

  
	
  “Change of Control Offer”

  	
   

  	
  4.14(a)

  
	
  “Change of Control Payment”

  	
   

  	
  4.14(a)

  
	
  “Change of Control Payment
  Date”

  	
   

  	
  4.14(a)

  
	
  “Covenant Defeasance”

  	
   

  	
  8.1

  
	
  “DTC”

  	
   

  	
  2.3

  
	
  “Event of Default”

  	
   

  	
  6.1

  
	
  “Excess Proceeds”

  	
   

  	
  4.5

  
	
  “incur”

  	
   

  	
  4.4

  
	
  “Legal Defeasance”

  	
   

  	
  8.1

  
	
  “Offer Amount”

  	
   

  	
  4.5

  
	
  “Offer Period”

  	
   

  	
  4.5

  
	
  “Paying Agent”

  	
   

  	
  2.3

  
	
  “Payment Default”

  	
   

  	
  6.1

  
	
  “Permitted Debt”

  	
   

  	
  4.4

  
	
  “Purchase Date”

  	
   

  	
  4.5

  
	
  “Reference Period”

  	
   

  	
  4.6(a)(iii)

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
  “Released Interests”

  	
   

  	
  10.5(b)

  
	
  “Restricted Payments”

  	
   

  	
  4.6

  
	
  “Valuation Date”

  	
   

  	
  10.5(b)(i)

  






 


Section 1.3                                      INCORPORATION
BY REFERENCE OF TRUST INDENTURE ACT.


 


Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:


 


“INDENTURE SECURITIES” means the Securities.


 


“INDENTURE SECURITY HOLDER” means a Holder.


 


“INDENTURE TO BE QUALIFIED” means this Indenture.


 


“INDENTURE TRUSTEE” or “INSTITUTIONAL TRUSTEE” means the Trustee.


 


“OBLIGOR” on the indenture securities means the Company or any other
obligor on the Securities.


 


All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.


 


22

















 


Section 1.4                                      RULES
OF CONSTRUCTION.


 


Unless the context otherwise requires:


 


(1)               term has the meaning assigned to it;


 


(2)               an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP in effect on the date hereof;


 


(3)               “or” is not exclusive;


 


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


 


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


 


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


 


ARTICLE II


THE SECURITIES


 


Section 2.1                                      FORM
AND DATING.


 


The Securities and the Trustee’s certificate of authentication shall be
substantially in the form set forth in Exhibit A or Exhibit B hereto.  The Securities may have notations, legends
or endorsements required by law (including, without limitation, Gaming Law),
stock exchange rules, agreements to which the Company is subject, or usage, as
designated by the Company.  Each
Security shall be dated the date of its authentication.  The Securities shall be in denominations of
$1,000 and integral multiples thereof.


 


The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture expressly agree to
such terms and provisions and to be bound thereby.  However, to the extent any provision of any Security conflicts
with the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.


 


Securities issued in global form shall be substantially in the form set
forth in Exhibit A or B attached hereto (including the Global Security Legend
and the “Schedule of Exchanges in the Global Security” attached thereto).
Securities issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Security Legend and without
the “Schedule of Exchanges of Interests in the Global Security” attached
thereto).  Each Global Security shall
represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of outstanding Securities from time to time
endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global


 


23

















 


Security
to reflect the amount of any increase or decrease in the aggregate principal
amount of outstanding Securities represented thereby shall be made by the
Trustee or the Security Custodian, at the direction of the Trustee, in accordance
with instructions given by the Holder thereof as required by Section 2.6
hereof. Securities offered and sold to QIBs shall be issued initially in the
form of one or more Global Securities, which shall be deposited with the
Trustee, as custodian for DTC, in New York, New York, and registered in the
name of DTC or its nominee, in each case for credit to the accounts of DTC’s
participants.


 


Securities offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Security, which
shall be deposited on behalf of the purchasers of the Securities 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.  Within a
reasonable time after expiration of the Restricted Period the Regulation S
Temporary Global Securities will be exchanged for the Regulation S Permanent
Global Securities upon the receipt by the Trustee of (i) a written certificate
from the Depositary, together with copies of certificates from Euroclear and Clearstream
certifying that they have received certification of non-United States
beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Security (except to the extent of any beneficial
owners thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities Act and
who will take delivery of a beneficial ownership interest in a 144A Global
Security or a Restricted Global Security bearing a Private Placement Legend,
all as contemplated by Section 2.6(a)(ii) hereof), and (ii) an Officers’
Certificate from the Company.  Following
such period, beneficial interests in the Regulation S Temporary Global Security
shall be exchanged for beneficial interests in Regulation S Permanent Global
Securities pursuant to the Applicable Procedures.  Simultaneously with the authentication of Regulation S Permanent
Global Securities, the Trustee shall cancel the Regulation S Temporary Global
Security.  The aggregate principal
amount of the Regulation S Temporary Global Security and the Regulation S
Permanent Global Securities 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 interest as
hereinafter provided.


 


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 the Regulation S Temporary
Global Security and the Regulation S Permanent Global Security that are held by
the agent members through Euroclear or Clearstream.


 


Section 2.2                                      EXECUTION
AND AUTHENTICATION.


 


One Officer of the Company shall sign the Securities for the Company by
manual or facsimile signature, which signature shall be attested to by any
other person.  Such signatures and
attestation may be in counterparts, all of which taken together shall
constitute one and the same instrument.


 


24

















 


If an Officer whose signature is on a Security no longer holds that
office at the time such Security is authenticated, the Security shall
nevertheless be valid.


 


A Security shall not be valid until authenticated by the manual
signature of the Trustee.  The signature
shall be conclusive evidence that the Security has been authenticated under
this Indenture.


 


The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate the Initial Securities for original issue up to
$200,000,000 in aggregate principal amount and shall authenticate the Exchange
Securities for original issue up to $200,000,000; provided that the
Exchange Securities shall be issuable only upon the valid surrender for
cancellation of Initial Securities of a like aggregate principal amount.  The aggregate principal amount of Securities
outstanding at any time may not exceed $200,000,000 except as provided in
Section 2.7 hereof.


 


The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities.  An
authenticating agent may authenticate Securities whenever the Trustee may do
so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights
as an Agent to deal with Holders or an Affiliate of the Company.


 


Securities shall be issuable only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof.


 


Section 2.3                                      REGISTRAR
AND PAYING AGENT.


 


The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (“REGISTRAR”) and an
office or agency where Securities are to be presented for payment (“PAYING
AGENT”).  The Registrar shall keep a
register of the Securities 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 may act
as Paying Agent or Registrar.


 


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


 


The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Security Custodian with respect to the Global
Securities, and by its signature hereto, the Trustee agrees to so act.


 


The Trustee is authorized to enter into a letter of representations
with DTC in the form provided to the Trustee by the Company and to act in
accordance with such letter.


 


25

















 


Section 2.4                                      AGENT
TO HOLD MONEY IN TRUST.


 


The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, Liquidated Damages, if any, or interest on the
Securities, and will notify the Trustee of any default by the Company in making
any such payment.  While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee.  The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company) shall have no further
liability for the money.  If the Company
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent
for the Securities.


 


Section 2.5                                      HOLDER
LISTS.


 


The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a).  If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least three Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Securities and the Company
shall otherwise comply with TIA Section 312(a).


 


Section 2.6                                      TRANSFER
AND EXCHANGE.


 


(a)                                  TRANSFER
AND EXCHANGE OF GLOBAL SECURITIES.  A
Global Security 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 any such nominee to a successor
Depositary or a nominee of such successor Depositary.  All Global Securities will be exchanged by the Company for
Definitive Securities if (i) the Company delivers to the Trustee notice from
the Depositary that it is unwilling or unable to continue to act as Depositary
or that it is no longer a clearing agency registered under the Exchange Act
and, in either case, a successor Depositary is not appointed by the Company
within 90 days after the date of such notice from the Depositary, (ii)  the Company in its sole discretion
determines that the Global Securities (in whole but not in part) should be
exchanged for Definitive Securities and delivers a written notice to such
effect to the Trustee or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Securities and the Trustee has received a
request from the Depository to issue Definitive Securities; provided
that in no event shall the Regulation S Temporary Global Security be exchanged
by the Company for Definitive Securities prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
determined by the Company to be required pursuant to Rule 903 under the
Securities Act.  Upon the occurrence of
either of the preceding events in (i) or (ii) above, the Company will notify
the Trustee in writing that Definitive Securities shall be issued in such names as the Depositary and the
participants shall instruct the Trustee. Global Securities also may be exchanged
or replaced, in whole or in part, as provided in Sections 2.7 and 2.11


 


26

















 


hereof.
Every Security authenticated and delivered in exchange for, or in lieu of, a
Global Security or any portion thereof, pursuant to Section 2.7 or 2.11 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Security. A Global Security may not be exchanged for another Security other
than as provided in this Section 2.6(a), however, beneficial interests in a
Global Security may be transferred and exchanged as provided in Section 2.6(b),
(c) or (f) hereof.


 


(b)                                 TRANSFER
AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL SECURITIES.  The transfer and exchange of beneficial
interests in the Global Securities shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable
Procedures.  Beneficial interests in the
Restricted Global Securities 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 the Global Securities also shall require compliance with either subparagraph
(i) or (ii) below, as applicable, as well as subparagraph (iii) or (iv), as
applicable:


 


(i)                                     TRANSFER
OF BENEFICIAL INTERESTS IN THE SAME GLOBAL SECURITY.  Beneficial interests in any Restricted Global Security may be
transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted Global
Security in accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however, that prior to the expiration of the Restricted Period transfers of
beneficial interests in the Regulation S Temporary Global Security may not be
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser).  Beneficial
interests in any Unrestricted Global Security may be transferred only to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security.  No
written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.6(b)(i).


 


(ii)                                  ALL OTHER TRANSFERS
AND EXCHANGES OF BENEFICIAL INTERESTS IN GLOBAL SECURITIES.  In connection with all transfers and
exchanges of beneficial interests (other than a transfer of a beneficial
interest in a Global Security to a Person who takes delivery thereof in the form
of a beneficial interest in the same Global Security), the transferor of such
beneficial interest must deliver to the Registrar either (1)(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 credit or
cause to be credited a beneficial interest in another Global Security in an
amount equal to the beneficial interest to be transferred or exchanged and (B)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (2)(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 Security in an amount equal to
the beneficial interest to be transferred or exchanged and (B) instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Security shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no event
shall Definitive Securities be issued upon the transfer or exchange of


 


27

















 


beneficial interests in the Regulation S Temporary Global Security
prior to (x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates determined by the Company to be required pursuant
to Rule 903 under the Securities Act; provided, further, that in
no event shall an Indirect Participant who holds a beneficial interest in the
Regulation S Temporary Global Security transfer or exchange such interest to a
U.S. Person who takes delivery in the form of an interest in U.S. Global
Securities prior to the satisfaction of clauses (x) and (y) in the immediately
preceding proviso. Upon an Exchange Offer by the Company in accordance with
Section 2.6(f) hereof, the requirements of this Section 2.6(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 Securities.  Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Securities contained
in this Indenture, the Securities and otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant Global
Security or Securities pursuant to Section 2.6(h) hereof.


 


(iii)                               TRANSFER OF BENEFICIAL
INTERESTS TO ANOTHER RESTRICTED GLOBAL SECURITY.  A beneficial interest in any Restricted Global Security may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted
Global Security if the transfer complies with the requirements of clause (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 Security,
then the transferor must deliver a certificate in the form of Exhibit C hereto,
including the certifications in item 1 thereof;


 


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


 


(C)                                if the transferee will
take delivery in the form of a beneficial interest in the Restricted Global
Security, then the transferor must deliver (x) a certificate in the form of
Exhibit C hereto, including the certifications required by item 3 thereof, if
applicable.


 


(iv)                              TRANSFER AND EXCHANGE OF
BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL SECURITY FOR BENEFICIAL INTERESTS
IN THE UNRESTRICTED GLOBAL SECURITY.  A beneficial interest in any Restricted
Global Security may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Security or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security if the exchange or transfer complies with the requirements of
clause (ii) above and:


 


(A)                              such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the
beneficial interest to be transferred, in the case of an exchange, or the
transferee, in


 


28

















 


the
case of a transfer, is not (1) a broker-dealer, (2) a Person participating in
the distribution of the Exchange Securities or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;


 


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


 


(C)                                any such transfer is
effected by a Restricted Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)                               the Registrar receives
the following:


 


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


 


(2)                                  if the holder of such
beneficial interest in a Restricted Global Security 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 Security, a certificate from
such holder in the form of Exhibit C hereto, including the certifications in
item 4 thereof; and


 


(3)                                  in each such case set
forth in this subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are not required in order
to maintain compliance with the Securities Act or any Gaming Law.


 


If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Security has not yet been issued,
the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.


 


Beneficial interests in an Unrestricted Global Security cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Security.


 


(c)                                  TRANSFER
OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE SECURITIES.


 


(i)                                     If any holder of a
beneficial interest in a Restricted Global Security proposes to exchange such
beneficial interest for a Definitive Security or to transfer such


 


29

















 


beneficial interest to a Person who takes delivery thereof in the form
of a Definitive Security, then, upon receipt by the Registrar of the following
documentation:


 


(A)                              if the holder of such
beneficial interest in a Restricted Global Security proposes to exchange such
beneficial interest for a Definitive Security, a certificate from such holder
in the form of Exhibit D 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 under the
Securities Act, a certificate to the effect set forth in Exhibit C 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
in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate
to the effect set forth in Exhibit C 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 C hereto,
including the certifications in item 3(a) thereof;


 


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


 


(F)                                 if
such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set forth in Exhibit C hereto, including
the certifications in item 3(c) thereof,


 


the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to Section 2.6(h)
hereof, and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Security in
the appropriate principal amount.  Any
Definitive Security issued in exchange for a beneficial interest in a Restricted
Global Security pursuant to this Section 2.6(c) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant.  The Trustee shall deliver
such Definitive Securities to the Persons in whose names such Securities are so
registered.  Any Definitive Security
issued in exchange for a beneficial interest in a Restricted Global Security
pursuant to this Section 2.6(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.


 


(ii)                                  Notwithstanding
Sections 2.6(c)(i)(A) and (C) hereof, a beneficial interest in the Regulation S
Temporary Global Security may not be (A) exchanged for a Definitive Security
prior to (x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates determined by the Company to be required pursuant
to Rule 903(c)(3)(B) under the Securities Act or (B) transferred to a Person
who takes


 


30

















 


delivery thereof in the form of a Definitive Security prior to the
conditions set forth in clause (A) above or unless the transfer is pursuant to
an exemption from the registration requirements of the Securities Act other
than Rule 903 or Rule 904.


 


(iii)                               Notwithstanding
2.6(c)(i) hereof, a holder of a beneficial interest in a Restricted Global
Security may exchange such beneficial interest for an Unrestricted Definitive
Security or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Security only if:


 


(A)                              such exchange or transfer
is effected pursuant to the Exchange Offer in accordance with the 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, is not (1) a
broker-dealer, (2)  a Person
participating in the distribution of the Exchange Securities or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;


 


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


 


(C)                                any such transfer is
effected by a Restricted Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)                               the Registrar receives
the following:


 


(1)                                  if the holder of such
beneficial interest in a Restricted Global Security proposes to exchange such
beneficial interest for a Definitive Security that does not bear the Private
Placement Legend, a certificate from such holder in the form of Exhibit D
hereto, including the certifications in item 1(b) thereof;


 


(2)                                  if the holder of such
beneficial interest in a Restricted Global Security proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
a Definitive Security that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item 4 thereof; and


 


(3)                                  in each such case set
forth in this subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Company, to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are not required in order
to maintain compliance with the Securities Act or any Gaming


 


(iv)                              If any holder of a
beneficial interest in an Unrestricted Global Security proposes to exchange
such beneficial interest for a Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Security, then, upon satisfaction of the conditions set forth in
Section 2.6(b)(ii)


 


31

















 


hereof, the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to Section 2.6(h)
hereof, and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Security in
the appropriate principal amount.  Any
Definitive Security issued in exchange for a beneficial interest pursuant to
this Section 2.6(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 instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. 
The Trustee shall deliver such Definitive Securities to the Persons in
whose names such Securities are so registered. 
Any Definitive Security issued in exchange for a beneficial interest pursuant
to this Section 2.6(c)(iv) shall not bear the Private Placement Legend.  A beneficial interest in an Unrestricted
Global Security cannot be exchanged for a Definitive Security bearing the
Private Placement Legend or transferred to a Person who takes delivery thereof
in the form of a Definitive Security bearing the Private Placement Legend.


 


(d)                                 TRANSFER
AND EXCHANGE OF DEFINITIVE SECURITIES FOR BENEFICIAL INTERESTS.


 


(i)                                     if any Holder of a
Restricted Definitive Security proposes to exchange such Security for a
beneficial interest in a Restricted Global Security or to transfer such
Definitive Securities to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Security, then, upon receipt by the
Registrar of the following documentation:


 


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


 


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


 


(C)                                if such Definitive
Security is being transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate
to the effect set forth in Exhibit C hereto, including the certifications in
item 2 thereof;


 


(D)                               if such Definitive
Security 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 C hereto,
including the certifications in item 3(a) thereof;


 


(E)                                 if such Definitive
Security is being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit C hereto, including the
certifications in item 3(b) thereof; or


 


32

















 


(F)                                 if such Definitive
Security is being transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item 3(c) thereof,


 


the Trustee shall cancel the Definitive Security, increase or cause to
be increased the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Security, in the case of clause (B)
above, the 144A Global Security, in the case of clause (C) above, the
Regulation S Global Security, and in all other cases, the Restricted Global
Security.


 


(ii)                                  A Holder of a
Restricted Definitive Security may exchange such Security for a beneficial
interest in an Unrestricted Global Security or transfer such Restricted
Definitive Security to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security only if:


 


(A)                              such exchange or transfer
is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange, or the transferee,
in the case of a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Securities or (3)  a Person who is an affiliate (as defined in
Rule 144) of the Company;


 


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


 


(C)                                any such transfer is
effected by a Restricted Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)                               the Registrar receives
the following:


 


(1)                                  if the Holder of such
Definitive Securities proposes to exchange such Securities for a beneficial
interest in the Unrestricted Global Security, a certificate from such Holder in
the form of Exhibit D hereto, including the certifications in Item 1(c)
thereof;


 


(2)                                  if the Holder of such
Definitive Securities proposes to transfer such Securities to a Person who
shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Security, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item 4 thereof, and


 


(3)                                  in each such case set
forth in this subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or transfer is in
compliance with the Securities Act, that the restrictions on transfer contained
herein and in the Private Placement Legend are not required in order to
maintain compliance with the Securities Act, and such Definitive Securities are
being exchanged or transferred in compliance with any applicable blue sky
securities laws of any State of the United States or any Gaming Law.


 


33

















 


Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.6(d)(ii), the Trustee shall cancel the Definitive Securities and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Security.


 


(iii)                               A Holder of an
Unrestricted Definitive Security may exchange such Security for a beneficial
interest in an Unrestricted Global Security or transfer such Definitive
Securities to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security at any time.  Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Security and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Securities.


 


If any such exchange or transfer from a Definitive Security to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above.


 


(e)                                  TRANSFER
AND EXCHANGE OF DEFINITIVE SECURITIES FOR DEFINITIVE SECURITIES.  Upon request by a Holder of Definitive
Securities and such Holder’s compliance with the provisions of this Section
2.6(e), the Registrar shall register the transfer or exchange of Definitive
Securities. Prior to such registration of transfer or exchange, the requesting
Holder shall present on surrender to the Registrar the Definitive Securities
duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney,
duly authorized in writing.  In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, pursuant to the provisions of this Section
2.6(e).


 


(i)                                     Restricted
Definitive Securities may be transferred to and registered in the name of
Persons who take delivery thereof if the Registrar
receives the following:


 


(A)                              if the transfer will be
made pursuant to Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit C hereto, including the
certifications in item 1 thereof;


 


(B)                                if the transfer will be
made pursuant to Rule 903 or Rule 904 under the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit C 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, then the transferor must deliver a certificate in the form of
Exhibit C hereto, including the certifications, required by item 3 thereof.


 


34

















 


(ii)                                  Any Restricted
Definitive Security may be exchanged by the Holder thereof for an Unrestricted
Definitive Security or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Definitive Security if:


 


(A)                              such exchange or transfer
is effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange, or the transferee,
in the case of a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Securities or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;


 


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


 


(C)                                any such transfer is
effected by a Restricted Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or


 


(D)                               the Registrar receives
the following:


 


(1)                                  if the Holder of such
Restricted Definitive Securities proposes to exchange such Securities for an
Unrestricted Definitive Security, a certificate from such Holder in the form of
Exhibit D hereto, including the certifications in item 1 (a) thereof,


 


(2)                                  if the Holder of such
Restricted Definitive Securities proposes to transfer such Securities to a
Person who shall take delivery thereof in the form of an Unrestricted Definitive
Security, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item 4 thereof, and


 


(3)                                  in each such case set
forth in this subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or transfer is in
compliance with the Securities Act, that the restrictions on transfer contained
herein and in the Private Placement Legend are not required in order to
maintain compliance with the Securities Act, and such Restricted Definitive
Security is being exchanged or transferred in compliance with any applicable
blue sky securities laws of any State of the United States or any Gaming Law.


 


(iii)                               A Holder of Unrestricted
Definitive Securities may transfer such Securities to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Security.  Upon receipt of a request for such a
transfer, the Registrar shall register the Unrestricted Definitive Securities
pursuant to the instructions from the Holder thereof.  Unrestricted Definitive
Securities cannot be exchanged for or transferred to Persons who take delivery
thereof in the form of a Restricted Definitive Security.


 


(f)                                    EXCHANGE
OFFER.  Upon the occurrence of the
Exchange Offer in accordance with the Registration Rights Agreement, the
Company shall issue and, upon receipt


 


35

















 


of an authentication order in accordance with Section 2.2 and an
Officers’ Certificate, the Trustee shall authenticate (i) one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global
Securities tendered for acceptance by persons that are not (x) broker-dealers,
(y) Persons participating in the distribution of the Exchange Securities or (z)
Persons who are affiliates (as defined in Rule 144) of the Company and accepted
for exchange in the Exchange Offer and (ii) Definitive Securities in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Securities tendered for acceptance by persons that are not (x)
broker-dealers, (y) persons participating in the distribution of the Exchange
Securities or (z) Persons who are affiliates (as defined in Rule 144) of the
Company and accepted for exchange in the Exchange Offer. Concurrent with the
issuance of such Securities, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Securities to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Definitive Securities
so accepted Definitive Securities in the appropriate principal amount.


 


Concurrent with the issuance of the Exchange Securities in the Exchange
Offer, the Company shall deliver an Opinion of Counsel to the Trustee to the
effect that the Exchange Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of this Indenture
and delivered in exchange for Initial Securities in accordance with this
Indenture and the Exchange Offer, will be entitled to the benefits of this
Indenture and will be valid and binding obligations of the Company, enforceable
in accordance with their terms except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.


 


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


 


(i)                                     PRIVATE PLACEMENT
LEGEND.


 


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


 


“THE SECURITY (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY  EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) IT IS A
“QUALIFIED


 


36

















 


INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
OR (B) IT IS NOT A U.S. PERSON AND IS NOT ACQUIRING THIS SECURITY FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.”


 


(B)                                Notwithstanding the
foregoing, any Global Security or Definitive Security issued pursuant to
subparagraphs (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii)
or (f) to this Section 2.6 (and all Securities issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.


 


(ii)                                  GLOBAL SECURITY
LEGEND.  Each Global Security shall bear
a legend in substantially the following
form:


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A SECURITY IN
DEFINITIVE FORM, THIS SECURITY 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 CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED
BY AN 


 


37

















 


AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR 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 SECURITY LEGEND. The Regulation S Temporary Global Security shall bear a
legend in substantially the following form:


 


“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).  NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS
OF THIS REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON.”


 


(h)                                 CANCELLATION
AND/OR ADJUSTMENT OF GLOBAL SECURITIES. 
At such time as all beneficial interests in a particular Global Security
have been exchanged for Definitive Securities or a particular Global Security
has been redeemed, repurchased or cancelled in whole and not in part, each such
Global Security 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 Security is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global
Security or for Definitive Securities, the principal amount of Securities
represented by such Global Security shall be reduced accordingly and an
endorsement shall be made on such Global Security, 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 Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security, 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)                                     To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Securities and Definitive Securities upon the Company’s order or at the Registrar’s
request.


 


(ii)                                  No service charge
shall be made to a holder of a beneficial interest in a Global Security or to a
Holder of a Definitive Security for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than


 


38

















 


any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.6, 4.5, 4.14 and 9.5 hereof).


 


(iii)                               The Registrar shall not
be required (A) to register the transfer of or to exchange Securities during a
period beginning at the opening of business 15 days before the day of mailing
of notice of redemption and ending at the close of business on the day of such
mailing, (B) to register the transfer of or to exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part or (C) to register the transfer of or to
exchange a Security between a record date and the next succeeding Interest
Payment Date.


 


(iv)                              All Global Securities and
Definitive Securities issued upon any registration of transfer or exchange of
Global Securities or Definitive Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Securities or Definitive Securities surrendered
upon such registration of transfer or exchange.


 


(v)                                 The Company shall not
be required (1) to issue, to register the transfer of or to exchange Securities
during a period beginning at the opening of business 15 days before the day of
mailing of notice of redemption and ending at the close of business on the day
of such mailing, (2) to register the transfer of or to exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part or (C) to register the transfer of or to
exchange a Security between a record date and the next succeeding Interest
Payment Date.


 


(vi)                              Prior to due presentment
for the registration of a transfer of any Security, the Trustee, any Agent and
the Company may deem and treat the Person in whose name any Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of, premium, if any, Liquidated Damages, if any, and
interest on such Securities and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the contrary.


 


(vii)                           The Trustee shall
authenticate Global Securities and Definitive Securities in accordance with the
provisions of Section 2.2 hereof.


 


(viii)                        All certifications,
certificates and Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.6 to effect a transfer or exchange may be submitted
by facsimile, provided original copies are promptly sent to the Registrar.


 


(ix)                                Each Holder of a
Security agrees to indemnify the Company and the Trustee against any liability
that may result from the transfer, exchange or assignment of such Holder’s
Security in violation of any provision of this Indenture and/or applicable
United States federal or state securities law.


 


(x)                                   The Trustee shall
have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Security


 


39

















 


(including any transfers between or among Depositary participants or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.


 


Section 2.7                                      REPLACEMENT
SECURITIES.


 


If any mutilated Security is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Security, the Company shall issue and the Trustee, upon the
written order of the Company signed by two Officers of the Company, shall
authenticate a replacement Security if the Trustee’s requirements are met.  An indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Security is replaced.  The Company may charge for its expenses in
replacing a Security.


 


Every replacement Security is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.


 


Section 2.8                                      OUTSTANDING
SECURITIES.


 


The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. 
Except as set forth in Section 2.9 hereof, a Security does not cease to
be outstanding because the Company or an Affiliate of the Company holds such
Security.


 


If a Security is replaced pursuant to Section 2.7 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.


 


If the principal amount of any Security is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.


 


If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate, of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay all of the principal, Liquidated Damages, if any, and
interest and premium, if any, due on the Securities payable on that date, then
on and after that date such Securities shall be deemed to be no longer outstanding
and shall cease to accrue interest.


 


Section 2.9                                      TREASURY
SECURITIES.


 


In determining whether the Holders of the required aggregate principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Person directly or indirectly
controlling or controlled by or under direct or indirect


 


40

















 


common control with 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
Securities that a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded.


 


Section 2.10                                TEMPORARY
SECURITIES.


 


Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a written
order of the Company signed by two Officers of the Company.  Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities and as shall be reasonably
acceptable to the Trustee.  Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.


 


Holders of temporary Securities shall be entitled to all of the
benefits of this Indenture.


 


Section 2.11                                CANCELLATION.


 


The Company at any time may deliver Securities to the Trustee for
cancellation.  The Registrar and Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. 
The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Securities (subject to the record retention
requirements of the Exchange Act). 
Certification of the destruction of all Securities shall be delivered to
the Company. Subject to Section 2.7 hereof, the Company may not issue new
Securities to replace Securities that it has paid or that have been delivered
to the Trustee for cancellation.


 


Section 2.12                                DEFAULTED
INTEREST.


 


If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful under applicable law, 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 Securities and in Section 4.1 hereof.  Such defaulted interest, and the interest
thereon, may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below.


 


(i)                                     The
Company shall notify the Trustee in writing of the amount of defaulted
interest, plus interest payable thereon, proposed to be paid on each Security and the date of the proposed
payment.  The Company shall fix or cause
to be fixed each such special record date and payment date, provided
that no such special record date shall be less than 10 days prior to the
related payment date for such defaulted interest.  At least 15 days before the special record date, the Company (or,
upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall mail or cause to be mailed to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid, and, at the same time, the Company shall deposit with
the Trustee an amount of U.S. Legal Tender equal to the


 


41

















 


aggregate
amount proposed to be paid in respect of such defaulted interest and shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment.  Such U.S. Legal
Tender shall be held in trust for the benefit of the Persons entitled to such
defaulted interest; or


 


(ii)                                  The Company may make
payment on any defaulted interest and on the interest thereon in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner shall be deemed
practicable by the Trustee.


 


Section 2.13                                CUSIP
NUMBERS.


 


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


 


Section 2.14                                RECORD
DATE.


 


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


 


ARTICLE III


REDEMPTION


 


Section 3.1                                      NOTICE
TO TRUSTEE.


 


If the Company elects to redeem Securities pursuant to paragraph 5 or 6
of the Securities at the applicable redemption price set forth therein, it
shall notify the
Trustee and the Paying Agent in writing of the redemption date and the
principal amount of Securities to be redeemed.


 


The Company shall give the notice provided for in this Section 3.1 at
least 45 days before the redemption date (unless a shorter notice shall be
agreed to by the Trustee in writing), together with an Officers’ Certificate
stating that such redemption will comply with the conditions contained herein.


 


Section 3.2                                      SELECTION
OF SECURITIES TO BE REDEEMED.


 


If less than all of the Securities are to be redeemed at any time,
selection of Securities for redemption will be made by the Trustee in
compliance with the requirements of the


 


42

















 


principal national securities exchange, if any, on which the Securities
are listed, or, if the Securities are not so listed, on a pro rata basis, by lot or by such method
as the Trustee shall deem fair and appropriate; provided that no
Securities of a principal amount of $1,000 or less shall be redeemed in part.


 


Section 3.3                                      NOTICE
OF REDEMPTION.


 


Subject to Section 11.2 hereof, at least 30 days but not more than 60
days before a redemption date, the Company shall mail or cause to be mailed, by
first-class mail a notice of redemption to each Holder whose Securities are to
be redeemed at its registered address.


 


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


 


(1)                                  the redemption date;


 


(2)                                  the redemption price;


 


(3)                                  the CUSIP or CINS
number, if any;


 


(4)                                  the name and address
of the Paying Agent to which the Securities are to be surrendered for
redemption;


 


(5)                                  that Securities
called for redemption must be surrendered to the Paying Agent to collect the
redemption price and accrued interest, if any;


 


(6)                                  that, unless the
Company defaults in making the redemption payment, interest on Securities
called for redemption ceases to accrue on and after the redemption date, and
the only remaining right of the Holders is to receive payment of the redemption
price  upon surrender to the Paying
Agent;


 


(7)                                  if any Security is
being redeemed in part, the portion of the principal amount of such Security to
be redeemed and that, after the redemption date, upon surrender of such
Security, a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued.


 


On receipt of a request signed by an Officer of the Company, the
Trustee shall give the notice of redemption on behalf of the Company, in the
name of the Company and at the Company’s expense.


 


Section 3.4                                      EFFECT
OF NOTICE OF REDEMPTION.


 


Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price.  Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price, plus accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date.


 


43

















 


Section 3.5                                      DEPOSIT
OF REDEMPTION PRICE.


 


At least one Business Day before the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the redemption price of,
Liquidated Damages, if any, and accrued interest on all Securities to be
redeemed on that
date other than Securities or portions thereof called for redemption on that
date which have been delivered by
the Company to the Trustee for cancellation.


 


If the Company complies with the provisions of the preceding paragraph
and payment of the Securities called for redemption is not otherwise prohibited
or prevented, on and after the redemption date, interest shall cease to accrue
on the Securities or the portions of Securities called for redemption.  If a Security is redeemed on or after an
interest record date but on or prior to the related interest payment date, then
any accrued and unpaid interest shall be paid to the Person in whose name such
Security was registered at the close of business on such record date.  If any Security 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 or Liquidated Damages, if any, not paid on
such unpaid principal, in each case at the rate provided in the Securities and
in Section 4.1 hereof.


 


Section 3.6                                      SECURITIES
REDEEMED IN PART.


 


Upon surrender of a Security
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 Security equal in principal amount to the unredeemed
portion of the Security surrendered.


 


Section 3.7                                      OPTIONAL
AND REGULATORY REDEMPTION.


 


The Securities shall not be
redeemable at the Company’s option except as set forth in the optional and
regulatory redemption provisions set forth in paragraphs 5 and 6 of Exhibits A and B attached hereto.


 


Section 3.8                                      NO
MANDATORY REDEMPTION OR SINKING FUND.


 


The Company is not required
to make mandatory redemption or sinking fund payments with respect to the
Securities.


 


ARTICLE IV


COVENANTS


 


Section 4.1                                      PAYMENT
OF SECURITIES.


 


The Company shall pay the principal of, premium, if any, Liquidated
Damages, if any, and interest on the Securities in the manner provided in the
Securities.  An installment of principal
or interest or other amount shall be considered paid on the date due if the
Trustee or Paying Agent holds on that date money designated for and sufficient
to pay the installment in full and is not prohibited from paying such money to
the Holders of the Securities pursuant to the


 


44

















 


terms of this Indenture. The Company shall pay all Liquidated Damages,
if any, in the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.


 


The Company shall pay interest on overdue principal at the same rate
per annum borne by the Securities.  The
Company shall pay interest on overdue installments of interest and Liquidated
Damages, if any, at the same rate per annum borne by the Securities, to the
extent lawful.


 


Section 4.2                                      MAINTENANCE
OF OFFICE OR AGENCY; EXCHANGE LISTING.


 


The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities 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 address of the
Trustee set forth in Section 11.2.


 


The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.


 


The Company hereby designates the Trustee as one such office or agency
of the Company.


 


Section 4.3                                      LIMITATION
ON TRANSACTIONS WITH AFFILIATES.


 


(a)                                  The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
make any payment to or Investment in, 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 of the foregoing, an “AFFILIATE TRANSACTION”) unless:


 


(i)                                     such Affiliate
Transaction is on terms that are no 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; and


 


(ii)                                  the Company delivers
to the Trustee (x) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$1 million, a Board Resolution set forth in an Officers’


 


45

















 


Certificate certifying that such Affiliate Transaction complies with
clause (i) above and that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of Directors and (y) with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $5 million, an
opinion as to the fairness to the Holders of such Affiliate Transaction from a
financial point of view issued by an investment banking firm of national
standing in the United States, or in the event such transaction is a type that
investment bankers do not generally render fairness opinions, a valuation or
appraisal firm of national standing.


 


(b)                                 The
restrictions set forth in clause (a) shall not apply to:


 


(i)                                     any employment
agreement entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business of the Company or such Restricted Subsidiary;


 


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


 


(iii)                               transactions that are
permitted by Section 4.6;


 


(iv)                              (A) if no Default or
Event of Default shall have occurred and be continuing, the payment of a fee to
Peter A. Morton in connection with the rendering of services to or on behalf of
the Company pursuant to the Supervisory Agreement and (B) the reimbursement of
expenses (including, without limitation, allocated salaries and overhead)
incurred by entities controlled by Peter A. Morton in providing support and
travel services to the Company and its Restricted Subsidiaries in the ordinary
course of business consistent with past practices;


 


(v)                                 the payment of
reasonable and customary fees paid to, and indemnity provided on behalf of,
officers, directors or employees of the Company or any Restricted Subsidiary;


 


(vi)                              transactions in which the
Company or any of its Restricted Subsidiaries, as the case may be, delivers to
the Trustee a letter from an investment banking firm or valuation or appraisal
firm, as the case may be, stating that such transaction meets the requirements
of clause (i) of subparagraph (a) of this Section;


 


(vii)                           loans to employees in the
ordinary course of business of the Company; provided that any such loan
in excess of $200,000 must be approved by a majority of the disinterested
members of the Board of Directors;


 


(viii)                        any agreement as in effect as
of the Issue Date or any agreement or instrument relating to the Qualified
Subordinated Notes or any amendment to any such agreement or instrument (so
long as any such amendment is no less favorable to the holders of the
Securities in any material respect than the original agreement as in effect on
the Issue Date) or any transaction contemplated thereby;


 


46

















 


(ix)                                additional investments
in the Company by Peter A. Morton or his Affiliates so long as such investments
are subordinated to the Securities on terms no less favorable to the Holders
than the terms of subordination of the Qualified Subordinated Notes; and


 


(x)                                   any agreement
entered into following the Issue Date in furtherance of or to effectuate the
security interests in the sublicense of the right to use the “Hard Rock Hotel”
trademark granted pursuant to the Collateral Documents.


 


Section 4.4                                      LIMITATION
ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK.


 


(a)                                  The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to (collectively, “incur”) any Indebtedness (including Acquired Indebtedness)
and that the Company shall not, and shall not permit any of its Restricted
Subsidiaries to issue any shares of Disqualified Stock and shall not permit any
of its Restricted Subsidiaries to issue preferred stock; provided, however,
that the Company and any Guarantor may incur Indebtedness (including Acquired
Indebtedness) or issue shares of Disqualified Stock, and any Restricted
Subsidiary may incur Acquired Indebtedness if the Fixed Charge Coverage Ratio
for the Company’s most recently ended four full fiscal quarters for which
internal 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 to 1, 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 Disqualified Stock had been issued, as
the case may be, at the beginning of such four-quarter period.


 


(b)                                 The
provisions set forth in clause (a) shall not apply to the incurrence of any of
the following items of Indebtedness (collectively, “PERMITTED DEBT”):


 


(i)                                     Indebtedness of
the Company under the New Credit Facility with respect thereto in an aggregate
principal amount outstanding at any time not to exceed the sum of  (x) $40.0 million and (y) the difference
between (A) $15.0 million less (B) the amount of then outstanding FF&E
Financing incurred pursuant to clause (iv) below, less the aggregate amount of
all proceeds from all Asset Sales that have been applied since the Issue Date
to permanently reduce the outstanding amount of such Indebtedness pursuant to
Section 4.5;


 


(ii)                                  the incurrence by the
Company of Existing Indebtedness;


 


(iii)                               the incurrence by the
Company of Indebtedness represented by the Securities;


 


(iv)                              the incurrence by the
Company or its Restricted Subsidiaries of FF&E Financing in an aggregate
principal amount not to exceed $15.0 million at any time outstanding;


 


47

















 


(v)                                 the incurrence by the
Company or its Restricted Subsidiaries 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 permitted
by this Indenture to be incurred pursuant to Section 4.4(a) and Section
4.4(b)(iv);


 


(vi)                              the incurrence by the
Company or its Restricted Subsidiaries of intercompany Indebtedness between or
among the Company and its Restricted Subsidiaries, provided, however,
that (i) if the Company is the obligor on such Indebtedness, such Indebtedness
is expressly subordinated to the prior payment in full in cash of all
Obligations with respect to the Securities and (ii) (1)  any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a Person
other than the Company or its Restricted Subsidiaries and (2)  any sale or other transfer of any such
Indebtedness to a Person that is not the Company or a Restricted Subsidiary
shall be deemed, in each case, to constitute an incurrence of such Indebtedness
by the Company or such Restricted Subsidiary;


 


(vii)                           the incurrence by the
Company or its Restricted Subsidiaries of Hedging Obligations that are incurred
for the purpose of fixing, managing or hedging interest rate risk with respect
to any fixed, floating or variable rate Indebtedness or for the purpose of
protecting against fluctuation in interest rates or the value of foreign
currencies purchased or received, in each case in respect of Indebtedness that
is permitted by the terms of this Indenture to be outstanding; provided,
however, that in the case of Hedging Obligations that are incurred for
the purpose of fixing, managing or hedging interest rate risks with respect to
Indebtedness, the notional principal amount of any such Hedging Obligation does
not exceed the principal amount of the Indebtedness to which such Hedging
Obligation relates and in the case of Hedging Obligations incurred for the
purpose of protecting against fluctuations in interest rates or the value of
foreign currencies purchased or received, such Hedging Obligations do not
increase the Indebtedness of the Company and its Restricted Subsidiaries
outstanding other than as a result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities and compensation payable thereunder;


 


(viii)                        Indebtedness incurred solely in
respect of performance, surety and similar bonds or completion guarantees, to
the extent that such incurrence does not result in the incurrence of any
obligation for the payment of borrowed money to others;


 


(ix)                                Indebtedness arising in
the ordinary course of business out of workers compensation claims, self
insurance obligations and standby letters of credit covering workers
compensation, performance or similar obligations, all in the ordinary course of
business in accordance with customary industry practices, in amounts and for
the purposes customary in the Company’s industry;


 


(x)                                   any guarantee of the
Company of Indebtedness or other obligations of any of its Restricted
Subsidiaries so long as the incurrence of such Indebtedness incurred by such
Restricted Subsidiary is permitted under the terms of this Indenture;


 


48

















 


(xi)                                the incurrence by the
Company of Indebtedness represented by Qualified Subordinated Notes and the
accrued and unpaid interest thereon; and


 


(xii)                             the incurrence by the
Company of additional Indebtedness in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding not to exceed $5.0
million.


 


For purposes of determining compliance with this Section 4.4, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xii) above or is
entitled to be incurred pursuant to Section 4.4(a), the Company shall, in its
sole discretion, classify and reclassify such item of Indebtedness in any
manner that complies with this Section 4.4 and such item of Indebtedness will
be treated as having been incurred pursuant to only one of such clauses or
pursuant to Section 4.4(a) hereof. Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional
Indebtedness will not be deemed to be an incurrence of Indebtedness for
purposes of this Section 4.4.


 


Section 4.5                                      LIMITATION
ON ASSET SALES.


 


The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the Fair Market Value (as determined in good
faith by the Board of Directors) of the assets or Equity Interests issued or
sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor received by the Company or such Restricted Subsidiary is in the form
of cash or Cash Equivalents; provided that the amount of (x) 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 Securities or any guarantee thereof) that are assumed by the transferee of
any such assets pursuant to an agreement that releases the Company or such
Restricted Subsidiary from further liability and (y) any securities, notes or
other obligations received by the Company or any such Restricted Subsidiary
from such transferee that are promptly, but in no event more than 30 days after
receipt, converted by the Company or such Restricted Subsidiary into cash (to
the extent of the cash received), shall be deemed to be cash for purposes of
this provision.


 


Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or such Restricted Subsidiary may apply such Net Proceeds, at
its option, (a) to permanently reduce Indebtedness outstanding under the New
Credit Facility (and to correspondingly permanently reduce commitments with
respect thereto in the case of revolving borrowings), or (b) to the making of a
capital expenditure in a Permitted Business or the acquisition of other assets
to be used in a Permitted Business. Pending the final application of any such
Net Proceeds, the Company may temporarily reduce Indebtedness under the New
Credit Facility or invest such Net Proceeds in any manner that is not
prohibited by this Indenture and the Collateral Documents. Any Net Proceeds
from Asset Sales that are not applied or invested as provided in the first
sentence of this paragraph will be deemed to constitute “EXCESS PROCEEDS.” When
the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will
be required to make an offer to all Holders of Securities (an “ASSET SALE


 


49

















 


OFFER”) to purchase the maximum principal amount of Securities that may
be purchased out of the Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to, but not including, the date of
purchase, in accordance with the procedures set forth in this Indenture. To the
extent that the aggregate amount of Securities tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Company may use any remaining
Excess Proceeds for general corporate purposes. If the aggregate principal
amount of Securities surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis. Upon completion of such
offer to purchase, the amount of Excess Proceeds shall be reset at zero.


 


The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws or regulations are applicable in connection with the
repurchase of the Securities pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with this
Section 4.5, the Company will comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.5.


 


Liens under the Collateral Documents on assets subject to an Asset Sale
and permitted pursuant to the terms hereof shall be released concurrently with
the consummation of such Asset Sale.


 


In the event that, pursuant to this Section 4.5, the Company shall be
required to commence an Asset Sale Offer, it shall follow the procedures
specified below.


 


The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the “OFFER PERIOD”).  No later than five Business Days after the
termination of the Offer Period (the “PURCHASE DATE”), the Company shall
purchase the principal amount of Securities required to be purchased pursuant
to this Section 4.5 (the “OFFER AMOUNT”) or, if less than the Offer Amount has
been tendered, all Securities tendered in response to the Asset Sale
Offer.  Payment for any Securities so
purchased shall be made in the same manner as interest payments are made.


 


If the Purchase Date is on or after an interest payment record date and
on or before the associated Interest Payment Date, any accrued and unpaid
interest (and Liquidated Damages, if any, due on such Interest Payment Date)
shall be paid to the Person in whose name a Security is registered at the close
of business on such record date, and such interest (or Liquidated Damages, if
applicable) shall not be payable to Holders who tender Securities pursuant to
the Asset Sale Offer.


 


Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders.  The notice, which shall govern the terms of
the Asset Sale Offer, shall state:


 


50

















 


(a)                                  that
the Asset Sale Offer is being made pursuant to this Section 4.5 and the length
of time the Asset Sale Offer shall remain open;


 


(b)                                 the
Offer Amount, the purchase price and the Purchase Date;


 


(c)                                  that
any Security not tendered or accepted for payment shall continue to accrue
interest;


 


(d)                                 that,
unless the Company defaults in making such payment, any Security accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest on or
after the Purchase Date;


 


(e)                                  that
Holders electing to have a Security purchased pursuant to an Asset Sale Offer
may only elect to have all of such Security purchased and may not elect to have
only a portion of such Security purchased;


 


(f)                                    that
Holders electing to have a Security purchased pursuant to any Asset Sale Offer
shall be required to surrender the Security, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Security completed, or transfer
by book-entry transfer, to the Company, the Depositary or a Paying Agent at the
address specified in the notice at least three days before the Purchase Date;


 


(g)                                 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 facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security the Holder
delivered for purchase and a statement that such Holder is withdrawing its
election to have such Security purchased;


 


(h)                                 that,
if the aggregate principal amount of Securities surrendered by Holders exceeds
the Offer Amount, the Trustee shall select the Securities to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Trustee so that only Securities in
denominations of $1,000, or integral multiples thereof, shall be purchased);
and


 


(i)                                     that
Holders whose Securities were purchased only in part shall be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered (or transferred by book-entry transfer).


 


On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata
basis to the extent necessary, the Offer Amount of Securities or portions
thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all Securities tendered, and shall deliver to the
Trustee an Officers’ Certificate stating that such Securities or portions
thereof were accepted for payment by the Company in accordance with the terms
of this Section 4.5. The Company, the Depositary or the Paying Agent, as the
case may be, shall promptly (but in any case not later than five days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Securities tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Security and
the Trustee, upon written request from the Company, shall authenticate and mail
or deliver such new Security to such Holder, in a principal


 


51

















 


amount equal to any unpurchased portion of the Security surrendered.
Any Security not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Asset Sale Offer on the Purchase Date.


 


Section 4.6                                      LIMITATION
ON RESTRICTED PAYMENTS.


 


(a)                                  The
Company shall not, and shall not permit any of its Restricted Subsidiaries 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 of its Restricted
Subsidiaries’ Equity Interests including, without limitation, any dividend or
distribution in connection with any merger or consolidation involving the
Company (other than dividends or distributions by a Restricted Subsidiary so
long as, in the case of any dividend or distribution payable on or in respect
of any class or series of securities issued by a Restricted Subsidiary other
than a Wholly Owned Restricted Subsidiary, the Company or a Restricted
Subsidiary receives at least its pro rata
share of such dividend or distribution in accordance with its Equity Interests
in such class or series of securities), or to the direct or indirect holders of
the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) 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 principal payment on or with respect to, or purchase, redeem, defease
or otherwise acquire or retire for value any Subordinated Indebtedness, except
a scheduled repayment of principal or a payment of principal at Stated
Maturity; (4)  make any payment of
interest on Subordinated Indebtedness issued pursuant to Section 4.4(b)(xi); or
(5) make any Restricted Investment (all such payments and other actions set
forth in clauses (1) through (5) above being collectively referred to as
“RESTRICTED PAYMENTS”), unless, at the time of and after giving effect to such
Restricted Payment:


 


(i)                                     no Default or
Event of Default shall have occurred and be continuing or would occur as a
consequence thereof; and


 


(ii)                                  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 applicable
four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.4(a); and


 


(iii)                               such Restricted Payment,
together with the aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries after the Issue Date (excluding
Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii),
(viii), (x) and (xi) of Section 4.6(b)), is less than the sum (without
duplication) of (1) 50% of 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 internal financial statements are
available at the time of such Restricted Payment (the “REFERENCE PERIOD”) (or,
if such Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus (2) 100% of the aggregate net cash proceeds


 


52

















 


received by the Company from the issue or sale since the Issue Date of
Equity Interests of the Company (other than Disqualified Stock) or of
Disqualified Stock or debt securities of the Company that have been converted
into such Equity Interests (other than Equity Interests (or Disqualified Stock
or convertible debt securities) sold to a Restricted Subsidiary of the
Company), plus (3) 100% of the aggregate net cash proceeds received by the
Company as an equity contribution from a holder or holders of Equity Interests
of the Company (other than Disqualified Stock), plus (4) to the extent that any
Restricted Investment that was made after the Issue Date is sold or otherwise
liquidated or repaid, the lesser of (x) the cash return of capital with respect
to such Restricted Investment (less the cost of disposition, if any) and (y)
the initial amount of such Restricted Investment, plus (5) the amount resulting
from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries,
such amount not to exceed the amount of Investments made by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary since the date hereof
that was treated as a Restricted Payment under this Indenture, plus (6) to the
extent not otherwise included in Consolidated Net Income, the amount of the net
reduction in Investments in Unrestricted Subsidiaries resulting from the
payment of cash dividends received by the Company or any Restricted Subsidiary
of the Company from such Unrestricted Subsidiaries.


 


(b)                                 The
foregoing provisions of this Section 4.6 will not prohibit:


 


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


 


(ii)                                  the redemption,
repurchase, retirement, defeasance or other acquisition of any Equity Interests
of the Company 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, other Equity Interests of the Company (other than any Disqualified
Stock); provided 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 (iii)(2) and (3) of Section 4.6(a);


 


(iii)                               the defeasance,
redemption, repurchase or other acquisition of Subordinated Indebtedness in
exchange for or with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness or of the substantially concurrent sale (other than to
a Restricted Subsidiary of the Company) of Equity Interests in the Company
(other than any Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such defeasance, redemption,
repurchase or other acquisition shall be excluded from clause (iii)(2) and (3)
of Section 4.6(a);


 


(iv)                              the redemption or
repurchase of any Capital Stock or Indebtedness of the Company or any of its
Subsidiaries (other than any Capital Stock or Indebtedness that is held or
beneficially owned by any Permitted Holder) required by the Regulatory
Redemption provisions of this Indenture (or any substantially comparable
provision governing other Indebtedness), or by any Governmental Authority or by
the Board of Directors if, in any such case, the ownership of such Capital
Stock or Indebtedness by the


 


53

















 


holder thereof will preclude, interfere with, threaten or delay the
issuance, maintenance, existence or reinstatement of any gaming or liquor
license, permit or approval, or result in the imposition or burdensome terms or
conditions on such license, permit or approval;


 


(v)                                 so long as no Default
or Event of Default shall have occurred and be continuing, the declaration and
payment of dividends to holders of any such class or series of Disqualified
Stock of the Company issued following the Issue Date in accordance with Section
4.4;


 


(vi)                              repurchases of Equity
Interests deemed to occur upon exercise of stock options if such Equity
Interests represent a portion of the exercise price of such options;


 


(vii)                           the redemption, repurchase,
retirement, defeasance or other acquisition of all of the issued and
outstanding shares of Outstanding Preferred Stock in exchange for Qualified Subordinated
Notes;


 


(viii)                        the redemption or repurchase of
the Existing Notes;


 


(ix)                                so long as no Default
or Event of Default shall have occurred and be continuing, the payment of
accrued and unpaid interest to holders of the Qualified Subordinated Notes in
accordance with the terms thereof if such Restricted Payment, together with all
other Restricted Payments made by the Company pursuant to this clause (ix)
after the Issue Date, is less than the difference between (x) 100% of the
Consolidated Cash Flow of the Company for the Reference Period less (y) two
times the Company’s aggregate Fixed Charges for the Reference Period;


 


(x)                                   the one-time payment
on or about the Issue Date of $15 million of accrued and unpaid dividends to
holders of shares of the Company’s Outstanding Preferred Stock; and


 


(xi)                                so long as no Default
or Event of Default has occurred and is continuing, the making of Restricted
Payments that, when aggregated with all other Restricted Payments made
following the Issue Date pursuant to this clause (xi), does not exceed $7.5
million.


 


(c)                                  The
Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation is permitted by this covenant and
otherwise would not cause a Default. For purposes of making such determination,
all outstanding Investments by the Company and its Restricted Subsidiaries
(except to the extent repaid in cash) in the Subsidiary so designated will be
deemed to be Restricted Payments at the time of such designation and will reduce
the amount available for Restricted Payments under Section 4.6(a).  All such outstanding Investments will be
deemed to constitute Investments in an amount equal to the greatest of (x) the
net book value of such Investments at the time of such designation, (y) the
Fair Market Value of such Investments at the time of such designation and (z)
the original Fair Market Value of such Investments at the time they were made.
Such designation will only be permitted if such Restricted Payment would be
permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.


 


54

















 


(d)                                 The
amount of all Restricted Payments (other than cash) shall be the Fair Market
Value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Subsidiary, as the
case may be, pursuant to the Restricted Payment. The Fair Market Value of any
non-cash Restricted Payment shall be based on the good faith determination of
the Board of Directors.


 


Section 4.7                                      CORPORATE
EXISTENCE.


 


Except as provided in Article V, the Company shall do or shall cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of each
of the Restricted Subsidiaries in accordance with the respective organizational
documents of the Company and each such Restricted Subsidiary and the rights
(charter and statutory) and material franchises of the Company and its
Restricted Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, or the corporate,
partnership, limited liability or other existence of any Restricted Subsidiary
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of such Restricted Subsidiary
and each of its respective Subsidiaries, taken as a whole, and that the loss
thereof is not, and will not be, adverse in any material respect to the
Holders.


 


Section 4.8                                      PAYMENT
OF TAXES AND OTHER CLAIMS.


 


The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments
and governmental charges levied or imposed upon it or any of its Subsidiaries
or upon the income, profits or property of it or any of its Subsidiaries and
(ii) all lawful claims for labor, materials and supplies which, in each case,
if unpaid, might by law become a material liability, or Lien upon the property,
of it or any of its Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings and for
which appropriate provision has been made.


 


Section 4.9                                      NOTICE
OF DEFAULTS.


 


(a)                                  In
the event that $5.0 million or more of Indebtedness of the Company or any of
its Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default under such Indebtedness, the Company shall promptly
give written notice to the Trustee of such declaration, the status of such
default and what action the Company is taking or proposes to take with respect
thereto.


 


(b)                                 Upon
becoming aware of any Event of Default, the Company shall promptly deliver an
Officers’ Certificate to the Trustee specifying the Event of Default.


 


Section 4.10                                MAINTENANCE
OF PROPERTIES.


 


The Company and each of its Restricted Subsidiaries shall cause all
material properties owned by or leased to it and used or useful in the conduct
of its business to be maintained and kept in normal condition, repair and
working order and supplied with all


 


55

















 


necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company or such Restricted Subsidiary may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section 4.10 shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the use, operation or maintenance of any of
such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or of the board of
directors of the Restricted Subsidiary concerned, or of an officer (or other
agent employed by the Company or of any of its Restricted Subsidiaries) of the
Company or such Restricted Subsidiary having managerial responsibility for any
such property, desirable in the conduct of the business of the Company or any
of its Restricted  Subsidiaries, and if
such discontinuance or disposal is not adverse in any material respect to the
Holders.


 


Section 4.11                                COMPLIANCE
CERTIFICATE.


 


The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers’ Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, Liquidated Damages,
if any, or interest on the Securities is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.


 


Section 4.12                                PROVISION
OF FINANCIAL INFORMATION.


 


Whether or not required by the rules and regulations of the Commission,
so long as any Securities are outstanding, the Company will furnish to the
Holders of Securities (i) 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” that describes the financial condition and results of operations of
the Company and its consolidated Subsidiaries and, with respect to the annual
information only, a report thereon by the Company’s certified independent
accountants and (ii) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file such
reports, in each case within the time periods set forth in the Commission’s
rules and regulations. In addition, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of such information
and report with the Commission for public availability within the time periods
set forth in the Commission’s rules and regulations (unless the Commission will
not accept such a filing). In addition, until the effectiveness of the
registration statement relating to the Exchange Offer pursuant to the
Registration Rights


 


56

















 


Agreement, the Company will furnish to the Holders and to prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.


 


Section 4.13                                WAIVER
OF STAY, EXTENSION OR USURY LAWS.


 


The Company covenants hereby (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the principal of, premium, if any, Liquidated Damages, if
any, and interest on or with respect to the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture; and (to the extent that it
may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not 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 had been
enacted.


 


Section 4.14                                CHANGE
OF CONTROL.


 


(a)                                  Upon
the occurrence of a Change of Control, the Company will be required to make an
offer to repurchase all or any part (equal to $1,000 or an integral multiple
thereof), of each Holder’s Securities pursuant to the offer described below
(the “CHANGE OF CONTROL OFFER”) at an offer price in cash equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to, but not including, the date of repurchase
(the “CHANGE OF CONTROL PAYMENT”). Within 30 days following any Change of
Control, the Company will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Securities on the date specified in such notice, which date shall
be no earlier than 30 days and no later than 60 days from the date such notice
is mailed (the “CHANGE OF CONTROL PAYMENT DATE”), pursuant to the procedures
required by this Indenture and described in such notice. The Company will
comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Securities
as a result of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Indenture
relating to a Change of Control Offer, the Company will comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations described under this Section 4.14 by virtue thereof.


 


(b)                                 On
the Change of Control Payment Date, the Company will, to the extent lawful, (A)
accept for payment all Securities or portions thereof properly tendered
pursuant to the Change of Control Offer, (B) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Securities or
portions thereof so tendered and (C) deliver or cause to be delivered to the
Trustee the Securities so accepted together with an Officers’ Certificate
stating the aggregate principal amount of Securities or portions thereof being
purchased by the Company. The Paying Agent will promptly mail to each Holder of
Securities so tendered the Change of Control Payment for such Securities, and
the Trustee will promptly


 


57

















 


authenticate and mail (or cause to be transferred by book-entry) to
each Holder a new Security equal in principal amount to the unpurchased portion
of the Securities surrendered, if any; provided that each such new
Security will be in a principal amount of $1,000 or an integral multiple
thereof. The Company will publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Payment Date.


 


(c)                                  If
the payment date in connection with a Change of Control Offer hereunder is on
or after an interest payment record date and on or before the associated
Interest Payment Date, any accrued and unpaid interest (and Liquidated Damages,
if any, due on such Interest Payment Date) will be paid to the person in whose
name a Security is registered at the close of business on such record date, and
such interest (or Liquidated Damages, if applicable) will not be payable to
Holders who tender Securities pursuant to such Change of Control Offer.


 


(d)                                 Except
as described in this Section 4.14, this Indenture does not contain provisions
that permit the Holders of the Securities to require that the Company
repurchase or redeem the Securities in the event of a takeover,
recapitalization or similar transaction.


 


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 Securities validly tendered and not withdrawn under
such Change of Control Offer.


 


Section 4.15                                INSURANCE


 


Until the Securities have been paid in full, the Company will, and will
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 and coinsurance
provisions as are customarily carried by similar businesses of similar size
(each as determined by the Board of Directors in good faith), and name the
Trustee 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 Trustee
(unless a Default or Event of Default has occurred and is then continuing, in
which case all losses are payable solely to the Trustee), with no recourse
against the Trustee for the payment of premiums, deductibles, commissions or
club calls.


 


Section 4.16                                LIMITATION
ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.


 


(a)                                  The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or consensual restriction on the ability
of any Restricted Subsidiary to:


 


(i)                                     (1) pay dividends
or make any other distributions to the Company or any of its Restricted
Subsidiaries (A) on its Capital Stock or (B) with respect to any other interest
or participation in, or measured by, its profits, or (2) pay any Indebtedness
owed to the Company or any of its Restricted Subsidiaries;


 


58

















 


(ii)                                  make loans or
advances to the Company or any of its Restricted Subsidiaries; or


 


(iii)                               transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries.


 


(b)                                 The
provisions of Section 4.16(a) will not apply to encumbrances or restrictions
existing under or by reason of:


(i)                                     Existing
Indebtedness as in effect on the Issue Date;


 


(ii)                                  the New Credit
Facility, provided that any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings are
no more restrictive (as determined by the Board of Directors in good faith)
with respect to such dividend and other payment restrictions than those
contained in the New Credit Facility as in effect on the Issue Date;


 


(iii)                               this Indenture, the
Securities and the Collateral Documents;


 


(iv)                              applicable law, rules or
regulations, or any order or ruling by a Governmental Authority or a Gaming
Authority;


 


(v)                                 any instrument of a
Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (but not created 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;


 


(vi)                              customary non-assignment
provisions in leases, licenses, encumbrances, contracts or similar agreements
entered into or acquired in the ordinary course of business;


 


(vii)                           purchase money obligations
for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iii) of Section 4.16(a) on the
property so acquired;


 


(viii)                        contracts for the sale of
assets, including, without limitation, customary restrictions with respect to a
Subsidiary pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary; and


 


(ix)                                Permitted Refinancing
Indebtedness, provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are no more restrictive (as
determined by the Board of Directors in good faith) than those contained in the
agreements governing the Indebtedness being refinanced.


 


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Section 4.17                                LIMITATION
ON LIENS.


 


The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Indebtedness on any asset now owned or hereafter
acquired, or any income or profits therefrom or assign or convey any right to
receive income therefrom, except Permitted Liens.


 


Section 4.18                                LIMITATION
ON 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 Subsidiaries taken as a
whole.  The Company or its Restricted
Subsidiaries may not enter into any Gaming Jurisdictions in which the Company
or any of its Restricted Subsidiaries is not presently licensed if all of the
Holders of the Securities will be required to be licensed, provided that
neither the Company nor any of its Restricted Subsidiaries shall be prohibited
from entering any jurisdiction that does not require the licensing or
qualification of all of the Holders of the Securities, but the Company reserves
the discretionary right to license or qualify any Holder of Securities.


 


Section 4.19                                PAYMENTS
FOR CONSENT.


 


Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Securities, Intercreditor Agreement or the
Collateral Documents unless such consideration is offered to be paid or is paid
to all Holders of the Securities 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 4.20                                SUBSIDIARY
GUARANTEES


 


(a)                                  Each
Restricted Subsidiary shall execute a guarantee (a “Subsidiary Guarantee”) in
substantially the form of Exhibit E attached hereto, together with such
Collateral Documents as are necessary to create and convey to the Trustee for
the benefit of the Holders a perfected second-priority lien on all Collateral
(subject to Permitted Liens) held by such Restricted Subsidiary, and deliver an
Opinion of Counsel relating to the enforceability and authorization of such
Subsidiary Guarantee in accordance with the terms of this Indenture and
perfection of the Liens in favor of the Trustee on the Collateral owned by such
Guarantor, pursuant to which such Subsidiary shall become a Guarantor, on a
senior secured basis, of the Company’s payment obligations under the Securities
and this Indenture.


 


(b)                                 In
the event of a sale or other disposition of all of the assets of any Guarantor,
by way of merger, consolidation or otherwise, or a sale or other disposition of
all of the capital stock of any Guarantor, then such Guarantor (in the event of
a sale or other disposition, by way of such a merger, consolidation or
otherwise, of all of the capital stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all of
the assets of such Guarantor) shall be released and relieved of any obligations
under its Subsidiary Guarantee; provided that the Net Proceeds of such
sale or other


 


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disposition are applied in accordance with the provisions of Section
4.5 hereof.  In addition, in the event
the Board of Directors designates a Guarantor to be an Unrestricted Subsidiary,
then such Guarantor and the Capital Stock of such Guarantor will be released
from the applicable Subsidiary Guarantee and any related Collateral Documents; provided
that such designation is conducted in accordance with the applicable provisions
hereof.


 


Section 4.21                                FURTHER
ASSURANCES


 


The Company will, and will cause each of the Restricted Subsidiaries
that are Guarantors to do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register, as applicable, any and all such
further acts, deeds, conveyances, security agreements, mortgages, assignments,
estoppel certificates, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates, assurances
and other instruments as may be required from time to time in order to:


 


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


 


(b)                                 subject
to the Liens created by any of the Collateral Documents any of the properties,
rights or interests required to be encumbered thereby;


 


(c)                                  perfect
and maintain the validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby; and


 


(d)                                 better
assure, convey, grant, assign, transfer, preserve, protect and confirm to the
Trustee any of the rights granted now or hereafter intended by the parties
thereto to be granted to the Trustee under any other instrument executed in
connection therewith or granted to the Company under the Collateral Documents or
under any other instrument executed in connection therewith.


 


ARTICLE V


MERGERS; SUCCESSOR CORPORATION


 


Section 5.1                                      RESTRICTION
ON MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS.


 


The Company may not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to another corporation, Person or entity
unless:


 


(i)                                     the
Company is the surviving corporation or the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is an entity organized or
existing under the laws of the United States, any state thereof or the District
of Columbia;


 


(ii)                                  the entity or Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the entity or Person to which such sale,


 


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assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company under the Securities and
this Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee and assumes the Company’s obligations under the
Registration Rights Agreement and the Collateral Documents;


 


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


 


(iv)                              except in the case of a
merger of the Company with or into a Wholly
Owned Subsidiary of the Company, the Company or the entity or Person
formed by or surviving any such consolidation or merger (if other than the
Company), or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made will, after giving pro forma effect
thereto as if such transaction 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
Section 4.4(a);


 


(v)                                 such transactions
would not require any Holder of Securities to obtain a Gaming License or be
qualified under the laws of any applicable Gaming Jurisdiction, provided
that such Holder would not have been required to obtain a Gaming License or be
qualified under the laws of any applicable Gaming Jurisdiction in the absence
of such transactions; and


 


(vi)                              such transactions would
not result in a loss of any qualification or any material license of the
Company or its Restricted Subsidiaries necessary for any Permitted Business
then operated by the Company or its Restricted Subsidiaries.


 


Notwithstanding the foregoing clause (iv), (A) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company and (B) the Company may merge with an
Affiliate incorporated solely for the purpose of reincorporating the Company in
another state of the United States so long as the amount of Indebtedness of the
Company and its Restricted Subsidiaries is not increased thereby.


 


Section 5.2                                      SUCCESSOR
CORPORATION SUBSTITUTED.


 


Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.1 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Company” shall refer
instead to the successor corporation and not to the Company and may exercise
every right and power of the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein; provided,
however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of, premium, if any, Liquidated Damages, if
any, and interest


 


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on the Securities except in the case of a sale of all of the Company’s
assets that meets the requirements of Section 5.1 hereof.


 


ARTICLE VI


DEFAULT AND REMEDIES


 


Section 6.1                                      EVENTS
OF DEFAULT.


 


The following events are defined as “EVENTS OF DEFAULT”:


 


(i)                                     default for 30
days in the payment when due of interest on, or Liquidated Damages, if any,
with respect to, the Securities;


 


(ii)                                  default in payment
when due of the principal of or premium, if any, on the Securities;


 


(iii)                               failure by the Company
or any of its Restricted Subsidiaries to comply with the provisions described
under Sections 4.4, 4.5, 4.6, 4.14 or Article V;


 


(iv)                              failure by the Company or
any of its Restricted Subsidiaries for 45 days after notice by the Trustee or
by the Holders of at least 25% of Securities then outstanding to comply with
any of its other agreements in this Indenture, the Securities or the Collateral
Documents;


 


(v)                                 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), other than
Indebtedness owed to the Company or a Restricted Subsidiary, whether such
Indebtedness or guarantee now exists, or is created after the date hereof,
which default (a) is caused by a failure to pay at final maturity (giving
effect to any applicable grace periods and any extensions thereof) the
principal amount of 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;


 


(vi)                              failure by the Company or
any of its Subsidiaries to pay a final judgment or judgments aggregating in
excess of $5.0 million, which final judgments are not paid, discharged or
stayed for a period of 60 days (net of applicable insurance coverage which is
acknowledged in writing by the insurer);


 


(vii)                           the loss of the legal right
to operate any Casino by the Company or any of its Restricted Subsidiaries
resulting in a cessation of operations for a period of more than 90 days;


 


63

















 


(viii)                        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 its
obligations under any of the Collateral Documents, 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 Securities or the loss of the perfection or
priority of the Liens granted by any of them pursuant to the Collateral Documents
for any reason;


 


(ix)                                the Company or any of
the Company’s Significant Subsidiaries or any group of Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:


 


(A)                              commences a voluntary
case or proceeding,


 


(B)                                consents to the entry
of an order for relief against it in an involuntary case or proceeding,


 


(C)                                consents to the
appointment of a Custodian of it or for all or substantially all of its
property,


 


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


 


(E)                                 ceases or suspends
generally payment of its debts or announces an intention so to do or is (or is
deemed for the purposes of any law applicable to it to be) unable to pay its
debts as they fall due, commences negotiations with, or makes a proposal to,
its creditors generally with a view to a readjustment or rescheduling of its
indebtedness or makes a general assignment for the benefit of or a composition
with its creditors generally or a moratorium is declared in respect of any of
its indebtedness;


 


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


 


(A)                              is for relief against the
Company or any of the Company’s Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
in an involuntary case or proceeding;


 


(B)                                appoints a Custodian of
the Company or any of the Company’s Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
or for all or substantially all of its property;


 


(C)                                orders the liquidation
of the Company or any of the Company’s Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary;
and, in each case, the order or decree remains unstayed and in effect for 60
consecutive days; provided, however, that if the entry of such
order or decree is appealed and dismissed on appeal then the Event of Default


 


64

















 


hereunder by reason of the entry of such order or decree shall be
deemed to have been cured; and


 


(xi)                                failure of the Company
to redeem or otherwise repurchase all of the outstanding Existing Notes within
40 days following the Issue Date.


 


Section 6.2                                      ACCELERATION.


 


If an Event of Default (other than an Event of Default with respect to
the Company or any of the Company’s Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary,
specified in clause (ix) or (x) of Section 6.1) shall occur and be continuing,
the Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Securities may declare all the Securities to be due and
payable immediately.  Upon any such
declaration, the Securities shall become due and payable immediately.  If an Event of Default specified in clause
(ix) or (x) of Section 6.1 shall occur and be continuing with respect to the
Company or any of the Company’s Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary,
then all outstanding Securities shall become due and payable immediately
without further action or notice.


 


At any time after a declaration of acceleration with respect to the
Securities as described in the preceding paragraph, the Holders of a majority
in aggregate principal amount of the Securities then outstanding may rescind
and cancel such declaration and its consequences (i) if the rescission would
not conflict with any judgment or decree, (ii) if all existing Events of
Default have been cured or waived or cease to exist except nonpayment of
principal, premium, if any, Liquidated Damages, if any, or interest that has
become due solely because of the acceleration, (iii) to the extent the payment
of such interest is lawful, interest on overdue installments of interest and
Liquidated Damages, if any, and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid, (iv) if the
Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances and (v) in the event of
the cure or waiver of an Event of Default of the type described in clause (v) of
Section 6.1, the Trustee shall have received an Officers’ Certificate and an
Opinion of Counsel that such Event of Default has been cured or waived or ceases to exist.  No such rescission shall affect any
subsequent Default or impair any right consequent thereto.


 


Section 6.3                                      OTHER
REMEDIES.


 


If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment
of principal of, premium, if any, Liquidated Damages, if any, or interest on
the Securities or to enforce the performance of any provision of the Securities
or this Indenture.


 


The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any
Holder in exercising any right or remedy maturing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default.


 


65

















 


No remedy is exclusive of any other remedy.  All available remedies are cumulative to the extent permitted by
law.


 


Section 6.4                                      WAIVER
OF PAST DEFAULT.


 


Holders of not less than a majority in aggregate principal amount of
the then outstanding Securities by notice to the Trustee may on behalf of the
Holders of all of the Securities waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of interest, Liquidated Damages, if any, premium, if any, on, or
principal of, the Securities (including in connection with an offer to
purchase) (provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Securities may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration).  Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.


 


Section 6.5                                      CONTROL
BY MAJORITY.


 


Holders of the Securities may not enforce this Indenture or the
Securities except as provided in this Article VI and under the TIA.  The Holders of not less than a majority in
aggregate principal amount of the outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it.  However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Holder, or that may involve the Trustee in personal liability; provided,
however, that the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.  In
the event the Trustee takes any action or follows any direction pursuant to
this Indenture, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against any loss, cost, expense or liability
caused by taking such action or following such direction.


 


Section 6.6                                      LIMITATION
ON SUITS.


 


No Holder of any Securities may pursue any remedy with respect to this
Indenture or the Securities unless:


 


(1)                                  the
Holder gives to the Trustee written notice of a continuing Event of Default;


 


(2)                                  the Holders of at
least 25% in aggregate principal amount of the outstanding Securities make a
written request to the Trustee to pursue a remedy;


 


(3)                                  such Holder or
Holders offer and, if requested, provide to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;


 


66

















 


(4)                                  the Trustee does not
comply with the request within 60 days after receipt of the notice, request and
the offer and, if requested, the provision of indemnity; and


 


(5)                                  during such 60-day
period the Holders of a majority in aggregate principal amount of the
outstanding Securities (excluding the Company or Affiliates of the Company) do
not give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.


 


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


 


Section 6.7                                      RIGHTS
OF HOLDERS TO RECEIVE PAYMENT.


 


Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium, if any, Liquidated Damages,
if any, or interest on the Security, on or after the respective due dates
expressed or provided for in the Security, 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 the Holder; provided, however,
that the rights of any Holder shall be subject to the regulatory redemption
provisions set forth in paragraph 6 of Exhibits A and B hereto.


 


Section 6.8                                      COLLECTION
SUIT BY TRUSTEE.


 


If an Event of Default specified in Section 6.1(i) or (ii) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company or any other obligor on the Securities
for the whole amount of principal of, premium, if any, Liquidated Damages, if
any, and interest remaining unpaid, together with interest overdue on principal
and to the extent that payment of such interest is lawful, interest on overdue
installments of interest and Liquidated Damages, if any, in each case at the
rate per annum borne by the Securities 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 6.9                                      TRUSTEE
MAY FILE PROOFS OF CLAIM.


 


The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(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 any of the Company (or any other obligor
upon the Securities), its creditors or its property and shall be entitled and
empowered to collect and receive any monies or other securities or property
payable or deliverable upon the conversion or exchange of the securities or
upon any such claims and to distribute the same, and any Custodian in any such
judicial proceedings 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 agent and counsel, and any other amounts due the Trustee under
Section 7.7.  Nothing herein


 


67

















 


contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.


 


Section 6.10                                PRIORITIES.


 


If the Trustee collects any money or property pursuant to this Article
VI, it shall pay out the money or property in the following order:


 


First:  to the Trustee for
amounts due under Section 7.7;


 


Second: 
to Holders for amounts due and unpaid on the Securities for principal,
premium, if any, Liquidated Damages, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for principal, premium, if any, Liquidated Damages, if any, and
interest, respectively; and


 


Third:  the balance, if any, to
the Company.


 


The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.


 


Section 6.11                                UNDERTAKING
FOR COSTS.


 


In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 shall not apply to a suit by the Trustee, a suit by a Holder
or group of Holders of more than 10% in aggregate principal amount of the
outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal of, premium, if any, Liquidated
Damages, if any, or interest on any Securities on or after the respective due
dates expressed or provided for in the Security.


 


Section 6.12                                MANAGEMENT
OF THE HOTEL/CASINO PROPERTY.


 


Notwithstanding any provision of this Article VI to the contrary,
following an Event of Default which permits the taking of possession of the
Hotel/Casino Property, the appointment of a receiver of either the Collateral
or any part thereof pursuant to any of the Collateral Documents, or after such
taking of possession of such appointment, the Trustee or any such receiver may,
but shall not be obligated to, in addition to the rights and powers of the
Trustee and such receiver set forth in this Indenture and the Collateral
Documents, to retain one or more experienced operators or developers or
construction contractors or agents of casinos to manage the operations of the
Hotel/Casino Property on behalf of the Holders; provided, however,
that any such operator shall have all necessary legal qualifications, including
all applicable Gaming Licenses to manage the Hotel/Casino Property.


 


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Section 6.13                                RESTORATION
OF RIGHTS AND REMEDIES.


 


If the Trustee or any Holder has instituted a proceeding to enforce any
right or remedy under this Indenture or any Collateral Document and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding has been
instituted.


 


ARTICLE VII


TRUSTEE


 


Section 7.1                                      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 their 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 a Default:


 


(i)                                     The
Trustee will perform such duties and only such duties as are specifically set
forth in this Indenture, the Collateral Documents and the Intercreditor
Agreement, and no implied covenants or obligations shall be read into this Indenture or any Collateral
Document against the Trustee; and


 


(ii)                                  In the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions conforming to the requirements of this Indenture, the
Intercreditor Agreement  and the
Collateral Documents; however, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this
Indenture, the Intercreditor Agreement and the Collateral Documents.


 


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


 


(i)                                     This paragraph does
not limit the effect of paragraph (b) of this Section 7.1;


 


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


 


(iii)                               The Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.5; and


 


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(iv)                              No provision of this
Indenture, the Intercreditor Agreement or the Collateral Documents shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or
thereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


(d)                                 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.


 


(e)                                  Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.


 


(f)                                    Every provision of
this Indenture that in any way relates to the Trustee is subject to the
provisions of this Section 7.1 and to the provisions of the TIA.


 


(g)                                 The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture, the Intercreditor Agreement, or any Collateral
Document at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable security or indemnity satisfactory
to it against the losses, costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.


 


Section 7.2                                      RIGHTS
OF TRUSTEE.


 


Subject to Section 7.1:


 


(a)                                  The
Trustee may rely on any document believed by it to be genuine and to have been
signed or presented by the proper person. 
The Trustee need not investigate any fact or matter stated in the
document.


 


(b)                                 Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate and an Opinion of Counsel. 
The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.


 


(c)                                  The
Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent (other than an agent who is an employee of the
Trustee) appointed with due care.


 


(d)                                 The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its rights or
powers provided that the Trustee’s conduct does not constitute bad
faith, willful misconduct or negligence.


 


(e)                                  The
Trustee shall not be charged with knowledge of any Default or Event of Default
unless either (i) a Responsible Officer shall have actual knowledge thereof or
(ii) the Trustee shall have received notice thereof in accordance with Section
11.2 hereof from the Company or any Holder.


 


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(f)                                    The
Trustee or Paying Agent shall not be liable for interest on any money received
by it except as the Trustee or Paying Agent may agree in writing with the
Company.  Money held in trust by the
Trustee or Paying Agent need not be segregated from other funds except to the
extent required by law and except for money held in trust under Article VIII of
this Indenture.


 


(g)                                 Except
with respect to Section 4.1, the Trustee shall have no duty to inquire as to
the performance of the Company with respect to the covenants contained in
Article IV.  In addition, the Trustee
shall not be deemed to have knowledge of an Event of Default except


 


(i)                                     any
Default or Event of Default occurring pursuant to Sections 4.1, 6.1(i) or 6.1(ii) or


 


(ii)                                  any Default or Event
of Default of which the Trustee shall have received written notifications or
obtained actual knowledge.


 


(h)                                 Delivery
of reports, information and documents to the Trustee under Section 4.12 is for
informational purposes only and the Trustee’s receipt of the foregoing shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s compliance
with any of their covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).


 


Section 7.3                                      INDIVIDUAL
RIGHTS OF TRUSTEE.


 


The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.  Any Agent may do the same with like
rights.  However, the Trustee is subject
to Sections 7.10 and 7.11.


 


Section 7.4                                      TRUSTEE’S
DISCLAIMER.


 


The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture, the Securities or the Collateral
Documents, or the validity, perfection, priority or enforceability of any
security interest or Lien granted pursuant to the Collateral Documents, it
shall not be accountable for the Company’s use of the proceeds from the
Securities or any money paid to the Company or upon the Company’s direction
under any provision of this Indenture or the Collateral Documents, and it shall
not be responsible for any statement of the Company in this Indenture or any
document issued in connection with the sale of Securities or any statement in
the Securities other than the Trustee’s certificate of authentication.  The Trustee shall not be responsible for
filing any notice in any public office at any time or times.


 


Section 7.5                                      NOTICE
OF DEFAULTS.


 


If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder notice of the
Default or Event of Default within 90 days after the occurrence thereof.  Except in the case of a Default or Event of
Default


 


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in payment of principal of, premium, if any, Liquidated Damages, if
any, or interest on any Security, 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 7.6                                      REPORTS
BY TRUSTEE TO HOLDERS.


 


If required by TIA Section 313(a), within 60 days after each May 15
beginning with May 15, 2004, the Trustee shall mail to each Holder a report
dated as of such reporting date that complies with TIA Section 313(a).  The Trustee also shall comply with TIA
Section 313(b), (c) and (d).


 


A copy of each such report at the time of its mailing to the Holders
shall be filed with the SEC and each stock exchange, if any, on which the
Securities are listed.


 


The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or of any delisting thereof.


 


Section 7.7                                      COMPENSATION
AND INDEMNITY.


 


The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services.  The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances (including reasonable fees, disbursements and  expenses of its agents and counsel) incurred
or made by it in addition to the compensation for its services except any such
disbursements, expenses and advances as may be attributable to the Trustee’s
negligence or bad faith.  Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee’s agents, accountants, experts and counsel and any taxes or other expenses
incurred by a trust created pursuant to Section 8.1 hereof.


 


The Company shall indemnify each of the Trustee, Paying Agent and
Registrant for, and hold it harmless against any and all loss, damage, claims,
liability or expense, including taxes (other than franchise taxes imposed on
the Trustee and taxes based upon, measured by or determined by the income of
the Trustee), arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the reasonable costs
and expenses of enforcing this Indenture against the Company (including this
Section 7.7) and of defending itself against any claim (whether asserted by any
Holder or the Company) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent that
such loss, damage, claim, liability or expense is due to its own negligence,
willful misconduct or bad faith.  The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. 
However, the failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder.  The Company shall defend the claim and the Trustee shall
cooperate in the defense (and may employ its own counsel) at the Company’s
expense; provided, however, that the Company’s reimbursement
obligation with respect to counsel employed by the Trustee will be limited to
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its written consent, which consent shall not be
unreasonably withheld.  The Company need
not


 


72

















 


reimburse any expense or indemnify against any loss or liability
incurred by the Trustee as a result of the violation of this Indenture by the
Trustee caused by the Trustee’s negligence or willful misconduct.


 


To secure the Company’s payment obligations in this Section 7.7, the
Trustee shall have a Lien prior to the Securities against all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of, premium, if any, Liquidated
Damages, if any, or interest on particular Securities.  The Trustee’s right to receive payment of
any amounts due under this Section 7.7 shall not be subordinated to any of the
liabilities or indebtedness of the Company (notwithstanding that the Securities
may be subordinated).


 


When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(ix) or (x) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation
for the services shall be preferred over the status of the Holders in a
proceeding under any Bankruptcy Law and (without prejudice to any other rights
available to the Trustee under applicable law) are intended to constitute
expenses of administration under any Bankruptcy Law.  The Company’s obligations under this Section 7.7 and any claim
arising hereunder shall survive the resignation or removal of any Trustee, the
termination of this Indenture, the discharge of the Company’s obligations
pursuant to Article VIII and any rejection or termination under any Bankruptcy
Law.


 


Section 7.8                                      REPLACEMENT
OF TRUSTEE.


 


The Trustee may resign at any time by so notifying the Company in
writing.  The Holders of a majority in
aggregate principal amount of the outstanding Securities may remove the Trustee
by so notifying the Trustee and the Company in writing and may appoint a
successor Trustee with the Company’s consent. 
The Company may remove the Trustee if:


 


(1)                                  the Trustee fails to
comply with Section 7.10;


 


(2)                                  the Trustee is
adjudged a bankrupt or an insolvent under any Bankruptcy Law;


 


(3)                                  a custodian or other
public officer takes charge of the Trustee or its property;


 


(4)                                  the Trustee becomes
incapable of acting; or


 


(5)                                  the Trustee is unable
or unwilling to secure any approval required by a Gaming Authority.


 


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 aggregate
principal amount of the Securities may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.


 


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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company.  As promptly as practicable thereafter, the
retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.7, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have the rights, powers and duties of the Trustee under this
Indenture.  A successor Trustee shall
mail notice of its succession to each Holder. 
Once the resignation or removal of the retiring Trustee has become
effective, the retiring Trustee shall have no further obligations under this
Indenture and no liability in respect of acts or omissions of the successor
Trustee.


 


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 outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.


 


If the Trustee fails to comply with Section 7.10, any Holder who has
been a bona fide holder of a Security for at least six months may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.


 


Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company’s obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.


 


Section 7.9                                      SUCCESSOR
TRUSTEE BY MERGER, ETC.


 


If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation or banking association, the resulting, surviving or transferee corporation
or banking association without any further act shall be the successor Trustee.


 


Section 7.10                                ELIGIBILITY;
DISQUALIFICATION.


 


This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5).  The Trustee shall have a combined capital
and surplus of at least $50,000,000, or be part of a bank holding company with
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. 
If the Trustee has or shall acquire any “conflicting interest” within
the meaning of TIA Section 310(b), the Trustee and the Company shall comply
with the provisions of TIA Section 310(b) (subject to the penultimate paragraph
thereof).  If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article VII.


 


Section 7.11                                PREFERENTIAL
COLLECTION OF CLAIMS AGAINST THE COMPANY.


 


The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.


 


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Section 7.12                                MONEY
HELD IN TRUST.


 


The Trustee or Paying Agent shall not be liable for interest on any
money received by it except as the Trustee or Paying Agent may agree in writing
with the Company.  Money held in trust
by the Trustee or Paying Agent need not be segregated from other funds except
to the extent required by law and except for money held in trust under Article
VIII of this Indenture.


 


Section 7.13                                AUTHORIZATION
OF TRUSTEE TO TAKE OTHER ACTIONS.


 


(a)                                  The
Trustee is hereby authorized to enter into and take any actions or deliver such
consents required by or requested under each of the Collateral Documents and
the Intercreditor Agreement and such other documents as directed by the Holders
of a majority of outstanding aggregate principal amount of the Securities.  If at any time any action by or the consent
of the Trustee is required under any of the Collateral Documents, the
Intercreditor Agreement or any other document entered into by the Trustee at
the direction of a majority of the Holders of outstanding aggregate principal
amount of the Securities, such action or consent shall be taken or given by the
Trustee.


 


(b)                                 Upon
the request of the Company, the Trustee shall enter into an intercreditor
agreement with respect to any FF&E Financing; provided, however,
that the Company deliver an Officers’ Certificate certifying that (i) such
financing will not violate this Indenture or any of the Collateral Documents
and (ii) the terms of such intercreditor agreement will not violate this
Indenture or any of the Collateral Documents.


 


(c)                                  The
Trustee and its directors, officers, employees and Affiliates shall cooperate
with all Gaming Authorities and provide such information and documentation as
may from time to time be requested thereby.


 


ARTICLE VIII


DISCHARGE OF INDENTURE; DEFEASANCE


 


Section 8.1                                      TERMINATION
OF COMPANY’S OBLIGATIONS.


 


This Indenture will be discharged and will cease to be of further
effect (except as to surviving rights of registration of transfer or exchange
of the Securities, as expressly provided for in this Indenture) as to all
outstanding Securities when (a) either (i) all the Securities, theretofore
authenticated and delivered (except lost, stolen or destroyed Securities which
have been replaced and Securities for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company pursuant to Section
8.3) have been delivered to the Trustee for cancellation or (ii) all Securities
not theretofore delivered to the Trustee for cancellation have become due and
payable and the Company has irrevocably deposited or caused to be deposited
with the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Securities not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, Liquidated Damages, if any,
and interest on the Securities to the date of deposit together with irrevocable
instructions from the Company directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be; (b) the Company
has paid all other sums payable by the Company under this Indenture; and (c)
the Company has delivered to


 


75

















 


the Trustee an Officers’ Certificate and an Opinion of Counsel stating
that all conditions precedent under this Indenture relating to the satisfaction
and discharge of this Indenture have been complied with.


 


The Company may, at its option and at any time, elect to have all of
its obligations discharged with respect to the outstanding Securities (“LEGAL
DEFEASANCE”) except for (i) the rights of Holders of outstanding Securities to
receive payments in respect of the principal of, premium, if any, and interest
and Liquidated Damages, if any, on such Securities when such payments are due
from the trust referred to below, (ii) the Company’s obligations with respect
to the Securities concerning issuing temporary Securities, registration of
Securities, mutilated, destroyed, lost or stolen Securities and the maintenance
of an office or agency for payment and money for security payments held in
trust, (iii) the rights, powers, trusts, duties and immunities of the Trustee,
and the Company’s obligations in connection therewith and (iv) this Section
8.1. In addition, the Company may, at its option and at any time, elect to have
the obligations of the Company released with respect to Sections 4.3 through
4.6, Sections 4.10 through 4.12, Sections 4.14 through Section 4.18, Sections
4.20 and Article V (“COVENANT DEFEASANCE”) and thereafter any omission to
comply with such obligations shall not constitute a Default or Event of Default
with respect to the Securities. In the event Covenant Defeasance occurs, events
described under clauses (iii), (iv) (each to the extent relating to a default
with respect to any of Sections 4.3 through 4.6, Sections 4.10 through 4.12,
Sections 4.14 through 4.18, and Section 4.20 and Article V), (v) and (vi) of
Section 6.1 (not including non-payment, bankruptcy, receivership,
rehabilitation and insolvency events) will no longer constitute an Event of
Default with respect to the Securities.


 


In order to exercise either Legal Defeasance or Covenant Defeasance,


 


(a)                                  the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Securities, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the outstanding Securities on the stated
maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Securities are being defeased to maturity or
to a particular redemption date;


 


(b)                                 in
the case of Legal Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date hereof, 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 Securities 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 have delivered to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Securities will not
recognize income, gain or loss


 


76

















 


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) or insofar as Events of
Default from bankruptcy or insolvency events are concerned, at any time in the
period ending on the 91st day after the date of deposit;


 


(e)                                  such
Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;


 


(f)                                    the
Company must have delivered to the Trustee an Opinion of Counsel to the effect
that after the 91st day following the deposit, assuming that no Holder is an
insider of the Company (as “insider” is defined in Bankruptcy Code Section
101), the cash or securities so deposited will not be subject to avoidance and
recovery under Bankruptcy Code Sections 547 and 550;


 


(g)                                 the
Company must have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent to hinder, delay
or defraud creditors of the Company; and


 


(h)                                 the
Company must have delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent provided for in this
Indenture relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.


 


Section 8.2                                      APPLICATION
OF TRUST MONEY.


 


The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or
U.S. Government Obligations deposited with it pursuant to Section 8.1, and
shall apply the deposited U.S. Legal Tender and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of the principal
of, premium, if any, Liquidated Damages, if any, and interest on the
Securities. The Trustee shall be under no obligation to invest said U.S. Legal
Tender or U.S. Government Obligations except as it may agree in writing with
the Company.


 


The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.1 or the 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 outstanding Securities.


 


Section 8.3                                      REPAYMENT
TO THE COMPANY.


 


Subject to Section 8.1, the Trustee and the Paying Agent shall promptly
pay to the Company upon request any excess (as determined by the Trustee) U.S.
Legal Tender or U.S.


 


77

















 


Government Obligations held by them at any time and thereupon shall be
relieved from all liability with respect to such money.  The Trustee and the Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal
of, premium, if any, Liquidated Damages, if any, or interest on the Securities
that remains unclaimed for two years; provided, however, that the
Trustee or such Paying Agent, before being required to make any payment, may at
the expense of the Company cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein which shall be at least 30 days from the date of such publication or
mailing any unclaimed balance of such money then remaining will be repaid to
the Company.  After payment to the
Company, Holders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another Person.


 


Section 8.4                                      REINSTATEMENT.


 


If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender
or U.S. Government Obligations in accordance with Section 8.1 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.1 until such time as the Trustee or Paying Agent is permitted to
apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with Section 8.1; provided, however, that if the Company has made
any payment of principal of, premium, if any, Liquidated Damages, if any, or
interest on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the U.S. Legal Tender or U.S. Government Obligations
held by the Trustee or Paying Agent.


 


ARTICLE IX


AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


Section 9.1                                      WITHOUT
CONSENT OF HOLDERS.


 


From time to time, the Company and the Trustee, without the consent of
the Holders, may amend or supplement this Indenture, the Securities,
Intercreditor Agreement or the Collateral Documents for certain specified
purposes, including, without limitation:


 


(i)                                     to cure any
ambiguity, defect or inconsistency;


 


(ii)                                  to effect the
assumption by a successor Person of all obligations of the Company under the
Securities and this Indenture in connection with any transaction complying with
Article V of this Indenture;


 


(iii)                               to provide for
uncertificated Securities in addition to or in place of certificated
Securities;


 


(iv)                              to comply with any
requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA;


 


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(v)                                 to make any change
that would provide any additional benefit or rights to the Holders;


 


(vi)                              to make any other change
that does not adversely affect the rights of any Holder under this Indenture in
any material respects;


 


(vii)                           to add to the covenants of
the Company and its Restricted Subsidiaries for the benefit of the Holders, or
to surrender any right or power herein conferred upon the Company;


 


(viii)                        to enter into additional or
supplemental Collateral Documents;


 


provided, however, that the Company has
delivered to the Trustee an Opinion of Counsel stating that such amendment or
supplement complies with the provisions of this Section 9.1.


 


Section 9.2                                      WITH
CONSENT OF HOLDERS.


 


Subject to Section 6.7, the Company and the Trustee may amend or
supplement this Indenture, the Securities, Intercreditor Agreement and the
Collateral Documents with the written consent of the Holders of a majority in
aggregate principal amount of the Securities then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Securities). 
Subject to Section 6.7, the Holders of at least a majority in aggregate
principal amount of the outstanding Securities may waive (including by consents
obtained in connection with a tender offer or exchange offer for Securities)
any existing default or compliance by the Company with any provision of this
Indenture, the Securities or the Collateral Documents.  However, without the consent of each
affected Holder, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4, may not (with respect to any Securities held by a
non-consenting Holder):


 


(i)                                     reduce the
principal amount of Securities whose Holders must consent to an amendment,
supplement or waiver;


 


(ii)                                  reduce the principal
of or change the fixed maturity of any Security or alter the provisions with
respect to the redemption price of the Securities (other than provisions
relating to Sections 4.5 or 4.14);


 


(iii)                               reduce the rate of or
change the time for payment of interest on or Liquidated Damages, if any, with
respect to any Security;


 


(iv)                              waive a Default or Event
of Default in the payment of principal of, premium, if any, or interest or
Liquidated Damages, if any, on the Securities (except (A) a rescission of
acceleration of the Securities by the Holders of at least a majority in
aggregate principal amount of the Securities and a waiver of the payment
default that resulted from such acceleration or (B) a payment required pursuant
to Section 4.5 or 4.14);


 


(v)                                 make any Security
payable in money other than that stated in the Securities;


 


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(vi)                              make any change in the
provisions of this Indenture relating to waivers of past Defaults or the rights
of Holders of Securities to receive payments of principal of, premium, if any,
or interest or Liquidated Damages, if any, on the Securities (other than
payments required pursuant to Section 4.5 or Section 4.14);


 


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


 


(viii)                        make any change in the
foregoing amendment and waiver provisions.


 


Any amendment to, or waiver of, the provisions of any of the Collateral
Documents relating to Section 4.17 or Article X of this Indenture requires the
consent of the holders of at least 662/3% in aggregate
principal amount of the Securities then outstanding.


 


It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.


 


After an amendment, supplement or waiver under this Section 9.2 becomes
effective, the Company shall mail to the Holders affected thereby 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 supplemental indenture.


 


Section 9.3                                      COMPLIANCE
WITH TRUST INDENTURE ACT.


 


Every amendment to or supplement of this Indenture, the Securities or
the Collateral Documents shall comply with the TIA as then in effect.


 


Section 9.4                                      REVOCATION
AND EFFECT OF CONSENTS.


 


Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of
that Security or portion of that Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on
such Security.  Subject to the following
paragraph, any such Holder or subsequent Holder may revoke the consent as to
such Holder’s Security or portion of such Security by notice to the Trustee or
the Company received before the date on which the Trustee receives an Officers’
Certificate certifying that the Holders of the requisite aggregate principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.


 


The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver.  If a record date
is fixed, then, notwithstanding the last sentence of the immediately preceding
paragraph, those persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment, supplement or


 


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waiver or to revoke any consent previously given, whether or not such
persons continue to be Holders after such record date.  No such consent shall be valid or effective
for more than 90 days after such record date.


 


After an amendment, supplement or waiver becomes effective, it shall
bind every Holder.


 


Section 9.5                                      NOTATION
ON OR EXCHANGE OF SECURITIES.


 


If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. 
Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Security shall not affect the validity and effect of
such amendment, supplement or waiver.


 


Section 9.6                                      TRUSTEE
TO SIGN AMENDMENTS, ETC.


 


The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture and that such amendment or supplement
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms.  The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise. 
In signing any amendment, supplement or waiver, the Trustee shall be
entitled to receive an indemnity reasonably satisfactory to it.


 


ARTICLE X


COLLATERAL AND SECURITY


 


Section 10.1                                COLLATERAL
AND COLLATERAL DOCUMENTS; ADDITIONAL COLLATERAL.


 


(a)                                  In
order to secure the due and punctual payment of the principal of and interest
on the Securities when and as the same shall be due and payable, whether on an
Interest Payment Date, at maturity, by acceleration, purchase, repurchase,
redemption or otherwise, and interest on the overdue principal of and interest
(to the extent permitted by law), if any, on the Securities and the performance
of all other obligations of the Company or any Guarantor to the Holders or the
Trustee under this Indenture, the Securities, the Subsidiary Guarantees and any
other documents contemplated hereby, the Company and the Trustee have
simultaneously with the execution of this Indenture entered into the Collateral
Documents and, in the case of a Guarantor, will enter into Collateral Documents
in substantially the same form as the Collateral Documents entered into as of
the date hereof concurrently with the execution of the related Subsidiary
Guarantee following the date hereof. The Trustee and the Company hereby agree
that the Trustee holds its interest in the Collateral in trust for the benefit
of the Holders pursuant to the terms of the Collateral Documents. The Trustee
is also authorized and directed to enter into


 


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the Intercreditor Agreement, and each Holder, by accepting a Security,
agrees to all the terms of the Intercreditor Agreement.


 


(b)                                 Promptly
upon the acquisition by the Company or any Guarantor of assets that would
constitute Collateral pursuant to the Collateral Documents (including any
property acquired after the date of the Indenture that constitutes Collateral)
(“AFTER-ACQUIRED PROPERTY”), (i) the Company or such Guarantor and the Trustee
will enter into such amendments or supplements to the Collateral Documents, or
additional Collateral Documents, in each case in recordable or registrable form
and in a form substantially similar to the form of the Collateral Documents
entered into on the Issue Date, and to the extent the After-Acquired Property
consists of securities, a securities pledge agreement in a form reasonably
acceptable to the Trustee, with such changes thereto as are necessitated by
local law or other changes in circumstances (the “ADDITIONAL COLLATERAL
DOCUMENTS”), as are necessary in order to grant to the Trustee for the benefit
of the Holders a perfected second priority Lien on and security interest in such
After-Acquired Property, subject to Permitted Liens; and (ii) the Company shall
also deliver to the Trustee the following: (A) to the extent the After-Acquired
Property consists of real property, an Opinion of Counsel confirming that the
Lien of this Indenture and the Collateral Documents constitutes a valid and
perfected Lien on such real property, subject to Permitted Liens in respect of
the relevant item of Collateral, together with an Officers’ Certificate stating
that any Liens on such real property are Liens expressly permitted by the
applicable Collateral Document or are Permitted Liens and containing assurances
of the type included in the Opinion of Counsel delivered to the Trustee on the
date hereof with respect to the Collateral; and (B) evidence of payment of all
filing fees, recording and registration charges, transfer taxes and other costs
and expenses, including reasonable legal fees and disbursements of counsel for
the Trustee (and any local counsel), that may be incurred to validly and effectively
subject the After-Acquired Property to the Lien of any applicable Collateral
Document and perfect such Lien.


 


(c)                                  Each
Holder, by accepting a Security, agrees to all the terms and provisions of the
Collateral Documents, including the Additional Collateral Documents, as the
same may be amended from time to time pursuant to the provisions of the
Collateral Documents, the Additional Collateral Documents and this Indenture.


 


Section 10.2                                RECORDING,
REGISTRATION AND OPINIONS.


 


(a)                                  The
Company and each Guarantor shall take or cause to be taken all action required
to perfect, maintain, preserve and protect the Lien on and security interest in
the Collateral granted by the Collateral Documents, including without
limitation, the filing of financing statements, continuation statements and any
instruments of further assurance, in such manner and in such places as may be
required by law fully to preserve and protect the rights of the Holders and the
Trustee under this Indenture, the Collateral Documents and the Additional
Collateral Documents to all property comprising the Collateral. The Company
shall from time to time promptly pay all financing and continuation statement
recording, registration and/or filing fees, charges and taxes relating to this
Indenture and the Collateral Documents, any amendments thereto and any other
instruments of further assurance required pursuant to the Collateral Documents.
The Trustee shall not be responsible for any failure to so register, file or
record.


 


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(b)                                 The
Company shall furnish to the Trustee, at the time of execution and delivery of
this Indenture, an Opinion of Counsel substantially similar in form and
substance to the Opinion of Counsel being furnished to the Initial Purchasers
as of the date hereof, relating to the perfection of the security interests in
the Collateral granted pursuant to the Collateral Documents.  The Company or the relevant Guarantor shall
furnish to the Trustee, at the time of execution and delivery of any Additional
Collateral Document(s), an Opinion of Counsel substantially similar to the
Opinion of Counsel being furnished pursuant to the immediately preceding
sentence (but relating only to such Additional Collateral Documents and the
related After-Acquired Property).


 


(c)                                  The
Company shall furnish to the Trustee within 60 days after December 31 in each
year, beginning with December 31, 2003, an Opinion of Counsel, dated as of such
date, subject to customary exceptions and assumptions, either (i)(A) stating
that, in the opinion of such counsel, action has been taken with respect to the
recording, registration, filing, re-recording, re-registration and refiling of
all supplemental indentures, financing statements, continuation statements and
other documents as is necessary to maintain the Lien of the Collateral
Documents and reciting with respect to the security interests 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, under the applicable Uniform
Commercial Code as in effect on the date of such Opinion of Counsel, all
financing statements, continuation statements and other documents have been
executed and filed that are necessary as of such date and during the succeeding
24 months fully to maintain the security interest of the Holders and the
Trustee hereunder and under the Collateral Documents with respect to the
Collateral, or (ii) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien.


 


Section 10.3                                RELEASE
OF COLLATERAL.


 


(a)                                  The
Trustee shall not at any time release Collateral from the security interest
created by this Indenture and the Collateral Documents unless such release is
in accordance with the provisions of this Indenture, the Intercreditor
Agreement or the Collateral Documents, and in connection with any such release,
the Trustee shall promptly execute such terminations and other documents as
requested by the administrative agent under the New Credit Facility or the
Company to confirm such release.


 


(b)                                 At
any time when an Event of Default shall have occurred and be continuing, no
release of Collateral pursuant to the provisions of this Indenture and the
Collateral Documents shall be effective as against the Holders, except to the
extent in accordance with the Intercreditor Agreement.


 


(c)                                  The
release of any Collateral from the terms of the Collateral Documents 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
this Indenture, the Intercreditor Agreement or the Collateral Documents.


 


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Section 10.4                                POSSESSION
AND USE OF COLLATERAL.


 


Subject to and in accordance with the provisions of this Indenture and
the Collateral Documents, so long as no Event of Default shall have occurred
and be continuing, the Company and each Guarantor shall have the right to
remain in possession and retain exclusive control of the Collateral, to sell or
otherwise dispose of inventory in the ordinary course of business, to collect,
sell or otherwise dispose of accounts receivable in the ordinary course of
business, to operate, manage, develop, lease, use, consume and enjoy the Collateral,
to alter or repair any Collateral consisting of machinery or equipment so long
as such alterations and repairs do not diminish the value thereof or impair the
Lien of the Collateral Documents thereon and to collect, receive, use, invest
and dispose of the reversions, remainders, interest, rents, lease payments,
issues, profits, revenues, proceeds and other income thereof.


 


Section 10.5                                SPECIFIED
RELEASES OF COLLATERAL.


 


(a)                                  Satisfaction
and Discharge; Defeasance. The Company and the Guarantors shall be entitled
to obtain a full release of all of the Collateral from the Liens of this
Indenture and of the Collateral Documents upon compliance with the conditions
precedent set forth in Section 8.1 for satisfaction and discharge of this
Indenture or for defeasance pursuant to Section 8.1. Upon delivery by the
Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel,
each to the effect that such conditions precedent have been complied with (and
which may be the same Officers’ Certificate and Opinion of Counsel required by
Article VIII), the Trustee shall forthwith take all necessary action (at the
request of and the expense of the Company) to release and reconvey to the
Company and the Guarantors all of the Collateral, and shall deliver such
Collateral in its possession to the Company and the Guarantors including,
without limitation, the execution and delivery of releases and satisfactions
wherever required.


 


(b)                                 Dispositions
of Collateral Permitted by Section 4.5. The Company and the Guarantors
shall be entitled to obtain a release of, and the Trustee shall release, items
of Collateral (the “RELEASED INTERESTS”) subject to an Asset Sale upon
compliance with the conditions precedent that the Company shall have delivered
to the Trustee the following:


 


(i)                                     Company Order.  A Company Order requesting release of
Released Interests, such Company Order (A) specifically describing the proposed
Released Interests, (B) specifying the value of such Released Interests on a
date within 60 days of the Company Order (the “VALUATION DATE”), (C) stating
that the consideration to be received is at least equal to the Fair Market
Value of the Released Interests, (D) stating that the release of such Released
Interests will not interfere with or impede the Trustee’s ability to realize
the value of the remaining Collateral and will not impair the maintenance and
operation of the remaining Collateral, (E) confirming the sale of, or an
agreement to sell, such Released Interests in a bona fide sale to a Person that
is not an Affiliate of the Company or, in the event that such sale is to a
Person that is such an Affiliate, confirming that such sale is being made in
accordance with Section 4.3, (F) certifying that such Asset Sale complies with
the terms and conditions of Section 4.5 hereof and (G) in the event that there
is to be a substitution of property for the Collateral subject to the Asset
Sale, specifying the property intended to be substituted for the Collateral to
be disposed of; and


 


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(ii)                                  Officers’
Certificate. An Officers’ Certificate certifying that (A) such Asset Sale
covers only the Released Interests, (B) all Net Cash Proceeds from the sale of
any of the Released Interests will be applied pursuant to Section 4.5, (C)
there is no Default or Event of Default in effect or continuing on the date
thereof, the Valuation Date or the date of such Asset Sale, (D) the release of
the Collateral will not result in a Default or Event of Default hereunder and
(E) all conditions precedent to such release have been complied with.


 


Upon compliance by the Company with, to the extent applicable, the
conditions precedent set forth above and Sections 10.1(b) and 11.1, the Trustee
shall cause to be released and reconveyed to the Company the Released
Interests.


 


(iii)                               Eminent Domain;
Expropriations and Other Governmental Takings. The Company shall be
entitled to obtain a release of, and the Trustee shall release, items of
Collateral taken by eminent domain or expropriation or sold pursuant to the
exercise by the United States of America or any state, municipality or other
governmental authority thereof of any right which it may then have to purchase,
or to designate a purchaser or to order a sale of, all or any part of the Collateral,
upon compliance with the conditions precedent that the Company shall have
delivered to the Trustee an Officers’ Certificate certifying that (A) such
Collateral has been taken by eminent domain or expropriation and the amount of
the award therefor, or that such property has been sold pursuant to a right
vested in the United States of America, or a state, municipality or other
governmental authority thereof to purchase, or to designate a purchaser, or
order a sale of such Collateral and the amount of the proceeds of such sale,
and (B) all conditions precedent to such release have been complied with.


 


Section 10.6                                DISPOSITION
OF COLLATERAL WITHOUT RELEASE.


 


The Company may, without any prior release or consent by the Trustee,
conduct ordinary course activities in respect of the Collateral, which do not
individually or in the aggregate adversely affect the value of such Collateral,
including selling or otherwise disposing of Cash Equivalents; selling or
otherwise disposing of inventory in the ordinary course of business;
collecting, selling or otherwise disposing of accounts receivable in the
ordinary course of business; making cash payments (including for the scheduled
repayment of Indebtedness) from cash that is at any time part of the Collateral
that are not otherwise prohibited by this Indenture and the Collateral
Documents; selling or otherwise disposing of any machinery, equipment,
furniture, apparatus, tools or implements, materials or supplies or other
similar property or personal property (“SUBJECT PROPERTY”), free from the Lien
of this Indenture and the Collateral Documents, which, in the reasonable
opinion of the Company, may have become obsolete or unfit for use in the
conduct of its business or the operation of the Collateral upon replacing the same
with, or substituting for the same, new Subject Property constituting
Collateral not necessarily of the same character but being of at least equal
value as the Subject Property so disposed of as long as such new Subject
Property becomes subject to the Lien of this Indenture


 


85

















 


and the Collateral Documents; selling or otherwise disposing of any
personal property in the ordinary course of business, the use of which is no
longer necessary in the proper conduct of the business of the Company and is
not material to the conduct of the business of Company so long as the proceeds
from such disposition, if any, become subject to the Lien of this Indenture and
the Collateral Documents; abandoning, terminating, canceling, releasing or
making alterations in or substitutions of any leases or contracts subject to
the Lien of this Indenture or any of the Collateral Documents; altering,
repairing, replacing, changing the location or position of and adding to its
structures, machinery, systems, equipment, fixtures and appurtenances; granting
a nonexclusive license of any intellectual property; and abandoning
intellectual property which has become obsolete and not used in the business.


 


Section 10.7                                FORM
AND SUFFICIENCY OF RELEASE.


 


In the event that the Company has sold, exchanged, or otherwise
disposed of or proposes to sell, exchange or otherwise dispose of any portion
of the Collateral that under the provisions of Section 10.4, 10.5 or 10.6 may
be sold, exchanged or otherwise disposed of by the Company, and the Company
requests the Trustee to furnish a written disclaimer, release or quitclaim of
any interest in such property under this Indenture and the Collateral
Documents, upon being satisfied that the Company is selling, exchanging or
otherwise disposing of the Collateral under Section 10.4, 10.5 or 10.6, the
Trustee shall execute, acknowledge and deliver to the Company (in proper and
recordable or registrable form) such an instrument promptly after satisfaction
of the conditions set forth herein for delivery of any such release.
Notwithstanding the preceding sentence, all purchasers and grantees of any
property or rights purporting to be released herefrom shall be entitled to rely
upon any release executed by the Trustee hereunder as sufficient for the
purpose of this Indenture and as constituting a good and valid release of the
property therein described from the Lien of this Indenture or of the Collateral
Documents.


 


Section 10.8                                PURCHASER
PROTECTED.


 


No purchaser or grantee of any property or rights purporting to be
released herefrom shall be bound to ascertain the authority of the Trustee to
execute the release or to inquire as to the existence of any conditions herein
prescribed for the exercise of such authority.


 


Section 10.9                                AUTHORIZATION
OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE COLLATERAL DOCUMENTS AND THE
INTERCREDITOR AGREEMENT.


 


Subject to the provisions of the Collateral Documents and the
Intercreditor Agreement, (a) the Trustee may, in its sole discretion and
without the consent of the Holders, take all actions as it deems necessary or
appropriate in order to (i) enforce any of the terms of the Collateral
Documents and the Intercreditor Agreement and (ii) collect and receive any and
all amounts payable in respect of the obligations of the Company hereunder and
(b) the Trustee shall have power to institute and to maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the
Collateral by any act that may be unlawful or in violation of the Collateral
Documents, the Intercreditor Agreement or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders in the Collateral (including the 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 thereunder or be prejudicial to the interests of the Holders or of the
Trustee). No duty


 


86

















 


beyond that of a reasonably prudent Person shall rest upon the Trustee
in taking any such action or instituting and maintaining any such suits or
proceedings pursuant to this Section 10.9.


 


Section 10.10                          AUTHORIZATION
OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE COLLATERAL DOCUMENTS.


 


Subject to the Intercreditor Agreement, the Trustee is authorized to
receive any funds for the benefit of Holders distributed under the Collateral
Documents, and to make further distributions of such funds to the Holders in
accordance with the provisions of this Indenture.


 


Section 10.11                          CERTAIN
TIA REQUIREMENTS.


 


(a)                                  To
the extent applicable, and in addition to any other requirements of this
Indenture, the Company will cause Section 314(d)(1) of the TIA relating to the
release of property or securities from the Lien hereof and of the Collateral
Documents to be complied with.


 


(b)                                 The
Company shall not be required to comply with subsection (a) of this Section
10.11 in respect of transactions undertaken pursuant to Section 10.6, provided
that the Company shall deliver to the Trustee on or before December 31, 2003
and within 60 days following each June 30 and December 31 thereafter a
certificate (signed by two Officers) to the effect that all of the transactions
undertaken by the Company pursuant to Section 10.6 during the preceding
semi-annual period were in the ordinary course of the Company’s business and
that the proceeds therefrom were used by the Company as permitted by this
Indenture and the Collateral Documents.


 


(c)                                  The
fair value of Collateral released from the Liens of this Indenture and the
Collateral Documents pursuant to Section 10.6 hereof shall not be considered in
determining whether the aggregate fair value of Collateral released from the
Liens of this Indenture and the Collateral Documents in any calendar year exceeds
the 10% threshold specified in Section 314(d)(1) of the TIA; provided
that the Company’s right to rely on this sentence at any time is conditioned
upon the Company having furnished to the Trustee the certificates described in
subsection (b) of this Section 10.11 that were required to be furnished to the
Trustee at or prior to such time. It is expressly understood that subsection
(b) of this Section 10.11 and this subsection (c) relate only to the Company’s
obligations under the TIA and shall not restrict or otherwise affect the
Company’s and its Subsidiaries’ rights or abilities, or the rights or abilities
of the administrative agent under the New Credit Facility, to release
Collateral pursuant to the terms of this Indenture, the Intercreditor Agreement
and the Collateral Documents or as otherwise permitted by the Trustee under
this Indenture, the Intercreditor Agreement and the Collateral Documents.


 


ARTICLE XI


MISCELLANEOUS


 


Section 11.1                                TRUST
INDENTURE ACT CONTROLS.


 


This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable,
be governed by such provisions.  If any
provision of this Indenture modifies any TIA provision that may be so modified,
such TIA


 


87

















 


provision shall be deemed to apply to this Indenture as so
modified.  If any provision of this
Indenture excludes any TIA provision that may be so excluded, such TIA
provision shall be excluded from this Indenture.  Notwithstanding anything to the contrary contained in this
Indenture, the Company shall not be required to comply with all or any portion
of Section 314(d) of the TIA if it determines, in good faith based on the
advice of counsel, that under the terms of Section 314(d) and/or any
interpretation or guidance as to the meaning thereof of the Commission or its
staff (including “no action” letters), all or such portion of Section 314(d) of
the TIA is inapplicable to one or a series of releases of the Collateral.


 


The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.


 


Section 11.2                                NOTICES.


 


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


 


if to the Company:


 


Hard Rock Hotel, Inc.

4455 Paradise Road

Las Vegas, Nevada  89109

Attention: Chief Financial Officer

Facsimile: (702) 693-5050

Telephone: (702) 693-5000


 


with a copy to:


 


Skadden, Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue, Suite 3400

Los Angeles, California  90071-3144

Attention: Gregg A. Noel

Facsimile: (213) 687-5600

Telephone: (213) 687-5234


 


if to the Trustee:


 


U.S. Bank National Association

180 East 5th Street

St. Paul, Minnesota 55101

Attention: Corporate Trust Department

Facsimile: (612) 244-0711

Telephone: (612) 244-0721


 


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


 


All notices and communications (other than those sent to the Trustee or
to Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.


 


Any notice or communication to the Trustee shall be deemed to have been
duly given to the Trustee when received at the Corporate Trust Office of the
Trustee.


 


Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar.  Any notice or
communication shall also be so mailed to any Person described in TIA Section
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 the 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 11.3                                COMMUNICATIONS
BY HOLDERS WITH OTHER HOLDERS.


 


Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).


 


Section 11.4                                CERTIFICATE
AND OPINION AS TO CONDITIONS PRECEDENT.


 


Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:


 


(1)                                  an Officers’
Certificate in form satisfactory to the Trustee stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and


 


(2)                                  an Opinion of Counsel
in form satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers’ Certificate or certificates of public officials.


 


89

















 


Section 11.5                                STATEMENTS
REQUIRED IN CERTIFICATE OR OPINION.


 


Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:


 


(1)                                  a statement that the
person making such certificate or opinion has read such covenant or condition;


 


(2)                                  a brief statement as
to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;


 


(3)                                  a statement that, in
the opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and


 


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


 


Section 11.6                                RULES
BY TRUSTEE, PAYING AGENT, REGISTRAR.


 


The Trustee may make reasonable rules for action by or at a meeting of
Holders.  The Paying Agent or Registrar
may make reasonable rules for its functions.


 


Section 11.7                                GOVERNING
LAW.


 


The laws of the State of New York shall govern this Indenture and the
Securities without regard to the principles of conflicts of law to the extent
that the application of the law of another jurisdiction would be required
thereby.


 


Section 11.8                                NO
RECOURSE AGAINST OTHERS.


 


No director, officer, employee, incorporator or stockholder of the
Company shall have any liability for any obligations of the Company under the
Securities, this Indenture or the Collateral Documents, or for any claim based
on, in respect of or by reason of such obligations or their creation.  Each Holder of Securities by accepting a
Security waives and releases all such liability.  The waiver and release are part of the consideration for issuance
of the Securities.


 


Section 11.9                                SUCCESSORS.


 


All agreements of the Company in this Indenture, the Securities and the
Collateral Documents shall bind its successor. 
All agreements of the Trustee in this Indenture shall bind its
successor.


 


90

















 


Section 11.10                          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 11.11                          SEVERABILITY.


 


In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.


 


Section 11.12                          NO
ADVERSE INTERPRETATION OF OTHER AGREEMENTS.


 


This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.


 


Section 11.13                          LEGAL
HOLIDAYS.


 


If a payment date is not a Business Day, payment may be made on the
next succeeding Business Day, and no interest shall accrue for the intervening
period.


 


Section 11.14                          SUBMISSION
TO JURISDICTION.


 


To the fullest extent permitted by applicable law, the Company
irrevocably submits to the jurisdiction of any Federal or State court in the
City, County and State of New York, United States of America, in any suit or
proceeding based on or arising under this Agreement (solely in connection with
any such suit or proceeding), and irrevocably agree that all claims in respect
of such suit or proceeding may be determined in any such court.  The Company irrevocably and fully waives the
defense of an inconvenient forum to the maintenance of such suit or proceeding.  To the extent that the Company has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of note, attachment prior to judgment,
attachment in aid of execution, executor or otherwise) with respect to itself
or its property, the Company hereby irrevocably waives such immunity in respect
of its obligations under this Agreement, to the extent permitted by law.


 


91

















 


IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.


 


	
   

  	
  HARD ROCK HOTEL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:  Brian
  D. Ogaz

  
	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name: 
  Richard H. Prokosch

  
	
   

  	
  Title: 
  Vice President

  



 


92

















EXHIBIT A


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A SECURITY IN
DEFINITIVE FORM, THIS SECURITY 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 CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER
STREET, NEW YORK, NEW YORK) (“DTC”), TO HARD ROCK HOTEL, INC. (THE “COMPANY”)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR 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.


 


THE SECURITY (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF, THE
HOLDER 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
NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES
FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(c) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3)


 


A-1

















 


PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN (A) ABOVE.


 


HARD ROCK HOTEL, INC.


 


87/8% Second Lien Notes
due 2013


 


	
   

  	
   

  	
  CUSIP

  
	
   

  	
   

  	
   

  
	
  No.

  	
   

  	
  $

  



 


Hard Rock Hotel, Inc., a Nevada corporation (the “Company”), promises
to pay to Cede & Co. or registered assigns, the principal sum of                                                    
Dollars on June 1, 2013.


 


Interest Payment Dates:  June 1
and December 1


 


Record Dates:  May 15 and
November 15


 


Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.


 


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


 


IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
  HARD ROCK HOTEL, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  Attest:

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


A-2

















 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


U.S. Bank National Association, as Trustee certifies that this is one
of the 87/8% Second Lien Notes due 2013 referred to in
the within-mentioned Indenture.


 


U.S. Bank National Association, as Trustee


 


 


	
  By:

  	
   

  	
   

  	
  Dated:

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  	
   

  



 


A-3

















 


[REVERSE OF SECURITY]


 


HARD ROCK HOTEL, INC.


 


87/8% Second Lien Notes
due 2013


 


1.  INTEREST.


 


Hard Rock Hotel, Inc., a Nevada corporation (the “Company”), promises
to pay interest at the rate of 87/8% per annum on the
principal amount of this Security semi-annually in arrears on each Interest
Payment Date referred to on the face hereof commencing on December 1, 2003,
until the principal hereof is paid or made available for payment. Interest on
the Securities will accrue from and including the most recent date to which
interest has been paid or duly provided for, or if no interest has been paid or
duly provided for, from and including
                   ,
through but excluding the date on which the principal hereof is paid or made
available for payment. If an Interest Payment Date falls on a day that is not a
Business Day, the interest payment to be made on such Interest Payment Date
will be made on the next succeeding Business Day with the same force and effect
as if made on such Interest Payment Date, and no additional interest will
accrue as a result of such delayed payment. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.


 


2.  METHOD OF PAYMENT.


 


The Company will pay interest on the Securities (except defaulted
interest) and Liquidated Damages, if any, to the Persons who are registered
Holders of Securities at the close of business on the May 15 or November 15
next preceding the Interest Payment Date. 
The Securities will be payable as to principal, premium, if any,
Liquidated Damages, if any, and interest at the office or agency of the Company
maintained for such purpose within the city and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages, if any, may
be made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that all payments with respect to
Securities the Holders of which have given wire transfer instructions to the
Company shall be required to be made by wire transfer of immediately available
funds to the accounts specified by the Holders thereof until the date the
Exchange Offer is consummated. 
Thereafter, such payments, except to DTC, will be made by check.  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.


 


Initially, U.S. Bank National Association (the “Trustee”) will act as
Paying Agent. The Company may change any Paying Agent, without notice to the
Holders of Securities.


 


4.  INDENTURE AND COLLATERAL
DOCUMENTS.


 


This Security is one of a duly authorized issue of Securities of the
Company, designated as its 87/8% Second Lien Notes due
2013 (the “Securities”), limited in aggregate principal amount to $200,000,000
(except for Securities issued in substitution for destroyed, lost


 


A-4

















 


or stolen Securities) issuable under an indenture, dated as of May 30,
2003 (the “Indenture”), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by the Trust Indenture Act of 1939, as amended (the “Act”) (15 U.S.
Code Sections 77aaa-77bbbb) as in effect on the date of the Indenture and the
date the Indenture is qualified under the Act. The Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and the
Securities Act for a statement of them. Each Holder, by accepting a Security,
agrees to be bound by all of the terms and provisions of the Indenture, as the
same may be amended from time to time. 
The Securities are secured by the Collateral as set forth in the
Collateral Documents.


 


The Securities are subordinated in right of payment to all Senior
Indebtedness of the Company to the extent and in the manner provided in the
Indenture.


 


5.  OPTIONAL REDEMPTION.


 


The Securities will not be redeemable at the Company’s option prior to
June 1, 2008. Thereafter, the Securities will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to, but not including, the
applicable redemption date, if redeemed during the twelve-month period
beginning on June 1 of the years indicated below:


 


 


	
  YEAR

  	
   

  	
  PERCENTAGE

  	
   

  
	
  2008

  	
   

  	
  104.438

  	
  %

  
	
  2009

  	
   

  	
  102.958

  	
  %

  
	
  2010

  	
   

  	
  101.479

  	
  %

  
	
  2011
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Notwithstanding the foregoing, at any time on or prior to June 1, 2006,
the Company may (but shall not have the obligation to) redeem, on one or more
occasions, up to an aggregate of 35% of the aggregate principal amount of
Securities originally issued at a redemption price equal to 108.875% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to, but not including, the redemption date, with the
net cash proceeds of one or more Equity Offerings; provided that at
least 65% of the aggregate principal amount of Securities originally issued
remain outstanding immediately after the occurrence of such redemption; and provided
further, that such redemption shall occur within 60 days of the date of
the closing of such Equity Offering.


 


6.  REGULATORY REDEMPTION.


 


If any Gaming Authority requires that a Holder or beneficial owner of
Securities must be licensed, qualified or found suitable under any applicable
gaming law and such Holder or beneficial owner fails to apply for a license,
qualification or a finding of suitability within 30 days after being requested
to do so by the Gaming Authority (or such lesser period that may be required by
such Gaming Authority), or if such Holder or such beneficial owner is not so
licensed, qualified or found suitable, the Company shall have the right, at its
option, (i) to require such Holder or beneficial owner to dispose of such
Holder’s or beneficial owner’s Securities


 


A-5

















 


within 10 days of receipt of such notice of such finding by such Gaming
Authority or such other date as may be ordered by such Gaming Authority or (ii)
to call for the redemption of the Securities of such Holder or beneficial owner
at the lesser of the principal amount thereof, the Fair Market Value of such
Securities on the date of redemption or the price at which such Holder or
beneficial owner acquired the Securities, together with, in either case,
accrued and unpaid interest to the earlier of the date of redemption and the
date of the finding of unsuitability by such Gaming Authority.  The Company shall notify the Trustee in
writing of any such redemption as soon as practicable and the redemption price
of each Security to be redeemed.  The
Holder of Securities or beneficial owner applying for a license, qualification
or a finding of suitability must pay all costs of the licensure and
investigation for such qualification or finding of suitability.  The Company is not required to pay or
reimburse any Holder of the Securities or beneficial owner who is required to
apply for such license, qualification or finding of suitability for the costs
of the licensure or investigation for such qualification or finding of
suitability.  Such expense will,
therefore, be the obligation of such Holder or beneficial owner.


 


7.  PURCHASE UPON OCCURRENCE OF
A CHANGE OF CONTROL.


 


Upon the occurrence of a Change of Control, the Company will be
required to make an offer to repurchase all or any part (equal to $1,000 or an
integral multiple thereof), of each Holder’s Securities pursuant to the
Company’s “Change of Control Offer” as described in the Indenture, at an offer
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to, but not
including, the date of purchase.


 


8.  ASSET SALES.


 


In the event of certain Asset Sales, the Company may be required to
make an offer to purchase all or a portion of the Securities at a purchase
price equal to 100% of their principal amount plus accrued and unpaid interest
and Liquidated Damages, if any, to, but not including, the date of purchase in
accordance with the procedures set forth in the Indenture.


 


9.  DENOMINATIONS: TRANSFER;
EXCHANGE.


 


The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. 
The transfer of Securities may be registered and Securities 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
Security or portion of a Security selected for redemption, except for the
unredeemed portion of any Security being redeemed in part.  Also, it need not exchange or register the
transfer of any Securities for a period of 15 days before the mailing of a
notice of redemption or during the period between a record date and the
corresponding Interest Payment Date.


 


10.  PERSONS DEEMED OWNERS.


 


The Holder of this Security may be treated as the owner of this
Security for all purposes.


 


A-6

















 


11.  DISCHARGE PRIOR TO
REDEMPTION OR MATURITY.


 


The Indenture will be discharged and cancelled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of
all the Securities or upon the irrevocable deposit with the Trustee of funds or
U.S. Government Obligations sufficient for such payment or redemption.


 


12.  AMENDMENT; SUPPLEMENT;
WAIVER.


 


Subject to certain exceptions, the Indenture, the Securities or the
Collateral Documents may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Securities, and any past default or compliance with any provision may be waived
with the consent of the Holders of at least a majority in aggregate principal
amount of the outstanding Securities. Without notice to or the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture, the
Securities or the Collateral Documents to cure any ambiguity, defect or
inconsistency, or to make any other change that does not adversely affect the
rights of any Holder of Securities.


 


13.  DEFAULTS AND REMEDIES.


 


If an Event of Default shall occur and be continuing, the principal of
all of the outstanding Securities, plus all accrued and unpaid interest, if
any, and Liquidated Damages, if any, to, but not including, the date the
Securities become due and payable, may be declared due and payable in the
manner and with the effect provided in the Indenture.


 


14.  TRUSTEE DEALINGS WITH
COMPANY AND ITS AFFILIATES.


 


The Trustee in its individual or any other capacity, may become the
owner or pledgee of Securities and make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.


 


15.  NO RECOURSE AGAINST OTHERS.


 


No director, officer, employee, incorporator or stockholder of the
Company shall have any liability for any obligations of the Company under the
Securities, the Indenture, the Collateral Documents or for any claim based on,
in respect of or by reason of such obligations or their creation.  Each Holder of Securities by accepting a
Security waives and releases all such liability.  The waiver and release are part of the consideration for issuance
of the Securities.


 


16. AUTHENTICATION.


 


This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.


 


A-7

















 


17.  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 Securities 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 accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.


 


18.  REGISTRATION RIGHTS.


 


Pursuant to the Registration Rights Agreement, the Company will be
obligated to consummate an exchange offer pursuant to which the Holder of this
Security shall have the right to exchange the Company’s 87/8%
Second Lien Notes due 2013, Series A for the Company’s 87/8%
Second Lien Notes due 2013, Series B (the “Exchange Securities”), the issuance
of which shall have been registered under the Securities Act, in like principal
amount and having terms identical in all material respects as the Securities.
The Holders of the Securities shall be entitled to receive certain additional
interest payments in the event such Exchange Offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement and the Indenture.  Each Holder of a Security, by his acceptance thereof,
acknowledges and agrees to the provisions of the Registration Rights Agreement,
including, without limitation, the obligations of the Holders with respect to a
registration and the indemnification of the Company to the extent provided
therein.


 


19.  GOVERNING LAW.


 


The laws of the State of New York shall govern the Indenture and this
Security without regard to the principles of conflicts of law to the extent
that the application of the law of another jurisdiction would be required
thereby.


 


The Company will furnish to any Holder of record of Securities upon
written request and without charge a copy of the Indenture.


 


20.  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).


 


A-8

















 


SCHEDULE OF EXCHANGES OF INTERESTS


IN THE GLOBAL SECURITY


 


The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or exchanges
of a part of another Global Security or Definitive Security for an interest in
this Global Security, have been made:


 


 


	
  DATE OF

  EXCHANGE

  	
   

  	
  AMOUNT OF DECREASE IN

  PRINCIPAL AMOUNT OF

  THIS GLOBAL SECURITY

  	
   

  	
  AMOUNT OF INCREASE IN

  PRINCIPAL AMOUNT OF

  THIS GLOBAL SECURITY

  	
   

  	
  PRINCIPAL AMOUNT OF

  THIS GLOBAL SECURITY

  FOLLOWING SUCH

  DECREASE (OR INCREASE)

  	
   

  	
  SIGNATURE OF AUTHORIZED

  SIGNATORY OF TRUSTEE OR

  SECURITY CUSTODIAN

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-9

















 


ASSIGNMENT FORM


 


To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to


 


 


(Insert
assignee’s soc. sec. or tax I.D. no.)


 


 


 


 


(Print
or type assignee’s name, address and zip code)


 


and irrevocably appoint
                                                                                       
to transfer this Security 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 Security)

  	
   

  
	
   

  
	
   

  	
  Signature
  Guarantee:

  	
   

  	
   

  
							



 


A-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Security purchased by the Company
pursuant to Section 4.5 or 4.14 of the Indenture, check the box below:


 


	
  o

  	
   

  	
  Section 4.5

  	
   

  	
  o

  	
   

  	
  Section 4.14

  



 


If you want to elect to have only part of the Security purchased by the
Company pursuant to Section 4.5 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:


 


$                    


 


	
  Date:

  	
   

  	
   

  	
  Your signature:

  	
   

  	
   

  
	
   

  	
  (sign exactly as your name
  appears on the face of this

  	
   

  
	
   

  	
   

  	
  Security)

  	
   

  
	
   

  
	
   

  	
   

  	
  Tax Identification No.:

  	
   

  	
   

  
	
   

  
	
   

  	
   

  	
  Signature Guarantee:

  	
   

  	
   

  
											



 


A-11

















 


EXHIBIT
B


 


THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).  NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS
OF THIS REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A SECURITY IN
DEFINITIVE FORM, THIS SECURITY 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 CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) (“DTC”), TO HARD ROCK HOTEL, INC. (THE “COMPANY”) OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR 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.


 


THE SECURITY (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF, THE
HOLDER 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
NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION


 


B-1

















 


MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.


 


HARD ROCK HOTEL, INC.


 


87/8% Second Lien Notes
due 2013


 


CINS
                              


 


$
                                     


 


No.
               


 


Hard Rock Hotel, Inc., a Nevada corporation (the “Company”), promises
to pay to Cede & Co. or registered assigns, the principal sum of
                    
Dollars on June 1, 2013.


 


Interest Payment Dates:  June 1
and December 1


 


Record Dates:  May 15 and
November 15


 


Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.


 


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


 


B-2

















 


IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.


 


	
   

  	
  HARD ROCK HOTEL, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


 


	
  Attest:

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


U.S. Bank National Association, as Trustee, certifies that this is one
of the 87/8% Second Lien Notes due 2013 referred to in
the within-mentioned Indenture.


 


U.S. Bank National Association,

as Trustee


 


	
  By:

  	
   

  	
   

  	
  Dated:

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  	
   

  



 


B-3

















 


[REVERSE OF SECURITY]


 


HARD ROCK HOTEL, INC.


 


87/8% Second Lien Notes
due 2013


 


1.  INTEREST.


 


Hard Rock Hotel, Inc., a Nevada corporation (the “Company”), promises
to pay interest at the rate of 87/8% per annum on the
principal amount of this Security semi-annually in arrears on each Interest
Payment Date referred to on the face hereof commencing on December 1,
2003, until the principal hereof is paid or made available for payment.
Interest on the Securities will accrue from and including the most recent date
to which interest has been paid or duly provided for, or if no interest has
been paid or duly provided for, from and including                       ,
through but excluding the date on which the principal hereof is paid or made
available for payment. If an Interest Payment Date falls on a day that is not a
Business Day, the interest payment to be made on such Interest Payment Date
will be made on the next succeeding Business Day with the same force and effect
as if made on such Interest Payment Date, and no additional interest will
accrue as a result of such delayed payment. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.


 


2.  METHOD OF PAYMENT.


 


The Company will pay interest on the Securities (except defaulted
interest) and Liquidated Damages, if any, to the Persons who are registered
Holders of Securities at the close of business on May 15 or November 15 next
preceding the Interest Payment Date. 
The Securities will be payable as to principal, premium, if any,
Liquidated Damages, if any, and interest at the office or agency of the Company
maintained for such purpose within the city and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages, if any, may
be made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that all payments with respect to
Securities the Holders of which have given wire transfer instructions to the
Company shall be required to be made by wire transfer of immediately available
funds to the accounts specified by the Holders thereof until the date the
Exchange Offer is consummated. 
Thereafter, such payments, except to DTC, will be made by check.  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.


 


Initially, U.S. Bank National Association (the “Trustee”) will act as
Paying Agent. The Company may change any Paying Agent, without notice to the
Holders of Securities.


 


4.  INDENTURE AND COLLATERAL
DOCUMENTS.


 


This Security is one of a duly authorized issue of Securities of the
Company, designated as its 87/8% Second Lien Notes due
2013 (the “Securities”), limited in aggregate principal amount to $200,000,000
(except for Securities issued in substitution for destroyed, lost


 


B-4

















 


or stolen Securities) issuable
under an indenture, dated as of May 30, 2003 (the “Indenture”), between the
Company and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by the Trust Indenture Act
of 1939, as amended (the “Act”) (15 U.S. Code Sections 77aaa- 77bbbb) as in
effect on the date of the Indenture and the date the Indenture is qualified
under the Act. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the Securities Act for a statement
of them. Each Holder, by accepting a Security, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time.  The Securities are secured by the
Collateral as set forth in the Collateral Documents.


 


The Securities
are subordinated in right of payment to all Senior Indebtedness of the Company
to the extent and in the manner provided in the Indenture.


 


5.  OPTIONAL REDEMPTION.


 


a.  The Securities will not be redeemable at the
Company’s option prior to June 1, 2008. Thereafter, the Securities will be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days’ notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to, but not
including, the applicable redemption date, if redeemed during the twelve-month
period beginning on June 1 of the years indicated below:


 


	
  YEAR

  	
   

  	
  PERCENTAGE

  	
   

  
	
  2008

  	
   

  	
  104.438

  	
  %

  
	
  2009

  	
   

  	
  102.958

  	
  %

  
	
  2010

  	
   

  	
  101.479

  	
  %

  
	
  2011
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


b.  Notwithstanding the foregoing, at any time
on or prior to June 1, 2006, the Company may (but shall not have the obligation
to) redeem, on one or more occasions, up to an aggregate of 35% of the
aggregate principal amount of Securities originally issued at a redemption
price equal to 108.875% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the redemption date,
with the net cash proceeds of one or more Equity Offerings; provided
that at least 65% of the aggregate principal amount of Securities originally
issued remain outstanding immediately after the occurrence of such redemption;
and provided  further, that such redemption shall occur within 60
days of the date of the closing of such Equity Offering.


 


6.  REGULATORY REDEMPTION.


 


If any Gaming
Authority requires that a Holder or beneficial owner of Securities must be licensed,
qualified or found suitable under any applicable gaming law and such Holder or
beneficial owner fails to apply for a license, qualification or a finding of
suitability within 30 days after being requested to do so by the Gaming
Authority (or such lesser period that may be required by such Gaming
Authority), or if such Holder or such beneficial owner is not so


 


B-5

















 


licensed, qualified or found
suitable, the Company shall have the right, at its option, (i) to require such
Holder or beneficial owner to dispose of such Holder’s or beneficial owner’s
Securities within 10 days of receipt of such notice of such finding by the
applicable Gaming Authority or such other date as may be ordered by such Gaming
Authority or (ii) to call for the redemption of the Securities of such Holder
or beneficial owner at the lesser of the principal amount thereof, the Fair
Market Value of such Securities on the date of redemption or the price at which
such Holder or beneficial owner acquired the Securities together with, in
either case, accrued and unpaid interest and Holder or beneficial owner
acquired the Securities, together with, in either case, accrued and unpaid
interest to the earlier of the date of redemption and the date of the finding
of unsuitability by such Gaming Authority. The Company shall notify the Trustee
in writing of any such redemption as soon as practicable and the redemption
price of each Security to be redeemed. 
The Holder of Securities or beneficial owner applying for a license,
qualification or a finding of suitability must pay all costs of the licensure
and investigation for such qualification or finding of suitability.  The Company is not required to pay or reimburse
any Holder of the Securities or beneficial owner who is required to apply for
such license, qualification or finding of suitability for the costs of the
licensure or investigation for such qualification or finding of
suitability.  Such expense will, therefore,
be the obligation of such Holder or beneficial owner.


 


7.  PURCHASE UPON OCCURRENCE OF
A CHANGE OF CONTROL.


 


Upon the occurrence of a Change of Control, the Company will be
required to make an offer to repurchase all or any part (equal to $1,000 or an
integral multiple thereof), of each Holder’s Securities pursuant to the
Company’s “Change of Control Offer” as described in the Indenture, at an offer
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to, but not
including, the date of purchase.


 


8.  ASSET SALES.


 


In the event of certain Asset Sales, the Company may be required to
make an offer to purchase all or a portion of the Securities at a purchase
price equal to 100% of their principal amount plus accrued and unpaid interest
and Liquidated Damages, if any, to, but not including, the date of purchase in
accordance with the procedures set forth in the Indenture.


 


9.  DENOMINATIONS: TRANSFER;
EXCHANGE.


 


The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. 
The transfer of Securities may be registered and Securities 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
Security or portion of a Security selected for redemption, except for the
unredeemed portion of any Security being redeemed in part.  Also, it need not exchange or register the
transfer of any Securities for a period of 15 days before the mailing of a
notice of redemption or during the period between a record date and the
corresponding Interest Payment Date.


 


B-6

















 


10.  PERSONS DEEMED OWNERS.


 


The Holder of this Security may be treated as the owner of this
Security for all purposes.


 


11.  DISCHARGE PRIOR TO
REDEMPTION OR MATURITY.


 


The Indenture will be discharged and cancelled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of
all the Securities or upon the irrevocable deposit with the Trustee of funds or
U.S. Government Obligations sufficient for such payment or redemption.


 


12.  AMENDMENT; SUPPLEMENT;
WAIVER.


 


Subject to certain exceptions, the Indenture, the Securities or the
Collateral Documents may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Securities, and any past default or compliance with any provision may be waived
with the consent of the Holders of at least a majority in aggregate principal
amount of the outstanding Securities. Without notice to or the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture, the
Securities or the Collateral Documents to cure any ambiguity, defect or
inconsistency, or to make any other change that does not adversely affect the
rights of any Holder of Securities.


 


13.  DEFAULTS AND REMEDIES.


 


If an Event of Default shall occur and be continuing, the principal of
all of the outstanding Securities, plus all accrued and unpaid interest, if any,
and Liquidated Damages, if any, to, but not including, the date the Securities
become due and payable, may be declared due and payable in the manner and with
the effect provided in the Indenture.


 


14.  TRUSTEE DEALINGS WITH
COMPANY AND ITS AFFILIATES.


 


The Trustee in its individual or any other capacity, may become the
owner or pledgee of Securities and make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.


 


15.  NO RECOURSE AGAINST OTHERS.


 


No director, officer, employee, incorporator or stockholder of the
Company shall have any liability for any obligations of the Company under the
Securities, the Indenture, the Collateral Documents or for any claim based on,
in respect of or by reason of such obligations or their creation.  Each Holder of Securities by accepting a
Security waives and releases all such liability.  The waiver and release are part of the consideration for issuance
of the Securities.


 


B-7

















 


16.  AUTHENTICATION.


 


This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.


 


17.  CINS NUMBERS.


 


Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CINS numbers to be
printed on the Securities and has directed the Trustee to use CINS numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.


 


18.  REGISTRATION RIGHTS.


 


Pursuant to the Registration Rights Agreement, the Company will be
obligated to consummate an Exchange Offer pursuant to which the Holder of this
Security shall have the right to exchange the Company’s 87/8%
Second Lien Notes due 2013, Series A for the Company’s 87/8%
Second Lien Securities due 2013, Series B (the “Exchange Securities”), the
issuance of which shall have been registered under the Securities Act, in like
principal amount and having terms identical in all material respects as the
Securities.  The Holders of the
Securities shall be entitled to receive certain additional interest payments in
the event such Exchange Offer is not consummated and upon certain other
conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement and the Indenture.  Each Holder of a Security, by his acceptance thereof,
acknowledges and agrees to the provisions of the Registration Rights Agreement
including without limitation the obligations of the Holders with respect to a
registration and the indemnification of the Company to the extent provided
therein.


 


19.  GOVERNING LAW.


 


The laws of the State of New York shall govern the Indenture and this
Security without regard to the principles of conflicts of law to the extent
that the application of the law of another jurisdiction would be required
thereby.


 


The Company will furnish to any Holder of record of Securities upon
written request and without charge a copy of the Indenture.


 


20.  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).


 


B-8

















 


SCHEDULE OF EXCHANGES OF INTERESTS
IN THE GLOBAL
SECURITY


 


The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or exchanges
of a part of another Global Security or Definitive Security for an interest in
this Global Security, have been made:


 


 


	
  Date of

  Exchange

  	
   

  	
  Amount of decrease in

  Principal Amount of

  this Global Security

  	
   

  	
  Amount of increase in

  Principal Amount of

  this Global Security

  	
   

  	
  Principal Amount of this Global

  Security following such decrease

  (or increase)

  	
   

  	
  Signature of authorized

  signatory of Trustee or

  Security Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B-9

















 


ASSIGNMENT FORM


 


To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to


 


(Insert assignee’s soc. sec. or tax I.D. no.)


 


 


 


 


(Print
or type assignee’s name, address and zip code)


 


 


and irrevocably
appoint                                                                                             to
transfer this Security 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 Security)

  	
   

  
	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  	
   

  
											



 


B-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Security purchased by the Company
pursuant to Section 4.5 or 4.14 of the Indenture, check the box below:


 


	
  o

  	
   

  	
  Section 4.5

  	
   

  	
  o

  	
   

  	
  Section 4.14

  



 


If you want to elect to have only part of the Security purchased by the
Company pursuant to Section 4.5 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:


 


$                        


 


	
  Date:

  	
   

  	
   

  	
   

  	
  Your signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  (sign exactly as your name
  appears on the face of this

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Security)

  	
   

  	
   

  
	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Tax Identification No.:

  	
   

  	
   

  
	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Signature Guarantee:

  	
   

  	
   

  
											



 


B-11

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF TRANSFER


 


Hard Rock Hotel, Inc.

4455 Paradise Road

Las Vegas, Nevada  89109


 


U.S. Bank National Association

[                                              ]


 


[                                              ]


 


Attention:
Corporate Trust Division


 


Re: 87/8% SECOND LIEN
NOTES DUE 2013 OF HARD ROCK HOTEL, INC.


 


Reference is hereby made to the Indenture, dated as of May 30, 2003
(the “INDENTURE”), between Hard Rock Hotel, Inc., as issuer (the “COMPANY”),
and U.S. Bank National Association, 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 Security or Securities or
interest in such Security or Securities specified in Annex A hereto, in the
principal amount of
$                  
in such Security or Securities 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
SECURITY OR A DEFINITIVE SECURITY 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 Security is
being transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or Definitive Security 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 Security will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Security and/or the Definitive Security and in the Indenture
and the Securities Act.


 


C-1

















 


2. o CHECK IF
TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S
TEMPORARY GLOBAL SECURITY, THE REGULATION S GLOBAL SECURITY OR A DEFINITIVE
SECURITY 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(b) or Rule 904(b) 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 Restricted
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 Security will be subject to the restrictions on Transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Security, the Temporary Regulation S Global Security and/or the Definitive
Security and in the Indenture and the Securities Act.


 


3. o CHECK AND
COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
RESTRICTED GLOBAL SECURITY OR A DEFINITIVE SECURITY 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 Securities and Restricted Definitive Securities 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 effect pursuant to an effective registration statement under the
Securities Act and in compliance with the prospectus delivery requirements of
the Securities Act.


 


4. o CHECK IF
TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE SECURITY.


 


(a) o CHECK IF
TRANSFER IF PURSUANT TO RULE 144. 
(i)  The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act


 


C-2

















 


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 Security will not longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Securities, on Restricted Definitive Securities and in the
Indenture.


 


(b)  CHECK IF TRANSFER IS PURSUANT
TO REGULATION S.  (i) The Transfer is
being effect 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 required in order to maintain
compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indentures, the transferred beneficial interest or Definitive Security
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture.


 


(c)  CHECK IF TRANSFER IF
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 144m, Rule
903 or Rule 904 and in compliance with the transfer restrictions 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 Security
will not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Securities or Restricted
Definitive Securities and in the Indenture.


 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Trustee and the Company.


 


	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  
	
  Dated:

  	
   

  	
   

  
								



 


C-3

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.  The Transferor owns and
proposes to transfer the following:


 


[CHECK ON OF (a) OR (b)]


 


(a)                                  o
a beneficial interest in the:


 


(i)                                     o
144A Global Security (CUSIP
           ), or


 


(ii)                                  o
Regulation S Global Security
(CUSIP          ), or


 


(iii)                               o
Restricted Global Security
(CUSIP          ); or


 


(b)                                 o
a Restricted Definitive Security.


 


2.  After the Transfer the
Transferee will hold:


 


[CHECK ONE]


 


(a)                                  o
a beneficial interest in the:


 


(i)                                     o
144A Global Security (CUSIP
          ), or


 


(ii)                                  o
Regulation S Global Security
(CUSIP          ), or


 


(iii)                               o
Restricted Global Security
(CUSIP          ); or


 


(iv)                              o
(CUSIP          ), or
Unrestricted Global Security
(CUSIP          ); or


 


(b)                                 o
a Restricted Definitive Security; or


 


(c)                                  o
an Unrestricted Definitive Security.


 


in accordance
with the terms of the Indenture.


 


C-4

















 


EXHIBIT
D


 


FORM OF CERTIFICATE OF TRANSFER OR EXCHANGE


 


Hard Rock Hotel, Inc.

4455 Paradise Road

Las Vegas, Nevada  89109


 


U.S. Bank National Association

[                                              ]

[                                              ]


 


Attention: Corporate Trust Division


 


Re:  87/8%
SECOND LIEN NOTES DUE 2013 OF HARD ROCK HOTEL, INC.


 


Reference is hereby made to the Indenture, dated as of May 30, 2003
(the “INDENTURE”), between Hard Rock Hotel, Inc., as issuer (the “COMPANY”),
and U.S. Bank National Association, as trustee.  Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.


 


                                           (the
“OWNER”) owns and proposed to exchange the Security or Securities specified
herein, in the principal amount of
$                                  
in such Security or Securities or interests (the “EXCHANGE”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.  EXCHANGE OF RESTRICTED
DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL SECURITY
FOR UNRESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL SECURITY


 


(a)  o
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY.  In connection with he Exchange of the
Owner’s beneficial interest in a Restricted Global Security for a beneficial
interest in an Unrestricted Global Security 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 Global Securities
and pursuant to and in accordance with he United States Securities Act of 1933,
as amended (the “SECURITIES ACT”), (iii) the restriction on transfer contained
in the Indenture and the Private Placement Legend are not 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 Security 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 SECURITY
TO UNRESTRICTED DEFINITIVE SECURITY.  In


 


D-1

















 


connection with the Exchange of
the Owner’s beneficial interest in a Restricted Global Security for an
Unrestricted Definitive Security, the Owner hereby certifies (i) the Definitive
Security 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 Securities 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 Definitive
Security 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 SECURITY TO BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL SECURITY.  In
connection with the Owner’s Exchange of a Restricted Definitive Security for a
beneficial interest in an Unrestricted Global Security, 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 Securities 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
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 SECURITY TO UNRESTRICTED
DEFINITIVE SECURITY.  In connection with
the Owner’s Exchange of a Restricted Definitive Security for n Unrestricted
Definitive Security, the Owner hereby certifies (i) the Unrestricted Definitive
Security 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 Securities 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 Security is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.


 


2.  EXCHANGE OF RESTRICTED
DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITIES
FOR RESTRICTED DEFINITIVE SECURITY OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
SECURITY


 


(a)  o
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY
TO RESTRICTED DEFINITIVE SECURITY.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Security for a Restricted Definitive Security with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Security 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
Security issued will continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Security
and in the Indenture and the Securities Act.


 


D-2

















 


(b)  o
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST
ON A RESTRICTED GLOBAL SECURITY.  In
connection with the Exchange of the Owner’s Restricted Definitive Security for
a beneficial interest in the [CHECK ONE] 
o 144A Global Security, o
Regulation S Global Security, o Restricted
Global Security, 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 Global Securities 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 Security and in the Indenture and the Securities Act.


 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Trustee and the Company.


 


	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of Owner]

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  
	
  Dated:

  	
   

  	
   

  
								



 


D-3

















 


EXHIBIT
E


 


[FORM OF SUBSIDIARY GUARANTEE]


 


PURSUANT TO AN INTERCREDITOR AGREEMENT DATED AS OF MAY 30, 2003, THE
LIENS GRANTED PURSUANT TO THIS INSTRUMENT ARE SUBJECT AND SUBORDINATE TO THE
LIENS GRANTED TO BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT.


 


THIS GUARANTEE (as the same may be amended, modified or supplemented
from time to time, this “Guarantee”), dated as of
                   
, is made by
                       
(hereinafter referred to as the “Guarantor”) in favor of
[                           ],
a national banking association, as trustee under the Indenture hereinafter
described (the “Trustee”), for the ratable benefit of the holders from
time to time (the “Holders”) of the Securities (as hereinafter defined).


 


All terms not otherwise defined herein shall have for the purposes
hereof the meanings set forth in the Indenture (as hereinafter defined) unless
the context otherwise requires.


 


Recitals


 


A.  Hard Rock Hotel, Inc. (the “Company”)
is a party to that certain indenture dated as of May 30, 2003 (as amended,
supplemented or otherwise modified from time to time, the “Indenture”)
between the Company and the Trustee, pursuant to which the Company issued up to
$200.0 million principal amount of its 87/8% Second Lien
Notes due 2013 (including all Initial Securities and Exchange Securities issued
from time to time pursuant to the Indenture, collectively, the “Securities”);
and


 


B.  The Guarantor is a direct or
indirect Restricted Subsidiary of the Company, and will derive both direct and
indirect economic benefit from the proceeds of the Securities and other
financial accommodations made to the Company under the Indenture.


 


C.  The Indenture requires that
the Guarantor execute and deliver this Guarantee, together with such Collateral
Documents as are necessary to create and convey to the Trustee for the benefit
of the Holders a perfected second-priority lien on all Collateral (subject to
Permitted Liens) held by such Guarantor to guarantee, on a senior secured
basis, the payment obligations of the Company under the Securities and the
Indenture, including, in each case, all reasonable costs of collection and
enforcement thereof and interest thereon which would be owing by the Company or
such Guarantor but for the effect of the Bankruptcy Code, 11 U.S.C. (S) 101 et seq.
(collectively, the “Guaranteed Obligations”).


 


NOW, THEREFORE, for and in consideration of the foregoing and of any
financial accommodations or extensions of credit (including, without
limitation, any loan or advance by renewal, refinancing or extension of the
Indenture or otherwise) heretofore, now or hereafter made to or for the benefit
of the Company pursuant to the Indenture or any other agreement, instrument or
document executed pursuant to or in connection therewith, and for other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Guarantor and the Trustee agree as follows:


 


E-1

















 


1.  THE GUARANTEE.  The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the Guaranteed
Obligations; provided, however, the obligations of the Guarantor hereunder
shall be limited to the maximum amount which may be paid hereunder without
resulting in any payment hereunder being deemed to constitute a fraudulent
conveyance.  This Guarantee is a
guarantee of payment and not of collection. 
All payments made by the Guarantor under this Guarantee shall be paid at
the place and in the manner specified in the Indenture and the Securities.


 


2.  AMENDMENTS, ETC. WITH
RESPECT TO THE GUARANTEED OBLIGATIONS; WAIVER OF RIGHTS.  The Guarantor shall remain obligated
hereunder notwithstanding that without any reservation of rights against the
Guarantor and without notice to or further assent by the Guarantor any demand
for payment of any of the Guaranteed Obligations made by the Trustee or the
Holders may be rescinded by them and any of the Guaranteed Obligations
continued, and the Guaranteed Obligations, or the liability of any other party
upon or for any part thereof, or guarantee therefor or right of offset with
respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Trustee or the Holders, and the Indenture, the Intercreditor
Agreement, the Collateral Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or terminated,
in whole or in part, as the Trustee or the Holders may deem advisable from time
to time or as provided in the Indenture, the Intercreditor Agreement and the
Collateral Documents, and any guarantee or right of offset at any time held by
the Trustee for the payment of the Guaranteed Obligations may be sold,
exchanged, waived, surrendered or released.


 


3.  GUARANTEE ABSOLUTE AND
UNCONDITIONAL.  The Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Trustee or the
Holders upon this Guarantee, the Guaranteed Obligations, and any of them shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee; and all
dealings between the Issuers and the Guarantor, on the one hand, and the
Trustee and the Holders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guarantee.  The Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Company or the Guarantor with respect to the Guaranteed Obligations.  The Guarantor understands and agrees that
this Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of the Indenture, the Intercreditor Agreement, the Collateral
Documents or any of the Securities, any of the Guaranteed Obligations or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Trustee or the Holders, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Company against the Trustee or the
Holders, or (c) any other circumstances whatsoever (with or without notice to
or knowledge of the Company or such Guarantor) which constitute, or might be
construed to constitute, an equitable or legal discharge of the Company for the
Guaranteed Obligations, or of the Guarantor under this Guarantee, in bankruptcy
or in any other instance.  When pursuing
its rights and remedies hereunder against the Guarantor, the Trustee and/or the
Holders may, but shall be under no obligation to, pursue such rights and


 


E-2

















 


remedies as it or they may have
against the Company or any other Person or against any guarantee for the
Guaranteed Obligations or any right of offset with respect thereto, and any
failure by the Trustee or the Holders to pursue such other rights or remedies
or to collect any payments from the Company or any such other Person or to
realize upon any such guarantee or to exercise any such right of offset, or any
release of the Company or any such other Person or any such guarantee or right
of offset, shall not relieve the Guarantor of any liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available on a matter of law, of the Trustee and/or the Holders against the
Guarantor.  This Guarantee shall remain
in full force and effect and be binding in accordance with and to the extent of
its terms upon the Guarantor and its successors and assigns thereof, and shall
inure to the benefit of the Trustee, and its successors, indorsees, transferees
and assigns, and the Holders from time to time of the Securities until all the
Guaranteed Obligations and the obligations of the Guarantor under this
Guarantee shall have been satisfied by payment in full, notwithstanding that
from time to time during the term of the Indenture the Company may be free from
any Guaranteed Obligations.


 


4.  DISCHARGE; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES.  The Guarantor’s
obligations hereunder shall remain in full force and effect until the
Guaranteed Obligations shall have been paid in full or released pursuant to
Section 4.20 of the Indenture or the Intercreditor Agreement.  If at any time any payment of the Guaranteed
Obligations is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, the
Guarantor’s obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at
such time.


 


5.  WAIVER BY THE
GUARANTOR.  The Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against the Company or any other Person.


 


6.  SUBROGATION.  Notwithstanding any payments made by the
Guarantor under this Guarantee, the Guarantor shall not be entitled to be
subrogated to any of the rights of any other Guarantor, the Trustee or any
Holder against the Company until all amounts of principal of and interest and
premium on the Securities and all other amounts payable by the Company under
the Indenture and the Securities and by the Guarantor under its Guarantee have
been paid in full. If any amount shall be paid to the Guarantor on account of
such subrogation rights at any time when all of the Guaranteed Obligations
shall not have been paid in full, such amount shall be held by the Guarantor in
trust for the Trustee segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the Trustee in the
exact form received by the Guarantor (duly indorsed by the Guarantor to the
Trustee, if required), to be applied against the Guaranteed Obligations,
whether matured or unmatured, at such time and in such order as the Trustee may
determine.


 


7.  STAY OF ACCELERATION.  In the event that acceleration of the time
for payment of any of the Guaranteed Obligations is stayed upon insolvency,
bankruptcy or reorganization of the Company, all such amounts otherwise subject
to acceleration under the


 


E-3

















 


terms of the Indenture and the
Securities shall nonetheless be payable by the Guarantor forthwith on demand by
the Trustee.


 


8.  MERGER, CONSOLIDATION OR
SALE OF ASSETS.


 


a.  The Guarantor may not
consolidate with or merge with or into (whether or not the Guarantor is the
surviving Person) or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets, in one or more related
transactions, to another corporation, Person or entity unless:


 


(i)                                     the Guarantor is
the surviving corporation or the entity or Person formed by or surviving any
such consolidation or merger (if other than the Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made is an entity organized or existing under the laws of the United
States, any state thereof or the District of Columbia;


 


(ii)                                  the entity or Person
formed by or surviving any such consolidation or merger (if other than the
Guarantor) or the entity or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Guarantor under this Guarantee pursuant to a supplemental
Guarantee in a form reasonably satisfactory to the Trustee and assumes all of
the Guarantor’s obligations under the Collateral Documents;


 


(iii)                               immediately after giving
effect to such transaction, no Default or Event of Default exists;


 


(iv)                              except in the case of a
merger of the Guarantor with or into a Wholly Owned Subsidiary of the
Guarantor, the Guarantor or the entity or Person formed by or surviving any
such consolidation or merger (if other than the Guarantor), or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made will, after giving pro forma effect thereto as if such transaction
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 Section 4.4 of the Indenture;


 


(v)                                 such transactions
would not require any Holder to obtain a Gaming License or be qualified under
the laws of any applicable Gaming Jurisdiction, provided that such
Holder would not have been required to obtain a Gaming License or be qualified
under the laws of any applicable Gaming Jurisdiction in the absence of such
transactions; and


 


(vi)                              such transactions would
not result in a loss of any qualification or any material license of the
Guarantor necessary for any Permitted Business then operated by the Guarantor.


 


b.  In the event of a sale or other
disposition of all of the assets of the Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the
capital stock of the Guarantor, then the Guarantor (in the event of a sale or
other disposition, by way of


 


E-4

















 


such a merger, consolidation or
otherwise, of all of the capital stock of the Guarantor) or the entity
acquiring the property (in the event of a sale or other disposition of all of
the assets of the Guarantor) will be released and relieved of any obligations
under this Guarantee; provided that the Net Proceeds of such sale or other
disposition are applied in accordance with Section 4.5 of the Indenture. In
addition, in the event the Board of Directors designates the Guarantor to be an
Unrestricted Subsidiary, then the Guarantor and the Capital Stock of the
Guarantor shall be released from this Guarantee and any related Collateral
Documents; provided that such designation is conducted in accordance with the applicable
provisions of the Indenture and the Collateral Documents.


 


10.  MISCELLANEOUS.


 


a.  BENEFITS OF GUARANTEE;
SUCCESSORS AND ASSIGNS.  Nothing in this
Guarantee, expressed or implied, shall give to any person, other than Trustee,
the Holders and their respective successors, transferees and assigns hereunder,
any benefit or any legal or equitable rights, remedy or claim under this
Guarantee.  This Guarantee shall be
binding upon the Guarantor, its successors and assigns, and inure, together
with the rights and remedies of Trustee hereunder, to the benefit of Trustee,
the Holders and their respective successors, transferees and assigns.  The Guarantor shall not, without the prior
written consent of Trustee, assign any rights, duties or obligations under this
Guarantee.


 


b.  NOTICES.  All notices, demands and other
communications hereunder shall be given and shall be effective in accordance
with the Indenture, except that notices to the Guarantor shall be given to its
address set forth on the signature page hereof, or to such other address as the
Guarantor may specify in writing from time to time to the Trustee.


 


c.  AMENDMENTS.  Neither this Guarantee nor any provision
hereof may be amended, modified, waived, discharged or terminated other than
pursuant to the provisions of the Indenture.


 


d.  NO PERSONAL LIABILITY OF
DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS AND STOCKHOLDERS.  No past, present or future director,
officer, employee, incorporator, partner or stockholder of the Guarantor, as
such, shall have any liability for any obligations of the Guarantor under this
Guarantee or for any claim based on, in respect of, or by reason of, this
Guarantee.  Each Holder by accepting a
Security has waived and released all such liability.  The waiver and release are past of the consideration for issuance
of this Guarantee.


 


e.  GOVERNING LAW.  THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS GUARANTEE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, TO
THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


f.  NO ADVERSE INTERPRETATION OF
OTHER AGREEMENTS.  This Guarantee may
not be used to interpret any other guarantee, indenture, loan or debt agreement
of the Company, the Guarantor or their respective Subsidiaries or of any other
Person.  Any such guarantee, indenture,
loan or debt agreement may not be used to interpret this Guarantee.


 


E-5

















 


g.  SUCCESSORS.  All agreements of the Guarantor in this
Guarantee shall bind its successors. 
All agreements of the Trustee in this Guarantee shall bind its
successors.


 


h.  SEVERABILITY.  In case any provision in this Guarantee
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.


 


i.  COUNTERPART ORIGINALS.  The parties may sign any number of copies of
this Guarantee.  Each signed copy shall
be an original, but all of them together represent the same agreement.


 


j.  HEADINGS, ETC.  The headings of the sections of this
Guarantee have been inserted for convenience of reference only, are not to be
considered a part of this Guarantee and shall in no way modify or restrict any
of the terms or provisions hereof.


 


(Signature Pages Follow)


 


E-6

















 


IN WITNESS WHEREOF, the undersigned Guarantor has caused this
instrument to be duly executed and delivered to the Trustee as of the date
first above written.


 


	
   

  	
  [GUARANTOR]

  
	
   

  	
  [Address]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-7