Exhibit 4.1
--------------------------------------------------------------------------------
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
9 1/4% SENIOR NOTES DUE 2009
----------------------------
INDENTURE
Dated as of March 30, 2001
----------------------------
FIRSTAR BANK, N.A.
TRUSTEE
----------------------------
--------------------------------------------------------------------------------
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
310(a)(1)........................................................................................7.10
(a)(2)........................................................................................7.10
(a)(3)........................................................................................N.A.
(a)(4)........................................................................................N.A.
(a)(5)........................................................................................7.10
(b)...........................................................................................7.10
(c)...........................................................................................N.A.
311(a)...........................................................................................7.11
(b)...........................................................................................7.11
(c)...........................................................................................N.A.
312(a)...........................................................................................2.06
(b)...........................................................................................13.03
(c)...........................................................................................13.03
313(a)...........................................................................................7.06, 13.03
(b)(1)........................................................................................N.A.
(b)(2)........................................................................................7.06, 7.07
(c)...........................................................................................7.06, 13.02
(d)...........................................................................................7.06
314(a)...........................................................................................7.06, 13.05
(b)...........................................................................................N.A.
(c)(1)........................................................................................N.A.
(c)(2)........................................................................................N.A.
(c)(3)........................................................................................N.A.
(d)...........................................................................................N.A.
(e)...........................................................................................13.05
(f)...........................................................................................N.A.
315(a)...........................................................................................N.A.
(b)...........................................................................................N.A.
(c)...........................................................................................N.A.
(d)...........................................................................................N.A.
(e)...........................................................................................N.A.
316(a) (last sentence)...........................................................................N.A.
(a)(1)(A).....................................................................................N.A.
(a)(1)(B).....................................................................................N.A.
(a)(2)........................................................................................N.A.
(b)...........................................................................................N.A.
-------------------
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
(c)...........................................................................................13.13
317(a)(1)........................................................................................N.A.
(a)(2)........................................................................................N.A.
(b)...........................................................................................N.A.
318(a)...........................................................................................N.A.
(b)...........................................................................................N.A.
(c)...........................................................................................13.01
TABLE OF CONTENTS
PAGE
----
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.................................................................................1
Section 1.02 Other Definitions..........................................................................26
Section 1.03 Incorporation by Reference of Trust Indenture Act..........................................26
Section 1.04 Rules of Construction......................................................................27
ARTICLE TWO THE NOTES
Section 2.01 Form and Dating............................................................................27
Section 2.02 Execution and Authentication...............................................................29
Section 2.03 Methods of Receiving Payments on the Notes.................................................29
Section 2.04 Registrar and Paying Agent.................................................................29
Section 2.05 Paying Agent to Hold Money in Trust........................................................30
Section 2.06 Holder Lists...............................................................................30
Section 2.07 Transfer and Exchange......................................................................30
Section 2.08 Replacement Notes..........................................................................43
Section 2.09 Outstanding Notes..........................................................................44
Section 2.10 Treasury Notes.............................................................................44
Section 2.11 Temporary Notes............................................................................45
Section 2.12 Cancellation...............................................................................45
Section 2.13 Defaulted Interest.........................................................................45
Section 2.14 CUSIP Numbers..............................................................................46
ARTICLE THREE REDEMPTION AND PREPAYMENT; SATISFACTION AND DISCHARGE
Section 3.01 Notices to Trustee.........................................................................46
Section 3.02 Selection of Notes to Be Redeemed..........................................................46
Section 3.03 Notice of Redemption.......................................................................47
Section 3.04 Effect of Notice of Redemption.............................................................47
Section 3.05 Deposit of Redemption Price................................................................48
Section 3.06 Notes Redeemed in Part.....................................................................48
Section 3.07 Optional Redemption........................................................................48
Section 3.08 Redemption Pursuant to Gaming Law..........................................................49
Section 3.09 Mandatory Redemption.......................................................................50
Section 3.10 Repurchase Offers..........................................................................50
Section 3.11 Application of Trust Money.................................................................52
i
ARTICLE FOUR COVENANTS
Section 4.01 Payment of Notes...........................................................................52
Section 4.02 Maintenance of Office or Agency............................................................53
Section 4.03 Reports....................................................................................53
Section 4.04 Compliance Certificate.....................................................................54
Section 4.05 Taxes......................................................................................55
Section 4.06 Stay, Extension and Usury Laws.............................................................55
Section 4.07 Restricted Payments........................................................................55
Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries..................59
Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified Stock..............................60
Section 4.10 Asset Sales................................................................................62
Section 4.11 Transactions with Affiliates...............................................................64
Section 4.12 Liens......................................................................................65
Section 4.13 Business Activities........................................................................65
Section 4.14 Existence of the Enterprise................................................................66
Section 4.15 Change of Control..........................................................................66
Section 4.16 Limitation on Issuances and Sales of Equity Interests in Restricted Subsidiaries...........68
Section 4.17 Designation of Restricted and Unrestricted Subsidiaries....................................68
Section 4.18 Payments for Consent.......................................................................68
Section 4.19 [Not used.]
Section 4.20 Maintenance of Insurance...................................................................69
Section 4.21 Use of Proceeds............................................................................70
Section 4.22 Restrictions on Leasing and Dedication of Property.........................................70
Section 4.23 Gaming Licenses............................................................................71
Section 4.24 Ownership Interests in the Enterprise......................................................71
Section 4.25 Subsidiary Guarantees......................................................................71
ARTICLE FIVE LIQUIDATION OR DISSOLUTION
Section 5.01 Liquidation or Dissolution.................................................................72
ARTICLE SIX DEFAULTS AND REMEDIES
Section 6.01 Events of Default..........................................................................72
Section 6.02 Acceleration...............................................................................75
Section 6.03 Other Remedies.............................................................................73
Section 6.04 Waiver of Past Defaults....................................................................73
Section 6.05 Control by Majority........................................................................73
Section 6.06 Limitation on Suits........................................................................74
Section 6.07 Rights of Holders of Notes to Receive Payment..............................................74
Section 6.08 Collection Suit by Trustee.................................................................75
Section 6.09 Trustee May File Proofs of Claim...........................................................75
Section 6.10 Priorities.................................................................................75
Section 6.11 Undertaking for Costs......................................................................76
Section 6.12 Restoration of Rights and Remedies.........................................................76
ii
ARTICLE SEVEN TRUSTEE
Section 7.01 Duties of Trustee..........................................................................76
Section 7.02 Certain Rights of Trustee..................................................................77
Section 7.03 Individual Rights of Trustee...............................................................78
Section 7.04 Trustee's Disclaimer.......................................................................78
Section 7.05 Notice of Defaults.........................................................................79
Section 7.06 Reports by Trustee to Holders of the Notes.................................................79
Section 7.07 Compensation and Indemnity.................................................................80
Section 7.08 Replacement of Trustee.....................................................................81
Section 7.09 Successor Trustee by Merger, Etc...........................................................82
Section 7.10 Eligibility; Disqualification..............................................................82
Section 7.11 Preferential Collection of Claims Against Enterprise.......................................82
Section 7.12 Authorization of Trustee to Take Other Actions.............................................82
ARTICLE EIGHT DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance...................................82
Section 8.02 Legal Defeasance and Discharge.............................................................83
Section 8.03 Covenant Defeasance........................................................................83
Section 8.04 Conditions to Legal or Covenant Defeasance.................................................84
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions...................................................................85
Section 8.06 Repayment to the Enterprise................................................................86
Section 8.07 Reinstatement..............................................................................86
ARTICLE NINE AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes........................................................86
Section 9.02 With Consent of Holders of Notes...........................................................87
Section 9.03 Compliance with Trust Indenture Act........................................................89
Section 9.04 Revocation and Effect of Consents..........................................................89
Section 9.05 Notation on or Exchange of Notes...........................................................89
Section 9.06 Trustee to Sign Amendments, Etc............................................................89
ARTICLE TEN COVENANTS OF THE TRIBE
Section 10.01 Covenants of the Tribe.....................................................................90
ARTICLE ELEVEN LIMITED WAIVER OF SOVEREIGN IMMUNITY
Section 11.01 Limited Waiver of Sovereign Immunity.......................................................92
ARTICLE TWELVE SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.................................................................93
Section 12.02 Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions...................................................................94
iii
Section 12.03 Repayment to the Enterprise................................................................94
ARTICLE THIRTEEN MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls...............................................................94
Section 13.02 Notices....................................................................................95
Section 13.03 Communication by Holders of Notes with Other Holders of Notes..............................96
Section 13.04 Certificate and Opinion as to Conditions Precedent.........................................96
Section 13.05 Statements Required in Certificate or Opinion..............................................97
Section 13.06 Rules by Trustee and Agents................................................................97
Section 13.07 No Personal Liability of Tribe or Certain Individuals......................................97
Section 13.08 Governing Law..............................................................................98
Section 13.09 Consent to Jurisdiction....................................................................98
Section 13.10 No Adverse Interpretation of Other Agreements..............................................98
Section 13.11 Successors.................................................................................98
Section 13.12 Severability...............................................................................98
Section 13.13 Counterpart Originals......................................................................99
Section 13.14 Acts of Holders............................................................................99
Section 13.15 Benefit of Indenture......................................................................100
Section 13.16 Table of Contents, Headings, Etc..........................................................100
EXHIBITS
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
iv
INDENTURE dated as of March 30, 2001 among The Mississippi
Band of Choctaw Indians d/b/a Choctaw Resort Development Enterprise, a business
enterprise of The Mississippi Band of Choctaw Indians, a federally recognized
Indian Tribe and sovereign nation, the Tribe (as defined below) and Firstar
Bank, N.A., a national banking association, as trustee.
The Enterprise (as defined below), the Tribe and the Trustee
(as defined below) agree as follows for the benefit of each other and for the
equal and ratable benefit of the Holders (as defined below) of the 9 1/4% Senior
Notes due 2009:
ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 DEFINITIONS.
"144A GLOBAL NOTE" means a global note substantially in the
form of Exhibit A1 hereto bearing the Global Note 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 shall be issued in a denomination
equal to the outstanding principal amount at maturity of the Notes sold in
reliance on Rule 144A.
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into, became a Subsidiary of, or
substantially all of its business and assets were acquired by, such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Subsidiary of, or substantially all of its
business and assets being acquired by, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"ADDITIONAL NOTES" means up to $50.0 million in aggregate
principal amount of Notes (other than the Notes issued on the date hereof)
issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof.
"AFFILIATE" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the specified Person or any Person who is a
council member, director or officer of such Person, of any Subsidiary of such
Person or any Person described above; PROVIDED that no Person shall be deemed an
Affiliate of the Tribe, the Enterprise or any of their respective Affiliates
solely by virtue of such Person's membership in the Tribe. For purposes of
this definition, "control," as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of that 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. For purposes of
this definition, the terms "controlling," "controlled by" and "under common
control with" have correlative meanings.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"ANNUAL SERVICE PAYMENT" means an annual payment to the Tribe
by the Enterprise in an amount of $55.0 million per year, which amount shall be
increased annually on each September 30, commencing with September 30, 2001, by
5% per annum.
"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of
any assets or rights (including but not limited to sale and leaseback
transactions); PROVIDED that the sale, lease conveyance or other
disposition of all or substantially all of the assets of the Enterprise
and its Restricted Subsidiaries taken as a whole shall be governed by
the provisions of Section 4.15 and not by the provisions of
Section 4.10 hereof; and
(2) the issuance of Equity Interests by any Restricted
Subsidiary of the Enterprise or the sale of Equity Interests in any of
the Enterprise's Restricted Subsidiaries by the Enterprise or any
Restricted Subsidiary or the sale by the Enterprise or any of its
Restricted Subsidiaries of any Equity Interests in any of its
respective Subsidiaries.
Notwithstanding the foregoing, the following items shall
not be deemed to be Asset Sales:
(1) any single transaction or series of related
transactions that: (a) involves assets having a fair market value of
less than $1.0 million; or (b) results in net proceeds to the
Enterprise and its Restricted Subsidiaries of less than $1.0 million;
(2) a transfer of assets between or among the Enterprise
and its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted
Subsidiary to the Enterprise or to another Restricted Subsidiary;
(4) the sale of inventory or obsolete furniture,
fixtures, equipment or other assets in the ordinary course of business;
(5) dispositions of gaming equipment in the ordinary
course of business pursuant to an established program for the
maintenance and upgrading of this equipment;
(6) a Restricted Payment or Permitted Investment that is
permitted by Section 4.07 hereof; and
2
(7) any lease or sublease permitted by Section 4.22
hereof.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any
period for which such lease has been extended (or may, at the option of the
lessor, be extended). Such present value shall be calculated using a discount
rate equal to the rate of interest implicit in such transaction, determined
in accordance with GAAP.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BENEFICIAL OWNER" has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular "person" (as that term is used in
Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to have
beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition. The terms "BENEFICIALLY OWNS" and "BENEFICIALLY OWNED"
shall have a corresponding meaning.
"BIA" means the Bureau of Indian Affairs.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors
of the corporation;
(2) with respect to a partnership, the board of directors
of the managing partner of the partnership;
(3) with respect to the Enterprise, the board of
directors of the Enterprise;
(4) with respect to the Tribe, the tribal council; and
(5) with respect to any other Person, the board or
committee of such Person serving a similar function.
"BROKER-DEALER" has the meaning set forth in the
Registration Rights Agreement.
"BUSINESS DAY" means any day other than a Legal Holiday.
"BUSINESS ENTERPRISE DIVISION" means the division of the
Executive Branch of the Tribe created under Ordinance 56 of the Tribe through
which wholly owned enterprises are chartered and operated.
"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 that time be required to be capitalized on a
balance sheet in accordance with GAAP.
3
"CAPITAL STOCK" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity
(including an unincorporated organization), any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock or equity;
(3) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or
limited); and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CASH EQUIVALENTS" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof (PROVIDED that the full faith and credit of the
United States is pledged in support thereof) having maturities of not
more than one year from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits
with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and
overnight bank deposits, in each case, with any commercial bank
chartered or organized in the United States and having capital and
surplus in excess of $500.0 million and a Xxxxxxxx Bank Watch Rating of
"B" or better;
(4) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses
(2) and (3) above entered into with any financial institution meeting
the qualifications specified in clause (3) above;
(5) commercial paper having the highest rating obtainable
from Moody's or S&P and in each case maturing within six months after
the date of acquisition; and
(6) a money market fund at least 95% of the assets of
which constitute Cash Equivalents of the kinds described in clauses (1)
through (5) of this definition, if such fund has assets of not less
than $500.0 million.
"CHANGE OF CONTROL" means the occurrence of any of the
following:
(1) the Enterprise ceases to be a wholly-owned unit,
instrumentality, enterprise or subdivision of the government of the
Tribe;
(2) the Enterprise ceases to have the exclusive legal
right to operate the Resort;
4
(3) the Enterprise fails to retain in full force and
effect at all times all material governmental consents, permits or
legal rights necessary for the operation of the Resort and such failure
continues for a period of 90 consecutive days;
(4) the Enterprise sells, assigns, transfers, leases,
conveys or otherwise disposes of all or substantially all of the Gaming
Assets to, or consolidates or merges with or into, any other Person; or
(5) the adoption of a plan relating to the liquidation or
dissolution of the Enterprise.
"CHOCTAW GAMING COMMISSION" means the Choctaw Gaming
Commission, the agency of the Tribe having primary regulatory jurisdiction
over the gaming activities of the Tribe, established under Chapter 1, Title
XV of the Choctaw Tribal Code.
"CLEARSTREAM" means Clearstream Banking, societe anonyme,
Luxembourg.
"CLOSING DATE" means March 30, 2001.
"COLLATERAL ACCOUNT" means the account established and
maintained by the Collateral Agent pursuant to the terms of the Pledge
Agreement.
"COLLATERAL AGENT" means Firstar Bank, N.A., as Collateral
Agent under the Pledge Agreement.
"COMPACT" means the tribal-state compact entered into
between the Tribe and the State of Mississippi pursuant to the Indian Gaming
Regulatory Act of 1988, PL 100-497, 25 U.S.C. Section 2701 ET SEQ., as the same
may from time to time be amended, or such other compact as may be substituted
therefor.
"CONSOLIDATED CASH FLOW" means, with respect to any
specified Person for any period, the Consolidated Net Income of that Person
for that period PLUS:
(1) an amount equal to any extraordinary loss plus the
amount of any net loss realized by that Person or any of its Restricted
Subsidiaries in connection with an Asset Sale, to the extent those
losses were deducted in computing Consolidated Net Income; PLUS
(2) consolidated interest expense of that Person and its
Restricted Subsidiaries for the relevant period, whether paid or
accrued and whether or not capitalized (including, without limitation,
amortization of original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect
of letter of credit or bankers' acceptance financings, and net of the
effect of all payments made or received pursuant to Hedging
Obligations), to the extent that this expense was deducted in computing
Consolidated Net Income; PLUS
5
(3) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and, without
duplication, other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash
expense that was paid in a prior period) of that Person and its
Restricted Subsidiaries for the relevant period to the extent that
depreciation, amortization and other non-cash expenses were deducted in
computing Consolidated Net Income; PLUS
(4) management contract termination fees paid to Xxxx
Management Corporation in such period; PLUS
(5) the amount of any Annual Service Payment made in such
period, to the extent that such Annual Service Payment was deducted in
computing Consolidated Net Income; MINUS
(6) without duplication, non-cash items increasing
Consolidated Net Income for the relevant period, other than the accrual
of revenue in the ordinary course of business; MINUS
(7) to the extent not included in computing such
Consolidated Net Income, any revenues received or accrued by the
Enterprise or any of its Subsidiaries from any Person (other than the
Enterprise or any of its Subsidiaries) in respect of any Investment for
such period.
Notwithstanding the foregoing, the provision for taxes based
on the income or profits of, and the depreciation and amortization and other
non-cash expenses of, a Restricted Subsidiary of the Enterprise shall be added
to Consolidated Net Income to compute Consolidated Cash Flow of the Enterprise
only to the extent that a corresponding amount would be permitted at the date of
determination to be dividend to the Enterprise by that Restricted Subsidiary
without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its equity
holders.
"CONSOLIDATED NET INCOME" means, with respect to any specified
Person for any period, the aggregate of the Net Income of that Person and its
Restricted Subsidiaries for that period, on a consolidated basis, determined in
accordance with GAAP; PROVIDED that:
(1) the Net Income (but not loss) of any Person that is
not a Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
6
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of its
acquisition shall be excluded;
(4) the cumulative effect of a change in accounting
principles shall be excluded; and
(5) the non-cash effect on Net Income for that period of
any change in the fair value of Hedging Obligation of the Enterprise or
any of its Restricted Subsidiaries shall be excluded.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the
address of the Trustee specified in Section 13.02 hereof or such other
address as to which the Trustee may give notice to the Enterprise.
"CREDIT FACILITIES" means, with respect to the Enterprise
or any Restricted Subsidiary, one or more debt facilities (including, without
limitation, the Senior Secured Revolving Credit Facility and excluding the
Senior Secured Term Loan Facility) or commercial paper facilities with banks
or other institutional lenders providing for revolving credit loans, term
loans, capitalized leases, receivables financing (including through the sale
of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in
each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time. Indebtedness under Credit
Facilities outstanding on the date on which the Notes are first issued and
authenticated under this Indenture shall be deemed to have been incurred on
such date in reliance on the exception provided by clause (a) of Section 4.09
hereof.
"CUSTODIAN" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"DEFAULT" means any event that is, or with the passage of
time or the giving of notice or both, would be, an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in
the name of the Holder thereof and issued in accordance with Section 2.07
hereof, substantially in the form of Exhibit A1 hereto except that such Note
shall not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section
2.04 hereof as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable 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, in each case at the
7
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
Notes mature. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof have
the right to require the Enterprise to repurchase such Capital Stock upon the
occurrence of a change of control or an asset sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the
Enterprise may not repurchase or redeem any such Capital Stock unless such
repurchase or redemption complies with Section 4.07 hereof.
"ENTERPRISE" means The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise, a business enterprise of The
Mississippi Band of Choctaw Indians created by Resolution CHO-00-010 which
authorized its creation under Ordinance 56 of the Tribe, together with any
subdivision, agency or subunit that has no separate legal existence from the
Enterprise.
"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).
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer
pursuant to Section 2.07(f) hereof.
"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.
"EXCLUDED DEBT" means Indebtedness (not to exceed $12.0
million at any one time outstanding until those amounts are repaid in accordance
with the terms of such Indebtedness in effect on the date hereof, whether in
whole or in part) of the Tribe under agreements existing on the date hereof,
which agreements do not preclude recourse to the assets of the Enterprise.
"EXISTING INDEBTEDNESS" means Indebtedness of the Enterprise
and its Restricted Subsidiaries (including, without limitation, Indebtedness
outstanding under the Senior Secured Term Loan Facility) in existence on the
date hereof until those amounts are repaid in whole or in part; PROVIDED,
HOWEVER, Existing Indebtedness shall not include Indebtedness under the Senior
Secured Revolving Credit Facility.
"EXPANSION PROJECT" means the project to construct the Golden
Moon and the related improvements to the Silver Star.
8
"FF&E" means furniture, fixture and equipment, including
gaming equipment, used in connection with any Gaming Business.
"FF&E FINANCING" means the incurrence of Indebtedness, the
proceeds of which shall be used to finance the acquisition by the Enterprise or
a Restricted Subsidiary of FF&E used in connection with the Resort whether or
not secured by a Lien on such FF&E; PROVIDED that such Indebtedness does not
exceed the fair market value of such FF&E at the time of its acquisition.
"FIXED CHARGE COVERAGE RATIO" means with respect to any
specified Person for any period, the ratio of the Consolidated Cash Flow of
that Person for that period to the Fixed Charges of that Person for that
period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems any
Indebtedness (other than ordinary revolving credit borrowings) or issues,
repurchases or redeems preferred equity subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated and on
or prior to the date on which the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "CALCULATION DATE"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to that
incurrence, assumption, Guarantee, repayment, repurchase or redemption of
Indebtedness, or that issuance, repurchase or redemption of preferred equity,
and the use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
(1) acquisitions that have been made by the specified
Person or any of its Restricted Subsidiaries, including through mergers
or consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to that
reference period and on or prior to the Calculation Date shall be given
pro forma effect as if they had occurred on the first day of the
four-quarter reference period and Consolidated Cash Flow for that
reference period shall be calculated on a pro forma basis in accordance
with Regulation S-X under the Securities Act, and Consolidated Cash
Flow for such period shall be calculated without giving effect to
clause (3) of the proviso set forth in the definition of Consolidated
Net Income;
(2) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date,
shall be excluded; and
(3) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to
those Fixed Charges shall not be obligations of the specified Person or
any of its Restricted Subsidiaries following the Calculation Date.
"FIXED CHARGES" means, with respect to any specified Person
for any period, the sum, without duplication, of:
9
(1) the consolidated interest expense of that Person and
its Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated
with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance
financings, and the net effect of all payments made or received
pursuant to Hedging Obligations; PLUS
(2) the consolidated interest of that Person and its
Restricted Subsidiaries that was capitalized during that period; PLUS
(3) any interest expense on Indebtedness of another
Person that is guaranteed by that Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of that Person or one of
its Restricted Subsidiaries, whether or not the Guarantee or Lien is
called upon, other than Excluded Debt; PROVIDED that such specified
Person has not paid the interest on such Indebtedness; PLUS
(4) the products of (a) all dividends, whether paid or
accrued and whether or not in cash, on any series of preferred equity
of such Person or any of its Restricted Subsidiaries other than
dividends on Equity Interests payable solely in Equity Interests of
such Person (other than Disqualified Stock) or to such Person or a
Restricted Subsidiary of such Person, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the
then current combined federal, state and local statutory tax rate of
that Person expressed as a decimal, in each case, on a consolidated
basis and in accordance with GAAP; PROVIDED that the Annual Service
Payment shall not constitute a Fixed Charge.
"FUNDS" means the monies deposited with the Collateral Agent
on the date hereof pursuant to the terms of the Pledge Agreement.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in other
statements by other entities as have been approved by a significant segment of
the accounting profession, which are in effect from time to time.
"GAMING ASSETS" means any and all real, mixed and personal
property of the Enterprise, its Restricted Subsidiaries and the Tribe that is
(a) associated with the Gaming Business of the Enterprise or (b) reflected on
the balance sheet of the Enterprise as of December 31, 2000 or any subsequent
balance sheet for the Enterprise. "GAMING ASSETS" in any event shall include
without limitation (i) the Silver Star and the Golden Moon, (ii) all tangible
and intangible property of the Enterprise, its Restricted Subsidiaries or the
Tribe associated with the Gaming Business of the Enterprise, including
without limitation all gaming, entertainment, restaurant and related
equipment, all intellectual property associated with the Gaming Business of
the Enterprise, the books and records thereof and all office equipment and
receptacles associated therewith, and (iii) all gaming revenues of the
Enterprise, its Restricted Subsidiaries
10
and the Tribe derived from the Gaming Business of the Enterprise, including
without limitation the right to receive distributions therefrom.
"GAMING AUTHORITY" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States federal or foreign government, the Tribe, any state, province
or any city or other political subdivision or otherwise, and whether now or
hereafter in existence, or any officer or official thereof, with authority to
regulate any gaming operation (or proposed gaming operation) owned, managed or
operated by the Tribe or the Enterprise or any subsidiary of the Enterprise,
including any division of the Tribe having such authority.
"GAMING BUSINESS" means the Class II and Class III Gaming (as
such terms are defined in IGRA) business and, in the case of the Enterprise,
includes the gaming and resort business conducted at the Silver Star and the
Golden Moon and the development and operation of Permitted Pearl River Resort
Amenities.
"GAMING LICENSE" means every license, permit, franchise or
other authorization from any Gaming Authority required on the date hereof or at
any time thereafter to own, lease, operate or otherwise conduct the Gaming
Business of the Enterprise and its Subsidiaries, including all licenses granted
under the Tribal Gaming Ordinance, and the regulation promulgated pursuant
thereto, and other applicable federal, state, foreign or local laws.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.07(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"GLOBAL NOTES" means, individually and collectively, each of
the Restricted Global Notes and the Unrestricted Global Notes, substantially in
the form of Exhibit A1 or A2 hereto, as appropriate, issued in accordance with
Section 2.01, 2.07(b)(iv), 2.07(d)(ii) or 2.07(f) of this Indenture.
"GOLDEN MOON" means the proposed casino and resort property
and related retail, dining and entertainment facilities and hotel facilities
commonly known as "Golden Moon Resort and Casino" owned by the Enterprise and
located on the Tribe's reservation near Philadelphia, Mississippi, including any
future improvements or expansion thereof, as further described in the Offering
Memorandum
"GOVERNMENT SECURITIES" means securities that are (a) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (b) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the Enterprise, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as a custodian with respect to any such U.S. Government
obligation or a specific payment of principal of or interest on any such U.S.
Government obligation held by such custodian for the account of the holder of
such depository receipt. However, except as required by law, such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any
11
amount received by the custodian in respect of the U.S. Government obligation
or the specific payment of principal of or interest on the U.S. Government
obligation evidenced by such depository receipt.
"GOVERNMENT SERVICES DIVISION" means the division of the
Executive Branch of the Tribe created under Ordinance 56 of the Tribe that
contains all operations and departments of the Executive Branch, except the
business enterprises identified in Section 2 of Ordinance 56.
"GUARANTEE" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner, including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any specified
Person, the obligations of such Person under:
(1) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements; and
(2) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates.
"HOLDER" means a Person in whose name a Note is registered.
"IAI GLOBAL NOTE" means the global Note substantially in the
form of Exhibit A1 hereto bearing the Global Note 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 Notes sold to Institutional Accredited
Investors.
"IGRA" means the Indian Gaming Regulatory Act of 1988,
PL 100-497, U.S.C. Section 2701 ET SEQ., as the same may from time to time be
amended.
"INDEBTEDNESS" means, with respect to any specified Person and
without duplication, any liability of such Person, whether or not contingent,
(1) for borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the
purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable;
12
(6) representing any Hedging Obligations; and
(7) to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person,
if and to the extent any of the preceding items (other than letters of credit,
Hedging Obligations and the amount of that Person's obligation for the
redemption, repayment or other repurchase of Disqualified Stock) would appear as
a liability upon a balance sheet of the specified Person prepared in accordance
with GAAP. In addition, the term "Indebtedness" includes all Indebtedness of
others secured by a Lien on any asset of the specified Person (whether or not
such Indebtedness is assumed by the specified Person) and, to the extent not
otherwise included, the Guarantee by the specified Person of any indebtedness of
any other Person.
The amount of any Indebtedness outstanding as of any date
shall be:
(a) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and
(b) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"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 Note through a Participant.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution
that is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act, who are not also QIBs.
"INVESTMENTS" mean, with respect to any Person, all direct
or indirect investments by that Person in other Persons (including
Affiliates) in the forms of loans (including Guarantees or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), 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 Enterprise or any of its Restricted Subsidiaries sells or
otherwise disposes of any Equity Interests of any Restricted Subsidiary such
that, after giving effect to the sale or disposition, that Person is no
longer a Restricted Subsidiary, then the Enterprise or that Restricted
Subsidiary shall be deemed to have made an Investment on the date of the sale
or disposition equal to the fair market value of the Equity Interests of that
Subsidiary not sold or disposed of pursuant to the sale or disposition in an
amount determined as provided in the final paragraph of Section 4.07 hereof.
If the Enterprise or any of its Restricted Subsidiaries designates a
Restricted Subsidiary to be an Unrestricted Subsidiary pursuant to the
provisions of this Indenture, then the Enterprise or that Restricted
Subsidiary shall be deemed to have made an Investment on the date of that
designation equal to the fair market value of the Equity Interests of
13
that Subsidiary in an amount determined as provided in the final paragraph of
Section 4.07 hereof.
The acquisition by the Enterprise or any Restricted Subsidiary
of a Person that holds an Investment in any third Person shall be deemed to be
an Investment by the Enterprise or the Restricted Subsidiary in that third
Person in an amount equal to the fair market value of the Investment held by the
acquired Person in that third Person in an amount determined as provided in the
final paragraph of Section 4.07 hereof.
"ISSUE DATE" means the date on which the initial $200.0
million in aggregate principal amount of the Notes were originally issued under
this Indenture.
"KEY PROJECT ASSETS" means:
(1) any real property or interest in real property
comprising the Resort held in trust for the Tribe by the United States,
(2) any improvement (including, without limitation, the
Resort) to the real property comprising the Resort (but excluding any
obsolete personal property or real property improvements determined by
the Enterprise to be no longer useful to the operation of the Resort),
and
(3) any business records of the Enterprise or the Tribe
relating to the operation of the Resort.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in The City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Enterprise and sent to all Holders of the Notes 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" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"MOODY'S" means Xxxxx'x Investors Service and any successor
thereof.
"NET INCOME" means, with respect to any specified Person for
any period:
14
(1) the net income (loss) of that Person for that period,
determined in accordance with GAAP and before any reduction in respect
of dividends on preferred stock, excluding, however, (i) any gain (but
not loss), together with any related provision for taxes on that gain
(but not loss), realized in connection with: (a) any Asset Sale or (b)
the disposition of any securities by that Person or any of its
Restricted Subsidiaries or the extinguishment of any Indebtedness of
that Person or any of its Restricted Subsidiaries; and (ii) any
extraordinary gain (but not loss), together with any related provision
for taxes on that extraordinary gain (but not loss); PLUS
(2) to the extent deducted in determining the net income
(loss) of that Person for that period, pre-opening expenses of the
Golden Moon, PROVIDED that the amount of such pre-opening expenses
added to Net Income for all periods pursuant to this clause (2) shall
not exceed $15.0 million in the aggregate; LESS
(3) the amount of any Annual Service Payment made during
such period; LESS
(4) to the extent included in determining the net income
(loss) of that Person for that period, in the case of any Person that
is a partnership or a limited liability company, the amount of
withholding for tax purposes of such Person for such period.
"NET PROCEEDS" means the aggregate cash proceeds received by
the Enterprise 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 the Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result thereof, any taxes paid or payable by
the Enterprise as a result thereof, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements, and
amounts required to be applied to the repayment of Indebtedness, secured by a
Lien on the asset or assets that were the subject of the Asset Sale and any
reserve for adjustment in respect of the sale price of the asset or assets
established in accordance with GAAP.
"NIGC" means the National Indian Gaming Commission.
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither
the Enterprise nor any of its Restricted Subsidiaries (a) provides credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness) or (b) is directly or indirectly liable (as a
guarantor or otherwise); (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 other Indebtedness of the Enterprise 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; and
(iii) as to which such Indebtedness specifies that the lenders thereunder shall
not have any recourse to the equity or assets of the Enterprise or any of its
Restricted Subsidiaries.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
15
"NOTES" means the 9 1/4% Senior Notes due 2009 of the
Enterprise issued on the date hereof and the Exchange Notes. The Notes and the
Additional Notes, if any, shall be treated as a single class for all purposes
under this Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFERING" means the offering of the Notes by the Enterprise.
"OFFERING MEMORANDUM" means the offering memorandum of the
Enterprise for the offering of the Notes, dated March 22, 2001.
"OFFICER" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf
of the Enterprise by at least two Officers of the Enterprise, one of whom must
be the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Enterprise, that meets the
requirements of Section 13.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Section
13.05 hereof; PROVIDED, HOWEVER, that such legal counsel shall not be an
employee of, or internal counsel to, the Enterprise, the Tribe, or any of their
Subsidiaries.
"OWNERSHIP INTEREST" means, with respect to any Person,
Capital Stock of such Person or any interest which carries the right to elect or
appoint any member of the Board of Directors or other executive office of such
Person.
"PARTICIPANT" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and with respect to DTC, shall include Euroclear and
Clearstream).
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Enterprise or in any of its
Restricted Subsidiaries engaged in the Gaming Business;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Enterprise or any of its
Restricted Subsidiaries in a Person, if as a result of that Investment:
(a) the Person becomes a Restricted Subsidiary
of the Enterprise engaged in the Gaming Business; or
16
(b) the Person is merged, consolidated or
amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the
Enterprise or a Restricted Subsidiary engaged in the Gaming
Business;
(4) 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 4.10 hereof;
(5) 90 days after the hotel and casino facilities at the
Golden Moon have been open and fully operational, any Investment in any
Person engaged in the Gaming Business having an aggregate fair market
value (as determined in good faith by the Board of Directors and
measured as of the date of such Investment, without giving effect to
any subsequent increases or decreases in value) not to exceed at any
one time outstanding the greater of (x) $25.0 million or (y) $115.0
million MINUS the aggregate amount outstanding under the Senior Secured
Revolving Credit Facility on the 90th day after the hotel and casino
facilities at the Golden Moon have been open and fully operational;
(6) payroll advances to employees of the Enterprise or
its Restricted Subsidiaries for travel, entertainment and relocation
expenses in the ordinary course of business;
(7) accounts and notes receivable if created or acquired
in the ordinary course of business and which are payable or
dischargeable in accordance with customary trade terms; and
(8) Investments related to Hedging Obligations, so long
as such Hedging Obligations are not used for speculative purposes.
"PERMITTED LIENS" means:
(1) Liens in favor of the Enterprise or any of its
Restricted Subsidiaries;
(2) Liens existing on this date of this Indenture,
including Liens to secure Existing Indebtedness;
(3) Liens to secure Indebtedness pursuant to Credit
Facilities permitted pursuant to clause (1) of the second paragraph of
Section 4.09 hereof;
(4) Liens on property existing at the time of acquisition
thereof by the Enterprise or any of its Restricted Subsidiaries;
PROVIDED that those Liens were in existence prior to the contemplation
of the acquisition and do not extend to any assets other than the
acquired property;
(5) Liens or deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory
obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of
business;
17
(6) Liens to secure Indebtedness (including Capital Lease
Obligation) permitted by clause (6) of the second paragraph of Section
4.09 hereof covering only the assets acquired with or improved with the
proceeds of such Indebtedness;
(7) 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;
(8) leases or subleases permitted pursuant to the terms
of this Indenture and that are granted to others and do not in any
material respect interfere with the business of the Enterprise or any
Restricted Subsidiary;
(9) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of
business and not overdue for a period of more than 90 days or which are
being contested in good faith by appropriate proceedings;
(10) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(11) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business 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
or materially interfere with the ordinary course of the business of the
Enterprise or of any of its Restricted Subsidiaries, as the case may
be, and any exceptions to title set forth in any title policies;
(12) Liens to secure Permitted Refinancing Indebtedness
incurred pursuant to clause (5) of the second paragraph of Section 4.09
hereof; PROVIDED that such Liens are not more extensive than those
securing the Indebtedness refinanced by such Permitted Refinancing
Indebtedness; and
(13) Liens incurred in the ordinary course of business of
the Enterprise or a Restricted Subsidiary with respect to obligations
that do not exceed $5 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 and materially impair the use
thereof in the operation of business by the Enterprise; PROVIDED,
HOWEVER, it is acknowledged that Permitted Liens shall not include any
Lien on the land held in trust for the Tribe by the United States or
any real property interest therein, including the buildings,
improvements and fixtures, which shall give the holder thereof a
proprietary interest in any gaming activity as prohibited by Section
11(b)(2)(A) of IGRA.
18
"PERMITTED PAYMENTS" means any of the following items to the
extent that such item has been recorded as an expense, in accordance with GAAP,
on the statement of operations of the Enterprise:
(1) payment for actual services, products or benefits
rendered, performed or delivered in the ordinary course of business of
the Enterprise and its Restricted Subsidiaries, which are reasonably
necessary or desirable to the operation of the Enterprise, not to
exceed the amount that would otherwise be paid for such services,
products or benefits to a third-party in an arm's-length transaction,
provided such services do not include payments or fees for government
overhead of the Tribe or any unit thereof;
(2) fees paid to the Choctaw Gaming Commission, not to
exceed 1% of gross revenues;
(3) any pro rata allocation of the Enterprise's portion
of actual third-party costs paid by the Tribe for the direct benefit of
the Enterprise and its Restricted Subsidiaries;
(4) allocated costs of employee benefits for employees of
the Enterprise paid by the Tribe, including allocated costs of
third-party administration, provided that such allocation does not
include payments or fees for any government overhead of the Tribe or
any unit thereof; and
(5) allocated costs of providing police, fire, sewage and
other municipal or similar services to the Enterprise paid by the
Tribe, not to exceed the pro rata portion of the actual out-of-pocket
cost to the Tribe or any unit thereof.
"PERMITTED PEARL RIVER RESORT AMENITIES" means the Dancing
Rabbit Golf Club and for-profit business ventures, such as hotel facilities and
related amenities, located on the Tribe's reservation near Philadelphia,
Mississippi that complement the business activities conducted at the Silver Star
and Golden Moon. For the avoidance of doubt, "Permitted Pearl River Resort
Amenities" shall not include any cultural center, museum, wellness center, arena
or stadium.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of
the Enterprise or of any of its Restricted Subsidiaries issued in exchange for,
or the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund other Indebtedness of the Enterprise or of any of its
Restricted Subsidiaries (other than intercompany Indebtedness); PROVIDED that:
(1) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed
the outstanding principal amount (or accreted value, if applicable) of
the Indebtedness so extended, refinanced, renewed, replaced, defeased
or refunded (plus all accrued interest thereon and the amount of all
expenses and premiums incurred in connection therewith);
19
(2) the Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes or any Subsidiary Guarantee, the Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the Notes
or such Subsidiary Guarantee, as the case may be, on terms at least as
favorable to the Holders of the Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(4) the Indebtedness is incurred either by the Enterprise
or by the Restricted Subsidiary that is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"PLEDGE AGREEMENT" means the Collateral Pledge and Security
Agreement dated as of the Closing Date, among the Issuer and Firstar Bank, N.A.,
as Trustee under this Indenture, and Firstar Bank, N.A., as Collateral Agent and
as Securities Intermediary.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in
Section 2.07(g)(i) to be placed on all Notes 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.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of March 30, 2001, by and among the Enterprise and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements between the Enterprise and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Enterprise to
the purchaser of Additional Notes to register such Additional Notes under the
Securities Act.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL NOTE" means a Regulation S Temporary
Global Note or a Regulation S Permanent Global Note, as appropriate.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent global
Note in the form of Exhibit A1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee,
20
issued in a denomination equal to the outstanding principal amount at
maturity of the Regulation S Temporary Global Note upon expiration of the
Restricted Period.
"REGULATION S TEMPORARY GLOBAL NOTE" means a temporary global
Note in the form of Exhibit A2 hereto bearing the Global Note Legend, the
Private Placement Legend and the Temporary Regulation S 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 at
maturity of the Notes initially sold in reliance on Rule 903 of Regulation S.
"RESORT" means the multi-amenity gaming and entertainment
complex, located on the Tribe's reservation near Philadelphia, Mississippi,
consisting of the Silver Star and the proposed Golden Moon, as described in the
Offering Memorandum, and the Permitted Pearl River Resort Amenities, but
excluding (i) any obsolete personal property or real property improvement
determined by the Enterprise to be no longer useful or necessary to the
operations or support of the Resort and (ii) any equipment leased from a third
party in the ordinary course of business.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing
the Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note 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
that Person that is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities
Act.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"RULE 903" means Rule 903 promulgated under the Securities
Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
21
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES INTERMEDIARY" means Firstar Bank, N.A., as
Securities Intermediary under the Pledge Agreement.
"SENIOR SECURED REVOLVING CREDIT FACILITY" means the $125.0
million revolving, secured credit facility evidenced by the Loan Agreement dated
December 19, 2000 among the Enterprise and a syndicate of lenders led by Bank of
America, N.A.
"SENIOR SECURED TERM LOAN FACILITY" means the amortizing
secured credit facility evidenced by the Amended and Restated Term Loan
Agreement dated December 19, 2000 among the Enterprise and a syndicate of
lenders led by Bank of America, N.A.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1 Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof or any Subsidiary that holds a license or permit that is
material to the business of the Enterprise or any of its Restricted
Subsidiaries.
"SILVER STAR" means the casino and resort property and related
retail, dining and entertainment facilities and hotel facilities described in
the Choctaw Gaming Ordinance and commonly known as "Silver Star Resort and
Casino" owned by the Enterprise and located on the Tribe's reservation near
Philadelphia, Mississippi, including any future improvements or expansion
thereof.
"S&P" means Standard & Poor's Ratings Group and any successor
thereof.
"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 any Indebtedness which by
its terms is expressly subordinate in right of payment in any respect to the
payment of any obligation on the Notes.
"SUBSIDIARY" means:
(1) with respect to any specified Person, 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 that Person or one or
more other subsidiaries of that Person (or a combination thereof); and
22
(2) any instrumentality or subdivision or subunit of the
Enterprise that has a separate legal existence or status or whose
property and assets would not otherwise be bound by the terms of this
Indenture.
The Tribe and any other instrumentality of the Tribe that is
not also an enterprise of the Enterprise shall not be a Subsidiary of the
Enterprise.
"SUBSIDIARY GUARANTEE" means a guarantee of the Enterprise's
payment obligations under the Notes and this Indenture by a Subsidiary Guarantor
in accordance with the provisions of this Indenture.
"SUBSIDIARY GUARANTOR" means any Restricted Subsidiary that
executes a Subsidiary Guarantee of the Enterprise's payment obligations under
the Notes and this Indenture in accordance with the provisions of this
Indenture, and its respective successors and assigns.
"TEMPORARY REGULATION S LEGEND" means the legend set forth in
Section 2.07(h) hereof, which is required to be placed on the Regulation S
Temporary Global Note.
"TIA" means the Trust Indenture Act of 1939, as in effect on
the date on which this Indenture is qualified under the TIA.
"TOTAL ASSETS" means, with respect to any Person, the
aggregate of all assets of such Person and its subsidiaries as would be shown on
the balance sheet of such Person prepared in accordance with GAAP.
"TRANSACTION DATE" means, with respect to the incurrence of
any Indebtedness by the Enterprise or any of its Restricted Subsidiaries, the
date such Indebtedness is to be incurred and, with respect to any Restricted
Payment, the date such Restricted Payment is to be made.
"TRIBAL GAMING ORDINANCE" means Ordinance 16(v), Title 15 of
the Choctaw Tribal Code.
"TRIBAL TAX CODE" means, for purposes of this Indenture, any
sales, use, room occupancy and related excise taxes, including admissions and
cabaret taxes and any other tax (other than income tax) that the Tribe may
impose on the Enterprise or its Restricted Subsidiaries, its patrons or
operations; PROVIDED, HOWEVER, that the rate and scope of such taxes shall not
be more onerous than equivalent taxes imposed by the State of Mississippi.
"TRIBE" means the Mississippi Band of Choctaw Indians, a
sovereign Indian tribe recognized by the United States of America pursuant to 25
U.S.C. Section 476, ET SEQ.
"TRUSTEE" means Firstar Bank, N.A., a national banking
association, until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive
Notes that do not bear and are not required to bear the Private Placement
Legend.
23
"UNRESTRICTED GLOBAL NOTE" means a permanent global Note
substantially in the form of Exhibit A1 attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges of Interests in the Global
Note" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that do
not bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the
Enterprise that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness, other than Non-Recourse
Indebtedness;
(2) is not party to any agreement, contract, arrangement
or understanding with the Enterprise or any Restricted Subsidiary of
the Enterprise unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Enterprise or
such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Enterprise;
(3) is a Person with respect to which neither the
Enterprise nor any of its Restricted Subsidiaries has any direct or
indirect obligation (a) to subscribe for additional Equity Interests or
(b) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results;
and
(4) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the
Enterprise or any of its Restricted Subsidiaries.
Any designation of a Subsidiary of the Enterprise as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Enterprise as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Enterprise shall be in
default of such covenant. The Board of Directors of the Enterprise 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 Enterprise of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (1) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period and (2) no Default or Event of
Default would be in existence following such designation.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
24
(1) the sum of the products obtained by multiplying (a)
the amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that shall elapse between that
date and the making of the payment; by
(2) the then outstanding principal amount of that
Indebtedness.
Section 1.02 OTHER DEFINITIONS.
DEFINED
IN
TERM SECTION
---- -------
"AFFILIATE TRANSACTION".................................................... 4.11
"ASSET SALE OFFER"......................................................... 4.10
"AUTHENTICATION ORDER"..................................................... 2.02
"CHANGE OF CONTROL OFFER".................................................. 4.15
"CHANGE OF CONTROL PAYMENT"................................................ 4.15
"CHANGE OF CONTROL PAYMENT DATE"........................................... 4.15
"COVENANT DEFEASANCE"...................................................... 8.03
"DTC"...................................................................... 2.01
"EVENT OF DEFAULT"......................................................... 6.01
"EXCESS PROCEEDS".......................................................... 4.10
"INCUR".................................................................... 4.09
"LEGAL DEFEASANCE"......................................................... 8.02
"OFFER AMOUNT"............................................................. 3.10
"OFFER PERIOD"............................................................. 3.10
"OFFSHORE TRANSACTION"..................................................... 2.07
"PAYING AGENT"............................................................. 2.03
"PAYMENT DEFAULT".......................................................... 6.01
"PERMITTED DEBT"........................................................... 4.09
"PURCHASE DATE"............................................................ 3.10
"REGISTRAR"................................................................ 2.04
"RELATED JUDGMENT"......................................................... 13.09
"RELATED PROCEEDINGS"...................................................... 13.09
"REPURCHASE OFFER"......................................................... 3.10
"RESALE RESTRICTION TERMINATION DATE"...................................... 2.07
"RESTRICTED PAYMENTS"...................................................... 4.07
"SPECIFIED COURTS"......................................................... 13.09
"UNITED STATES"............................................................ 2.07
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
25
The following TIA terms used in this Indenture have the
following meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee; and
"OBLIGOR" on the Notes means the Enterprise and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has
the meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural,
and in the plural include the singular;
(e) provisions apply to successive events and
transactions; and
(f) references to sections of or rules under the
Securities Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC
from time to time.
ARTICLE TWO
THE NOTES
Section 2.01 FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A1 hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be issued only in registered form without coupons and only shall
be in denominations of $1,000 and integral multiples thereof.
26
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Enterprise, the Tribe and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) GLOBAL NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A1 or A2 attached hereto (including the
Global Note Legend thereon and the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A1 attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount at maturity of outstanding Notes
from time to time endorsed thereon and that the aggregate principal amount at
maturity of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount at maturity of outstanding Notes represented
thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.07 hereof.
(c) TEMPORARY GLOBAL NOTES. Notes offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Temporary Global Note, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee, as custodian for The Depository
Trust Company ("DTC") in New York, New York, 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
Enterprise and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall be terminated upon the receipt by the Trustee of (i) a
written certificate from Euroclear and Clearstream certifying that they have
received certification of non-United States beneficial ownership of 100% of the
aggregate principal amount at maturity of the Regulation S Temporary Global Note
(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 shall take delivery of a
beneficial ownership interest in a 144A Global Note bearing a Private Placement
Legend, all as contemplated by Section 2.07(a)(ii) hereof), and (ii) an
Officers' Certificate from the Enterprise. Following the termination of the
Restricted Period, beneficial interests in the Regulation S Temporary Global
Note shall be exchanged for beneficial interests in Regulation S Permanent
Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(d) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of
27
Euroclear" and the "General Terms and Conditions of Cedel Bank" and "Customer
Handbook" of Clearstream shall be applicable to transfers of beneficial
interests in the Regulation S Temporary Global Note and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or
Clearstream.
Section 2.02 EXECUTION AND AUTHENTICATION.
Two Officers of the Enterprise shall sign the Notes for the
Enterprise by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. Such signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Enterprise
signed by two Officers of the Enterprise (an "AUTHENTICATION ORDER"),
authenticate Notes for original issue up to the aggregate principal amount of
$250 million, of which $200 million will be issued on the date of this
Indenture. The aggregate principal amount at maturity of Notes outstanding at
any time may not exceed such amount except as provided in Section 2.08 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Enterprise to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Enterprise.
Section 2.03 METHODS OF RECEIVING PAYMENTS ON THE NOTES.
If a Holder of $1.0 million or more in principal amount of
Notes has given wire transfer instructions to the Enterprise, the Enterprise
will pay all principal, interest and premium and Liquidated Damages, if any, on
that Holder's Notes in accordance with those instructions. All other payments on
Notes will be made at the office or agency of the Paying Agent and Registrar
within the City and State of New York unless the Enterprise elects to make
interest payments by check mailed to the Holders at their addresses set forth in
the register of Holders.
Section 2.04 REGISTRAR AND PAYING AGENT.
The Enterprise shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange ("REGISTRAR") and
an office or agency where Notes may be presented for payment ("PAYING Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Enterprise 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 Enterprise may
change any
28
\
Paying Agent or Registrar without prior notice to any Holder. The
Enterprise shall notify the Trustee in writing of the name and address of any
Agent not a party to this Indenture. If the Enterprise fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Enterprise may act as Paying Agent or Registrar; PROVIDED, HOWEVER,
that neither the Enterprise nor any of its Subsidiaries shall act as Paying
Agent for purposes of Section 7 of the Pledge Agreement.
The Enterprise initially appoints DTC to act as Depositary
with respect to the Global Notes.
The Enterprise initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
Section 2.05 PAYING AGENT TO HOLD MONEY IN TRUST.
The Enterprise shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on the
Notes, and shall notify the Trustee of any default by the Enterprise 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 Enterprise 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 Enterprise or
one of its Subsidiaries) shall have no further liability for the money. If the
Enterprise or one of its Subsidiaries 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 Enterprise, the Trustee shall serve as Paying Agent for the
Notes.
Section 2.06 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 Enterprise shall furnish to the
Trustee at least seven Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Enterprise shall otherwise comply
with TIA Section 312(a).
Section 2.07 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global
Note may not be transferred as a whole except by the Depositary to a nominee
of the Depositary, by a nominee of the Depositary to the Depositary or to
another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary. All
Global Notes shall be exchanged by the Enterprise for Definitive Notes if (i)
the Enterprise delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act
29
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 Enterprise within 120 days after the date of such notice from the
Depositary; (ii) the Enterprise in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for Definitive
Notes and delivers a written notice to such effect to the Trustee; PROVIDED
that in no event shall the Regulation S Temporary Global Note be exchanged by
the Enterprise for Definitive Notes prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; or (iii)
there shall have occurred and be continuing a Default or Event of Default
with respect to the Notes. Upon the occurrence of either of the preceding
events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.08 and
2.11 hereof. Every Note authenticated and delivered in exchange for, or in
lieu of, a Global Note or any portion thereof, pursuant to this Section 2.07
or Section 2.08 or 2.11 hereof, shall be authenticated and delivered in the
form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.07(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.07(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL NOTES. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
NOTE. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; PROVIDED, HOWEVER, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation
S Temporary Global Note 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 Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.07(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL
INTERESTS IN GLOBAL NOTES. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.07(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing
30
information regarding the Participant account to be credited with
such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued
a Definitive Note in an amount equal to the beneficial interest to
be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to
effect the transfer or exchange referred to in (1) above; PROVIDED
that in no event shall Definitive Notes be issued upon the transfer
or exchange of beneficial interests in the Regulation S Temporary
Global Note prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Registrar of any certificates required
pursuant to Rule 903 under the Securities Act. Upon consummation of
an Exchange Offer by the Enterprise in accordance with Section
2.07(f) hereof, the requirements of this Section 2.07(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
Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount at maturity of
the relevant Global Notes pursuant to Section 2.07(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER
RESTRICTED GLOBAL NOTE. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.07(b)(ii) above
and the Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof; and
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Temporary
Global Note or Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
exchanged by any Holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.07(b)(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 the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution
of the
31
Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Enterprise;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a 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 Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(2) if the Holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet been issued,
the Enterprise shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount at maturity equal to
the aggregate principal amount at maturity of beneficial interests transferred
pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any Holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a
32
Person who takes delivery thereof in the form of a Restricted Definitive
Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to
the Enterprise or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) 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 B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount at maturity of the
applicable Global Note to be reduced accordingly pursuant to Section 2.07(h)
hereof, and the Enterprise shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount at maturity. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section
2.07(c) shall be registered in such name or names and in such authorized
denomination or denominations as the Holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.07(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
33
(ii) BENEFICIAL INTERESTS IN REGULATION S TEMPORARY GLOBAL
NOTE TO DEFINITIVE NOTES. Notwithstanding Sections 2.07(c)(i)(A) and (C) hereof,
a beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes delivery
thereof in the form of a Definitive Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in
the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A Holder of a beneficial interest in a Restricted
Global Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to 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, certifies in the applicable
Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Enterprise;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a 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 Note proposes to exchange such beneficial
interest for a Definitive Note 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
(1)(b) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a Definitive Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any Holder of a beneficial interest in an
Unrestricted Global Note proposes
34
to exchange such beneficial interest for a Definitive Note or to transfer
such beneficial interest to a Person who takes delivery thereof in the form
of a Definitive Note, then, upon satisfaction of the conditions set forth in
Section 2.07(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount at maturity of the applicable Global Note to be reduced accordingly
pursuant to Section 2.07(h) hereof, and the Enterprise shall execute and the
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount at
maturity. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.07(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 Notes to the Persons in whose names such Notes
are so registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.07(c)(iv) shall not bear the Private
Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR
BENEFICIAL INTERESTS.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities Act
other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
35
(F) if such Restricted Definitive Note is being
transferred to the Enterprise or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount at maturity of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause (B)
above, the 144A Global Note, and in the case of clause (C) above, the Regulation
S Global Note and in all other cases the IAI Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN UNRESTRICTED Global NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to 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, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Enterprise;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a 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 Notes
proposes to exchange such Notes for a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder
in the form of Exhibit C hereto, including the certifications
in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and
36
that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.07(d)(ii), the Trustee shall cancel the
Definitive Notes and increase or cause to be increased the aggregate principal
amount at maturity of the Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall cancel
the applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount at maturity of one of the Unrestricted
Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Enterprise shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount at maturity equal to
the principal amount at maturity of Definitive Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR
DEFINITIVE NOTES. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.07(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.07(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the 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 B
hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
37
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person or
Persons who take delivery thereof in the form of an Unrestricted Definitive Note
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, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Enterprise;
(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 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
Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(d)
thereof; or
(2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Enterprise 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 no longer required in order to maintain compliance with the
Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer, the
Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange
Offer in accordance with the Registration Rights Agreement, the Enterprise shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate (i) one or more Unrestricted Global Notes
in an aggregate principal amount at maturity equal to the principal amount at
maturity of the beneficial interests in the Restricted Global Notes tendered for
acceptance by Persons that certify in the applicable Letters of Transmittal that
(x) they are not
38
Broker-Dealers, (y) they are not participating in a distribution of the
Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of
the Enterprise, and accepted for exchange in the Exchange Offer and (ii)
Definitive Notes in an aggregate principal amount at maturity equal to the
principal amount at maturity of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such Notes,
the Trustee shall cause the aggregate principal amount at maturity of the
applicable Restricted Global Notes to be reduced accordingly, and the
Enterprise shall execute and the Trustee shall authenticate and deliver to
the Persons designated by the Holders of Definitive Notes so accepted
Definitive Notes in the appropriate principal amount at maturity. Any Notes
that remain outstanding after the consummation of the Exchange Offer, and
Exchange Notes issued in connection with the Exchange Offer, shall be treated
as a single class of securities under this Indenture.
(g) LEGENDS. The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND. Except as permitted below,
each Global Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in substantially the
following form:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX 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. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
ENTERPRISE THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY
(i)(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 144A UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT,
(d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED
39
INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $100,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE ENTERPRISE THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (e)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE ENTERPRISE SO REQUESTS),
(ii) TO THE ENTERPRISE, OR
(iii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT 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 SHALL, 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.
Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraph (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.07 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a
legend in substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.08 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE ENTERPRISE.
40
(h) REGULATION S TEMPORARY GLOBAL NOTE LEGEND. The
Regulation S Temporary Global Note shall bear a legend in substantially the
following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS
OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
(i) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section
2.12 hereof. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note or
for Definitive Notes, the principal amount at maturity of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(j) GENERAL PROVISIONS RELATING TO TRANSFERS AND
EXCHANGES.
(i) To permit registrations of transfers and exchanges,
the Enterprise shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Enterprise's order or at the Registrar s request.
(ii) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Enterprise may require payment of
a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.11,
3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Enterprise, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or exchange.
41
(v) The Enterprise shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest payment
date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Enterprise may deem and
treat the Person in whose name any Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent or the
Enterprise shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this Section 2.07
to effect a registration of transfer or exchange may be submitted by facsimile.
(ix) Each Holder of a Note agrees to indemnify the
Enterprise and the Trustee against any liability that may result from the
transfer, exchange or assignment of such Holder's Note 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 Note (including any transfers between or among
Depositary participants or beneficial owners of interest in any Global Note)
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 2.08 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the
Enterprise and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Enterprise shall issue and the
Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Enterprise, an indemnity bond must be supplied by the Holder that
is sufficient in the judgment of the Trustee and the Enterprise to protect the
Enterprise, the Trustee, any Agent and any authenticating agent from any loss
that any of them may suffer if a Note is replaced. The Enterprise may charge for
its expenses in replacing a Note.
42
Every replacement Note is an additional obligation of the
Enterprise and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.
Section 2.09 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Note effected
by the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.10 hereof, a
Note does not cease to be outstanding because the Enterprise or an Affiliate of
the Enterprise holds the Note.
If a Note is replaced pursuant to Section 2.08 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount at maturity of any Note is considered
paid under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
If the Paying Agent (other than the Enterprise, a Subsidiary
or an Affiliate of any of the foregoing) holds, on a redemption date or maturity
date, money sufficient to pay Notes payable on that date, then on and after that
date such Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.10 TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Enterprise, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Enterprise,
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
Section 2.11 TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery,
the Enterprise may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Enterprise considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Enterprise shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
43
Section 2.12 CANCELLATION.
The Enterprise at any time may deliver Notes to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled
securities in effect as of the date of such disposition (subject to the record
retention requirement of the Exchange Act). Certification of the disposition of
all canceled Notes shall be delivered to the Enterprise. The Enterprise may not
issue new Notes to replace Notes that it has paid or that have been delivered to
the Trustee for cancellation.
Section 2.13 DEFAULTED INTEREST.
If the Enterprise defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Enterprise shall notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Enterprise 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 Enterprise (or, upon the written request of the Enterprise, the
Trustee in the name and at the expense of the Enterprise) 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.
Section 2.14 CUSIP NUMBERS.
The Enterprise in issuing the Notes 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 Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Enterprise shall promptly notify the Trustee of
any change in the "CUSIP" numbers.
ARTICLE THREE
REDEMPTION AND PREPAYMENT;
SATISFACTION AND DISCHARGE
Section 3.01 NOTICES TO TRUSTEE.
If the Enterprise elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 45 days but not more
44
than 60 days before a redemption date, an Officers Certificate setting forth
(i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount at maturity of
Notes to be redeemed and (iv) the redemption price.
Section 3.02 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a PRO RATA basis, by lot
or in accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption by lot, the particular Notes to
be redeemed shall be selected, unless otherwise provided herein, not less than
30 nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Enterprise in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount at maturity thereof to be redeemed. No
Notes in amounts of $1,000 or less shall be redeemed in part. Notes and portions
of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03 NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.10 hereof, at least 30
days (or, in the case of a "Special Mandatory Redemption" described in Section
3.09(b) below, 2 Business Days) but not more than 60 days before a redemption
date, the Enterprise shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of
the principal amount at maturity of such Note to be redeemed and that,
after the redemption date upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion of the
original Note shall be issued in the name of the Holder thereof upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
45
(e) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that, unless the Enterprise defaults in making such
redemption payment, interest and Liquidated Damages, if any, on Notes
called for redemption ceases to accrue on and after the redemption
date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Enterprise's request, the Trustee shall give the notice
of redemption in the Enterprise's name and at its expense; PROVIDED, HOWEVER,
that the Enterprise shall have delivered to the Trustee, at least 45 days (or,
in the case of a "Special Mandatory Redemption" described in Section 3.09(b)
below, 5 Business Days) prior to the redemption date, an Officers Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Enterprise
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest and Liquidated Damages, if any, on
all Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Enterprise any money deposited with the Trustee or the
Paying Agent by the Enterprise in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
If the Enterprise complies with the provisions of the
preceding paragraph, on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption. If a Note is
redeemed 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 Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Enterprise to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
46
Section 3.06 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the
Enterprise shall issue and the Trustee shall authenticate for the Holder at the
expense of the Enterprise a new Note equal in principal amount at maturity to
the unredeemed portion of the Note surrendered. No Notes in denominations of
$1,000 or less shall be redeemed in part.
Section 3.07 OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section
3.07, the Enterprise shall not have the option to redeem the Notes pursuant to
this Section 3.07 prior to April 1, 2005. Thereafter, the Enterprise may redeem
all or a part of the Notes 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 the applicable redemption date, if redeemed during the twelve-month
period beginning on April 1 of the years indicated below (subject to the right
of Holders on the relevant record date to receive interest due on the related
interest payment date):
YEAR PERCENTAGE
---- ----------
2005............................... 104.6250%
2006............................... 102.3125%
2007 and thereafter................ 100.0000%
(b) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 REDEMPTION PURSUANT TO GAMING LAW.
(a) Notwithstanding any other provisions of this Article
3, if any Gaming Authority notifies a Holder or Beneficial Owner of the Notes
that such Holder or beneficial owner obtain a license, qualification or finding
of suitability under any applicable gaming law and the Holder or Beneficial
Owner does not apply for that license, qualification or finding of suitability
within 30 days after being requested to do so by such Gaming Authority (or such
lesser period that may be required by such Gaming Authority) or if such Holder
or Beneficial Owner shall not be licensed, qualified or found suitable under
applicable gaming law, then the Enterprise, at its option, may (i) to require
such Holder or Beneficial Owner to dispose of such Holder's or Beneficial
Owner's Notes within 30 days, or any earlier date as may be required by the
Gaming Authority, of (A) the termination of the 30-day period or any shorter
period as may be required by a Gaming Authority, in each case as described
above, for the Holder or Beneficial Owner to apply for a license, qualification
or finding of suitability or (B) the receipt of notice from the Gaming Authority
that the Holder or Beneficial Owner shall not be licensed, qualified or found
suitable or (ii) to redeem the Notes of such Holder or Beneficial Owner at a
price equal to the least of (A) 100% of the principal amount thereof, (B) the
price at which such Holder or Beneficial Owner acquired the Notes and (C) the
fair market value of the Notes, together with, in
47
each case, accrued and unpaid interest and Liquidated Damages, if any,
thereon to the earlier of the date of redemption or such earlier date as may
be required by the Gaming Authority or the date of the finding of
unsuitability by such Gaming Authority, which may be less than 30 days
following the notice of redemption, if so ordered by such Gaming Authority.
(b) Immediately upon a determination that a Holder or
Beneficial Owner shall not be licensed, qualified or found suitable, the Holder
or Beneficial Owner shall have no further rights (1) to exercise any right
conferred by the Notes, directly or indirectly, through any trustee, nominee or
any other Person or entity, or (2) to receive any interest or other distribution
or payment with respect to the Notes or any remuneration in any form from the
Enterprise for services rendered or otherwise, except the redemption price of
the Notes.
(c) The Holder or Beneficial Owner of Notes applying for
a license, qualification or a finding of suitability must pay all costs of the
licenses or investigation for this qualification or finding of suitability. The
Enterprise is not required to pay or reimburse any Holder or Beneficial Owner of
Notes who is required to apply for any license, qualification or finding of
suitability.
Section 3.09 MANDATORY REDEMPTION.
(a) Except as set forth in clause (b) of this Section
3.09 and Section 4.10 and 4.15 hereof, the Enterprise shall not be required to
make mandatory redemption payments or sinking fund payments with respect to the
Notes.
(b) In the event that the Tribe and Enterprise are not
able to provide those certificates and opinions of counsel required pursuant to
the terms of the Pledge Agreement for the release of the Funds, the Enterprise
shall cause a notice of special mandatory redemption to be mailed no later than
the second Business Day, and shall redeem the Notes, in whole, on the fifth
Business Day, after the earlier of (1) receipt by the Collateral Agent from the
Tribe of an Officers' Certificate certifying that the Election Committee of the
Tribe has certified for election a referendum that, if approved, would have the
effect of rejecting, superceding, amending, modifying or revoking, in whole or
in part, any resolution of the Tribe authorizing the issuance and sale of the
Notes or the performance of the obligations of the Tribe and/or the Enterprise,
as the case may be, under the Purchase Agreement, this Indenture, the Notes, the
Exchange Notes, the Registration Rights Agreement or the Pledge Agreement, or
(2) 83 days after the Closing Date. The special mandatory redemption price will
be 101% of the aggregate principal amount of the Notes outstanding on the date
of redemption plus accrued and unpaid interest to such date.
Section 3.10 REPURCHASE OFFERS.
In the event that, pursuant to Section 4.10 hereof, the
Enterprise shall be required to commence an offer to all Holders to purchase
their respective Notes (a "REPURCHASE OFFER"), it shall follow the procedures
specified below.
The Repurchase 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
48
of the Offer Period (the "PURCHASE DATE"), the Enterprise shall purchase at
the purchase price (as determined in accordance with Section 4.10 hereof) the
maximum principal amount of Notes that are required to be purchased pursuant
to Section 4.10 hereof (the "OFFER AMOUNT") or, if less than the Offer Amount
has been tendered, all Notes tendered in response to the Repurchase Offer.
The offer price in any Repurchase Offer shall be equal to 100% of the
principal amount plus accrued and unpaid interest and Liquidated Damages, if
any, to the date of purchase, and shall be payable in cash. Payment for any
Notes so purchased shall be made in the same manner as interest payments are
made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Enterprise
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 Notes pursuant to the
Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice,
which shall govern the terms of the Repurchase Offer, shall state:
(a) that the Repurchase Offer is being made pursuant to
this Section 3.10 and Section 4.10 hereof, and the length of time the
Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrete or accrue interest and Liquidated Damages, if
any;
(d) that, unless the Enterprise defaults in making such
payment, any Note (or portion thereof) accepted for payment pursuant to
the Repurchase Offer shall cease to accrete or accrue interest and
Liquidated Damages, if any, after the Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to an Repurchase Offer may elect to have Notes purchased in
integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased
pursuant to any Repurchase Offer shall be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Note completed, or transfer by book-entry transfer,
to the Enterprise, a depositary, if appointed by the Enterprise, 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 Enterprise, the Depositary or the Paying Agent, as the
case may be, receives, not later than the expiration of the Offer
Period, a telegram, telex, facsimile transmission or letter setting
forth his name, the principal amount of the Note the Holder delivered
for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased;
49
(h) that, if the aggregate amount of Notes surrendered by
Holders exceeds the Offer Amount, the Trustee shall select the Notes to
be purchased pursuant to the terms of Section 3.02 hereof (with such
adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(i) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount at maturity to the
unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).
On the Purchase Date, the Enterprise shall, to the extent
lawful, accept for payment, pursuant to the terms of Section 3.02 hereof, the
Offer Amount of Notes (or portions thereof) tendered pursuant to the Repurchase
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes (or portions thereof) were accepted for payment by the Enterprise in
accordance with the terms of this Section 3.10. The Enterprise, 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 Notes tendered by such Holder,
as the case may be, and accepted by the Enterprise for purchase, and the
Enterprise, shall promptly issue a new Note. The Trustee, upon written request
from the Enterprise shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount at maturity equal to any unpurchased portion of
the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Enterprise to the respective Holder thereof. The Enterprise
shall publicly announce the results of the Repurchase Offer on the Purchase
Date.
The Enterprise shall 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 Notes pursuant to an Asset Sale Offer.
Other than as specifically provided in this Section 3.10, any
purchase pursuant to this Section 3.10 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
Section 3.11 APPLICATION OF TRUST MONEY.
All money deposited with the Trustee pursuant to Section 12.02
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Enterprise acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.
50
ARTICLE FOUR
COVENANTS
Section 4.01 PAYMENT OF NOTES.
The Enterprise shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the
Enterprise or one of its Subsidiaries, holds as of 10:00 a.m. Eastern Time on
the due date money deposited by the Enterprise in immediately available funds
and designated for and sufficient to pay all principal, premium, if any, and
interest then due. The Enterprise 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 Enterprise shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest, and Liquidated Damages (without regard to any applicable grace period)
at the same rate to the extent lawful.
Section 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Enterprise shall maintain in the Borough of Manhattan, The
City of New York, an office or agency (which may be an office of the Trustee or
an agent of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Enterprise in respect of the Notes and this Indenture may
be served. The Enterprise 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 Enterprise shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Enterprise may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Enterprise of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes. The
Enterprise 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 Enterprise hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Enterprise in accordance with
Section 2.04 of this Indenture.
51
Section 4.03 REPORTS.
(a) Whether or not required by the Commission, so long as
any Notes are outstanding (unless defeased in a Legal Defeasance), the
Enterprise shall furnish to the Holders, within the time periods specified in
the Commission's rules and regulations for such filings:
(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 Enterprise was required to file those Forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual
information only, a report on the annual financial statements by the
Enterprise certified independent accountants; and
(ii) all current reports that would be required to be
filed with the Commission on Form 8-K if the Enterprise was required to
file such reports;
PROVIDED that, so long as no Exchange Notes are outstanding, the Enterprise will
be required to furnish any such filings for the fiscal quarters ended March 31,
2001 and June 30, 2001 to the Holders of Notes within 15 days of the time
periods specified in the Commission's rules and regulations for such filings.
(b) Whether or not required by the Commission, the
Enterprise shall file a copy of all of the information and reports referred to
in clauses (i) and (ii) above with the Commission for public availability within
the time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such filing) and make such information available to
securities analysts and prospective investors upon request if not obtainable
from the Commission.
(c) For so long as any Notes remain outstanding, the
Enterprise shall furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144(d)(4) under the Securities Act if not obtainable
from the Commission.
(d) If the Enterprise has designated any of its
Subsidiaries as Unrestricted Subsidiaries, then, to the extent that any such
Unrestricted Subsidiary or group of Unrestricted Subsidiaries would (but for its
or its being designated as an Unrestricted Subsidiary or Subsidiaries)
constitute a Significant Subsidiary or Subsidiaries, the quarterly and annual
financial information required by the preceding paragraph shall include a
reasonably detailed presentation, either on the face of the financial statements
or in the footnotes thereto, and in "Management's Discussion and Analysis of
Financial Condition and Results of Operations," of the financial condition and
results of operations of the Enterprise and its Restricted Subsidiaries separate
from the financial condition and results of operations of the Unrestricted
Subsidiaries of the Enterprise.
(e) The Enterprise shall file with the Trustee and
provide to Holders of the Notes, within 15 days after it files them with the
NIGC, copies of all reports which the Enterprise is required to file with the
NIGC pursuant to 25 C.F.R. Part 514.
52
Section 4.04 COMPLIANCE CERTIFICATE.
(a) The Enterprise shall deliver to the Trustee, within
90 days after the end of each fiscal year, an Officers' Certificate stating that
a review of the activities of the Enterprise 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 Enterprise 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 Enterprise has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Enterprise is taking or proposes to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and remains
in existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the applicable entity is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.03(a) above shall
be accompanied by a written statement of the Enterprise's independent public
accountants (which shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Enterprise has violated any provisions of Article Four or Article Five hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.
(c) The Enterprise shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers Certificate specifying such
Default or Event of Default and what action the Enterprise is taking or proposes
to take with respect thereto.
Section 4.05 TAXES.
The Enterprise shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, any material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06 STAY, EXTENSION AND USURY LAWS.
The Enterprise covenants (to the extent that it may lawfully
do so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Enterprise
(to
53
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but shall suffer and permit the execution of every such power
as though no such law has been enacted.
Section 4.07 RESTRICTED PAYMENTS.
The Enterprise 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 Enterprise's or any Restricted
Subsidiary's Equity Interests or to the direct or indirect Holders of
the Enterprise's or any Restricted Subsidiaries' Equity Interests in
their capacity as such (other than dividends or distributions payable
in Equity Interests (other than Disqualified Stock) of the Enterprise
or dividends or distributions payable to the Enterprise or a Restricted
Subsidiary);
(2) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Enterprise held by the Tribe or any
Affiliate of the Tribe;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value, any
Indebtedness that is subordinated to the Notes or any Subsidiary
Guarantee, except a payment of interest or principal at the Stated
Maturity thereof;
(4) make any payment or distribution to the Tribe (or any
agency, instrumentality or political subdivision thereof) or make any
general distribution to the members of the Tribe, other than Permitted
Payments and the Annual Service Payment; PROVIDED that in any calendar
month only one-twelfth of the Annual Service Payment shall be permitted
to be distributed; PROVIDED FURTHER that the foregoing proviso in this
clause (4) shall not prohibit the distribution in any calendar month of
that portion of the Annual Service Payment that such foregoing proviso
would have permitted to be distributed in any prior calendar month but
that was not so distributed; or
(5) make any Restricted Investment;
(all payments and other actions set forth in clauses (1) through (5) being
collectively referred to as "RESTRICTED PAYMENTS") unless, at the time of and
after giving effect to the Restricted Payment:
(a) no Default or Event of Default has occurred and is
continuing or would occur as a result thereof;
(b) the Enterprise would, at the time of the Restricted
Payment and after giving pro forma effect thereto as if the Restricted
Payment had been made at the beginning of the applicable four-quarter
period, have been permitted to incur at least
54
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) the Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Enterprise and its
Restricted Subsidiaries after the date hereof (excluding Restricted
Payments permitted by clauses (1) and (2) of the next succeeding
paragraph), is less than the sum, without duplication, of:
(i) 50% of the Consolidated Net Income of the
Enterprise for the period (taken as one accounting period)
from the beginning of the fiscal quarter commencing on January
1, 2001 to the end of its most recently ended fiscal quarter
for which internal financial statements are available at the
time of the Restricted Payment (or, if such Consolidated Net
Income for this period is a deficit, LESS 100% of this
deficit); PLUS
(ii) 100% of the aggregate net cash received by
the Enterprise since the date hereof as a contribution to the
Enterprise's common equity capital or from the issue or sale
of Equity Interests of the Enterprise (other than Disqualified
Stock) or from the issue or sale of convertible or
exchangeable debt securities of the Enterprise that have been
converted into or exchanged for Equity Interests of the
Enterprise (other than Equity Interests (or Disqualified Stock
or debt securities) sold to a Subsidiary); PLUS
(iii) to the extent that any Restricted Investment
that was made after the date hereof is sold, liquidated or
repaid for cash, the lesser of (a) the cash return of capital
with respect to that Restricted Investment (less the cost of
disposition, if any) and (b) the initial amount of that
Restricted Investment; PLUS
(iv) to the extent that any Subsidiary that was
designated as an Unrestricted Subsidiary after the date hereof
is redesignated as a Restricted Subsidiary, the lesser of (a)
the amount of the Investment in the Subsidiary treated as a
Restricted Payment at and since the time that the Subsidiary
was designated as an Unrestricted Subsidiary, as determined by
the last paragraph of this Section 4.07 and (b) the fair
market value of the Investment in the Subsidiary as of the
date that it is redesignated as a Restricted Subsidiary; PLUS
(v) $75.0 million.
So long as no Default or Event of Default has occurred and is
continuing or would be caused thereby, the preceding provisions shall not
prohibit:
(1) the redemption, repurchase, retirement, defeasance or
other acquisition of subordinated Indebtedness of the Enterprise or any
of its Restricted Subsidiaries or of any Equity Interests of the
Enterprise in exchange for, or out of the net cash proceeds of, a
substantially concurrent capital contribution or sale (other than to a
Subsidiary) of, other Equity Interests of the Enterprise (other than
Disqualified Stock); PROVIDED that the amount of the net cash proceeds
that are utilized for any redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c)
above; and
55
(2) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness of the Enterprise or any
Subsidiary Guarantor with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness.
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 to or by the Enterprise or
the Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any assets or securities that are required to
be valued pursuant to this Section 4.07 shall be determined by a majority of the
Enterprise's Board of Directors whose resolution with respect thereto shall be
delivered to the Trustee. The Enterprise's Board of Directors' determination
must be based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if the fair market value exceeds
$10.0 million. Not later than the date of making any Restricted Payment, the
Enterprise shall deliver to the Trustee an Officers' Certificate stating that
the Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.07 were computed, together with a copy
of any fairness opinion or appraisal required by this Indenture.
Notwithstanding any of the foregoing, at any time after the
hotel and casino facilities at the Golden Moon have been open and fully
operational for 180 consecutive days, if:
(1) no Default or Event of Default has occurred and is
continuing,
(2) no Indebtedness of the Enterprise (other than the
Notes to be issued on the date hereof and the Exchange Notes to be
issued pursuant to the Registration Rights Agreement) is outstanding,
except for Indebtedness not to exceed $75 million in the aggregate and
otherwise permitted by the provisions of Section 4.09 hereof,
(3) Consolidated Cash Flow of the Enterprise for the
Enterprise's most recently ended four full fiscal quarters (taken as
one accounting period) for which internal financial statements are
available is at least $150.0 million, and
(4) the ratings of the Notes (and the Exchange Notes) by
each of Xxxxx'x and S&P are equal to or higher than the respective
ratings of the Notes by each of such rating agencies on the date
hereof,
then the provisions preceding this sentence in this Section 4.07 (the "SUSPENDED
COVENANT") shall no longer be applicable to the Notes from and after such time;
PROVIDED, HOWEVER, that if at any time thereafter any of the criteria set forth
in clauses (1) through (4) above in this sentence ceases to be satisfied, the
Suspended Covenant shall be automatically reinstated (the "REINSTATED COVENANT")
and all transactions by the Enterprise and its Restricted Subsidiaries that
occurred during the time that such covenant was suspended and that would have
violated such covenant had such covenant been in effect at the time shall be
deemed not to constitute a Default or an Event of Default, as the case may be,
and shall be deemed to have been in compliance with such covenant for all
purposes; PROVIDED FURTHER that thereafter all transactions by the Enterprise
and its Restricted Subsidiaries occurring on or after the date on which the
Suspended Covenant has been reinstated shall be required to be in compliance
with the Reinstated Covenant and the
56
amount available for Restricted Payments pursuant to paragraph (c) of the
Reinstated Covenant on or after the date on which the Suspended Covenant has
been reinstated shall be equal to the greater of (x) the amount that would
have been available for Restricted Payments pursuant to such paragraph (c) on
such date had the Suspended Covenant never been suspended and after giving
effect to all Restricted Payments made through such date or (y) zero. Any
reinstatement of the Suspended Covenant as described in the foregoing
sentence shall not preclude the subsequent suspension of the Reinstated
Covenant and reinstatement of the Suspended Covenant in accordance with the
terms of this paragraph.
Section 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Enterprise shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its
Capital Stock to the Enterprise or any of its Restricted Subsidiaries,
or with respect to any other interest or participation in, or measured
by, its profits, or pay any indebtedness owed to the Enterprise or any
of its Restricted Subsidiaries;
(b) make loans or advances to the Enterprise or any of
its Restricted Subsidiaries; or
(c) transfer any of its respective properties or assets
to the Enterprise or any of its Restricted Subsidiaries.
However, the restrictions above shall not apply to
encumbrances or restrictions existing under or by reason of:
(1) this Indenture, the Notes or any Subsidiary
Guarantees;
(2) the Credit Facilities;
(3) the Existing Indebtedness;
(4) applicable law;
(5) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Enterprise or any of its Restricted
Subsidiaries as in effect at the time of the acquisition (except to the
extent that Indebtedness was incurred in connection with or in
contemplation of the 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, the
Indebtedness was permitted by the terms of this Indenture to be
incurred;
(6) customary non-assignment provisions in leases and
other contracts entered into in the ordinary course of business;
57
(7) purchase money obligations for property acquired in
the ordinary course of business that impose restrictions on the
property so acquired of the nature described in clause (c) of the
preceding paragraph;
(8) any restriction or encumbrance contained in contracts
for the sale of assets permitted by this Indenture, PROVIDED that such
restrictions or encumbrances relate only to the assets being sold
pursuant to these contracts;
(9) Liens securing Indebtedness otherwise permitted to be
incurred pursuant to Section 4.12 hereof that limit the right of the
debtor to dispose of the assets subject to the Lien;
(10) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business; and
(11) Permitted Refinancing Indebtedness, PROVIDED that the
restrictions contained in the agreements governing Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced.
Section 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK.
The Enterprise shall not, and shall not permit any of its
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
Debt), and the Enterprise and its Subsidiaries shall not issue any Disqualified
Stock and shall not permit any of its Subsidiaries to issue any shares of
preferred equity; PROVIDED, HOWEVER, that if no Default or Event of Default
shall have occurred and be continuing at the time or as a consequence of the
incurrence of this Indebtedness, the Enterprise may incur Indebtedness
(including Acquired Debt) or issue shares of Disqualified Stock, if the Fixed
Charge Coverage Ratio for the Enterprise'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, would have
been at least 2.5 to 1 if such Indebtedness is incurred prior to December 31,
2003 and 3.0 to 1 thereafter, in each case 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 the four-quarter period.
Notwithstanding the foregoing, the Enterprise shall not issue any Disqualified
Stock or any type of Capital Stock that would cause the Enterprise not to be
lawfully conducting gaming operations in compliance with IGRA.
The first paragraph of this Section 4.09 shall not prohibit
the incurrence of any of the following (collectively, "PERMITTED DEBT"), so long
as at the time of incurrence, no Default or Event of Default has occurred and is
continuing or would be caused thereby:
(a) the incurrence by the Enterprise of Indebtedness
pursuant to the Credit Facilities, PROVIDED, HOWEVER, that the
aggregate principal amount of such Indebtedness incurred pursuant to
this clause (a) does not exceed $125.0 million less the aggregate
58
amount of all Net Proceeds of Asset Sales applied by the Enterprise or
any of its Restricted Subsidiaries since the date hereof to repay
Indebtedness under Credit Facilities pursuant to Section 4.10 hereof;
(b) the incurrence by the Enterprise of the Existing
Indebtedness;
(c) the incurrence by the Enterprise of the Excluded
Debt;
(d) the incurrence by the Enterprise of Indebtedness
represented by the Notes to be issued on the date hereof and the
Exchange Notes to be issued pursuant to the Registration Rights
Agreement;
(e) the incurrence by the Enterprise 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 under the first paragraph of this Section 4.09 or clauses (b)
or (d) of this paragraph;
(f) the incurrence by the Enterprise of Indebtedness in
one or more FF&E Financings and Capital Lease Obligations to acquire or
refinance furniture, fixtures or equipment incident to and useful in
the Gaming Business of the Enterprise, in an aggregate principal amount
under this clause (f) not to exceed $10.0 million outstanding at any
one time;
(g) the incurrence by the Enterprise or any of its
Restricted Subsidiaries of intercompany Indebtedness between or among
the Enterprise and any of its Restricted Subsidiaries; PROVIDED,
HOWEVER, that:
(i) if the Enterprise or any Subsidiary
Guarantor is the obligor on that Indebtedness, that
Indebtedness must be expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the
Notes, in the case of the Enterprise, or the Subsidiary
Guarantee, in the case of a Subsidiary Guarantor; and
(ii) (A) any subsequent issuance or transfer of
Equity Interests that results in any Indebtedness being held
by a Person other than the Enterprise or a Restricted
Subsidiary and (B) any sale or other transfer of any
Indebtedness to a Person other than the Enterprise or a
Restricted Subsidiary, shall be deemed, in each case, to
constitute an incurrence of Indebtedness by the Enterprise or
the Restricted Subsidiary, as the case may be, that was not
permitted by this clause (g);
(h) the incurrence by the Enterprise or any of its
Restricted Subsidiaries of Hedging Obligations that are incurred for
the purpose of fixing or hedging interest rate risk with respect to any
floating rate Indebtedness that is permitted by the terms hereof to be
outstanding;
59
(i) the Guarantee by the Enterprise or any Subsidiary
Guarantor of Indebtedness of the Enterprise or a Restricted Subsidiary
of the Enterprise that was permitted to be incurred by another
provision of this Section 4.09;
(j) the incurrence by the Enterprise or any of its
Subsidiaries of Indebtedness in connection with letters of credit
(including, without limitation, letters of credit in respect of
workers' compensation claims or self-insurance, Indebtedness with
respect to reimbursement type obligations, regarding workers'
compensation claims, escrow agreements, bankers' acceptances and surety
and performance bonds (in each case to the extent that such incurrence
does not result in the incurrence of any obligation to repay any
obligation relating to borrowed money), all in the ordinary course of
business;
(k) Indebtedness arising from agreements of the
Enterprise or a Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case,
incurred or assumed in connection with the acquisition or disposition
of any business, assets or a Restricted Subsidiary, other than
Guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or a Restricted Subsidiary for the
purpose of financing such acquisition; PROVIDED, HOWEVER, that such
Indebtedness is not reflected on the balance sheet of the Enterprise or
any Restricted Subsidiary (contingent obligations referred to in a
footnote to the financial statements and not otherwise reflected on the
balance sheet shall not be deemed to be reflected on such balance sheet
for purposes of this clause);
(l) the incurrence from time to time and at any time by
any Subsidiary Guarantor of Indebtedness represented by a Subsidiary
Guarantee; and
(m) the incurrence by the Enterprise or any of its
Restricted Subsidiaries of other Indebtedness not to exceed $15.0
million at any one time outstanding.
The Enterprise shall not incur any Indebtedness (including
Permitted Debt) that is contractually subordinated in right of payment to any
other Indebtedness of the Enterprise unless such Indebtedness is also
contractually subordinated in right of payment to the Notes on substantially
identical terms; PROVIDED, HOWEVER, that no Indebtedness of the Enterprise shall
be deemed to be contractually subordinated in right of payment to any other
Indebtedness of the Enterprise solely by virtue of being unsecured.
For purposes of determining compliance with this Section 4.09,
in the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (a) through
(m) above, or is entitled to be incurred under the first paragraph of this
Section 4.09, the Enterprise shall be permitted to classify the item of
Indebtedness on the date of its incurrence, or later reclassify all or a portion
of the item of Indebtedness, in any manner that complies with this Section 4.09.
Section 4.10 ASSET SALES.
The Enterprise shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
60
(a) the Enterprise or the Restricted Subsidiary, as the
case may be, receives consideration at the time of the Asset Sale at
least equal to the fair market value of the assets or Equity Interests
issued, sold or otherwise disposed of;
(b) the fair market value is evidenced by a resolution of
the Enterprise's Board of Directors set forth in an Officers'
Certificate delivered to the Trustee; and
(c) at least 75% of the consideration therefor received
by the Enterprise or its Restricted Subsidiary is in the form of cash
or Cash Equivalents; PROVIDED that:
(1) any liabilities (as shown on the
Enterprise's or the Restricted Subsidiary's most recent
balance sheet prepared in accordance with GAAP) of the
Enterprise or the Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms
subordinated to the Notes or any Guarantee thereof) that are
assumed by the transferee of any of those assets under a
customary novation agreement that unconditionally releases the
Enterprise or the Restricted Subsidiary, as the case may be,
from further liability shall be deemed to be cash for purposes
of this Section 4.10; and
(2) any securities, notes or other obligations
received by the Enterprise or the Restricted Subsidiary from
the transferee that are promptly, but in any event within 30
days of receipt, converted by the Enterprise or the Restricted
Subsidiary into cash (to the extent of the cash received in
that conversion) shall be deemed to be cash for purposes of
this provision;
PROVIDED, HOWEVER, that the Enterprise shall not be permitted to make any Asset
Sale of Key Project Assets.
Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Enterprise or the Restricted Subsidiary may apply such Net
Proceeds to (i) repay permanently term Indebtedness under Credit Facilities of
the Enterprise or any Restricted Subsidiary, (ii) repay revolving credit
Indebtedness under Credit Facilities and correspondingly permanently reduce
commitments with respect thereto, (iii) make capital expenditures or acquire
other long-term assets that are used or useful in a line of business permitted
under Section 4.13 hereof or irrevocably agree to use such Net Proceeds for such
expenditure or acquisition, PROVIDED that such expenditure or acquisition is
consummated within 365 days after the date of such irrevocable agreement, or
(iv) reduce permanently Indebtedness that is not Subordinated Indebtedness.
Pending the final applications of any such Net Proceeds, the
Enterprise or the applicable Restricted Subsidiary may invest such Net Proceeds
in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall constitute "EXCESS
PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 million,
the Enterprise shall be required to make an Asset Sale Offer to all Holders to
purchase the maximum principal amount of Notes that may be purchased out of the
Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100%
of
61
principal amount plus accrued and unpaid interest and Liquidated Damages, if
any, to the date of purchase, and will be payable in cash, in accordance with
the procedures set forth in this Indenture. If any Excess Proceeds remain after
an Asset Sale Offer, the Enterprise or the Restricted Subsidiary may use the
Excess Proceeds for any purpose not prohibited by this Indenture. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
The Enterprise shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection
with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
Asset Sales provisions of this Indenture, the Enterprise shall comply with the
applicable securities laws and regulations and will not be deemed to have
breached the Enterprise's obligations under the Asset Sale provisions of this
Indenture by virtue of that conflict.
Section 4.11 TRANSACTIONS WITH AFFILIATES.
The Enterprise shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each, an "AFFILIATE TRANSACTION"), unless:
(a) the Affiliate Transaction is on terms that are no
less favorable to the Enterprise or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by
the Enterprise or the Restricted Subsidiary with an unrelated Person;
(b) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration in
excess of $1.0 million, the Enterprise delivers to the Trustee a
resolution of its Board of Directors set forth in an Officers'
Certificate certifying that the Affiliate Transaction complies with
this Section 4.11 and that the Affiliate Transaction has been approved
by a majority of the disinterested members of its Board of Directors;
and
(c) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration of
$10.0 million or more, the Enterprise delivers to the Trustee an
opinion as to the fairness to the Enterprise or the relevant Restricted
Subsidiary of that Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of
national standing.
The following items shall not be deemed to be Affiliate
Transactions and shall not be subject to the provisions of the prior paragraph:
(1) any employment agreement or arrangement entered into
by the Enterprise or any of its Restricted Subsidiaries in the ordinary
course of business and consistent with the past practice of the
Enterprise or such Restricted Subsidiary;
62
(2) transactions, to the extent not otherwise prohibited
under this Indenture, between or among the Enterprise and/or its
Restricted Subsidiaries;
(3) reasonable compensation paid to, and indemnities
provided on behalf of, officers, directors or employees of the
Enterprise or any Restricted Subsidiary;
(4) transactions with Persons in whom the Enterprise owns
an Equity Interest, so long as the remaining equity Holders of such
Persons are not Affiliates of the Enterprise or any of its
Subsidiaries;
(5) contractual arrangements existing on the date hereof
and any renewals, extensions and modifications thereof that are not
materially adverse to the Holders of the Notes;
(6) Restricted Payments, Permitted Payments, Annual
Service Payments, Permitted Investments and other payments and
distributions that are permitted by Section 4.07 hereof; and
(7) reasonable bid preferences to Tribal members and
their businesses in accordance with Tribal policy.
Section 4.12 LIENS.
The Enterprise shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien of any kind on any asset now owned or hereafter
acquired, or any proceeds, income or profits thereon, or assign or convey any
right to receive income therefrom, except Permitted Liens, unless all payments
due under this Indenture are secured on an equal and ratable basis with (or, in
the case of Subordinated Indebtedness, prior or senior thereto, with the same
relative priority the Notes shall have with respect to such Subordinated
Indebtedness) the obligation so secured until such time as such obligations are
no longer secured by a Lien.
Section 4.13 BUSINESS ACTIVITIES.
The Enterprise shall not, and shall not permit any of its
Restricted Subsidiaries to, engage, directly or indirectly, in any business
other than a Gaming Business. Neither the Enterprise nor any of its Subsidiaries
is permitted hereby to conduct a Gaming Business in any gaming jurisdiction in
which the Enterprise or that Subsidiary is not operating on the date hereof if
the Holders of the Notes would be required to be licensed as a result thereof;
PROVIDED that the provisions described in this sentence shall not prohibit the
Enterprise or any of its Subsidiaries from conducting a Gaming Business in any
jurisdiction that does not require the licensing or qualification of all of the
Holders of the Notes, but reserves the discretionary right to require the
licensing or qualification of any Holder of Notes.
63
Section 4.14 EXISTENCE OF THE ENTERPRISE.
The Enterprise shall, and shall cause each of its Restricted
Subsidiaries to, do or cause to be done all things necessary to preserve and
keep in full force and effect their respective existence, in accordance with
their respective organizational documents and their respective rights
(contractual, charter and statutory), licenses and franchises; PROVIDED,
HOWEVER, that neither the Enterprise nor any Restricted Subsidiary shall be
required to preserve, with respect to itself, any license, right or franchise
and, with respect to its Restricted Subsidiaries, any such existence, license,
right or franchise, if its Board of Directors, or other governing body or
officers authorized to make such determination, as the case may be, shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Enterprise or any Restricted Subsidiary, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.
Section 4.15 CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of
Notes shall have the right to require the Enterprise to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of that Holder's Notes
pursuant to an offer described below (a "CHANGE OF CONTROL OFFER"). In the
Change of Control Offer, the Enterprise shall offer to purchase the Notes for a
payment in cash equal to 101% of the aggregate principal amount of Notes plus
accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date
of purchase (the "CHANGE OF CONTROL PAYMENT"). Within twenty (20) days following
any Change of Control, the Enterprise shall mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and stating: (i) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered shall be accepted for payment; (ii) the
purchase price and the purchase date, which 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"); (iii) that any Note not tendered shall continue to
accrue interest; (iv) that, unless the Enterprise defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of Control
Payment Date; (v) that Holders electing to have any Notes purchased pursuant to
a Change of Control Offer shall be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date; (vi) that Holders shall be entitled to withdraw its election if
the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount at maturity of Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have the Notes purchased; and (vii) that
Holders whose Notes are being purchased only in part shall be issued new Notes
equal in principal amount at maturity to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount at maturity or an integral multiple thereof. The Enterprise shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control. To
64
the extent that the provisions of any securities laws or regulations conflict
with the Change of Control provisions of this Indenture, the Enterprise shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under the Change of Control
provisions of this Indenture by virtue of that conflict.
On the Change of Control Payment Date, the Enterprise shall,
to the extent lawful:
(a) accept for payment all Notes or portions thereof
properly tendered under the Change of Control Offer;
(b) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
so tendered; and
(c) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Enterprise.
The Paying Agent shall promptly mail to each Holder of Notes
so tendered the Change of Control Payment for those Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; PROVIDED that each new Note shall be in a
principal amount of $1,000 or an integral multiple thereof.
The Enterprise shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
The provisions described above that require the Enterprise to
make a Change of Control Offer following a Change of Control shall apply
regardless of whether any other provisions of this Indenture are applicable.
Except as described above with respect to a Change of Control, this Indenture
does not contain provisions that permit the Holders of the Notes to require the
Enterprise to repurchase or redeem the Notes in the event of a takeover,
recapitalization or similar transaction.
The Enterprise 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 outlined in this Indenture applicable to a Change of Control Offer
made by the Enterprise and purchases all Notes validly tendered and not
withdrawn under that Change of Control Offer.
Section 4.16 LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN
RESTRICTED SUBSIDIARIES.
All of the Enterprise's Restricted Subsidiaries shall be
wholly owned by the Enterprise, by one or more of its Restricted Subsidiaries or
by the Enterprise and one or more of its Restricted Subsidiaries.
65
The Enterprise shall not, and shall not permit any of its
Restricted Subsidiaries to, transfer, convey, sell, lease or otherwise dispose
of any Equity Interests in any Restricted Subsidiary of the Enterprise to any
Person (other than the Enterprise or a Restricted Subsidiary of the Enterprise),
unless:
(1) such transfer, conveyance, sale, lease or other
disposition is of all the Equity Interests in such Restricted
Subsidiary; and
(2) the cash Net Proceeds from such transfer, conveyance,
sale, lease or other disposition are applied in accordance with Section
4.10 hereof.
In addition, the Enterprise shall not permit any of its
Restricted Subsidiaries to issue any of its Equity Interests to any Person other
than to the Enterprise or one or more of its Restricted Subsidiaries.
Section 4.17 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Enterprise's Board of Directors may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would
not cause a Default or an Event of Default; PROVIDED that in no event shall (i)
any entity (including any Subsidiary of the Enterprise or the Enterprise or any
operating division thereof) engaged in the Gaming Business be transferred to or
held by an Unrestricted Subsidiary or (ii) any Key Project Assets or Gaming
Licenses be transferred to an Unrestricted Subsidiary. If a Restricted
Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair
market value of all outstanding Investments owned by the Enterprise and its
Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an
Investment made as of the time of such designation and that designation shall
only be permitted if such Investment would be permitted at that time and shall
reduce the amount available for Restricted Payments under the first paragraph of
Section 4.07 hereof. That designation shall only be permitted if such Restricted
Payment would be permitted at that time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Enterprise's
Board of Directors may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if the redesignation would not cause a Default.
Section 4.18 PAYMENTS FOR CONSENT.
The Enterprise shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless that consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame described in the solicitation documents relating to that consent,
waiver or agreement, as applicable.
66
Section 4.19 [Not used.]
Section 4.20 MAINTENANCE OF INSURANCE.
Until the Notes have been paid in full, the Enterprise shall,
and shall cause its Restricted Subsidiaries to, maintain insurance with
responsible 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, including, without limitation, property and
casualty. Customary insurance coverage shall be deemed to include, without
limitation, the following:
(a) workers' compensation insurance to the extent
required to comply with all applicable state, territorial or United
States laws and regulations, or the laws and regulations of any other
applicable jurisdiction;
(b) comprehensive general liability insurance with
minimum limits of $2.0 million;
(c) umbrella or excess liability insurance providing
excess liability coverages over and above the foregoing underlying
insurance policies up to a minimum limit of $50.0 million;
(d) business interruption insurance; PROVIDED that such
business interruption insurance shall be sufficient to pay all interest
expense of the Enterprise and shall not be required until the 91st day
after the date hereof; and
(e) property insurance protecting the property against
losses or damages as is customarily covered by an "all-risk" policy or
a property policy covering "special" causes of loss for a business of
similar type and size; PROVIDED, HOWEVER, that such insurance shall
provide coverage of not less than 100.0% of actual replacement value
(as determined at each policy renewal based on the X.X. Xxxxx Building
Index or some other recognized means) of any improvements customarily
insured consistent with industry standards and with a deductible no
greater than 2% of the insured value of the Resort or such greater
amount as is available on commercially reasonable terms (other than
earthquake or flood insurance, for which the deductible may be up to
10% of such replacement value).
All such insurance policies shall be issued by carriers having
an A.M. Best & Company, Inc. rating of A or higher and a financial size category
of not less than VII, in each case on the date each such policy is issued to the
Enterprise, or if such carrier is not rated by A.M. Best & Company, Inc., having
the financial stability and size deemed appropriate by an opinion from a
reputable insurance broker. The Enterprise shall deliver to the Trustee on the
date hereof and each anniversary thereafter a certificate of an insurance agent
describing the insurance policies obtained by the Enterprise and its Restricted
Subsidiaries, together with an Officer's Certificate stating that such policies
comply with this Section 4.20.
67
Section 4.21 USE OF PROCEEDS.
The Enterprise shall use its commercially reasonable best
efforts to cause construction of the Expansion Project to be prosecuted with
diligence and continuity in good and workmanlike manner materially in accordance
with the plans relating to the Expansion Project as more fully described in the
Offering Memorandum. The Enterprise shall repay the Senior Secured Term Loan
Facility in full upon the release of the Funds from the Collateral Account.
Section 4.22 RESTRICTIONS ON LEASING AND DEDICATION OF PROPERTY.
Except as provided below, the Enterprise shall not lease,
sublease, or grant a license, concession or other agreement to occupy, manage or
use any material portion of the Enterprise's property and assets owned or leased
by the Enterprise (each, a "LEASE TRANSACTION").
The first paragraph of this Section 4.22 shall not prohibit
any of the following Lease Transactions:
(a) The Enterprise may enter into a Lease Transaction
with respect to any space with any Person (including, without
limitation, a lease in connection with the Expansion Project for the
purpose of developing, constructing, operating and managing retail
establishments within the Resort), PROVIDED that:
(i) such Lease Transaction shall not materially
interfere with, impair or detract from the operations of the
Resort;
(ii) such Lease Transaction contains rent and
such other terms such that the Lease Transaction, taken as a
whole, is commercially reasonable in light of prevailing or
comparable transactions in other casinos, hotels, attractions
or shopping venues; and
(iii) such Lease Transaction complies with all
applicable law, including obtaining any consent of the BIA, if
required; and
(b) The Enterprise may enter into a management or
operating agreement with respect to any of the Enterprise's property
and assets with any Person; PROVIDED that
(i) the manager or operator has experience in
managing or operating similar operations; and
(ii) such management or operating agreement is on
commercially reasonable and fair terms to the Enterprise.
No Lease Transaction may provide that the Enterprise may
subordinate its leasehold or fee interest to any lessee or any financing party
of any lessee, and no person other than the Enterprise may conduct gaming or
casino operations on any property which is the subject of a Lease Transaction.
68
Section 4.23 GAMING LICENSES.
The Enterprise shall use its best efforts to obtain and retain
in full force and effect at all times all Gaming Licenses necessary for the
operation of the Resort, PROVIDED that, if in the course of the exercise of its
governmental or regulatory functions the Tribe is required to suspend or revoke
any consent, permit or license or close or suspend any operation or any part of
the Resort as a result of any noncompliance with the law, the Enterprise shall
use its best efforts to promptly and diligently correct such noncompliance or
replace any personnel causing such noncompliance so that the Resort shall be
opened and fully operating.
The Enterprise shall file with the Trustee any Notice of
Violation, Order of Temporary Closure, or Assessment of Civil Fines, from the
NIGC pursuant to 25 C.F.R. Part 573 or 575 or any successor provision, and any
written notice issued by, or cause of action commenced by, the State of
Mississippi under Section 10 of the Compact, or any successor provision.
Section 4.24 OWNERSHIP INTERESTS IN THE ENTERPRISE.
Neither the Tribe nor the Enterprise shall permit any Person
other than the Tribe to acquire any Ownership Interest whatsoever in the
Enterprise.
Section 4.25 SUBSIDIARY GUARANTEES.
If the Enterprise or any of its Restricted Subsidiaries
acquires or creates another Subsidiary after the date of this Indenture, then
the newly acquired or created Subsidiary shall execute a supplemental indenture
setting forth its Guarantee and deliver an opinion of counsel relating to the
enforceability and authorization of that Guarantee in accordance with the terms
of this Indenture, pursuant to which that Restricted Subsidiary shall become a
Subsidiary Guarantor, on a senior unsecured basis, of the Enterprise's payment
obligations under the Notes and this Indenture; PROVIDED that this Section 4.25
shall not apply to any Subsidiary during a period when that Subsidiary has been
properly designated as an Unrestricted Subsidiary in accordance with this
Indenture for so long as it continues to constitute an Unrestricted Subsidiary.
The obligations of each Subsidiary Guarantor under its
Subsidiary Guarantee shall be limited so as not to constitute a fraudulent
conveyance under applicable law.
No Subsidiary Guarantor may consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the surviving Person), another
corporation, Person or entity whether or not affiliated with such Subsidiary
Guarantor unless: (i) subject to the provisions of the following paragraph, the
Person formed by or surviving any such consolidation or merger (if other than
such Subsidiary Guarantor) assumes all the obligations of such Subsidiary
Guarantor pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee and (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists.
69
In the event of a sale or other disposition of all of the
assets of any Subsidiary Guarantor by way of merger, consolidation or otherwise,
or a sale or other disposition of all of the Capital Stock of any Subsidiary
Guarantor, then that Subsidiary Guarantor (in the event of a sale or other
disposition, by way of a merger, consolidation or otherwise, of all of the
Capital Stock of that Subsidiary Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all of the assets of
that Subsidiary Guarantor) shall be released and relieved of any obligations
under its Subsidiary Guarantee; PROVIDED that the Net Proceeds of the sale or
other disposition are applied in accordance with this Indenture. In addition, in
the event the Enterprise's Board of Directors designates a Subsidiary Guarantor
to be an Unrestricted Subsidiary, then that Subsidiary Guarantor shall be
released and relieved of any obligations under its Subsidiary Guarantee;
PROVIDED that the designation is conducted in accordance with this Indenture.
ARTICLE FIVE
LIQUIDATION OR DISSOLUTION
Section 5.01 LIQUIDATION OR DISSOLUTION.
The Enterprise shall not sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more transactions. The Enterprise shall not consolidate or merge with or
into any other Person.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
Each of the following shall be an Event of Default:
(a) default for 30 days in the payment when due of
interest on, or Liquidated Damages with respect to, the Notes;
(b) default in payment when due of the principal of, or
premium, if any, on the Notes;
(c) failure by the Enterprise or any of its Restricted
Subsidiaries to comply with the provisions described under Sections
4.07, 4.10, 4.15 and Article Five hereof;
(d) failure by the Enterprise or any of its Restricted
Subsidiaries for 30 days after notice to comply with any of the other
agreements in this Indenture or the Notes (other than a default set
forth in clause (a), (b) or (c) above);
(e) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Enterprise or any
of its Restricted Subsidiaries (or the payment of which is guaranteed
by the Enterprise or any of its Restricted Subsidiaries), whether
70
the Indebtedness or Guarantee now exists, or is created after the date
of the Indenture, if that default:
(i) is caused by a failure to pay principal of,
or interest or premium, if any, on such Indebtedness prior to
the expiration of the grace period provided in such
Indebtedness on the date of such default (a "PAYMENT
DEFAULT"); or
(ii) results in the acceleration of that
Indebtedness prior to its express maturity,
and, in each case, the principal amount of that Indebtedness, together
with the principal amount of any other Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $10.0 million or more;
(f) failure by the Enterprise or any of its Restricted
Subsidiaries to pay final non-appealable judgments to the extent that
the amount of such judgments not covered by insurance underwritten by
third parties or not adequately reserved for in accordance with GAAP
aggregates in excess of $10.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days;
(g) failure by the Tribe to pay final non-appealable
judgments to the extent that (i) such judgments provide for, create or
allow recourse against the assets of the Enterprise or any of its
Restricted Subsidiaries or to any revenues thereof and (ii) the amount
of such judgments not covered by insurance underwritten by third
parties or not adequately reserved for in accordance with GAAP
aggregates in excess of $10.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days;
(h) any Subsidiary Guarantee shall be held in a judicial
proceeding to be unenforceable or invalid or shall cease for any reason
to be in full force and effect, or any Subsidiary Guarantor, or any
Person acting on behalf of any Subsidiary Guarantor, shall deny or
disaffirm its obligations under its Subsidiary Guarantee;
(i) any Gaming License is revoked, terminated or
suspended or otherwise ceases to be effective resulting in the
cessation or suspension of operation for a period of more than 90
consecutive days of any material portion or aspect of the Gaming
Business of the Enterprise;
(j) cessation of gaming operations for a period of more
than 90 consecutive days at the Resort (other than as a result of a
casualty loss);
(k) failure by the Tribe to comply with Section 10.01 for
30 days after notice to comply;
(l) the Enterprise or any of its Restricted Subsidiaries,
pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
71
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) makes a general assignment for the benefit
of its creditors, or
(iv) generally is not paying its debts as they
become due;
(m) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Enterprise or any
of its Restricted Subsidiaries, in an involuntary case; or
(ii) orders the liquidation of the Enterprise or
any of its Restricted Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days;
(n) default by the Tribe under any mortgage, indenture or
instrument securing or evidencing any Excluded Debt in connection with
which recourse is sought against assets of the Enterprise or any of its
Restricted Subsidiaries or to any revenues thereof and if that default:
(i) is caused by a failure to pay principal of,
or interest or premium, if any, on such Excluded Debt prior to
the expiration of the grace period provided in such Excluded
Debt on the date of such default (a "TRIBAL PAYMENT DEFAULT");
or
(ii) results in the acceleration of that Excluded
Debt prior to its express maturity,
and, in each case, the principal amount of that Excluded Debt, together
with the principal amount of any other Excluded Debt under which there
has been a Tribal Payment Default or the maturity of which has been so
accelerated, aggregates $10.0 million or more;
(o) failure by the Tribe to be a sovereign Indian tribe
recognized by the United States of America pursuant to 25 U.S.C.ss.476,
et seq.; or
(p) the Pledge Agreement shall cease to be in full force
and effect or enforceable in accordance with its terms (other than in
accordance with its terms) or the Enterprise denies or disaffirms its
obligations under the Pledge Agreement or the obligations under the
Pledge Agreement cease to be secured by a perfected first priority
security interest in any portion of the collateral purported to be
pledged under the Pledge Agreement (other than in accordance with is
terms).
Section 6.02 ACCELERATION.
If any Event of Default (other than an Event of Default
specified in clauses (l) or (m) of Section 6.01) occurs and is continuing, the
Trustee or the Holders of at least 25% in
72
principal amount of the then outstanding Notes may declare all principal,
premium, if any, accrued interest and Liquidated Damages, if any, of the
Notes to be due and payable immediately. Upon any such declaration, the Notes
shall become due and payable immediately. If any Event of Default specified
in clauses (l) or (m) of Section 6.01 occurs and is continuing, then the
principal, premium, if any, accrued interest and Liquidated Damages, if any,
on the Notes shall IPSO FACTO become and be immediately due and payable
without any declaration or other action on the part of the Trustee or any
Holder.
If any Event of Default occurs by reason of any willful
action (or inaction) taken (or not taken) by the Enterprise or on its behalf
with the intention of avoiding payment of the premium that the Enterprise
would have had to pay if it then had elected to redeem the Notes pursuant to
Section 3.07 hereof, then, upon acceleration of the Notes, an equivalent
premium shall also become and be immediately due and payable, to the extent
permitted by law, anything in this Indenture or in the Notes to the contrary
notwithstanding. If an Event of Default occurs prior to April 1, 2005, by
reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Enterprise with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, the premium specified in
this Indenture shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
Section 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, interest, and Liquidated Damages, if any, with respect to,
the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any
right or remedy accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04 WAIVER OF PAST DEFAULTS.
Holders of a majority in principal amount of the then
outstanding Notes by notice to the Trustee, may on behalf of the Holders of
all of the Notes, 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 or Liquidated Damages, if any, on, or the principal
of, the Notes (including in connection with an offer to purchase) (PROVIDED,
HOWEVER, that the Holders of a majority in principal amount of the then
outstanding Notes 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 6.05 CONTROL BY MAJORITY.
73
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes
or that may involve the Trustee in personal liability. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest or Liquidated Damages, if any) if it determines that
withholding notice is in their interest.
Section 6.06 LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and,
if requested, provide to the Trustee security and indemnity
satisfactory to the Trustee against any loss, liability or expense that
might be incurred by it in connection with the request or direction;
(d) the Trustee does not comply with the request within
60 days after receipt of the request and the offer and, if requested,
the provision of indemnity; and
(e) during such 60-day period the Holders of a majority
in principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium, if any,
interest on, and Liquidated Damages, if any, with respect to, the Note, on or
after the respective due dates expressed in the Note (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
74
Section 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Enterprise for the whole
amount of principal of, premium, if any, interest, and Liquidated Damages, if
any, remaining unpaid on the Notes and interest on overdue principal and
premium, if any, and, to the extent lawful, interest and Liquidated Damages, if
any, and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the
Enterprise or any Guarantor (or any other obligor upon the Notes), its creditors
or its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, interest and Liquidated Damages,
if any, ratably, without
75
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, interest, and
Liquidated Damages, if any, respectively; and
Third: to the Enterprise or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than ten percent in aggregate Accreted Value of the then outstanding Notes.
Section 6.12 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture 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 Enterprise, the
Trustee and the Holders shall, subject to any final determination in such
proceeding and/or defenses and/or counterclaims available to the Issuer, be
restored severally and respectively to its 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 SEVEN
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in its exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
76
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
costs, liability or expense that might be incurred by it in connection with the
request or direction.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02 CERTAIN RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
77
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized or within
the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Enterprise shall be
sufficient if signed by an Officer of the Enterprise.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
(h) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of such event is sent to the
Trustee in accordance with Section 12.02 hereof, and such notice references the
Notes.
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may become a creditor of, or otherwise deal
with, the Enterprise or any of its Affiliates with the same rights it would have
if it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest as described in the Trust Indenture Act of 1939, it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, it shall not be
accountable for the Enterprise's use of the proceeds from the Notes or any money
paid to the Enterprise or upon the Enterprise's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
78
money received by any Paying Agent other than the Trustee, and it shall not
be responsible for any statement or recital herein or any statement in the
Notes or any other document in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of authentication.
Section 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to Holders of Notes
a notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal
of, premium and Liquidated Damages, if any, or interest on any Note, the
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders of the Notes.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15
following the date hereof, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit
by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Enterprise and filed with the SEC and
each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Enterprise shall promptly notify the Trustee when the
Notes are listed on any stock exchange or any delisting thereof.
At the expense of the Enterprise, the Trustee or, if the
Trustee is not the Registrar, the Registrar, shall report the names of record
Holders of the Notes to any Gaming Authority when requested to do so by the
Enterprise.
At the express direction of the Enterprise and at the
Enterprise's expense, the Trustee shall provide any Gaming Authority with:
(a) copies of all notices, reports and other written
communications which the Trustee gives to Holders;
(b) a list of all of the Holders promptly after the
original issuance of the Notes and periodically thereafter if the
Enterprise so directs;
(c) notice of any Default under this Indenture, any
acceleration of the Indebtedness evidenced hereby, the institution of
any legal actions or proceedings before any court or governmental
authority in respect of a Default of Event of Default hereunder;
(d) notice of the removal or resignation of the Trustee
within five Business Days of the effectiveness thereof;
79
(e) notice of any transfer or assignment of rights under
this Indenture known to the Trustee within five Business Days thereof;
and
(f) a copy of any amendment to the Notes or this
Indenture within five Business Days of the effectiveness thereof.
To the extent requested by the Enterprise and at the
Enterprise's expense, the Trustee shall cooperate with any Gaming Authority in
order to provide such Gaming Authority with the information and documentation
requested and as otherwise required by applicable law.
Section 7.07 COMPENSATION AND INDEMNITY.
The Enterprise shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder in
accordance with a written schedule provided by the Trustee to the Enterprise.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Enterprise shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Enterprise shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the
Enterprise (including this Section 7.07) and defending itself against any claim
(whether asserted by either of the Enterprise or any Holder or any other person)
or liability in connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such loss, liability or expense
may be attributable to its negligence or bad faith. The Trustee shall notify the
Enterprise promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Enterprise shall not relieve the Enterprise of its
obligations hereunder. The Enterprise shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Enterprise shall pay the reasonable fees and expenses of such counsel. The
Enterprise need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
The obligations of the Enterprise under this Section 7.07
shall survive the satisfaction and discharge of this Indenture.
To secure the Enterprise's payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(l) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
80
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Enterprise and
applicable Gaming Authorities. The Holders of a majority in principal amount of
the then outstanding Notes may remove the Trustee by so notifying the Trustee
and the Enterprise in writing. The Enterprise may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Enterprise shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Enterprise.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Enterprise, or the Holders of a majority in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall take all steps necessary or
advisable to be approved by applicable Gaming Authorities, if required, and
deliver a written acceptance of its appointment to the retiring Trustee and to
the Enterprise. Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Holders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
PROVIDED all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement
81
of the Trustee pursuant to this Section 7.08, the Enterprise's obligations
under Section 7.07 hereof shall continue for the benefit of the retiring
Trustee.
Section 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person, the successor Person without any further act shall be the successor
Trustee; PROVIDED, HOWEVER, such Person shall be otherwise eligible and
qualified under this Article and in accordance with any applicable rules or
regulations of Gaming Authorities.
Section 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ENTERPRISE.
The Trustee is subject to 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. The Trustee hereby waives any right to set-off any claim that it may
have against the Enterprise in any capacity (other than as Trustee and Paying
Agent) against any of the assets of the Enterprise held by the Trustee;
PROVIDED, HOWEVER, that if the Trustee is or becomes a lender of any other
Indebtedness permitted hereunder to be PARI PASSU with the Notes, then such
waiver shall not apply to the extent of such Indebtedness.
Section 7.12 AUTHORIZATION OF TRUSTEE TO TAKE OTHER ACTIONS.
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 EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Enterprise may, at the option of the Board of Directors
evidenced by a resolution set forth in an Officer's Certificate, at any time,
elect to have either Section 8.02 or
82
8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article Eight.
Section 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Enterprise's exercise under Section 8.01 hereof of
the option applicable to this Section 8.02, the Enterprise shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, Legal Defeasance means that the Enterprise shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Enterprise, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium and
Liquidated Damages, if any, on such Notes when such payments are due,
(b) the Enterprise's obligations with respect to such
Notes under Article Two and Section 4.02 hereof,
(c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Enterprise's obligations in connection
herewith, and
(d) this Article Eight.
Subject to compliance with this Article Eight, the Enterprise
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
Section 8.03 COVENANT DEFEASANCE.
Upon the Enterprise's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, the Enterprise shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the covenants contained in Sections 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.20, 4.21, 4.22, 4.23, 4.24 and
4.25 hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Enterprise may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth
83
in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event of
Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Enterprise's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(c) though (f)
shall not constitute Events of Default.
Section 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
(a) the Enterprise must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders of the Notes, 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, or interest, premium and
Liquidated Damages, if any, on the outstanding Notes on the stated
maturity or on the applicable redemption date, as the case may be, and
the Enterprise must specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof,
the Enterprise shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that (i) the
Enterprise has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) 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 Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof,
the Enterprise shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred
and is continuing either (i) 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 (ii) insofar as Section 6.01(l) hereof is
concerned, at any time in the period ending on the 91st day after the
date of deposit;
84
(e) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under,
any material agreement or instrument except with respect to the
borrowing of funds described in clause (d) above, or any other material
agreement or instrument to which the Enterprise or any of its
Subsidiaries are a party or by which the Enterprise or any of its
Subsidiaries are bound;
(f) the Enterprise shall deliver to the Trustee an
Officers' Certificate stating that the deposit was not made by it with
the intent of preferring the Holders of Notes over other creditors of
the Enterprise or with the intent of defeating, hindering, delaying or
defrauding creditors of the Enterprise or others;
(g) the Enterprise shall deliver to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(h) the Enterprise shall have delivered to the Trustee an
Opinion of Counsel to the effect that after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
Section 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "TRUSTEE") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Enterprise acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium and
Liquidated Damages, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.
The Enterprise shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Enterprise from time to
time upon the request of the Enterprise any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
85
Section 8.06 REPAYMENT TO THE ENTERPRISE.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Enterprise, in trust for the payment of the principal of,
premium, if any, or interest on any Note and remaining unclaimed for two years
after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Enterprise on its request or (if then held by the
Enterprise) shall be discharged from such trust; and the Holder of such Note
shall thereafter look only to the Enterprise for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Enterprise as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Enterprise cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Enterprise.
Section 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Enterprise's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; PROVIDED, HOWEVER, that, if the
Enterprise makes any payment of principal of, premium, if any, or interest on
any Note following the reinstatement of its obligations, the Enterprise shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Enterprise
and the Trustee may amend or supplement this Indenture, the Pledge Agreement or
the Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or
in place of Definitive Notes;
86
(c) to provide for the assumption of the Enterprise's
obligations to the Holders of the Notes in the case of a merger or
consolidation or sale of all or substantially all of the Enterprise's
assets;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of a Note;
(e) to comply with requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the TIA; or
(f) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the
date hereof;
PROVIDED, HOWEVER, that in the case of a change pursuant to clause (a) above,
the Enterprise shall deliver to the Trustee an Opinion of Counsel stating that
the change does not adversely affect the rights of any Holder.
Upon the request of the Enterprise accompanied by a resolution
of its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Enterprise in
the execution of any amended or supplemental Indenture authorized or permitted
by the terms of this Indenture and to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Enterprise
and the Trustee may amend or supplement this Indenture, the Pledge Agreement or
the Notes with the consent of the Holders of at least a majority in principal
amount of the Notes (including Additional Notes, if any) then outstanding
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default or
compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including Additional Notes, if any) then outstanding
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes).
The Enterprise may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to consent to
any indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or its duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; PROVIDED that unless such consent
shall have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 90
87
days after such record date, any such consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
Upon the request of the Enterprise accompanied by a resolution
of its Board of Directors, as applicable, authorizing the execution of any such
amended or supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Enterprise in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
directly affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Enterprise shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Enterprise to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the then outstanding
Notes (including Additional Notes, if any) may waive compliance in a particular
instance by the Enterprise with any provision of this Indenture, or the Notes.
However, without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity
of any Note or alter the provisions with respect to the redemption of
the Notes (other than provisions relating to Sections 4.10 and 4.15
hereof;
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of, or interest or premium, or Liquidated Damages, if any, on
the Notes (except a rescission of acceleration of the Notes (including
Additional Notes, if any) by the Holders of at least a majority in
aggregate principal amount of Notes and a waiver of the payment default
that resulted from such acceleration);
(e) make any Note payable in money other than that stated
in the Notes;
(f) make any change in the provisions of the Indenture
relating to waivers of past Defaults or Events of Default or the rights
of Holders of Notes to receive payments of principal of, or interest or
premium or Liquidated Damages, if any, on the Notes;
88
(g) waive a redemption payment with respect to any Note
(other than relating to Sections 4.15);
(h) amend or modify the obligations of the Enterprise to
make offers to purchase Notes and Additional Notes, if any, pursuant to
Section 3.09(b); and
(i) make any change in the preceding amendment and waiver
provisions.
Without the consent of Holders of at least 66?% of the
aggregate outstanding principal amount of each of the Notes, the Enterprise may
not amend, alter or waive the provisions set forth in Section 4.15 hereof.
Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Enterprise in exchange for all Notes may issue and the Trustee shall, upon
receipt of an Authentication Order, authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental
indenture or Note authorized pursuant to this Article Nine if the amendment
or supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Enterprise may not sign an amendment or
supplemental Indenture or Note until its Board of Directors approves it. In
executing any amended or supplemental indenture or Note, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officers'
89
Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this
Indenture.
ARTICLE TEN
COVENANTS OF THE TRIBE
Section 10.01 COVENANTS OF THE TRIBE.
(a) The Tribe shall not, and shall not permit any of its
representatives, political subunits or councils, agencies, instrumentalities or
enterprises, directly or indirectly, except as required by federal or state law,
to do any of the following:
(1) increase or impose any tax or other payment
obligation on the Enterprise or on any patrons of, or any activity at,
the Resort other than:
(A) payments which are due under any agreement
in effect on the date of this Indenture or payments which are
not materially adverse to the economic interests of Holders of
the Notes;
(B) payments which the Enterprise has agreed to
reimburse each Holder of Notes for the economic effect
thereof, if any;
(C) Annual Service Payments, Permitted Payments
or payments that correspondingly reduce the Restricted
Payments otherwise payable to the Tribe; or
(D) pursuant to the Tribal Tax Code;
(2) amend the Tribal Gaming Ordinance in effect on the
date of this Indenture (unless any such amendment is a legitimate
effort to ensure that the Enterprise and the Resort conduct gaming
operations in a manner that is consistent with applicable laws, rules
and regulations or that protects the environment, the public health and
safety, or the integrity of the Enterprise or the Resort), restrict or
eliminate the exclusive right of the Enterprise to conduct Gaming
Business in a manner that would be materially adverse to the economic
interests of Holders of the Notes;
(3) take any other action, enter into any agreement,
amend its constitution or enact any ordinance, law, rule or regulation
that would have a material adverse effect on the economic interests of
Holders of the Notes; PROVIDED that nothing herein shall restrict the
ability of the Tribe, directly or indirectly, to engage in any business
operation, including a Gaming Business, outside of the Enterprise;
(4) waive its sovereign immunity in any manner that would
create recourse to the assets of the Enterprise and its Restricted
Subsidiaries or to any revenues thereof;
90
(5) enact any statute, law, ordinance or rule that would
have a material adverse effect on the rights of the Trustee or the
Holders of the Notes under this Indenture or the Notes;
(6) except with the consent of a majority of Holders of
the Notes, directly or indirectly impose, tax or otherwise make a
charge on the Notes, this Indenture or any payments or deposits to be
made hereunder;
(7) permit or incur any consensual liability of the Tribe
(or of any other instrumentality, enterprise or subunit of the Tribe)
that is a legal obligation of the Enterprise or any of its Restricted
Subsidiaries, for which the assets of the Enterprise or any of its
Restricted Subsidiaries may be bound or for which there may be recourse
to the assets of the Enterprise or any of its Restricted Subsidiaries,
other than a liability of the Enterprise or any of its Restricted
Subsidiaries are permitted or not prohibited from incurring on their
own behalf under this Indenture;
(8) pursuant to or within the meaning of bankruptcy law,
appoint or consent to the appointment of a custodian of the Enterprise
for all or substantially all of the assets of the Enterprise;
(9) enact any bankruptcy law or similar law for the
relief of debtors that would impair, limit, restrict, delay or
otherwise adversely affect any of the rights and remedies of the
Trustee or the Holders of the Notes provided for in this Indenture or
the Notes; or
(10) exercise any power of eminent domain over the assets
of the Enterprise or any of its Restricted Subsidiaries (other than any
such exercise that would not materially affect the economic rights and
benefits of the Trustee or the Holders of the Notes).
(b) The Tribe agrees that upon any payment or
distribution of assets upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors, marshalling of assets
or any bankruptcy, insolvency or similar proceedings of the Enterprise, its
Restricted Subsidiaries or the Resort, the Holders of the Notes will be entitled
to receive payment in full in respect to all principal, premium, interest and
other amounts owing in respect of the Notes before any payment or any
distribution to the Tribe.
(c) In the event that the Tribe receives any payment from
the Enterprise at a time when such payment is prohibited by the terms of this
Indenture, such payment shall be held by the Tribe in trust for the benefit of,
and shall be paid forthwith over and delivered, upon the written request of the
Trustee or the Enterprise, to the Enterprise.
(d) The Tribe agrees that the Enterprise shall have sole
and exclusive jurisdiction to operate the Silver Star and the Golden Moon.
(e) Any action taken by the Tribe to comply with federal
or state law that would otherwise violate this Section 10.01 shall be taken only
after 30 days prior written notice to the Trustee, to the extent such notice is
possible under the federal or state law, accompanied
91
by an Officers' Certificate and Opinion of Counsel that such action is
required by federal or state law.
ARTICLE ELEVEN
LIMITED WAIVER OF SOVEREIGN IMMUNITY
Section 11.01 LIMITED WAIVER OF SOVEREIGN IMMUNITY.
The Tribe does not consent to the enforcement, levy or other
execution of any judgment for money or other damages against any assets, real or
personal, of the Tribe, except that the Tribe and the Enterprise waive their
respective sovereign immunity from unconsented suit, whether such suit be
brought in law or in equity, or in administrative proceedings or proceedings in
arbitration, to permit the commencement, maintenance, and enforcement of any
action, by the Trustee (or by the Holders of Notes or their respective
representatives), to interpret or enforce the terms of this Indenture or the
Notes, and to enforce and execute any judgment resulting therefrom:
(1) for the sole purpose of compelling the Tribe to
return any prohibited payment made to the Tribe as described in Section
10.01(c) hereof, against any assets of the Business Enterprise Division
of the Tribe, but in no event against any assets of the Government
Services Division of the Tribe, and
(2) in all other circumstances, first against any assets
of the Enterprise and second against any assets of the Business
Enterprise Division of the Tribe, but in no event against any assets of
the Government Services Division of the Tribe; PROVIDED that the Tribe
and the Enterprise consent to the enforcement and execution of any such
judgment against any such assets of the Business Enterprise Division of
the Tribe pursuant to this clause (2) only in the event that the Tribe
has failed to faithfully and fully comply with any of the provisions
under Article Ten.
Notwithstanding any other provision of law or canon of
construction, the Tribe and the Enterprise each intend this waiver to be
interpreted liberally to permit the full litigation of disputes arising under or
out of this Indenture or the Notes. Without limiting the generality of the
foregoing, and subject to the foregoing, the Tribe and the Enterprise waive
their respective immunity from unconsented suit to permit any court of competent
jurisdiction or arbitrators, appointed and acting under the commercial
arbitration rules of the American Arbitration Association, to:
(a) enforce and interpret the terms of this Indenture and
the Notes, and award and enforce the award of damages owing as a
consequence of a breach thereof, whether such award is the product of
litigation, administrative proceedings, or arbitration;
(b) determine whether any consent or approval of the
Tribe or the Enterprise has been improperly granted or unreasonably
withheld;
(c) enforce any judgment prohibiting the Tribe or the
Enterprise from taking any action, or mandating or obligating the Tribe
or the Enterprise to take any action,
92
including a judgment compelling the Tribe or Enterprise to submit to
binding arbitration; and
(d) as to a court only, but not arbitrators, adjudicate
any claim under the Indian Civil Rights Act of 1968, 25 U.S.C.
Section 1302 (or any successor statute).
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 12.01 SATISFACTION AND DISCHARGE.
This Indenture shall be discharged and shall cease to be of
further effect as to all Notes issued thereunder, when:
(a) either:
(i) all Notes that have been authenticated
(except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to
the Enterprise) have been delivered to the Trustee for
cancellation; or
(ii) all Notes that have not been delivered to
the Trustee for cancellation have become due and payable by
reason of the making of a notice of redemption or otherwise or
will become due and payable within one year and the Enterprise
has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will
be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on the
Notes not delivered to the Trustee for cancellation for
principal, premium, accrued interest and Liquidated Damages,
if any, to the date of maturity or redemption;
(b) no Default or Event of Default shall have occurred
and is continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to
which the Enterprise is a party or by which it is bound;
(c) the Enterprise has paid or caused to be paid all sums
payable by it under this Indenture; and
(d) the Enterprise has delivered irrevocable instructions
to the Trustee under this Indenture to apply the deposited money toward
the payment of the Notes at maturity or the redemption date, as the
case may be.
The Enterprise shall deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
93
Notwithstanding the above, the Trustee shall pay to the
Enterprise from time to time upon its request any cash or Government Securities
held by it as provided in this section which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification delivered to the Trustee, are in excess of the amount thereof that
would then be required to be deposited to effect a satisfaction and discharge
under this Article Thirteen.
Section 12.02 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 12.03 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
12.02, the "TRUSTEE") pursuant to Section 12.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Enterprise acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium and
Liquidated Damages, if any, and interest, but such money be segregated from
other funds except to the extent required by law.
Section 12.03 REPAYMENT TO THE ENTERPRISE.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Enterprise, in trust for the payment of the principal of,
premium and Liquidated Damages, if any, or interest on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest
has become due and payable shall be paid to the Enterprise on its request or (if
then held by the Enterprise) shall be discharged from such trust; and the Holder
of such Note shall thereafter look only to the Enterprise for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Enterprise as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Enterprise cause
to be published once, in the New York Times or The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Enterprise.
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
94
Section 13.02 NOTICES.
Any notice or communication by the Enterprise 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 air courier guaranteeing next day delivery, to the others' address:
If to the Enterprise:
The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise
X.X. Xxx 0000, Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Xxxxx Xxxxxx, Attorney General, and Xxxx Xxxxxxxx,
Comptroller
With copies to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxx
Rome XxXxxxxx Xxxxxxxx, P.C.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopier : (000) 000-0000
Attention : Xxxxx X. Xxxxx
If to the Tribe:
The Mississippi Band of Choctaw Indians
P.O. Box 6090, Choctaw Branch
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Xxxxx Xxxxxx, Attorney General, and Xxxx Xxxxxxxx,
Comptroller
With copies to:
Rome XxXxxxxx Xxxxxxxx, P.C.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopier : (000) 000-0000
Attention : Xxxxx X. Xxxxx
95
If to the Trustee:
Firstar Bank, N.A.
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
The Enterprise or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if 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 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 its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Enterprise mails a notice or communication to Holders,
it shall mail a copy to the Trustee and each Agent at the same time.
Section 13.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to its rights under this Indenture or the Notes.
The Enterprise, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Enterprise to the
Trustee to take any action under this Indenture, the Enterprise shall furnish to
the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 13.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been satisfied; and
96
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 13.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied.
Section 13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
Section 13.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 13.07 NO PERSONAL LIABILITY OF TRIBE OR CERTAIN INDIVIDUALS.
Neither the Tribe nor any tribal member, council member,
official, agent, director, officer, employee, incorporator or stockholder of the
Enterprise or the Tribe or holder of an Ownership Interest of the Enterprise or
any of its Subsidiaries shall have any liability for any of the Enterprise's or
any Subsidiary Guarantors' obligations under the Notes, this Indenture, any
Subsidiary Guarantees, or for any claim based on, in respect of, or by reason
of, these obligations or their creation. Each Holder of Notes by accepting a
Note waives and releases these individuals from this liability. The waiver and
release are part of the consideration for issuance of the Notes. The waiver may
not be effective to waive liabilities under the federal securities laws. Other
than as specifically set forth in this Indenture, nothing contained herein shall
constitute a waiver of the sovereign immunity of either the Enterprise or the
Tribe.
97
Section 13.08 GOVERNING LAW.
THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND PERFORMED IN SUCH STATE. THE TRIBE, THE ENTERPRISE AND THE
TRUSTEE HEREBY AGREE THAT THE TRANSACTIONS UNDER THIS INDENTURE, INCLUDING THE
EXECUTION OF THIS INDENTURE, THE LENDING OF MONEY AND THE ISSUANCE OF THE NOTES,
OCCURRED OUTSIDE THE TRIBE'S RESERVATION IN THE STATE OF NEW YORK.
Section 13.09 CONSENT TO JURISDICTION.
Any legal suit, action or proceeding arising out of or based
upon this Indenture or the transactions contemplated hereby ("RELATED
PROCEEDINGS") may be instituted in the federal courts of the United States of
America located in the City of New York or the courts of the State of New York
in each case located in the City of New York (collectively, the "SPECIFIED
COURTS"), and each party irrevocably submits to the exclusive jurisdiction
(except for proceedings instituted in regard to the enforcement of a judgment of
any such court (a "RELATED JUDGMENT"), as to which such jurisdiction is
non-exclusive) of such courts in any such suit, action or proceeding. Service of
any process, summons, notice or document by mail to such party's address set
forth above shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court has been brought in an
inconvenient forum.
Section 13.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Enterprise or any of its Subsidiaries
or of any other Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
Section 13.11 SUCCESSORS.
All agreements of the Tribe and the Enterprise in this
Indenture and the Notes shall bind their successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 13.12 SEVERABILITY.
In case any provision in this Indenture or the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
98
Section 13.13 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 13.14 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by the Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Enterprise. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "ACT" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Enterprise if made in the manner provided in this Section 13.14.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to such witness,
notary or officer the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) Notwithstanding anything to the contrary contained in
this Section 13.14, the principal amount and serial numbers of Notes held by any
Holder, and the date of holding the same, shall be proved by the register of the
Notes maintained by the Registrar as provided in Section 2.04 hereof.
(d) If the Enterprise shall solicit from the Holders
of the Notes any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Enterprise may, at its option, by or pursuant to a
resolution of its Board of Directors, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Enterprise shall have
no obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith or the date of the
most recent list of Holders forwarded to the Trustee prior to such solicitation
pursuant to Section 2.06 hereof and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite
99
proportion of the then outstanding Notes have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the then outstanding Notes shall be computed as
of such record date; PROVIDED that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the
registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Enterprise in reliance thereon, whether or not notation of such action is made
upon such Note.
(f) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Note may do
so itself with regard to all or any part of the principal amount of such Note or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
Section 13.15 BENEFIT OF INDENTURE.
Nothing, in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Registrar and its successors hereunder, and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 13.16 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
100
SIGNATURES
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By: /s/ XXXXXXX XXXXXX
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman of the Board
By: /s/ XXXXXXXX XXX
----------------------------------
Name: Xxxxxxxx Xxx
Title: Secretary-Treasurer
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
(solely with respect to its obligations
under Section 4.24 and Articles X and XI)
By: /s/ XXXXXXX XXXXXX
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Tribal Chief
By: /s/ XXXXXXXX XXX
----------------------------------
Name: Xxxxxxxx Xxx
Title: Secretary-Treasurer
FIRSTAR BANK, N.A.
By: /s/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
101
EXHIBIT A1
[Face of Note]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.08 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ENTERPRISE.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX 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. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE MISSISSIPPI BAND OF CHOCTAW
INDIANS D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE (THE "ENTERPRISE") THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY
(i)(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 144A UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT,
(d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
A1-1
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN
$100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ENTERPRISE
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE ENTERPRISE SO REQUESTS,
(ii) TO THE ENTERPRISE, OR
(iii) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION; AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
A1-2
CUSIP 00000XXX0
No. R-001 **$ **
------------------
THE MISSISSIPPI BAND OF CHOCTAW INDIANS D/B/A
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
9 1/4% Senior Notes due 2009
Issue Date: March 30, 2001
The Mississippi Band of Choctaw Indians d/b/a Choctaw Resort
Development Enterprise (the "ENTERPRISE" which term includes any successor under
the Indenture hereinafter referred to), a business enterprise of the Mississippi
Band of Choctaw Indians, a federally recognized Indian Tribe and sovereign
nation (the "TRIBE"), for value received, promises to pay to CEDE & CO., or its
registered assigns, the principal sum of [Amount of Note] ($ ) on April 1, 2009.
Interest Payment Dates: April 1 and October 1, commencing October 1, 2001.
Record Dates: March 15 and September 15.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
A1-3
IN WITNESS WHEREOF, the Enterprise has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
THE MISSISSIPPI BAND OF CHOCTAW INDIANS D/B/A
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By:/s/ XXXXXXX XXXXXX
-------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman of the Board
By:/s/ XXXXXXXX XXX
-------------------------------------------
Name: Xxxxxxxx Xxx
Title: Secretary-Treasurer
This is one of the 9 1/4% Senior Notes due 2009 described in the
within-mentioned Indenture.
Dated:
FIRSTAR BANK, N.A.,
as Trustee
By:
-----------------------------------
Authorized Signatory
A1-4
[Reverse Side of Note]
THE MISSISSIPPI BAND OF CHOCTAW INDIANS D/B/A
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
9 1/4% Senior Notes due 2009
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. The Enterprise promises to pay interest on
the principal amount of this Note at 9 1/4% per annum from the date herof until
maturity and shall pay the Liquidated Damages, if any, payable pursuant to
Section 5 of the Registration Rights Agreement referred to below. The Enterprise
shall pay interest and Liquidated Damages, if any, semi-annually in arrears on
April 1 and October 1 of each year, or if any such day is not a Business Day, on
the next succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest on
the Notes shall accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of original issuance; PROVIDED
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; PROVIDED FURTHER that the first Interest
Payment Date shall be October 1, 2001. The Enterprise shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Enterprise shall pay interest
on the Notes (except defaulted interest) and Liquidated Damages, if any, to the
Persons who are registered Holders of Notes at the close of business on the
March 15 or September 15 next preceding the Interest Payment Date, even if such
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.13 of the Indenture with respect to
defaulted interest. The Notes shall be payable as to principal, premium and
Liquidated Damages, if any, and interest at the office or agency of the
Enterprise maintained for such purpose in The City of New York maintained for
such purposes, or, at the option of the Enterprise, 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, and provided that payment by
wire transfer of immediately available funds shall be required with respect to
principal of and interest, premium and Liquidated Damages, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Enterprise or the Paying Agent. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
A1-5
3. PAYING AGENT AND REGISTRAR. Initially, Firstar Bank,
N.A., the Trustee under the Indenture, shall act as Paying Agent and Registrar.
The Enterprise may change any Paying Agent or Registrar without notice to any
Holder. The Enterprise or any of its Restricted Subsidiaries may act in any such
capacity.
4. INDENTURE. The Enterprise issued the Notes under an
Indenture dated as of March 30, 2001 ("INDENTURE") among the Enterprise, the
Tribe and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended. The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Enterprise limited to $200,000,000
in aggregate principal amount. The Indenture pursuant to which this Note is
issued provides that up to $50.0 million of Additional Notes may be issued
thereunder.
5. OPTIONAL REDEMPTION. Except as set forth in
paragraphs 6, 7 and 8 below, the Enterprise shall not have the option to redeem
the Notes prior to April 1, 2005. Thereafter, the Enterprise shall have the
option to redeem the Notes, in whole or in part, upon not less than 30 nor more
than 60 days' prior 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 the applicable redemption date, if
redeemed during the twelve-month period beginning on April 1 of the years
indicated below (subject to the right of Holder on the relevant record date to
receive interest due on the related Interest Payment Date):
YEAR PERCENTAGE
---- ----------
2005................................................ 104.6250%
2006................................................ 102.3125%
2007 and thereafter................................. 100.0000%
6. GAMING REDEMPTION. (a) If any Gaming Authority in any
jurisdiction in which the Enterprise or any of its Subsidiaries conducts gaming
requires that a Holder or Beneficial Owner of the Notes obtain a license,
qualification or finding of suitability under any applicable Gaming Laws and the
Holder or Beneficial Owner does not apply for a license, qualification or
finding of suitability within 30 days after being requested to do so by such
Gaming Authority (or such lesser period that may be required by such Gaming
Authority) or if such Holder or beneficial owner shall not be licensed,
qualified or found suitable, then the Enterprise, at its option, may (i) require
such Holder or Beneficial Owner to dispose of such Holder or Beneficial Owner's
Notes within 30 days, or any earlier date as may be required by the Gaming
Authority, of (A) the termination of the 30-day period described above for the
Holder or Beneficial Owner to apply for a license, qualification or finding of
suitability, or (B) the receipt of the notice from the Gaming Authority that the
Holder or beneficial owner shall not be licensed, qualified or found suitable or
(ii) redeem the Notes of such Holder or Beneficial Owner at a price equal to the
least of (A) 100% of the principal amount thereof or (B) the price at which such
Holder or Beneficial Owner acquired the Notes, and (C) the fair market value of
the Notes, together with, in either case, accrued and unpaid interest and
Liquidated Damages, if any, thereon to the earlier of the date of redemption or
the date of the finding of unsuitability by such
A1-6
Gaming Authority, which may be less than 30 days following the notice of
redemption if so ordered by such Gaming Authority.
(b) Immediately upon a determination that a Holder or
Beneficial Owner shall not be licensed, qualified or found suitable, the Holder
or Beneficial Owner shall have no further right (1) to exercise any right
conferred by the Notes, directly or indirectly, through any trustee, nominee or
any other Person or entity, or (2) to receive any interest or other distribution
or payment with respect to the Notes or any remuneration in any form from the
Enterprise for services rendered or otherwise, except the redemption price of
the Notes.
(c) The Holder or Beneficial Owner of Notes applying for
a license, qualification or a finding of suitability must pay all costs of the
licenses or investigation for this qualification or finding of suitability. The
Enterprise are not required to pay or reimburse any Holder or Beneficial Owner
of Notes who is required to apply for any license, qualification or finding of
suitability. The Enterprise is not required to pay or reimburse any Holder of
the Notes 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.
7. MANDATORY REDEMPTION. (a) Except as set forth in
Paragraph 8 below and clause (b) of this paragraph 7, the Enterprise shall not
be required to make mandatory redemption payments or sinking fund payments with
respect to the Notes.
(b) In the event that the Tribe and Enterprise are not
able to provide those certificates and opinions of counsel required pursuant to
the terms of the Pledge Agreement for the release of the Funds, the Enterprise
shall cause a notice of special mandatory redemption to be mailed no later than
the second Business Day, and shall redeem the Notes, in whole, on the Fifth
Business Day, after the earlier of (1) certification by the Tribe and the
Enterprise that a tribal referendum has been certified for election, which, if
approved, could affect the ability of the Tribe to perform its obligations
relating to the Notes, or (2) 83 days after the Closing Date. The special
mandatory redemption price will be 101% of the aggregate principal amount of the
Notes outstanding on the date of redemption plus accrued and unpaid interest to
such date.
8. REPURCHASE AT OPTION OF HOLDER. (a) If there is a
Change of Control, the Enterprise shall be required to make an offer (a "CHANGE
OF CONTROL OFFER") to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes at a purchase price equal to 101% of
the aggregate principal amount of Notes repurchased plus accrued and unpaid
interest and Liquidated Damages, if any, to the date of purchase (the "CHANGE OF
CONTROL PAYMENT"). Within 20 days following any Change of Control, the
Enterprise shall mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Notes 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, pursuant
to the procedures required by the Indenture and described in such notice.
(b) When the aggregate amount of Excess Proceeds from one
or more Asset Sales exceeds $10.0 million, the Enterprise shall commence an
offer ("ASSET SALE OFFER") pursuant to Section 4.10 of the Indenture to all
Holders of Notes to purchase the maximum
A1-7
principal amount of Notes that may be purchased out of the Excess Proceeds.
The offer price in any Asset Sale Offer shall be equal to 100% of principal
amount plus accrued and unpaid interest and Liquidated Damages, if any, to
the date of purchase, and shall be payable in cash, in accordance with the
procedures set forth in the Indenture. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Enterprise or the Restricted
Subsidiary may use such Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.
9. SELECTION AND NOTICE OF REDEMPTION. If less than all
of the Notes are to be redeemed at any time, the Trustee will select Notes for
redemption as follows: (i) if the Notes are listed, in compliance with the
requirements of the principal national securities exchange on which the Notes
are listed, or (ii) if the Notes are not so listed, on a pro rata basis, by lot
or by any method as the Trustee deems fair and appropriate. No Notes of $1,000
or less may be redeemed in part. Except as otherwise provided in the Indenture,
notices of redemption will be mailed by first class mail at least 30 but not
more than 60 days before the redemption date to each Holder to be redeemed at
its registered address. Notices of redemption may not be conditional. If any
Note is to be redeemed in part only, the notice of redemption that relates to
that Note will state the portion of the principal amount thereof to be redeemed.
A new Note in principal amount equal to the unredeemed portion of the original
Note will be issued in the name of the Holder thereof upon cancellation of the
original Note. Notes called for redemption become due on the date fixed for
redemption. On and after the redemption date, interest and Liquidated Damages,
if any, cease to accrue on Notes or portions of them called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Enterprise may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Enterprise is not
required to transfer or exchange any Note selected for redemption. Also, the
Enterprise is not required to transfer or exchange any Note for a period of 15
days before a selection of Notes to be redeemed.
11. PERSONS DEEMED OWNERS. The registered Holder of a
Note will be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes and Additional Notes, if any, voting as a single class
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes), and any existing default
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal of the then
outstanding Notes and Additional Notes, if any, voting as a single class
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes). Without the consent of
any Holder of a Note, the Indenture or the Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of Definitive Notes, to provide for the
assumption of the Enterprise's obligations to Holders of the Notes in
A1-8
case of a merger or consolidation or sale of all or substantially all of the
assets of the Enterprise, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or
to comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act, or to provide
for the issuance of Additional Notes in accordance with the limitations set
forth in the Indenture.
13. DEFAULTS AND REMEDIES. In the case of an Event of
Default, as defined in the Indenture arising from certain events of bankruptcy
or insolvency with respect to the Enterprise or any of its Restricted
Subsidiaries, all outstanding Notes will become due and payable immediately and
automatically without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately. Holders of the Notes may not enforce the Indenture
or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest or Liquidated Damages, if any) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may, on
behalf of the Holders of all of the Notes, waive any existing Default or Event
of Default and its consequences under the Indenture except a continuing Default
or Event of Default in the payment of interest or Liquidated Damages, if any,
on, or the principal of, the Notes.
In the case of any Event of Default occurring by reason of any
willful action or inaction taken or not taken by the Enterprise or on their
behalf with the intention of avoiding payment of the premium that the Enterprise
would have had to pay if it then had elected to redeem the Notes pursuant to the
optional redemption provisions of the Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes. If an Event of Default occurs prior to April
1, 2005, by reason of any willful action (or inaction) taken (or not taken) by
the Enterprise or on its behalf with the intention of avoiding the prohibition
on redemption of the Notes prior to April 1, 2005, then the premium specified in
the Indenture shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
14. TRUSTEE DEALINGS WITH ENTERPRISE. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Enterprise or its Affiliates, and may otherwise deal
with the Enterprise or its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. Neither the Tribe nor any
tribal member, council member, official, agent, director, officer, employee,
incorporator or stockholder of the Enterprise or the Tribe or holder of an
Ownership Interest of the Enterprise or any of its Subsidiaries will have any
liability for any of the Enterprise's or any Subsidiary Guarantors' obligations
under the Notes, the Indenture, any Subsidiary Guarantees, or for any claim
based on, in respect of, or by reason of, these obligations or their creation.
Each Holder by accepting a
A1-9
Note waives and releases these individuals from this liability. The waiver
and release are part of the consideration for issuance of the Notes.
16. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of March 30, 2001, between the Enterprise and the parties
named on the signature pages thereof or, in the case of Additional Notes,
Holders of Restricted Global Notes and Restricted Definitive Notes shall have
the rights set forth in one or more registration rights agreements, if any,
between the Enterprise and the other parties thereto, relating to rights given
by the Enterprise to the purchasers of Additional Notes (the "REGISTRATION
RIGHTS AGREEMENT").
18. CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Enterprise has caused CUSIP numbers to be printed on the Notes and the Trustee
may 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 Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Enterprise shall furnish to any Holder upon written
request and without charge a copy of the Indenture and/or the Registration
Rights Agreement. Requests may be made to:
The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise
X.X. Xxx 0000, Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.(000) 000-0000
Attention: Xxxx Xxxxxxxx, Comptroller
and
Attorney General of The Mississippi Band of Choctaw Indians
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
A1-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
----------------------------------
(Insert assignee's legal name)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Enterprise. The agent may substitute
another to act for him.
Date:
---------------------
Your Signature:
----------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*:
-----------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Enterprise pursuant to Section 4.10 or 4.15 of the Indenture, check the
appropriate box below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Note purchased
by the Enterprise pursuant to Section 4.10 or Section 4.15 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 Note)
Tax Identification No.:
--------------------------
Signature Guarantee*:
-----------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount at
Amount of Decrease in Amount of Increase in Maturity Signature of
Principal Amount at Principal Amount at of this Global Note Authorized Officer
Maturity Maturity Following such of Trustee or
Date of Exchange of this Global Note of this Global Note decrease (or increase) Note Custodian
---------------- ------------------- ------------------- ---------------------- --------------
A1-13
EXHIBIT A2
[Face of Note]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.08 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ENTERPRISE.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX 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. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE MISSISSIPPI BAND OF CHOCTAW
INDIANS D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE (THE "ENTERPRISE") THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY
(i) (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 144A UNDER THE
A2-1
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN
$100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
ENTERPRISE THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE ENTERPRISE SO
REQUESTS),
(ii) TO THE ENTERPRISE, OR
(iii) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION; AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
A2-2
CUSIP X00000XX0
No. S-001 **$ **
---------------
THE MISSISSIPPI BAND OF CHOCTAW INDIANS D/B/A
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
9 1/4% Senior Notes due 2009
Issue Date: March 30, 2001
The Mississippi Band of Choctaw Indians d/b/a Choctaw
Resort Development Enterprise (the "ENTERPRISE" which term includes any
successor under the Indenture hereinafter referred to), a business enterprise
of the Mississippi Band of Choctaw Indians, a federally recognized Indian
Tribe and sovereign nation (the "TRIBE"), for value received, promises to pay
to CEDE & CO., or its registered assigns, the principal sum of [Amount of Note]
($_____) on April, 2009.
Interest Payment Dates: April 1 and October 1, commencing October 1, 2001.
Record Dates: March 15 and September 15.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
A2-3
IN WITNESS WHEREOF, the Enterprise has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
THE MISSISSIPPI BAND OF CHOCTAW INDIANS D/B/A
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By: /s/ XXXXXXX XXXXXX
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman of the Board
By:/s/ XXXXXXXX XXX
-----------------------------------------
Name: Xxxxxxxx Xxx
Title: Secretary- Treasurer
This is one of the 9 1/4% Senior Notes due 2009 described in the
within-mentioned Indenture.
Dated:
FIRSTAR BANK, N.A.,
as Trustee
By:
----------------------------------
Authorized Signatory
A2-4
[Reverse Side of Note]
THE MISSISSIPPI BAND OF CHOCTAW INDIANS D/B/A
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
9 1/4% Senior Notes due 2009
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. The Enterprise promises to pay interest on
the principal amount of this Note at 9 1/4% per annum from the date herof until
maturity and shall pay the Liquidated Damages, if any, payable pursuant to
Section 5 of the Registration Rights Agreement referred to below. The Enterprise
shall pay interest and Liquidated Damages, if any, semi-annually in arrears on
April 1 and October 1 of each year, or if any such day is not a Business Day, on
the next succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest on
the Notes shall accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of original issuance; PROVIDED
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; PROVIDED FURTHER that the first Interest
Payment Date shall be October 1, 2001. The Enterprise shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Enterprise shall pay interest
on the Notes (except defaulted interest) and Liquidated Damages, if any, to the
Persons who are registered Holders of Notes at the close of business on the
March 15 or September 15 next preceding the Interest Payment Date, even if such
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.13 of the Indenture with respect to
defaulted interest. The Notes shall be payable as to principal, premium and
Liquidated Damages, if any, and interest at the office or agency of the
Enterprise maintained for such purpose in The City of New York maintained for
such purposes, or, at the option of the Enterprise, 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, and provided that payment by
wire transfer of immediately available funds shall be required with respect to
principal of and interest, premium and Liquidated Damages, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Enterprise or the Paying Agent. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
A2-5
3. PAYING AGENT AND REGISTRAR. Initially, Firstar Bank,
N.A., the Trustee under the Indenture, shall act as Paying Agent and Registrar.
The Enterprise may change any Paying Agent or Registrar without notice to any
Holder. The Enterprise or any of its Restricted Subsidiaries may act in any such
capacity.
4. INDENTURE. The Enterprise issued the Notes under an
Indenture dated as of March 30, 2001 ("INDENTURE") among the Enterprise, the
Tribe and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended. The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Enterprise limited to $200,000,000
in aggregate principal amount. The Indenture pursuant to which this Note is
issued provides that up to $50.0 million of Additional Notes may be issued
thereunder.
5. OPTIONAL REDEMPTION. Except as set forth in
paragraphs 6, 7 and 8 below, the Enterprise shall not have the option to redeem
the Notes prior to April 1, 2005. Thereafter, the Enterprise shall have the
option to redeem the Notes, in whole or in part, upon not less than 30 nor more
than 60 days' prior 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 the applicable redemption date, if
redeemed during the twelve-month period beginning on April 1 of the years
indicated below (subject to the right of Holder on the relevant record date to
receive interest due on the related Interest Payment Date):
YEAR PERCENTAGE
---- ----------
2005................................................ 104.6250%
2006................................................ 102.3125%
2007 and thereafter................................. 100.0000%
6. GAMING REDEMPTION. (a) If any Gaming Authority in any
jurisdiction in which the Enterprise or any of its Subsidiaries conducts gaming
requires that a Holder or Beneficial Owner of the Notes obtain a license,
qualification or finding of suitability under any applicable Gaming Laws and the
Holder or Beneficial Owner does not apply for a license, qualification or
finding of suitability within 30 days after being requested to do so by such
Gaming Authority (or such lesser period that may be required by such Gaming
Authority) or if such Holder or beneficial owner shall not be licensed,
qualified or found suitable, then the Enterprise, at its option, may (i) require
such Holder or Beneficial Owner to dispose of such Holder or Beneficial Owner's
Notes within 30 days, or any earlier date as may be required by the Gaming
Authority, of (A) the termination of the 30-day period described above for the
Holder or Beneficial Owner to apply for a license, qualification or finding of
suitability, or (B) the receipt of the notice from the Gaming Authority that the
Holder or beneficial owner shall not be licensed, qualified or found suitable or
(ii) redeem the Notes of such Holder or Beneficial Owner at a price equal to the
least of (A) 100% of the principal amount thereof or (B) the price at which such
Holder or Beneficial Owner acquired the Notes, and (C) the fair market value of
the Notes,
A2-6
together with, in either case, accrued and unpaid interest and Liquidated
Damages, if any, thereon to the earlier of the date of redemption or the date
of the finding of unsuitability by such Gaming Authority, which may be less
than 30 days following the notice of redemption if so ordered by such Gaming
Authority.
(b) Immediately upon a determination that a Holder or
Beneficial Owner shall not be licensed, qualified or found suitable, the Holder
or Beneficial Owner shall have no further right (1) to exercise any right
conferred by the Notes, directly or indirectly, through any trustee, nominee or
any other Person or entity, or (2) to receive any interest or other distribution
or payment with respect to the Notes or any remuneration in any form from the
Enterprise for services rendered or otherwise, except the redemption price of
the Notes.
(c) The Holder or Beneficial Owner of Notes applying for
a license, qualification or a finding of suitability must pay all costs of the
licenses or investigation for this qualification or finding of suitability. The
Enterprise are not required to pay or reimburse any Holder or Beneficial Owner
of Notes who is required to apply for any license, qualification or finding of
suitability. The Enterprise is not required to pay or reimburse any Holder of
the Notes 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.
7. MANDATORY REDEMPTION. (a) Except as set forth in
Paragraph 8 below and clause (b) of this paragraph 7, the Enterprise shall not
be required to make mandatory redemption payments or sinking fund payments with
respect to the Notes.
(b) In the event that the Tribe and Enterprise are not
able to provide those certificates and opinions of counsel required pursuant to
the terms of the Pledge Agreement for the release of the Funds, the Enterprise
shall cause a notice of special mandatory redemption to be mailed no later than
the second Business Day, and shall redeem the Notes, in whole, on the Fifth
Business Day, after the earlier of (1) certification by the Tribe and the
Enterprise that a tribal referendum has been certified for election, which, if
approved, could affect the ability of the Tribe to perform its obligations
relating to the Notes, or (2) 83 days after the Closing Date. The special
mandatory redemption price will be 101% of the aggregate principal amount of the
Notes outstanding on the date of redemption plus accrued and unpaid interest to
such date.
8. REPURCHASE AT OPTION OF HOLDER. (a) If there is a
Change of Control, the Enterprise shall be required to make an offer (a "CHANGE
OF CONTROL OFFER") to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes at a purchase price equal to 101% of
the aggregate principal amount of Notes repurchased plus accrued and unpaid
interest and Liquidated Damages, if any, to the date of purchase (the "CHANGE OF
CONTROL PAYMENT"). Within 20 days following any Change of Control, the
Enterprise shall mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Notes 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, pursuant
to the procedures required by the Indenture and described in such notice.
A2-7
(b) When the aggregate amount of Excess Proceeds from one
or more Asset Sales exceeds $10.0 million, the Enterprise shall commence an
offer ("ASSET SALE OFFER") pursuant to Section 4.10 of the Indenture to all
Holders of Notes to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer
shall be equal to 100% of principal amount plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase, and shall be payable in
cash, in accordance with the procedures set forth in the Indenture. If any
Excess Proceeds remain after consummation of an Asset Sale Offer, the Enterprise
or the Restricted Subsidiary may use such Excess Proceeds for any purpose not
otherwise prohibited by the Indenture. Upon completion of each Asset Sale Offer,
the amount of Excess Proceeds will be reset at zero.
9. SELECTION AND NOTICE OF REDEMPTION. If less than all
of the Notes are to be redeemed at any time, the Trustee will select Notes for
redemption as follows: (i) if the Notes are listed, in compliance with the
requirements of the principal national securities exchange on which the Notes
are listed, or (ii) if the Notes are not so listed, on a pro rata basis, by lot
or by any method as the Trustee deems fair and appropriate. No Notes of $1,000
or less may be redeemed in part. Except as otherwise provided in the Indenture,
notices of redemption will be mailed by first class mail at least 30 but not
more than 60 days before the redemption date to each Holder to be redeemed at
its registered address. Notices of redemption may not be conditional. If any
Note is to be redeemed in part only, the notice of redemption that relates to
that Note will state the portion of the principal amount thereof to be redeemed.
A new Note in principal amount equal to the unredeemed portion of the original
Note will be issued in the name of the Holder thereof upon cancellation of the
original Note. Notes called for redemption become due on the date fixed for
redemption. On and after the redemption date, interest and Liquidated Damages,
if any, cease to accrue on Notes or portions of them called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Enterprise may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Enterprise is not
required to transfer or exchange any Note selected for redemption. Also, the
Enterprise is not required to transfer or exchange any Note for a period of 15
days before a selection of Notes to be redeemed.
11. PERSONS DEEMED OWNERS. The registered Holder of a
Note will be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes and Additional Notes, if any, voting as a single class
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes), and any existing default
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal of the then
outstanding Notes and Additional Notes, if any, voting as a single class
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes). Without the consent of
any Holder
A2-8
of a Note, the Indenture or the Notes may be amended or supplemented to cure
any ambiguity, defect or inconsistency, to provide for uncertificated Notes
in addition to or in place of Definitive Notes, to provide for the assumption
of the Enterprise's obligations to Holders of the Notes in case of a merger
or consolidation or sale of all or substantially all of the assets of the
Enterprise, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights under the Indenture of any such Holder, or to comply with the
requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the Trust Indenture Act, or to provide for the issuance
of Additional Notes in accordance with the limitations set forth in the
Indenture.
13. DEFAULTS AND REMEDIES. In the case of an Event of
Default, as defined in the Indenture arising from certain events of bankruptcy
or insolvency with respect to the Enterprise or any of its Restricted
Subsidiaries, all outstanding Notes will become due and payable immediately and
automatically without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately. Holders of the Notes may not enforce the Indenture
or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest or Liquidated Damages, if any) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may, on
behalf of the Holders of all of the Notes, waive any existing Default or Event
of Default and its consequences under the Indenture except a continuing Default
or Event of Default in the payment of interest or Liquidated Damages, if any,
on, or the principal of, the Notes.
In the case of any Event of Default occurring by reason of any
willful action or inaction taken or not taken by the Enterprise or on their
behalf with the intention of avoiding payment of the premium that the Enterprise
would have had to pay if it then had elected to redeem the Notes pursuant to the
optional redemption provisions of the Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes. If an Event of Default occurs prior to April
1, 2005, by reason of any willful action (or inaction) taken (or not taken) by
the Enterprise or on its behalf with the intention of avoiding the prohibition
on redemption of the Notes prior to April 1, 2005, then the premium specified in
the Indenture shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
14. TRUSTEE DEALINGS WITH ENTERPRISE. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Enterprise or its Affiliates, and may otherwise deal
with the Enterprise or its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. Neither the Tribe nor any
tribal member, council member, official, agent, director, officer, employee,
incorporator or stockholder of the Enterprise or the Tribe or holder of an
Ownership Interest of the Enterprise or any of its Subsidiaries will have any
liability for any of the Enterprise's or any Subsidiary Xxxxxxxxxx'
X0-0
obligations under the Notes, the Indenture, any Subsidiary Guarantees, or for
any claim based on, in respect of, or by reason of, these obligations or
their creation. Each Holder by accepting a Note waives and releases these
individuals from this liability. The waiver and release are part of the
consideration for issuance of the Notes.
16. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of March 30, 2001, between the Enterprise and the parties
named on the signature pages thereof or, in the case of Additional Notes,
Holders of Restricted Global Notes and Restricted Definitive Notes shall have
the rights set forth in one or more registration rights agreements, if any,
between the Enterprise and the other parties thereto, relating to rights given
by the Enterprise to the purchasers of Additional Notes (the "REGISTRATION
RIGHTS AGREEMENT").
18. CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Enterprise has caused CUSIP numbers to be printed on the Notes and the Trustee
may 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 Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Enterprise shall furnish to any Holder upon written
request and without charge a copy of the Indenture and/or the Registration
Rights Agreement. Requests may be made to:
The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise
X.X. Xxx 0000, Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.(000) 000-0000
Attention: Xxxxx Xxxxxx, Attorney General, and Xxxx Xxxxxxxx,
Comptroller
and
Attorney General of The Mississippi Band of Choctaw Indians
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
A2-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
---------------------------------
(Insert assignee's legal name)
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Enterprise. The agent may substitute
another to act for him.
Date:
---------------------
Your Signature:
----------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*:
-----------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Enterprise pursuant to Section 4.10 or 4.15 of the Indenture, check the
appropriate box below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Note purchased
by the Enterprise pursuant to Section 4.10 or Section 4.15 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 Note)
Tax Identification No.:
--------------------------
Signature Guarantee*:
-----------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-12
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S
Temporary Global Note for an interest in another Global Note or of other
Restricted Global Notes for an interest in this Regulation S Temporary Global
Note, have been made:
Principal Amount at
Amount of Decrease in Amount of Increase in Maturity Signature of
Principal Amount at Principal Amount at of this Global Note Authorized Officer
Maturity Maturity Following such of Trustee or
Date of Exchange of this Global Note of this Global Note decrease (or increase) Note Custodian
---------------- ------------------- ------------------- ---------------------- --------------
A2-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise
X.X. Xxx 0000, Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Xxxxx Xxxxxx, Attorney General, and Xxxx Xxxxxxxx, Comptroller
Firstar Bank, N.A.
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Telecopier No.: 000-000-0000
Re: 9 1/4% Senior Notes due 2009
Reference is hereby made to the Indenture, dated as of March
30, 2001 (the "INDENTURE"), among The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise (the "ENTERPRISE"), an unincorporated
business enterprise of the Mississippi Band of Choctaw Indians, a federally
recognized Indian Tribe and sovereign nation (the "TRIBE"), and Firstar Bank,
N.A., as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
___________________ (the "TRANSFEROR") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount at maturity of $___________ in such Note[s] or interests
(the "TRANSFER"), to ___________________________ (the "TRANSFEREE"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
RULE 144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), and, accordingly, the Transferor hereby further certifies
that the beneficial interest or Definitive Note is being transferred to a Person
that the Transferor reasonably believed and believes is purchasing the
beneficial interest or Definitive Note for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions
B-1
on transfer enumerated in the Private Placement Legend printed on the 144A
Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE REGULATION S TEMPORARY GLOBAL NOTE, THE REGULATION S
PERMANENT GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(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 an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Permanent Global Note, the Regulation S Temporary Global Note
and/or the Definitive Note and in the Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE
DELIVERY OF A BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) / / such Transfer is being effected pursuant to and
in accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Enterprise
or a subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
B-2
(d) / / such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A,
Rule 144 or Rule 904, and the Transferor hereby further certifies that
it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit
D to the Indenture and (2) an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED
DEFINITIVE NOTE.
(a) / / Check if Transfer is Pursuant to Rule 144. (i)
The Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) / / Check if Transfer is Pursuant to Regulation S.
(i) The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) / / Check if Transfer is Pursuant to Other Exemption.
(i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than
Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the
B-3
terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
-----------------------------------------
[Insert Name of Transferor]
By:
---------------------------------------
Name:
Title:
Dated:
-----------------------------
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(A) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP __________); or
(ii) / / Regulation S Global Note (CUSIP __________); or
(iii) / / IAI Global Note (CUSIP __________); or
(B) / / a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(A) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP __________); or
(ii) / / Regulation S Global Note (CUSIP __________); or
(iii) / / IAI Global Note (CUSIP ); or
(iv) / / Unrestricted Global Note (CUSIP _________); or
(B) / / a Restricted Definitive Note; or
(C) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise
X.X. Xxx 0000, Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Xxxxx Xxxxxx, Attorney General, and Xxxx Xxxxxxxx, Comptroller
Firstar Bank, N.A.
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Telecopier No.: 000-000-0000
Re: 9 1/4% Senior Notes due 2009
Reference is hereby made to the Indenture, dated as of March
31, 2001 (the "INDENTURE"), among The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise (the "ENTERPRISE"), an unincorporated
business enterprise of the Mississippi Band of Choctaw Indians, a federally
recognized Indian Tribe and sovereign nation (the "TRIBE"), and Firstar Bank,
N.A., as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
__________________________ (the "OWNER") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount at maturity of $____________ in such Note[s] or interests (the
"EXCHANGE"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) / / Check if Exchange is from beneficial interest in
a Restricted Global Note to beneficial interest in an Unrestricted Global Note.
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount at maturity, 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 Notes and pursuant to and in accordance
with the United States Securities Act of 1933, as amended (the "SECURITIES
ACT"), (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest in an Unrestricted Global
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
C-1
(b) / / Check if Exchange is from beneficial interest in
a Restricted Global Note to Unrestricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) / / Check if Exchange is from Restricted
Definitive Note to beneficial interest in an Unrestricted Global Note. In
connection with the Owner's Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
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) / / Check if Exchange is from Restricted
Definitive Note to Unrestricted Definitive Note. In connection with the Owner's
Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note,
the Owner hereby certifies (i) the Unrestricted Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES
OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) / / Check if Exchange is from beneficial interest
in a Restricted Global Note to Restricted Definitive Note. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
a Restricted Definitive Note with an equal principal amount at maturity, the
Owner hereby certifies that the Restricted Definitive Note is being acquired for
the Owner's own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.
C-2
(b) / / Check if Exchange is from Restricted
Definitive Note to beneficial interest in a Restricted Global Note. In
connection with the Exchange of the Owner's Restricted Definitive Note for a
beneficial interest in the [CHECK ONE] / / 144A Global Note, / / Regulation S
Global Note, / / IAI Global Note with an equal principal amount at maturity, 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
Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
--------------------------------
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated:
-----------------------------
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise
X.X. Xxx 0000, Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Xxxxx Xxxxxx, Attorney General, and Xxxx Xxxxxxxx, Comptroller
Firstar Bank, N.A.
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Telecopier No.: 000-000-0000
Re: 9 1/4% Senior Notes due 2009
Reference is hereby made to the Indenture, dated as of March
30, 2001 (the "INDENTURE"), among The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise (the "ENTERPRISE" which term includes any
successor under the Indenture hereinafter referred to), an unincorporated
business enterprise of the Mississippi Band of Choctaw Indians, a federally
recognized Indian Tribe and Native American sovereign nation (the "TRIBE"), and
Firstar Bank, N.A., as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount at maturity of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the
Notes or any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Notes
have not been registered under the Securities Act, and that the Notes and any
interest therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Enterprise or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as
D-1
defined therein), (C) to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Enterprise a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Enterprise to the effect that such transfer is
in compliance with the Securities Act, (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and
we further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the
Notes or beneficial interest therein, we will be required to furnish to you and
the Enterprise such certifications, legal opinions and other information as you
and the Enterprise may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the Notes,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Notes or beneficial interest
therein purchased by us for our own account or for one or more accounts (each of
which is an institutional "accredited investor") as to each of which we exercise
sole investment discretion.
You and the Enterprise are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
-------------------------------------
[Insert Name of Accredited Investor]
By:
-------------------------------------
Name:
Title:
Dated:
-----------------------------
D-2
