FIRST SUPPLEMENTAL INDENTURE

 

TABLE OF CONTENTS

 

ARTICLE I . DEFINITIONS			1
Section 1.1	Definitions		1
ARTICLE II . THE 2019 NOTES			9
Section 2.1	Designation of 2019 Notes		9
Section 2.2	Amount		10
Section 2.3	Interest		10
Section 2.4	Denominations		10
Section 2.5	Redemption		10
Section 2.6	Repurchase		11
Section 2.7	Stated Maturity		11
ARTICLE III . AMENDMENTS TO THE BASE INDENTURE			11
Section 3.1	Provisions Applicable Only to 2019 Notes		11
Section 3.2	Registration of Transfer and Exchange		11
Section 3.3	Payment of Principal, Premium and Interest		11
Section 3.4	Paying Agent and Registrar		12
Section 3.5	Notice of Defaults		12
Section 3.6	Compensation and Indemnity		13
Section 3.7	Covenant Defeasance		13
ARTICLE IV . REDEMPTION AND REPURCHASES			13
Section 4.1	Company’s Right to Redeem; Notices to Trustee		13
Section 4.2	Selection of 2019 Notes To Be Redeemed		16
Section 4.3	Repurchase of 2019 Notes at Option of the Holder Upon a Change of Control Repurchase Event		16
Section 4.4	Effect of Change of Control Repurchase Notice		19
Section 4.5	Deposit of Change of Control Repurchase Price		19
Section 4.6	Acceptance of 2019 Notes Properly Tendered		20
Section 4.7	Distribution of Change of Control Repurchase Price		20
Section 4.8	2019 Notes Repurchased in Part		20
Section 4.9	Covenant to Comply with Securities Laws Upon Repurchase of 2019 Notes		20
Section 4.10	Repayment to the Company		20
ARTICLE V . COVENANTS			21
Section 5.1	Further Instruments and Acts		21
Section 5.2	Maintenance of Office or Agency		21
Section 5.3	Future Liens		21
Section 5.4	Restrictions on Secured Debt		22
Section 5.5	Limitations on Sales and Leasebacks		23
Section 5.6	Compliance Certificate		24

 

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ARTICLE VI . SUCCESSOR CORPORATION		24
Section 6.1	When Company May Merge or Transfer Assets	24
ARTICLE VII . DEFAULTS AND REMEDIES		25
Section 7.1	Events of Default	25
Section 7.2	Acceleration	28
Section 7.3	Other Remedies	29
Section 7.4	Waiver of Past Defaults	29
Section 7.5	Control by Majority	29
Section 7.6	Limitation on Suits	29
Section 7.7	Rights of Holders to Receive Payment	30
Section 7.8	Collection Suit by Trustee	30
Section 7.9	Trustee May File Proofs of Claim	30
Section 7.10	Priorities	30
Section 7.11	Undertaking for Costs	31
Section 7.12	Waiver of Stay, Extension or Usury Laws	31
ARTICLE VIII . DISCHARGE AND DEFEASANCE		31
Section 8.1	Discharge of Liability on Securities	31
Section 8.2	Defeasance and Covenant Defeasance	32
ARTICLE IX . MISCELLANEOUS		32
Section 9.1	Trust Indenture Act Controls	32
Section 9.2	Notices	32
Section 9.3	Separability Clause	33
Section 9.4	Legal Holidays	33
Section 9.5	Governing Law	33
Section 9.6	No Recourse Against Others	33
Section 9.7	Successors	34
Section 9.8	Counterparts	34
Section 9.9	Table of Contents; Headings	34
Section 9.10	Submission to Jurisdiction	34
Section 9.11	Appointment of Agent for Service of Process	34

 

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FIRST SUPPLEMENTAL INDENTURE dated as of June 15, 2009 (this “ First Supplemental Indenture ”) to the Indenture dated as of June 15, 2009 (the “ Base Indenture ”) between INTERNATIONAL GAME TECHNOLOGY, a Nevada corporation (“ Company ”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“ Trustee ”).

 

WHEREAS, the Company and the Trustee have executed and delivered the Base Indenture, which provides for the issuance of debt securities in an unlimited aggregate principal amount to be issued from time to time in one or more series;

 

WHEREAS, Section 9.1 of the Base Indenture provides that the Company and the Trustee may from time to time enter into indentures supplemental thereto to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 2.1 thereof;

 

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this First Supplemental Indenture to provide for the issuance of up to $500,000,000 aggregate principal amount of the Company’s 7.50% Notes due 2019 (the “ 2019 Notes ”), as registered Securities without coupons, to be authenticated by the Trustee;

 

WHEREAS, this First Supplemental Indenture supplements and amends in certain respects the Base Indenture insofar as it applies only to the 2019 Notes (and not to any other series of Securities) to provide for the form, terms and other provisions of the 2019 Notes as a separate series of Securities to be issued under the Indenture; and

 

WHEREAS, all acts and things necessary to make the 2019 Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid, binding and legal obligations of the Company, and to constitute this First Supplemental Indenture a valid agreement according to its terms, have been done and performed, and the execution of this First Supplemental Indenture and the issuance hereunder of the 2019 Notes have in all respects been duly authorized.

 

NOW, THEREFORE, in consideration of the premises and the purchase of the 2019 Notes by the holders thereof, each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of 2019 Notes:

 

ARTICLE I.

 

DEFINITIONS

 

Section 1.1              Definitions.

 

For all purposes of the Base Indenture and this First Supplemental Indenture relating to the series of Securities consisting of the 2019 Notes created hereby, except as otherwise expressly provided or unless the context otherwise requires, (i) the terms defined in this Article I have the meanings assigned to them in this Article I, (ii) any term that is defined in both the Base Indenture and this First Supplemental Indenture shall exclusively have the meaning assigned to such term in this First Supplemental Indenture, (iii) any capitalized term that is used in this First

 

 

Supplemental Indenture but not defined herein shall have the meaning specified in the Base Indenture and (iii) as used in this First Supplemental Indenture, the terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this First Supplemental Indenture.

 

“ 2019 Notes ” means any of the Company’s 7.50% Notes due 2019, as amended or supplemented from time to time, issued under the Indenture.

 

“ 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 the purposes of this definition, “control” when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“ Agent Member s” shall have the meaning set forth in Section 2.1(d).

 

“ Attributable Indebtedness ” means, in respect of a sale and leaseback transaction, as at the time of determination, the present value (discounted at the rate set forth or implicit in the terms of the lease included in such sale and leaseback transaction) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended).

 

“ beneficial owner ” shall have the meaning set forth in the definition of “Change of Control.”

 

“ Capital Lease Obligation ” means any obligation under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP; and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligations determined in accordance with GAAP; and the stated maturity date thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.

 

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

 

(i)             the direct or indirect 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 Company’s assets and the assets of its Subsidiaries, taken as a whole, to any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act)) other than to the Company or one of its Subsidiaries;

 

(ii)            the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act)) becomes the “beneficial owner” as defined in Rules 13d-3 and 13d-5 under the Exchange Act of more than 50% of the Company’s outstanding Voting Stock, measured by voting power rather than number of shares;

 

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(iii)           the Company consolidates with, or merges with or into, any Person or any Person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving Person immediately after giving effect to such transaction;

 

(iv)           the first day on which the majority of the members of the Company’s Board of Directors ceases to be Continuing Directors; or

 

(v)            the adoption of a plan relating to the Company’s liquidation or dissolution.

 

“ Change of Control Notice ” shall have the meaning set forth in Section 4.3(b).

 

“ Change of Control Notice Date ” shall have the meaning set forth in Section 4.3(b).

 

“ Change of Control Repurchase Date ” shall have the meaning set forth in Section 4.3(b).

 

A “ Change of Control Repurchase Event ” shall be deemed to have occurred at such time that the 2019 Notes cease to be rated Investment Grade by at least two of the three Rating Agencies on any date during the Trigger Period.  Unless at least two of the three Rating Agencies are providing a rating for the 2019 Notes at the commencement of any Trigger Period, the 2019 Notes will be deemed to have ceased to be rated Investment Grade by at least two of the three Rating Agencies during that Trigger Period.  Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.

 

“ Change of Control Repurchase Notice ” shall have the meaning set forth in Section 4.3(c).

 

“ Change of Control Repurchase Price ” shall have the meaning set forth in Section 4.3(a).

 

“ close of business ” means 5:00 p.m. (New York City time).

 

“ Comparable Treasury Issue ” shall have the meaning set forth in Exhibit A.

 

“ Comparable Treasury Price ” shall have the meaning set forth in Exhibit A.

 

“ Consolidated Net Tangible Assets ” means, on any date of determination, the Company’s total assets as they appear on the Company’s most recently prepared consolidated balance sheet as of the end of a fiscal quarter, less

 

(i)             all liabilities shown on such consolidated balance sheet that are classified and accounted for as current liabilities or that otherwise would be considered current liabilities under GAAP; and

 

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(ii)            all assets shown on such consolidated balance sheet that are classified and accounted for as intangible assets or that otherwise would be considered intangible assets under GAAP, including, without limitation, franchises, patents and patent applications, trademarks, brand names and goodwill.

 

“ Continuing Director ” means, as of any date of determination, any individual who on the original Issue Date of the 2019 Notes was a member of the Board of Directors, together with any new directors whose election, or, solely to fill the vacancy of a Continuing Director, appointment by such Board of Directors, or whose nomination for election by the Company’s stockholders was approved by the vote of a majority of the directors on the Board of Directors then still in office who were either directors on the original Issue Date of the 2019 Notes or whose election, appointment (in the case of a vacancy of a Continuing Director) or nomination for election was previously approved by a majority of the Continuing Directors, either by specific vote or by approval of the proxy statement issued by the Company on behalf of the Board of Directors in which such individual is named as a nominee for director.  For purposes of the definition of “Continuing Director,” the term Board of Directors shall not include any committee thereof.

 

“ Credit Facility ” shall have the meaning set forth in Section 5.3(a).

 

“ DTC ” shall have the meaning set forth in Section 2.1(b).

 

“ Event of Default ” shall have the meaning set forth in Section 7.1.

 

“ Extension Fee ” shall have the meaning set forth in Section 7.1.

 

“ Fitch ” means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.

 

“ Gaming Law Redemption ” shall have the meaning set forth in Section 4.1(b).

 

“ Gaming Law Redemption Price ” shall have the meaning set forth in Section 4.1(b).

 

“ Global Securities Legend ” shall have the meaning set forth in Exhibit A.

 

“ Indebtedness ” means, with respect to any Person, without duplication, any indebtedness of such Person on a consolidated basis, whether or not contingent:

 

(i)             in respect of borrowed money;

 

(ii)            evidenced by bonds, notes, debentures, or similar instruments or letters of credit (or reimbursement agreements with respect thereto);

 

(iii)           in respect of banker’s acceptances, bank guarantees, surety bonds or similar instruments;

 

(iv)           representing Capital Lease Obligations; or

 

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(v)            representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed;

 

if and to the extent any of the preceding items (other than letters of credit) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP; provided , however, that to the extent any derivative transaction entered into primarily for purposes of hedging (including swaps, caps, collars, options, futures transactions, forward rate agreements and foreign exchange transactions and any other similar transaction (including any option with respect to any of the foregoing) and any combination of any of the foregoing) would otherwise qualify as indebtedness under GAAP, such derivative transaction shall not be considered “Indebtedness” for purposes hereof; and, in addition, the term “Indebtedness” shall include all of the following items, whether or not any such items would appear as a liability on a balance sheet of the specified Person prepared in accordance with GAAP:

 

(i)             all indebtedness of others secured by a lien on any asset of the specified Person (whether or not such indebtedness is assumed by the specified Person);

 

(ii)            to the extent not otherwise included, any guarantee by the specified Person of indebtedness of any other Person; and

 

(iii)           preferred stock or other equity interests providing for mandatory redemption or sinking fund or similar payments issued by any subsidiary of the specified Person.

 

“ Indenture ” means, with respect to the 2019 Notes, the Base Indenture, as amended by this First Supplemental Indenture and, if further amended or supplemented as herein provided, as so amended or supplemented.

 

“ Independent Investment Bank ” shall have the meaning set forth in Exhibit A.

 

“ Interest Payment Date ” shall have the meaning set forth in Section 2.3(a).

 

“ Investment Grade ” means (i) a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s), (ii) a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P) and (iii) a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch).

 

“ Issue Date ” of any 2019 Note means the date on which the 2019 Notes were originally issued or deemed issued as set forth on the face of the 2019 Notes.

 

“ Legal Holiday ” shall have the meaning set forth in Section 9.4.

 

“ Lien ” means, with respect to any property or assets, including Capital Stock or Indebtedness, any lien, mortgage, 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

 

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to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).

 

“ Long-Term Debt ” means all Indebtedness for borrowed money owed or guaranteed by the Company or any of the Company’s Subsidiaries and any other Indebtedness which, under GAAP, would appear as indebtedness on the Company’s most recent consolidated balance sheet, which matures by its terms more than 12 months from the date of such consolidated balance sheet or which matures by its terms in less than 12 months but by its terms is renewable or extendible beyond 12 months from the date of such consolidated balance sheet at the option of the borrower.

 

“ Maturity Date ,” when used with respect to the 2019 Notes, means June 15, 2019.

 

“ Moody’s ” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.

 

“ Notice of Default ” shall have the meaning set forth in Section 7.1.

 

“ NYSE ” means The New York Stock Exchange.

 

“ Optional Redemption ” shall have the meaning set forth in Section 4.1.

 

“ Optional Redemption Price ” shall have the meaning set forth in Exhibit A.

 

“ Ordinary Course Lien ” means any of the following:

 

(i)             Liens of carriers, warehousemen, mechanics, vendors (solely to the extent arising by operation of law), laborers and materialmen incurred in the ordinary course of business for sums not yet due or being diligently contested in good faith, if reserves or appropriate provisions shall have been made therefor;

 

(ii)            Liens incurred in the ordinary course of business in connection with worker’s compensation and unemployment insurance, social security obligations, assessments or government charges which are not overdue for more than 60 days;

 

(iii)           deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other similar obligations incurred in the ordinary course of business;

 

(iv)           licenses (with respect to intellectual property and other property), leases or subleases granted to third parties and not interfering in any material respect with the ordinary conduct of the Company’s business or the business of its Subsidiaries;

 

(v)            Liens consisting of any right of offset, or statutory bankers’ lien, on bank deposit accounts maintained in the ordinary course of business so long as such bank deposit accounts are not for purposes of providing such right of offset or statutory bankers’ lien;

 

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(vi)           Liens created by or resulting from any litigation or legal proceeding involving the Company or its Subsidiaries in the ordinary course of business that is being contested in good faith if reserves have been made therefor and no material property is subject to material risk of loss or forfeiture;

 

(vii)          easements, rights-of-way, zoning restrictions, licenses or restrictions on use and other similar encumbrances on the use of real property 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 and its Subsidiaries; and

 

(viii)         precautionary financing statements filed under the Uniform Commercial Code that are made in connection with operating leases and not constituting a Lien.

 

“ Permitted Lien ” means any of the following:

 

(i)             Liens existing as of the date of this First Supplemental Indenture;

 

(ii)            Liens on the property, shares of stock or indebtedness of any Person existing at the time such Person becomes a Restricted Subsidiary;

 

(iii)           Liens securing Indebtedness owing by any of the Company’s Subsidiaries to the Company or to any of the Company’s other Restricted Subsidiaries;

 

(iv)           Liens in favor of the United States of America, any state of the United States of America, any foreign country or any department, agency, instrumentality or political subdivision of any such jurisdiction to secure partial, progress, advance or other payments required under any contract or provision of any statute or regulation;

 

(v)            Liens on property, shares of stock or indebtedness, either:

 

(A)           existing at the time the Company acquires the property, stock or debt, including acquisition through merger or consolidation;

 

(B)            securing all or part of the cost of acquiring the property, stock or debt or construction on or improvement of the property; or

 

(C)            securing indebtedness to finance the purchase price of the property, stock or indebtedness, or the cost of acquiring, constructing on or improving of the property, that were incurred prior to or at the time or within one year after the Company acquires the property, stock or indebtedness or completes construction on or improvement of the property and commences full operation thereof;

 

(vi)           Ordinary Course Liens;

 

(vii)          any Liens securing the 2019 Notes;

 

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(viii)         Liens on shares of any equity security (or any warrant or option to purchase an equity security or any security which is convertible into an equity security) issued by any Subsidiary of the Company that holds, directly or indirectly through a holding company or otherwise, a license to conduct gaming under any Gaming Law, but such Liens shall be “Permitted Liens” only if and so long as the Gaming Laws of the relevant jurisdiction provide that any such Lien shall be terminated on the transfer or other disposition of such securities; and

 

(ix)            any extension, renewal or replacement of the Liens described above, so long as such extension, renewal or replacement is limited to the same property, shares or Indebtedness securing the Lien that was extended, renewed or replaced (plus improvements on such property), except that if the Indebtedness secured by a Lien is increased as a result of such extension, renewal or replacement, the Company shall be required to include the increase when it computes the amount of Indebtedness that is subject to the covenant in Section 5.4.

 

“ Rating Agency ” means each of Moody’s, S&P and Fitch; provided , that if any of Moody’s, S&P and Fitch ceases to provide rating services to issuers or investors, the Company may appoint an entity registered as a “national recognized statistical rating organization” (registered as such pursuant to Rule 17g-1 under the Exchange Act) then making a rating on the 2019 Notes that is reasonably acceptable to the Trustee as a replacement for such Rating Agency.

 

“ Record Date ” shall have the meaning set forth in Section 2.3(a).

 

“ Redemption Date ” means the date specified in a notice of redemption on which the 2019 Notes may be redeemed in accordance with the terms of the 2019 Notes and this Indenture.

 

“ Redemption Price ” means the Optional Redemption Price and the Gaming Law Redemption Price.

 

“ Reference Treasury Dealer ” shall have the meaning set forth in Exhibit A.

 

“ Reference Treasury Dealer Quotations ” shall have the meaning set forth in Exhibit A.

 

“ Restricted Subsidiary ” means a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Company or by one or more of the Company’s other Subsidiaries, or the Company and one or more of the Company’s other Subsidiaries; provided , however, that the term shall not include any entity which is principally engaged in leasing or in financing receivables.

 

“ Significant Subsidiary ” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 of Regulation S-X promulgated by the SEC.

 

“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

 

“ Treasury Rate ” shall have the meaning set forth in Exhibit A.

 

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“ Trigger Period ” means the period commencing 60 calendar days prior to the date the Company first publicly announces any Change of Control (or pending Change of Control) and ending 60 calendar days following consummation of such Change of Control; provided , that such Trigger Period will be extended following consummation of a Change of Control for so long as any of the Rating Agencies has publicly announced that it is considering a possible ratings downgrade.

 

“ TIA ” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture; provided , however, that in the event the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended.

 

ARTICLE II.

THE 2019 NOTES

 

Section 2.1              Designation of 2019 Notes.

 

(a)            There shall be a series of Securities designated “7.50% Notes due 2019” of the Company (the “ 2019 Notes ”).  The 2019 Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, which is a part of this First Supplemental Indenture.  The 2019 Notes may have notations, legends or endorsements required by law, stock exchange rule or usage ( provided , that any such notation, legend or endorsement required by usage is in a form acceptable to the Company).  The Company shall provide any such notations, legends or endorsements to the Trustee in writing.  Each 2019 Note shall be dated the date of its authentication.  Except as otherwise expressly permitted in this Indenture, all 2019 Notes shall be identical in all respects.  Notwithstanding any differences among them, all 2019 Notes issued under this First Supplemental Indenture shall vote and consent together on all matters as one class.

 

(b)            The 2019 Notes shall be issued initially in the form of one or more Global Securities in the form of the Security attached hereto as Exhibit A, which shall be deposited with the Trustee at its Corporate Trust Office, as custodian for and registered in the name of The Depository Trust Company (“ DTC ”) or the nominee thereof as Depositary, duly executed by the Company and authenticated by the Trustee in accordance with this Indenture.  Each Global Security shall bear the Global Securities Legend set forth in Exhibit A.

 

(c)            The Company initially appoints the Trustee as Registrar and Paying Agent in connection with the 2019 Notes, and each of the Corporate Trust Office of the Trustee and the office or agency of the Trustee in Minneapolis, Minnesota, to be such office or agency of the Company for the aforesaid purposes.  The Company may change the Paying Agent and Registrar without prior notice to the Holders of the 2019 Notes.

 

(d)            Neither any members of, or participants in, the Depositary (collectively, the “ Agent Members ”) nor any other Persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of

 

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the Company or the Trustee as the absolute owner and holder of such Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a holder of any 2019 Note.  The registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder of 2019 Notes  is entitled to take under this Indenture or the 2019 Notes.

 

Section 2.2              Amount.

 

(a)            The Trustee shall authenticate and deliver the 2019 Notes for original issue in an aggregate principal amount of $500,000,000, upon receipt of one or more Company Orders and such other documents as may be required under this Indenture.

 

(b)            The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary in accordance with this Indenture.  The aggregate principal amount of 2019 Notes Outstanding at any time may not exceed the amount set forth in Section 2.2(a).

 

Section 2.3              Interest.

 

(a)            The Company shall pay interest on the 2019 Notes at a rate of 7.50% per annum, payable semi-annually in arrears on June 15 and December 15 of each year (each, an “ Interest Payment Date ”), or if any such day is not a Business Day, the immediately following Business Day, commencing December 15, 2009.  Interest on the 2019 Notes shall be paid to the Holder of such 2019 Notes at the close of business on June 1 or December 1 (each, a “ Record Date ”), as the case may be, next preceding the related Interest Payment Date, and shall be computed on the basis of a 360-day year comprised of twelve 30-day months.  In the event of the maturity or purchase of a 2019 Note by the Company at the option of the Holder of such 2019 Note, interest shall cease to accrue on such 2019 Note.

 

(b)            Subject to the foregoing provisions of this Section 2.3 and Sections 2.3, 2.5 and 2.11 of the Base Indenture, each 2019 Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other 2019 Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other 2019 Note.

 

Section 2.4              Denominations.

 

The 2019 Notes shall originally be issued only in registered form without coupons and only in denominations of $2,000 of principal amount and integral multiples of $1,000 principal amount in excess thereof.

 

Section 2.5              Redemption.

 

(a)            There shall be no sinking fund for the retirement of the 2019 Notes.

 

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(b)            The Company may redeem the 2019 Notes in accordance with the provisions set forth in the 2019 Notes and this First Supplemental Indenture, including, without limitation, Article IV hereof.

 

Section 2.6              Repurchase.

 

The 2019 Notes shall be repurchased by the Company, at the option of the Holder of such 2019 Notes, in accordance with the provisions set forth in the 2019 Notes and this First Supplemental Indenture, including, without limitation, Article IV hereof.

 

Section 2.7              Stated Maturity.

 

The date on which the principal of the 2019 Notes is due and payable, unless earlier accelerated, redeemed or repurchased pursuant to the Indenture, shall be June 15, 2019 (the “ Maturity Date ”).

 

ARTICLE III.

AMENDMENTS TO THE BASE INDENTURE

 

Section 3.1              Provisions Applicable Only to 2019 Notes.

 

The provisions contained in this First Supplemental Indenture shall apply to the 2019 Notes only and not to any other series of Securities issued under the Base Indenture and any covenants provided herein are expressly being included solely for the benefit of the 2019 Notes and not for the benefit of any other series of Securities issued under the Base Indenture.

 

Section 3.2              Registration of Transfer and Exchange.

 

Section 2.5 of the Base Indenture is hereby amended, subject to Section 3.1 hereof and with respect to the 2019 Notes only, by adding the following clause (h):

 

“(h)         The Company shall not be required to make, and the Registrar need not register, transfers or exchanges of 2019 Notes in respect of which a Change of Control Repurchase Notice has been given and not withdrawn by the Holder thereof in accordance with the terms of the First Supplemental Indenture (except, in the case of 2019 Notes to be repurchased in part, the portion thereof not to be repurchased).”

 

Section 3.3              Payment of Principal, Premium and Interest.

 

The first paragraph of Section 4.1 of the Base Indenture is hereby amended and restated in its entirety, subject to Section 3.1 hereof and with respect to the 2019 Notes only, to read as follows:

 

“The Company shall promptly make all payments in respect of the 2019 Notes on the dates and in the manner provided in the 2019 Notes or pursuant to this Indenture.  Any amounts of cash to be given to the Trustee or Paying Agent shall be deposited with

 

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the Trustee or Paying Agent by 10:00 a.m. (New York City time) by the Company on the required date.  The Company may, at its option, make payments in respect of the 2019 Notes by check mailed to a Holder of 2019 Notes’ registered address or, with respect to Global Securities, by wire transfer.  The Company shall make any required interest payments to the Person in whose name each 2019 Note is registered at the close of business on the record date for such interest payment.  Principal amount, accrued interest, if any, Redemption Price and Change of Control Repurchase Price, shall be considered paid on the applicable date due if on such date (or, in the case of a Redemption Price or Change of Control Repurchase Price, on the Business Day following the applicable Redemption Date or Change of Control Repurchase Date, as the case may be) the Trustee or the Paying Agent holds, in accordance with this Indenture, cash sufficient to pay all such amounts then due.”

 

Section 3.4              Paying Agent and Registrar.

 

Section 4.2 of the Base Indenture is hereby amended, subject to Section 3.1 hereof and with respect to the 2019 Notes only, by adding the following clause (e):

 

“(e)         If the Paying Agent holds, in accordance with this Indenture, on a Redemption Date, a Change of Control Repurchase Date, or on the Maturity Date, money sufficient to pay 2019 Notes payable on that date, then immediately after such Redemption Date, Change of Control Repurchase Date or Maturity Date, as the case may be, such 2019 Notes shall cease to be Outstanding and interest, if any, on such 2019 Notes shall cease to accrue; provided, that if such 2019 Notes are to be redeemed on a Redemption Date, notice of such redemption has been duly given pursuant to this Indenture or provision therefore satisfactory to the Trustee has been made.”

 

Section 3.5              Notice of Defaults.

 

The first paragraph of Section 7.5 of the Base Indenture is hereby amended and restated in its entirety, subject to Section 3.1 hereof and with respect to the 2019 Notes only, to read as follows:

 

“If a Default or Event of Default occurs and is continuing and if it is actually known to a Trust Officer of the Trustee, the Trustee shall mail to each Holder of 2019 Notes notice of the Default or Event of Default within 90 days after it is known to a Trust Officer or written notice of it is received by the Trustee.  Except in the case of a Default described in Section 7.1(i) or 7.1(ii) of the First Supplemental Indenture, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of Holders of 2019 Notes.  The second sentence of this Section 7.5 shall be in lieu of the proviso to TIA Section 315(b) and such proviso is hereby expressly excluded from this Indenture, as permitted by the TIA.  The Trustee shall not be deemed to have knowledge of a Default unless a Trust Officer of the Trustee has received written notice of such Default.” .

 

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Section 3.6              Compensation and Indemnity.

 

The last paragraph of Section 7.7 of the Base Indenture is hereby amended and restated in its entirety, subject to Section 3.1 hereof and with respect to the 2019 Notes only, to read as follows:

 

“The Company’s payment obligations pursuant to this Section shall survive the resignation or removal of the Trustee and the discharge of this Indenture.  In the event that the Trustee incurs expenses after the occurrence of a Default specified in Section 7.1(vii) or 7.1(viii) of the First Supplemental Indenture with respect to the Company, the expenses are intended to constitute expenses of administration under the Bankruptcy Law.”

 

Section 3.7              Covenant Defeasance.

 

The first paragraph of Section 11.3 of the Base Indenture is hereby amended and restated in its entirety, subject to Section 3.1 hereof and with respect to the 2019 Notes only, to read as follows:

 

“Upon the Company’s exercise of the option provided in Section 11.1 to obtain a covenant defeasance with respect to the Outstanding Securities of a particular series, the Company shall be released from its obligations under Section 5.3 of the Base Indenture and Article V and Article VI of the First Supplemental Indenture with respect to the Outstanding Securities of such series on and after the date the applicable conditions set forth in Section 11.4 are satisfied (“ Covenant Defeasance ”). Covenant defeasance shall mean that, with respect to the Outstanding Securities of such series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in Section 5.3 of the Base Indenture and Article V and Article VI of the First Supplemental Indenture, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document, and such omission to comply shall not constitute an Event of Default under Section 7.1(iv) of the First Supplemental Indenture  with respect to Outstanding Securities of such series, and the remainder of this Indenture and of the Securities of such series shall be unaffected thereby.”

 

ARTICLE IV.

REDEMPTION AND REPURCHASES

 

Article III of the Base Indenture is, subject to Section 3.1 and with respect to the 2019 Notes only, replaced in its entirety with the provisions set forth in Article IV of this First Supplemental Indenture.

 

Section 4.1              Company’s Right to Redeem; Notices to Trustee.

 

(a)            The Company, at its option, may redeem the 2019 Notes in accordance with the provisions of Paragraph 5 of the 2019 Notes (an “ Optional Redemption ”).

 

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(b)            Each Holder or beneficial owner, by accepting the 2019 Notes, shall be deemed to have agreed that if the Gaming Authority of any jurisdiction in which the Company or any Subsidiary does business requires that a Person who is a holder or the beneficial owner of the 2019 Notes be licensed, qualified or found suitable under applicable Gaming Laws, such Holder of 2019 Notes or beneficial owner, as the case may be, shall apply for a license, qualification or a finding of suitability within the required time period.   If such Person fails to apply or become licensed or qualified or is found unsuitable, the Company shall have the right, at its option to:

 

(i)             require such Person to dispose of the 2019 Notes or beneficial interest in the 2019 Notes within 30 days of receipt of notice of the Company’s election or such earlier date as may be requested or prescribed by such Gaming Authority; or

 

(ii)            redeem such Person’s 2019 Notes (a “ Gaming Law Redemption ”) at a redemption price (the “Gaming Law Redemption Price ”) per $1,000 principal amount of Securities equal to:

 

(A)           the lesser of

 

(i)             such Person’s cost, and

 

(ii)            $1,000, plus accrued and unpaid interest, if any, to the earlier of the Redemption Date or the date of the finding of unsuitability, which may be less than 30 days following the notice of redemption if so required or prescribed by the applicable Gaming Authority; or

 

(B)            such other amount as may be required by applicable law or by order of any applicable Gaming Authority,

 

provided , that, in the case of any such Gaming Law Redemption, (x) the Company shall use its reasonable efforts to obtain necessary regulatory approvals to provide that the Gaming Law Redemption Price will be no less than the amount set forth in clause (A)(ii) above, and (y) following any such redemption, any outstanding 2019 Notes shall have a minimum denomination of $2,000 and $1,000 in excess thereof.

 

The Company shall not be responsible for any costs or expenses any such Holder of 2019 Notes may incur in connection with its application for a license, qualification or a finding of suitability.

 

(c)            If the Company elects to redeem 2019 Notes pursuant to paragraph (a) or (b) of this Section 4.1, it shall notify the Trustee in writing of the Redemption Date, the principal amount of 2019 Notes to be redeemed and that such redemption is being made pursuant to Section 4.1(a) or Section 4.1(b), as the case may be. The Company shall give each notice to the Trustee provided for in this Section 4.1(c) as soon as practicable.  Such notice shall be accompanied by an Officers’ Certificate and an Opinion of Counsel from the Company to the effect that such redemption will comply with the terms and conditions of this Indenture.

 

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(d)            The Company or the Trustee shall mail a notice of redemption of the 2019 Notes by first-class mail, postage prepaid, or by electronic transmission, to each Holder of 2019 Notes to be redeemed at such Holder’s registered address,

 

(i)             in the event of an Optional Redemption, at least 30 days but nor more than 60 days before the Redemption Date, and

 

(ii)            in the event of a Gaming Law Redemption, as soon as practicable, and in any event, no later than may be required by the applicable Gaming Authority.

 

In the event of an Optional Redemption, the Company shall also issue a press release containing the relevant information included in the notice and make the press release available on its website.

 

Any notice pursuant to this Section 4.1(d) shall identify the 2019 Notes to be redeemed, shall not be conditional and shall state:

 

(A)           the Redemption Date;

 

(B)            the Redemption Price as set forth in such 2019 Note;

 

(C)            the name and address of the Paying Agent;

 

(D)           that 2019 Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;

 

(E)            if fewer than all of the Outstanding 2019 Notes are to be redeemed, the certificate numbers, if any, and principal amounts of the particular 2019 Notes to be redeemed;

 

(F)            that, unless the Company defaults in making payment of such Redemption Price, interest, if any, on 2019 Notes called for redemption will cease to accrue on and after the Redemption Date; and

 

(G)            the CUSIP and ISIN number of the 2019 Notes.

 

At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense, provided , that the Company makes such request at least three Business Days prior to the date by which such notice of redemption must be given to Holders of 2019 Notes in accordance with this Section 4.1(d). The Trustee shall not be responsible for the content of the notice of redemption.

 

(e)            Once notice of redemption is given, 2019 Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice, subject, in the event of a Gaming Law Redemption, to the requirements of the applicable Gaming Authority causing such redemption.  Upon surrender to the Paying Agent, such 2019 Notes shall be paid at the Redemption Price stated in the notice.

 

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Unless the Company defaults in the payment of the Redemption Price and accrued interest, if any, on and after the Redemption Date, interest shall cease to accrue on the Securities or portions of the Securities called for redemption.

 

(f)             Prior to 10:00 a.m. (New York City time), on the Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or any of its Subsidiaries is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of all 2019 Notes to be redeemed on that date other than 2019 Notes or portions of 2019 Notes called for redemption which on or prior thereto have been delivered by the Company to the Trustee for cancellation.   The Paying Agent shall as promptly as practicable return to the Company any money not required for that purpose.  If such money is then held by the Company in trust and is not required for such purpose it shall be discharged from such trust.

 

Section 4.2              Selection of 2019 Notes To Be Redeemed.

 

(a)            In the event of an Optional Redemption, selection of the 2019 Notes for redemption shall be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems fair and appropriate (subject to the procedures of DTC).

 

(b)            In the event of a Gaming Law Redemption, the Company shall identify to the Trustee in writing such 2019 Notes as may be required to be redeemed Section 4.1(b) and the requirements of the applicable Gaming Authority.

 

(c)            2019 Notes shall be redeemed in principal amounts of $2,000 or integral multiples of $1,000 in excess thereof.  Provisions of this Indenture that apply to 2019 Notes called for redemption also apply to portions of 2019 Notes called for redemption.  Upon surrender of a 2019 Note that is redeemed in part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new 2019 Note in an authorized denomination equal in principal amount to the unredeemed portion of the 2019 Note surrendered, or in the case of a Global Security, the Company shall instruct the Registrar to decrease such Global Security by the principal amount of the redeemed portion of the 2019 Note surrendered.

 

Section 4.3              Repurchase of 2019 Notes at Option of the Holder Upon a Change of Control Repurchase Event.

 

(a)            If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to redeem the 2019 Notes pursuant to Section 4.1, the 2019 Notes shall be repurchased by the Company, at the option of the Holder thereof, in cash, at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to but excluding the Change of Control Repurchase Date (the “ Change of Control Repurchase Price ”), subject to satisfaction by or on behalf of the Holder of 2019 Notes of the requirements set forth in Section 4.3(c), provided , that the Company shall not be required to make a Change of Control repurchase offer if (i) a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements that the Company would have been required to meet had it made such an offer, and (ii) such third party purchases all 2019 Notes properly tendered and not withdrawn under its offer.  In addition, the Company shall not be required to repurchase any 2019 Notes if there has occurred and is continuing on the Change of Control

 

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Repurchase Date an Event of Default, other than a Default in the payment of the Change of Control Repurchase Price.

 

At least three Business Days before the Change of Control Notice Date (as defined below), the Company shall deliver an Officers’ Certificate to the Trustee specifying:

 

(i)             the information required by Section 4.3(b); and

 

(ii)            whether the Company desires the Trustee to give the Change of Control Notice required by Section 4.3(b).

 

(b)            Within 30 calendar days following the date upon which the Change of Control Repurchase Event occurred or, at the option of the Company, prior to any Change of Control but after the public announcement of that pending Change of Control, the Company shall send a written notice of the Change of Control Repurchase Event  (the “ Change of Control Notice ,” and the date of such mailing, the “ Change of Control Notice Date ”) by first-class mail, or by electronic transmission in the case of 2019 Notes held in book-entry form, to the Trustee and to each Holder of 2019 Notes (and to beneficial owners as required by applicable law), provided , that a Change of Control Repurchase Event offer may only be made in advance of a Change of Control R