EXHIBIT 4.1
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CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY
SERIES A AND SERIES B
14 1/2% SENIOR NOTES DUE 2009
________________________
INDENTURE
Dated as of October 8, 2002
________________________
U.S. BANK, N.A.
Trustee
________________________
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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)................................................... 2.05
(b)................................................. 12.03
(c)................................................. 12.03
313(a)................................................... 7.06
(b)(1).............................................. 10.04
(b)(2).............................................. 7.06; 7.07
(c)................................................. 7.06; 12.02
(d)................................................. 7.06
314(a)................................................... 4.03;12.02; 12.05
(b)................................................. 10.03
(c)(1).............................................. 12.04
(c)(2).............................................. 12.04
(c)(3).............................................. N.A.
(d)................................................. 10.04, 10.05
(e)................................................. 12.05
(f)................................................. N.A.
315(a)................................................... 7.01
(b)................................................. 7.05,12.02
(c)................................................. 7.01
(d)................................................. 7.01
(e)................................................. 6.11
316(a) (last sentence)................................... 2.09
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
(a)(2).............................................. N.A.
(b)................................................. 6.07
(c)................................................. 2.12
317(a)(1)................................................ 6.08
(a)(2).............................................. 6.09
(b)................................................. 2.04
318(a)................................................... 12.01
(b)................................................. N.A.
(c)................................................. 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.................................................................................1
Section 1.02 Other Definitions..........................................................................27
Section 1.03 Incorporation by Reference of Trust Indenture Act..........................................28
Section 1.04 Rules of Construction......................................................................28
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating............................................................................29
Section 2.02 Execution and Authentication...............................................................30
Section 2.03 Registrar and Paying Agent.................................................................30
Section 2.04 Paying Agent to Hold Money in Trust........................................................31
Section 2.05 Holder Lists...............................................................................31
Section 2.06 Transfer and Exchange......................................................................31
Section 2.07 Replacement Notes..........................................................................44
Section 2.08 Outstanding Notes..........................................................................44
Section 2.09 Treasury Notes.............................................................................44
Section 2.10 Temporary Notes............................................................................44
Section 2.11 Cancellation...............................................................................45
Section 2.12 Defaulted Interest.........................................................................45
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.........................................................................45
Section 3.02 Selection of Notes to Be Redeemed or Purchased.............................................46
Section 3.03 Notice of Redemption.......................................................................46
Section 3.04 Effect of Notice of Redemption.............................................................47
Section 3.05 Deposit of Redemption or Purchase Price....................................................47
Section 3.06 Notes Redeemed or Purchased in Part........................................................47
Section 3.07 Optional Redemption........................................................................47
Section 3.08 Mandatory Redemption.......................................................................48
Section 3.09 Mandatory Disposition Pursuant to Gaming Laws..............................................48
Section 3.10 [INTENTIONALLY OMITTED.]...................................................................49
Section 3.11 Repurchase Offers..........................................................................49
ARTICLE 4.
COVENANTS OF THE AUTHORITY
Section 4.01 Payment of Notes...........................................................................51
Section 4.02 Maintenance of Office or Agency............................................................51
Section 4.03 Reports....................................................................................51
Section 4.04 Compliance Certificate.....................................................................52
Section 4.05 Taxes......................................................................................53
Section 4.06 Stay, Extension and Usury Laws.............................................................53
Section 4.07 Restricted Payments........................................................................53
Section 4.08 Incurrence of Indebtedness.................................................................56
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Section 4.09 Asset Sales................................................................................57
Section 4.10 Events of Loss.............................................................................59
Section 4.11 Merger, Consolidation, or Sale of Assets...................................................60
Section 4.12 Transactions with Affiliates...............................................................60
Section 4.13 Liens......................................................................................61
Section 4.14 Line of Business...........................................................................61
Section 4.15 Governmental Existence.....................................................................61
Section 4.16 Excess Cash Offers.........................................................................62
Section 4.17 Offer to Repurchase Upon Change of Control.................................................62
Section 4.18 Limitation on Sale and Leaseback Transactions..............................................64
Section 4.19 Limitation on Subsidiaries.................................................................64
Section 4.20 Limitation on Status as Investment Company.................................................64
Section 4.21 Insurance..................................................................................64
Section 4.22 Construction...............................................................................65
Section 4.23 Use of Proceeds............................................................................65
Section 4.24 Gaming Licenses and Other Permits..........................................................66
Section 4.25 Modification or Transfer of Certain Agreements.............................................66
Section 4.26 Ownership Interests in the Authority.......................................................66
Section 4.27 Further Assurances.........................................................................66
Section 4.28 Payments for Consent.......................................................................67
ARTICLE 5.
COVENANTS OF THE TRIBE
Section 5.01 Prohibited Activities......................................................................67
Section 5.02 Permitted Amendments to Tribal Gaming Ordinance............................................68
Section 5.03 Further Assurances Regarding Authority; No Conveyance or Encumbrance of Land.............. 68
Section 5.04 Incurrence of Obligations Affecting Authority..............................................69
Section 5.05 Receipt of Prohibited Payments from the Authority..........................................69
Section 5.06 Payment In Full of Obligations to Holders of Notes Before Certain Payments to the Tribe....69
Section 5.07 Consent to Liens Securing Obligations......................................................69
Section 5.08 Limitation on Actions of Tribe.............................................................69
Section 5.09 Bankruptcy Restrictions....................................................................69
Section 5.10 Exclusive Operation of Gaming Enterprise...................................................70
Section 5.11 Exclusion From Licensing Requirements of Compact...........................................70
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default..........................................................................70
Section 6.02 Acceleration...............................................................................72
Section 6.03 Payment of Operating Expenses..............................................................73
Section 6.04 Other Remedies.............................................................................74
Section 6.05 Waiver of Past Defaults....................................................................74
Section 6.06 Control by Majority........................................................................74
Section 6.07 Limitation on Suits........................................................................74
Section 6.08 Rights of Holders of Notes to Receive Payment..............................................75
Section 6.09 Collection Suit by Trustee.................................................................75
Section 6.10 Trustee May File Proofs of Claim...........................................................75
Section 6.11 Priorities.................................................................................76
Section 6.12 Undertaking for Costs......................................................................76
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ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee..........................................................................76
Section 7.02 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.........................................................................78
Section 7.06 Reports by Trustee to Holders of the Notes.................................................78
Section 7.07 Compensation and Indemnity.................................................................78
Section 7.08 Replacement of Trustee.....................................................................79
Section 7.09 Successor Trustee by Merger, etc...........................................................80
Section 7.10 Eligibility; Disqualification..............................................................80
Section 7.11 Preferential Collection of Claims Against Authority........................................80
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance...................................81
Section 8.02 Legal Defeasance and Discharge.............................................................81
Section 8.03 Covenant Defeasance........................................................................81
Section 8.04 Conditions to Legal or Covenant Defeasance.................................................82
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions...................................................................83
Section 8.06 Repayment to Authority.....................................................................83
Section 8.07 Reinstatement..............................................................................84
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes........................................................84
Section 9.02 With Consent of Holders of Notes...........................................................85
Section 9.03 Compliance with Trust Indenture Act........................................................86
Section 9.04 Revocation and Effect of Consents..........................................................86
Section 9.05 Notation on or Exchange of Notes...........................................................87
Section 9.06 Trustee to Sign Amendments, etc............................................................87
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01 Collateral Documents.......................................................................87
Section 10.02 Security Interest During an Event of Default...............................................88
Section 10.03 Recording and Opinions.....................................................................88
Section 10.04 Release of Collateral......................................................................89
Section 10.05 Certificates of the Authority..............................................................90
Section 10.06 Certificates of the Trustee................................................................90
Section 10.07 Authorization of Actions to Be Taken by the Trustee Under the Collateral Documents.........90
Section 10.08 Authorization of Receipt of Funds by the Trustee Under the Collateral Documents............90
Section 10.09 Termination of Security Interest...........................................................91
ARTICLE 11.
WAIVER OF SOVEREIGN IMMUNITY; WAIVER OF TRIBAL COURTS AND FORUMS
Section 11.01 Irrevocable Waiver of Sovereign Immunity...................................................91
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Section 11.02 Designation of Applicable Courts and Jurisdiction..........................................92
Section 11.03 Additional Waivers as to Tribal Courts.....................................................92
Section 11.04 Agreement not to Contest...................................................................92
Section 11.05 Arbitration................................................................................92
Section 11.06 Non-Impairment.............................................................................94
ARTICLE 12.
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.................................................................94
Section 12.02 Application of Trust Money.................................................................95
ARTICLE 13.
SPECIAL PROVISIONS REGARDING UNLICENSED AND NON-EXEMPT HOLDERS
Section 13.01 Special Provisions Regarding Unlicensed and Non-Exempt Holders.............................95
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls...............................................................96
Section 14.02 Notices....................................................................................96
Section 14.03 Communication by Holders of Notes with Other Holders of Notes..............................97
Section 14.04 Certificate and Opinion as to Conditions Precedent.........................................97
Section 14.05 Statements Required in Certificate or Opinion..............................................97
Section 14.06 Rules by Trustee and Agents................................................................98
Section 14.07 No Personal Liability of the Tribe, Directors, Officers, Employees and Members.............98
Section 14.08 Governing Law..............................................................................98
Section 14.09 No Adverse Interpretation of Other Agreements..............................................98
Section 14.10 Successors.................................................................................98
Section 14.11 Severability...............................................................................99
Section 14.12 Counterpart Originals......................................................................99
Section 14.13 Table of Contents, Headings, etc...........................................................99
EXHIBITS
Exhibit A-1 FORM OF NOTE
Exhibit A-2 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
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INDENTURE dated as of October 8, 2002, among the Chukchansi Economic
Development Authority (the "Authority"), a wholly-owned unincorporated
enterprise of the Picayune Rancheria of Chukchansi Indians, a sovereign tribe
recognized by the United States pursuant to 25 C.F.R. Part 83 (the "Tribe"),
the Tribe and U.S. Bank, N.A., a national banking association, as trustee (the
"Trustee").
The Authority, the Tribe and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as
defined) of the 14 1/2% Series A Senior Notes due 2009 (the "Series A Notes")
and the 14 1/2% Series B Senior Notes due 2009 (the "Series B Notes" and,
together with the Series A Notes, the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A-1 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 in reliance on Rule 144A.
"Additional Notes" means up to $25.0 million aggregate principal
amount of Notes (other than the Initial Notes) issued under this Indenture in
accordance with Sections 2.02 and 4.08 hereof, as part of the same series as
the Initial Notes.
"Adjustment Event" means any adjustment by the Internal Revenue
Service (or state or local tax authority) in respect of any income inclusion
arising from or attributable to the Senior Subordinated PIK Notes, the
Subordinated PIK Notes, the Manager Repayment Note or the Letter of Credit
Note held by a Tax Amounts Recipient which adjustment becomes a final
"determination" under section 1313 of the Code (or similar state or local tax
law).
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition,
"control," as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided, however, 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" shall have correlative
meanings; provided, further, that the Manager, on the one hand, and the
Authority and the Tribe, on the other hand, shall not be deemed to be
Affiliates of each other.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Applicable Income Tax Rate" means an amount equal to the sum of (a)
the highest marginal Federal income tax rate applicable to an individual, plus
(b) an amount equal to the sum of the highest marginal state and local income
tax rates applicable to any individual resident in New York, New York
multiplied by a factor equal to 1 minus such highest marginal Federal income
tax rate.
"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.
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"Asset Sale" means the sale, lease, conveyance or other disposition
of any assets or rights of the Authority; provided, that the sale, conveyance
or other disposition of all or substantially all of the assets of the
Authority will be governed by Section 4.11 hereof and not by Section 4.09
hereof.
Notwithstanding the preceding, the following items shall not be
deemed to be Asset Sales:
(1) any single transaction or series of related transactions
that involves assets having a fair market value of less than $1.0
million;
(2) the sale or other disposition of cash or Cash
Equivalents;
(3) the sale, conveyance, exchange or other disposition of
equipment, inventory, accounts receivable or other assets or rights
in the ordinary course of business, including, without limitation,
sales and exchanges of gaming equipment;
(4) sales, conveyances or other dispositions of property in
the ordinary course of business pursuant to an established program
for the maintenance and upgrading of such property;
(5) a Restricted Payment or Permitted Investment that is
permitted by Section 4.07 hereof;
(6) a surrender or waiver of contract rights or settlement,
release or surrender of contract, tort or other litigation claims in
the ordinary course of business;
(7) any sale or transfer of land to the U.S. federal
government to hold in trust for the Tribe; and
(8) the grant of Permitted Liens.
"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.
"Authority" has the meaning assigned to in the preamble to this
Indenture.
"Authority Assets" means all right, title and interest of the
Authority or the Tribe in and to the Chukchansi Gold Resort & Casino and all
assets, rights and revenues related to or arising therefrom, other than
Authority Assets permitted to be distributed to the Tribe under this Indenture
and the Collateral Documents.
"Authority Budget" has the meaning set forth in the Cash Collateral
and Disbursement Agreement.
"Authority Ordinance" means the ordinance adopted by the Tribal
Council creating the Authority, as amended through the date of this Indenture.
"Available Funds" means, with respect to any full fiscal quarter of
the Authority, the sum of:
(1) the Authority's Net Revenues for such period; plus
2
(2) depreciation, amortization (including amortization of
goodwill and other intangibles, but excluding amortization of prepaid
cash expenses that were paid in a prior period), accrued and unpaid
interest (other than contingent interest) and other non-cash expenses
(excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior
period) of the Authority for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted
in computing such Net Revenues; plus
(3) interest income on cash and Cash Equivalents received
during such period (other than cash or Cash Equivalents contained in
the Cash Accumulation Account, the Interest Reserve Account and the
Contingent Interest Account); plus
(4) decreases in Working Capital during such period; less
(5) all amounts payable pursuant to the Management Agreement
with respect to such period; less
(6) capital expenditures made by the Authority during such
period (only to the extent such amount is not paid from the Capital
Replacement Reserve Account) to maintain the condition of the
Chukchansi Gold Resort & Casino; less
(7) contingent interest paid in cash during such period on
the Senior Subordinated PIK Notes (as defined therein), contingent
interest paid in cash during such period on the Subordinated PIK
Notes (as defined therein) and contingent interest paid in cash
during such period on the Letter of Credit Note (as defined therein),
in each case, for such period to the extent that such contingent
interest was not deducted in computing Net Revenues; less
(8) increases in Working Capital during such period; less
(9) any prepayment of principal made during such period on
Indebtedness that was permitted to be incurred pursuant to Section
4.08 hereof other than any prepayment made with the proceeds from
Permitted Refinancing Indebtedness.
"Bankruptcy Law" means Title 11 of the United Sates Code or any
similar federal, state or tribal 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"
have a corresponding meaning.
"BIA" means the Bureau of Indian Affairs of the Department of the
Interior.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the corporation;
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(2) with respect to a partnership, the board of directors of
the general partner of the partnership;
(3) with respect to the Authority, the Management Board; and
(4) 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.
"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
prepared in accordance with GAAP.
"Capital Replacement Reserve Account" has the meaning ascribed
thereto in the Cash Collateral and Disbursement Agreement.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability
company, partnership (whether general or limited) or membership
interests; 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 Accumulation Account" means a cash accumulation account
maintained and held by an Eligible Institution into which Available Funds
shall be deposited by the Authority pursuant to Section 4.07 hereof.
"Cash Accumulation Account Contribution Agreement" means the Cash
Accumulation Account Contribution Agreement dated as of the date of this
Indenture, among the Authority, the Trustee, the Manager, the Tribe and the
Disbursement Agent, as in effect on the date of this Indenture or as amended
in accordance with Article 9 hereof.
"Cash Collateral and Disbursement Agreement" means the Cash
Collateral and Disbursement Agreement dated as of the date of this Indenture,
among the Authority, the Trustee, the Tribe and the Disbursement Agent, as in
effect on the date of this Indenture or as amended in accordance with Article 9
hereof.
"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
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United States is pledged in support thereof) having maturities of
not more than one year from the date of acquisition;
(3) securities issued by any state of the United States of
America or any political subdivision thereof having the highest
rating obtainable from either Moody's Investors Service, Inc. or
Standard & Poor's Rating Services and having maturities of not more
than one year from the date of acquisition;
(4) 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 domestic commercial
bank having capital and surplus in excess of $500.0 million and a
Thomson Bank Watch Rating of "B" or better;
(5) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in
clauses (2) and (4) above entered into with any financial institution
meeting the qualifications specified in clause (4) above;
(6) commercial paper having the highest rating obtainable
from Moody's Investors Service, Inc. or Standard & Poor's Rating
Services and in each case maturing not more than one year after the
date of acquisition; and
(7) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (6) of this definition.
"Cash Flow" means, with respect to any specified Person for any
period, the Net Income of such Person for such period plus:
(1) an amount equal to any extraordinary loss plus any net
loss realized by such Person in connection with an Asset Sale, to the
extent such losses were deducted in computing such Net Income; plus
(2) the interest expense of such Person for such period,
whether paid or accrued and whether or not capitalized (excluding the
Commitment Fee, but including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect
of letter of credit or bankers' acceptance financings other than the
Commitment Fee, and net of the effect of all payments made or
received pursuant to Hedging Obligations), to the extent that any
such expense was deducted in computing such Net Income; plus
(3) any preopening expenses to the extent that such
preopening expenses were deducted in computing Net Income and
determined in accordance with GAAP; plus
(4) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense, other than
pre-opening expenses, that was paid in a prior period) of such Person
for such period, to the extent that such depreciation, amortization
and other non-cash expenses were deducted in computing such Net
Income; plus
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(5) Management Fees to the extent that such Management Fees
were deducted in computing Net Income; minus
(6) non-cash items increasing such Net Income for such
period other than the accrual of revenue in the ordinary course of
business, in each case as determined in accordance with GAAP; plus
(7) taxes deducted for the purposes of determining Net Income.
"Clearstream" means Clearstream Banking, S.A.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all
of the assets of the Manager relating to the Chukchansi Gold Resort &
Casino, other than pursuant to a Permitted Change of Control
Transaction;
(2) the Authority ceases to be a wholly-owned unit,
instrumentality, enterprise or subdivision of the government of the
Tribe;
(3) the Authority ceases to have the exclusive legal right
to operate the Chukchansi Gold Resort & Casino;
(4) the Principals and their Related Parties cease to
collectively Beneficially Own more than 50% of the Voting Stock of
Cascade Entertainment Group, LLC, measured by voting power rather
than number of shares, or more than 50% of the outstanding Equity
Interests of Cascade Entertainment Group, LLC, in either case, other
than as a result of a Permitted Change of Control Transaction;
(5) the adoption of a plan relating to the liquidation or
dissolution of the Authority or the Manager, other than pursuant to a
Permitted Change of Control Transaction; or
(6) the first day on which a majority of the members of the
Management Committee of Cascade Entertainment Group, LLC are not
Continuing Members.
"Chukchansi Gold Resort & Casino" means the project to design,
develop, construct, equip and operate a casino, hotel and related amenities on
the Tribe's Rancheria near Coarsehold, California, as generally described in
the Offering Memorandum.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all "collateral" referred to in the Collateral
Documents.
"Collateral Accounts" means the Construction Period Accounts, the
Operating Period Accounts, the Deposit Account, the Collateral Reserve
Account, the Interest Payment Account, the Principal Payment Account and the
Manager Security Account.
"Collateral Documents" means, collectively, the Pledge and Security
Agreement, the Pledge and Security Agreement (Tribal UCC), the Intercreditor
Agreement, the Letter of Credit Drawdown Agreement, the Letter of Credit, the
Letter of Credit Note, the Cash Accumulation Account Contribution
6
Agreement, the Manager Repayment Note, the Cash Collateral and Disbursement
Agreement, each Deposit Account Control Agreement executed pursuant to the
Cash Collateral and Disbursement Agreement, all UCC filings related to the
security interests granted by any of the foregoing documents and any other
document or instrument providing for a Lien on or security interest in any
real or personal tangible or intangible property as security for any or all of
the Obligations of the Authority and the Tribe under this Indenture and the
Notes or any of the foregoing documents.
"Collateral Reserve Account" has the meaning set forth in the Cash
Collateral and Disbursement Agreement.
"Commitment Fee" has the meaning set forth in the Letter of Credit
Drawdown Agreement.
"Compact" means, the Tribal State Gaming Compact dated as of
September 10, 1999, between the Tribe and the State of California, as amended
from time to time.
"Constitution" means the Constitution of the Tribe duly and validly
adopted by the Tribe on November 7, 1988.
"Construction Disbursement Account" means the construction
disbursement account to be maintained by the Disbursement Agent and pledged to
the Trustee pursuant to the terms of the Cash Collateral and Disbursement
Agreement.
"Construction Period" has the meaning set forth in the Cash
Collateral and Disbursement Agreement.
"Construction Period Accounts" has the meaning set forth in the Cash
Collateral and Disbursement Agreement.
"Construction Schedule" has the meaning set forth in the Cash
Collateral and Disbursement Agreement.
"Contingent Interest Account" means the contingent interest account
to be maintained by the Authority pursuant to the Cash Collateral and
Disbursement Agreement containing all unpaid contingent interest on the Senior
Subordinated PIK Notes, the Subordinated PIK Notes and the Letter of Credit
Note, the payment of which is deferred until the Release Conditions are met.
"Continuing Members" means, as of any date of determination, any
member of the Management Committee of Cascade Entertainment Group, LLC, as
applicable, who (i) was a member of such Management Committee on the date of
this Indenture or (ii) was nominated for election or elected to such
Management Committee with the approval of a majority of the members of Cascade
Entertainment.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 14.02 hereof or such other address as to which
the Trustee may give notice to the Authority.
"Current Assets" means all amounts (other than cash and Cash
Equivalents) which would, in conformity with GAAP, be set forth opposite the
caption "total current assets" (or any like caption) on a consolidated balance
sheet of the Authority.
"Current Liabilities" means all amounts that would, in conformity
with GAAP, be set forth opposite the caption "total current liabilities" (or
any like caption) on a consolidated balance sheet of the Authority.
7
"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 2.06 hereof,
substantially in the form of Exhibit A-1 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.
"Deposit Account" has the meaning set forth in the Cash Collateral
and Disbursement Agreement.
"Deposit Account Control Agreement" has the meaning set forth in the
Cash Collateral and Disbursement Agreement.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 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.
"Development Agreement" means the Amended and Restated Development
Agreement, dated June 15, 2001, among the Authority, the Tribe and the
Manager, as amended from time to time in accordance with this Indenture.
"Disbursement Agent" means U.S. Bank, N.A. or the then acting
Disbursement Agent under the Cash Collateral and Disbursement Agreement.
"Eligible Institution" means a domestic commercial banking
institution that has combined capital and surplus of not less than $500
million, and whose debt is rated "A" or higher by Standard & Poor's Rating
Service or Moody's Investors Service, Inc. at the time any investment or
rollover therein is made.
"Equity Interests" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock)
issued by, or partnership, participation or membership interests in, such
Person.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear system.
"Event of Loss" means, with respect to any asset, any (1) loss,
destruction or damage of such asset, (2) condemnation, seizure or taking by
exercise of the power of eminent domain or otherwise of such property or
asset, or confiscation of such asset or the requisition of the use of such
asset or (3) settlement in lieu of clause (2) above.
"Excess Cash Flow Threshold" means $15.0 million.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
8
"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.
"Financial Source" means any Person extending financing, directly or
indirectly, to any gaming facility or gaming operation of the Tribe within the
meaning of the Compact.
"Fixed Charge Coverage Ratio" means with respect to any Person for
any period, the ratio of the Cash Flow of such Person for such period to the
Fixed Charges of such Person for such period. In the event that the Authority
incurs, assumes, Guarantees, repays, repurchases or redeems or otherwise
retires any Indebtedness (other than ordinary working capital borrowings)
subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated and on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made
(the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, Guarantee,
repayment, repurchase, redemption or retirement of Indebtedness 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 Authority,
including through mergers or consolidations and including any related
financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the
Calculation Date shall be given pro forma effect as if they had
occurred on the first day of the four-quarter reference period and
Cash Flow for such reference period shall be calculated on a pro
forma basis in accordance with Regulation S-X under the Securities
Act;
(2) the Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses
disposed of on or 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 on or prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to
such Fixed Charges will not be obligations of the Authority following
the Calculation Date.
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense (excluding interest
and contingent interest, if any, whether paid or accrued, on the
Senior Subordinated PIK Notes, the Subordinated PIK Notes or the
Letter of Credit Note) of such Person for such period, whether paid
or accrued, including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect
of letter of credit or bankers' acceptance financings (excluding the
Commitment Fee), and net of the effect of all payments made or
received pursuant to Hedging Obligations; plus
9
(2) the consolidated interest of such Person that was
capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person
that is Guaranteed by such Person or secured by a Lien on assets of
such Person, whether or not such Guarantee or Lien is called upon.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Gaming" means any and all activities defined as class II and class
III Gaming (as defined in IGRA).
"Gaming Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States federal government, any foreign government, any applicable
tribal government, any state, province or city or other political subdivision
or otherwise, whether now or hereafter in existence, or any officer or
official thereof, including, without limitation, the NIGC and the BIA, any
division of the Tribe or any other agency, in each case, with authority to
regulate any gaming operation (or proposed gaming operation) owned, managed or
operated by the Authority or the Tribe.
"Gaming Device Operating Deadline" means June 25, 2003, or such later
date that the Authority is required to have 1,250 of its gaming devices in
commercial operation pursuant to Section 4.3.2.2 of the Compact, as set forth
in an Opinion of Counsel.
"Gaming Law" means the provisions of the Compact and gaming laws or
regulations of any jurisdiction or jurisdictions to which the Authority or the
Tribe is, or may at any time after the date of this Indenture, be subject.
"Gaming License" means any license, permit, franchise or other
authorization required to own, lease, or operate or otherwise conduct gaming
activities of the Authority or the Tribe, other than gaming device licenses.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in
the form of Exhibits A-1 and A-2 hereto issued in accordance with Section
2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(1), 2.06(d)(2), 2.06(d)(3) or 2.06(f)
hereof.
"Global Note Legend" means the legend set forth in Section
2.06(g)(2), which is required to be placed on all Global Notes issued under
this Indenture.
"Government Securities" means securities that are:
(1) direct obligations of the United States of America, the
timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America;
10
which, in either case, are not callable or redeemable at the option of the
issuer thereof, and also includes a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended), as
custodian with respect to any such Government Security or a specific payment
of principal of or interest on any such Government Security held by such
custodian for the account of the holder of such depository receipt; provided
that (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 amount received by the custodian in respect of the Government
Security or the specific payment of principal of or interest on the Government
Security evidenced by such depository receipt.
"Gross Gaming Revenue (Win)" means the net win from Gaming which is
the difference between Gaming wins and losses before deducting costs and
expenses.
"Gross Revenues" means all revenues of any nature derived directly or
indirectly from the Chukchansi Gold Resort & Casino including, without
limitation, Gross Gaming Revenue (Win), food and beverage sales, and other
rental payments or other receipts from lessees, sublessees, licensees and
concessionaires (but not the gross receipts of such lessees, sublessees,
licensees or concessionaires, provided that such lessees, sublessees,
licensees and concessionaires are not subsidiaries or Affiliates of the
Manager), and revenue recorded for Promotional Allowances, but excluding any
taxes the Tribe is allowed to assess pursuant to Section 7 of the Management
Agreement.
"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 net 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.
"Holdings" means Cascade Holdings, LLC, a Delaware limited liability
company.
"IAI Global Note" means a Global Note substantially in the form of
Exhibit A-1 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, 25
U.S.C. 2701 et seq., as amended from time to time.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(1) borrowed money;
11
(2) obligations evidenced by bonds, notes, debentures or
similar instruments or letters of credit (or reimbursement agreements
in respect thereof);
(3) banker's acceptances;
(4) Capital Lease Obligations;
(5) the balance deferred and unpaid of the purchase price of
any property, except any such balance that constitutes an accrued
expense or trade payable; or
(6) net obligations under Hedging Obligations;
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of
the specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
assets of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and
(2) 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.
"Independent Construction Consultant" means Professional Associates
Construction Services, Inc. and its successors or replacements as provided in
the Cash Collateral and Disbursement Agreement.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means the $153.0 million aggregate principal amount
of Notes issued under this Indenture on the date hereof.
"Initial Operating Date" means, with respect to the Chukchansi Gold
Resort & Casino, the first time that:
(1) all Gaming Licenses have been granted and have not been
revoked or suspended;
(2) all Liens (other than Permitted Liens), if any, related
to the development, construction and equipping of, and beginning
operations at, the Chukchansi Gold Resort & Casino have been
discharged or, if payment is not yet due or if such payment is
contested in good faith by the Authority, sufficient funds remain in
the Construction Period Account (as defined in the Cash Collateral
and Disbursement Agreement) to discharge such Liens;
(3) the Independent Construction Consultant shall have
delivered a certificate to the Trustee certifying that the Chukchansi
Gold Resort & Casino is substantially complete in all
12
material respects in accordance with the Plans and all applicable
building laws, ordinances and regulations;
(4) the Chukchansi Gold Resort & Casino is in a condition
(including the installation of furnishings, fixtures and equipment)
to receive customers in the ordinary course of business;
(5) the Chukchansi Gold Resort & Casino is open to the
general public and operating with the Minimum Facilities;
(6) the Chukchansi Gold Resort & Casino is open to the
general public and operating in accordance with applicable law in all
material respects; and
(7) a permanent or temporary certificate of occupancy has
been issued for the Chukchansi Gold Resort & Casino by the
appropriate governmental authorities.
"Initial Purchasers" means Dresdner Kleinwort Wasserstein -
Grantchester, Inc. and Banc of America Securities LLC.
"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.
"Intercreditor Agreement" means the Intercreditor Agreement dated as
of the date of this Indenture among the Trustee, Senior Subordinated PIK Notes
Trustee, Subordinated PIK Notes Trustee, the L/C Provider, the Manager, the
Authority and the Tribe, as in effect on the date of this Indenture or as
amended in accordance with Article 9 hereof.
"Interest Payment Account" means the interest reserve account to be
maintained by the Disbursement Agent and pledged to the Trustee pursuant to
the terms of the Cash Collateral and Disbursement Agreement.
"Interest Reserve Account" means the interest reserve account to be
maintained by and pledged to the Trustee pursuant to the Cash Collateral and
Disbursement Agreement into which an amount, together with interest earned on
such amount, sufficient to pay the first three interest payments on the Notes
will be deposited on the date of this Indenture.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees or other obligations), advances or
capital contributions (excluding commission, travel and advances to directors,
officers and employees and prepayments of expenses, in each case, 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. The acquisition by the Authority of a
Person that holds an Investment in a third Person shall be deemed to be an
Investment by the Authority in such third Person in an amount equal to the
fair market value of the Investment held by the acquired Person in such third
Person in an amount determined as provided in the final paragraph of Section
4.07 hereof, without duplication.
"Key Project Assets" means (1) any tribal gaming land or land
necessary for access to or the operation of the Chukchansi Gold Resort &
Casino and (2) any improvements (including buildings, but
13
excluding personal property, fixtures and improvements determined by the
Authority to no longer be useful or necessary to the operations or support of
the Chukchansi Gold Resort & Casino) on any tribal gaming land or land
necessary for the Chukchansi Gold Resort & Casino.
"L/C Provider" means Credit Provider Group, LLC, a Delaware limited
liability company.
"L/C Provider Tax Amounts" means an amount equal to the excess of (x)
the Minimum Tax Payment Amount (as defined in Exhibit B of the Letter of
Credit Drawdown Agreement) with respect to the Letter of Credit Note over (y)
the cumulative amount of interest payments previously made with respect to the
Letter of Credit Note, to be paid to the holder of the Letter of Credit Note.
"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 Credit" means the irrevocable $15.0 million letter of
credit provided by the L/C Provider to the Authority in accordance with the
Letter of Credit Drawdown Agreement and any replacement thereof pursuant to
the provisions of the Letter of Credit Drawdown Agreement; provided, that any
such replacement does not have a drawdown limit in excess of $15.0 million.
"Letter of Credit Drawdown Agreement" means the Letter of Credit
Drawdown Agreement dated as of the date of this Indenture, among the L/C
Provider, the Authority, the Manager, the Tribe and the Trustee, as in effect
on the date of this Indenture or as amended in accordance with Article 9
hereof.
"Letter of Credit Note" means the Promissory Note executed by the
Authority in favor of the L/C Provider pursuant to the terms of the Letter of
Credit Drawdown Agreement.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Authority 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" has the meaning ascribed thereto in the
Registration Rights Agreement.
"Make-Whole Price" means, with respect to any Note at any purchase
date or redemption date, the sum of the present values of (1) the principal
and premium, if any, that would be payable on such Note on October 1, 2006, if
such Note were purchased or redeemed on such date, and (2) all remaining
interest payments (not including any portion of such interest payments accrued
as of the purchase date or redemption date, as applicable) to and including
October 1, 2006, in each case discounted on a semiannual bond equivalent basis
from October 1, 2006 to the purchase date or redemption date, as applicable,
at a per annum interest rate equal to the sum of the Treasury Yield
(determined on the Business Day immediately preceding the purchase date or
redemption date, as applicable), plus 50 basis points.
14
"Management Agreement" means the Second Amended and Restated
Management Agreement, dated July 16, 2002, among the Authority, the Tribe and
the Manager, as amended from time to time in accordance with this Indenture.
"Management Board" means the Board of Directors created under the
tribal ordinance establishing the Authority.
"Management Committee" means (a) for so long as Cascade Entertainment
Group, LLC is a limited liability company, the management committee or
managing member of such entity and (b) otherwise the Board of Directors of
Cascade Entertainment Group, LLC, as applicable.
"Management Fees" means any fees payable by the Authority to the
Manager pursuant to the Management Agreement.
"Manager" means Cascade Entertainment Group, LLC, a California
limited liability company in its capacity as manager of the Chukchansi Gold
Resort & Casino, or any Permitted Replacement Manager in its capacity as
manager of the Chukchansi Gold Resort & Casino.
"Manager Agreement" means the Manager Agreement as in effect on the
date of this Indenture by and between the Manager and the Trustee.
"Manager Repayment Note" means the Promissory Note executed by the
Authority in favor of the Manager pursuant to the terms of the Cash
Accumulation Account Contribution Agreement.
"Manager Repayment Note Tax Amounts" means an amount equal to the
excess of (x) the Minimum Tax Payment Amount (as defined in Exhibit E of the
Cash Accumulation Account Contribution Agreement) over (y) the cumulative
amount of interest payments previously made with respect to the Manager
Repayment Note, to be paid to the holder of the Manager Repayment Note.
"Manager Security Account" has the meaning set forth in the Cash
Accumulation Account Contribution Agreement.
"Manager Tax Amounts" means an amount equal to the excess of (x) the
Manager Minimum Tax Payment Amount (as defined in the Cash Accumulation
Account Contribution Agreement) over (y) the cumulative amount of cash
payments previously made pursuant to Section 3.1 of the Cash Accumulation
Account Contribution Agreement.
"Mandatory Operating Period" means, as of any date of determination,
the four consecutive fiscal quarters of the Authority ended immediately prior
thereto; provided, that such period shall not commence prior to the Initial
Operating Date.
"Minimum Facilities" means a casino which has in operation at least
1,500 slot machines, 25 table games, a hotel with at least 180 rooms,
restaurants with seating for at least 734 people and parking area for at least
1,700 vehicles.
"Minimum Monthly Guaranteed Payment" means a guaranteed monthly
payment to the Tribe as required by Section 2711(b)(3) of IGRA, which shall be
$100,000 per month as set forth in the Management Agreement as in effect on
the date of this Indenture.
15
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (but not loss) realized in connection with (a)
any Asset Sale; or (b) the disposition of any securities by such
Person or the extinguishment of any Indebtedness of such Person; and
(2) any extraordinary gain (but not loss).
"Net Loss Proceeds" means the aggregate cash proceeds received by the
Authority in respect of any Event of Loss, including, without limitation,
insurance proceeds from condemnation award or damages awarded by any judgment,
net of the direct costs in recovery of such proceeds (including, without
limitation, legal, accounting, appraisal and insurance adjuster fees and any
relocation expenses incurred as a result thereof), taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), Tax Amounts paid or payable as a
result thereof, and amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets that were the subject of
such Event of Loss.
"Net Proceeds" means the aggregate cash proceeds received by the
Authority in respect of any Asset Sale (including, without limitation, any
cash received upon the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of the direct costs relating to such Asset
Sale, including, without limitation, legal, accounting and investment banking
fees, sales commissions, relocation expenses incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements), Tax
Amounts paid or payable as a result thereof and amounts required to be applied
to the repayment of Indebtedness secured by a Lien on the asset or assets that
were the subject of such Asset Sale and any reserve for adjustment in respect
of the sale price of such asset or assets established in accordance with GAAP.
"Net Revenues" means the sum of Net Revenues (Gaming) and Net
Revenues (Other).
"Net Revenues (Gaming)" means Gross Gaming Revenue (Win) of the
Authority from Gaming, less all Gaming related operating expenses (including
interest expense, depreciation, amortization and the other operating expenses
set forth in the Management Agreement), excluding the Management Fee, and less
the retail value of any Promotional Allowances, and less the following
revenues actually received by the Authority and included in Gross Revenues:
(1) any gratuities or service charges added to a customer's
bill;
(2) any credits or refunds made to customers, guests or
patrons;
(3) any sums and credits received by the Authority for lost
or damaged merchandise;
(4) any sales taxes, excise taxes, gross receipt taxes,
admission taxes, entertainment taxes, tourist taxes or charges
received from patrons and passed on to a governmental or quasi
governmental entity;
(5) any proceeds from the sale or other disposition of
furnishings and equipment or other capital assets;
16
(6) any fire and extended coverage insurance proceeds other
than for business interruption;
(7) any condemnation awards other than for temporary
condemnation;
(8) any proceeds of financing or refinancing; and
(9) any interest on bank account(s).
It is intended that this definition be consistent with 25 U.S.C.
ss.2703(9).
"Net Revenues (Other)" means all Gross Revenues of the Authority from
all other sources in support of Gaming not included in Net Revenues (Gaming),
such as food and beverage, entertainment and retail, less all other non-Gaming
related operating expenses (including interest expense, depreciation,
amortization and other operating expenses set forth in the Management
Agreement), excluding the Management Fee, and less the retail value of
Promotional Allowances, if any, and less the following revenues actually
received by the Authority and included in Gross Revenues:
(1) any gratuities or service charges added to a customer's
bill;
(2) any credits or refunds made to customers, guests or
patrons;
(3) any sums and credits received by the Authority for lost
or damaged merchandise;
(4) any sales taxes, excise taxes, gross receipt taxes,
admission taxes, entertainment taxes, tourist taxes or charges
received from patrons and passed on to a governmental or quasi
governmental entity;
(5) any proceeds from the sale or other disposition of
furnishings and equipment or other capital assets;
(6) any fire and extended coverage insurance proceeds other
than for business interruption;
(7) any condemnation awards other than for temporary
condemnation;
(8) any proceeds of financing or refinancing; and
(9) any interest on bank account(s).
It is intended that this definition be consistent with 25 U.S.C.
ss.2703(9).
"NIGC" means the National Indian Gaming Commission.
"Non-Qualified Holder" means any Holder of the Notes who is not a
Qualified Holder.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial
Notes and any Additional Notes.
17
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum dated September
24, 2002, relating to the offering of the Initial Notes.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chairperson, the
Vice-Chairperson, 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
Authority by two Officers of the Authority, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Authority, that meets the requirements of
Section 14.05 hereof.
"Operating" means that:
(1) no Gaming License has been revoked or suspended;
(2) all Liens (other than Permitted Liens), if any, related to the
development, construction and equipping of, and beginning operations
at, the Chukchansi Gold Resort & Casino have been discharged or, if
payment is not yet due or if such payment is contested in good faith
by the Authority, sufficient funds remain in the Construction Period
Accounts (as defined in the Cash Collateral and Disbursement
Agreement) to discharge such Liens;
(3) the Chukchansi Gold Resort & Casino is in a condition (including the
installation of furnishings, fixtures and equipment) to receive
customers in the ordinary course of business;
(4) the Chukchansi Gold Resort & Casino is open to the general public and
operating with the Minimum Facilities in accordance with applicable
law; and
(5) the Chukchansi Gold Resort & Casino is open to the general public and
operating in accordance with applicable law in all material respects.
"Operating Deadline" means 21 months from the date of this Indenture.
"Operating Expenses" means the current expenses of operation,
maintenance and repair of the Chukchansi Gold Resort & Casino. "Operating
Expenses" shall include wages, salaries, benefits and bonuses to personnel,
the cost of materials and supplies used for current operation and maintenance,
security costs, utility expenses, trash removal, cost of goods sold and
advertising and marketing expenses and insurance premiums. "Operating
Expenses" shall not include any of the following: interest expense or any
other payment in respect of any Indebtedness, capital lease payments
(excluding capital lease payments with respect to gaming devices and other
equipment required for the regular operations of the Chukchansi Gold Resort &
Casino), any allowance for depreciation, renewals or replacement of capital
assets and any other non-cash charges.
"Operating Period Accounts" has the meaning set forth in the Cash
Collateral and Disbursement Agreement.
18
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
14.05 hereof. The counsel may be an employee of or counsel to the Authority,
the Manager or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear
and Clearstream).
"Permitted Business" means Gaming at or in connection with the
Chukchansi Gold Resort & Casino and any other businesses, necessary for,
incident to, connected with, arising out of, that is a reasonable extension of
or developed or operated to permit, facilitate or enhance the conduct or
pursuit of such activities, including, but not limited to lodging,
entertainment and related transportation; provided that the Authority shall
not conduct any gaming operations other than at the Chukchansi Gold Resort &
Casino.
"Permitted Change of Control Transaction" means, with respect to any
Person (other than Cascade Entertainment Group, LLC), (1) the sale, transfer,
conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of its assets to a Qualified Gaming Company or a
wholly-owned subsidiary of a Qualified Gaming Company or (2) any transaction
pursuant to which a Qualified Gaming Company becomes the Beneficial Owner of
50% or more of such Person's Voting Stock, measured by voting power rather
than number of shares; provided, that with respect to clause (1) above, such
Qualified Gaming Company (a) has been licensed, qualified and found suitable
by all appropriate Gaming Authorities and (b) has assumed all of such Person's
obligations under the Development Agreement, Management Agreement,
Intercreditor Agreement and Cash Accumulation Account Contribution Agreement.
"Permitted Claims" means any claim, demand, dispute, action or cause
of action or defense arising under or in any way connected with or related or
incidental to this Indenture, the Notes or the Collateral Documents, as the
same may be amended or modified from time to time, whether now existing or
hereafter arising and whether sounding in tort, contract or otherwise that is
asserted by any party to this Indenture, the Notes or the Collateral
Documents, and their successors and assigns.
"Permitted Investments" means:
(1) any Investment in Cash Equivalents, other than with
respect to funds held in the Interest Reserve Account, which shall be
invested solely in non-callable Government Securities that mature
prior to April 1, 2004;
(2) 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 4.09 hereof;
(3) any Investment made in settlement of gambling debts
incurred by patrons to the Chukchansi Gold Resort & Casino which
settlements have been entered into in the ordinary course of
business;
(4) if permitted pursuant to Gaming Laws, the extension of
credit to customers of the Chukchansi Gold Resort & Casino consistent
with industry practice in the ordinary course of business; and
(5) 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.
19
"Permitted Liens" means:
(1) Liens on the assets of the Authority created by this
Indenture and the Collateral Documents securing the Notes;
(2) Liens in favor of the Authority;
(3) Liens existing on the date of this Indenture;
(4) Liens on property existing at the time of acquisition
thereof by the Authority; provided, however, that such Liens were not
incurred in contemplation of such acquisition;
(5) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of
business;
(6) Liens to secure Indebtedness permitted by clause (3) of
Section 4.08(b) hereof covering only the assets acquired with such
Indebtedness and any refinancing thereof; provided, that any Liens
incurred to secure such refinancing debt are no broader than the
Liens incurred to secure the Indebtedness being refinanced;
(7) Liens for taxes, assessments or governmental charges,
claims or judgments 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 therefore;
(8) easements, rights of way, zoning, similar restrictions
and other similar encumbrances or title defects incurred in the
ordinary course of business, consistent with industry practices that
do not in any case materially detract from the value of the property
subject thereto (as such property is used by the Authority) or
interfere with the ordinary conduct of the business of the Authority;
(9) Liens arising by operation of law in connection with
judgments, only to the extent, for an amount and for a period not
resulting in an Event of Default with respect thereto;
(10) leases or subleases granted to other Persons in the
ordinary course of business not materially interfering with the
conduct of the business of the Authority or materially detracting
from the value of the relative assets of the Authority;
(11) Liens in favor of carriers, warehousemen, mechanics,
materialmen, repairmen, contractors or landlords or other similar
Liens arising in the ordinary course of business that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings; and
(12) title to land (or improvements or structures thereon)
held in trust in the name of the United States federal government for
the benefit of the Tribe.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Authority issued in exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease or refund other Indebtedness of the
Authority; provided, however, that:
20
(1) the principal amount (or accreted value, if applicable)
of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the
Indebtedness 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);
(2) such Permitted Refinancing Indebtedness has a final
maturity date equal to or later than the final maturity date of, and
has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and
(4) such Indebtedness is incurred by the Authority.
"Permitted Replacement Manager" means (1) a Person that (a) has
equity securities listed on the New York Stock Exchange, the American Stock
Exchange or quoted on the Nasdaq National Market, (b) has a market
capitalization of at least $250.0 million and (c) derived at least $100.0
million of operating income (as defined by GAAP but excluding depreciation and
amortization) for each of its last four fiscal quarters from activities
relating to the gaming business, other than Internet gaming, or (2) a
privately held entity that (a) derived at least $100.0 million of operating
income (as defined by GAAP but excluding depreciation and amortization) for
each of its last four fiscal quarters from activities relating to the gaming
business, other than Internet gaming, and (b) is actively engaged in the
management of one or more casinos located in the United States; provided, that
a Person meeting the requirements of clauses (1) or (2) above shall not be
deemed to be a Permitted Replacement Manager unless and until such Person (x)
is licensed, qualified and found suitable by all appropriate Gaming
Authorities and (y) has assumed all of the Manager's obligations under the
Development Agreement, Management Agreement, Intercreditor Agreement and Cash
Accumulation Account Contribution Agreement.
"Permitted Tax Distributions" means, in the case of the Senior
Subordinated PIK Notes and the Subordinated PIK Notes, with respect to any
taxable year, the product of (A) the taxable income arising from or
attributable to the Senior Subordinated PIK Notes and the Subordinated PIK
Notes for such year and (B) the Applicable Income Tax Rate. For purposes of
calculating "Permitted Tax Distributions," the taxable income described in
clause (A) of the immediately preceding sentence that is attributable to any
particular taxable year shall be multiplied by the Applicable Income Tax Rate
prevailing for such year. For purposes of this definition of "Permitted Tax
Distributions," the calculation of taxable income shall (i) take into account
any applicable True-up Amounts and (ii) amounts of taxable income shall be
determined by the Tax Amounts CPA.
Estimated tax distributions are permitted to be made within five days
following each Quarterly Payment Date based upon an estimate of the excess of
(x) the Permitted Tax Distributions that would be payable for the period
beginning on January 1 of such year (or the date of this Indenture in the
first year) and ending on March 31, May 31, August 31 and December 31 if such
period were a taxable year over (y) distributions attributable to all prior
periods during such taxable year.
21
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or any agency or political subdivision
thereof or other entity.
"Plans" means the Final Plans (as defined in the Cash Collateral and
Disbursement Agreement).
"Pledge and Security Agreement" means the Pledge and Security
Agreement dated as of the date of this Indenture among the Authority, the
Tribe and the Trustee as in effect on the date of this Indenture or as amended
in accordance with Article 9 hereof.
"Pledge and Security Agreement (Tribal UCC)" means the Pledge and
Security Agreement dated as of the date of this Indenture among the Authority,
the Tribe and the Trustee whereby the Tribal UCC is the sole controlling
uniform commercial code, as in effect on the date of this Indenture or as
amended in accordance with Article 9 hereof.
"Principal Payment Account" has the meaning set forth in the Cash
Collateral and Disbursement Agreement.
"Principals" means Clarion Cascade, LLC and its Related Parties,
James H. Simons and his Related Parties, M. Mark Silber and his Related
Parties and Russell S. Pratt and his Related Parties.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Promotional Allowances" means the retail value of complimentary
food, beverages, merchandise and tokens for gaming provided to patrons as
promotional items.
"Purchase Money Indebtedness" means Indebtedness of the Authority
incurred for the purpose of financing all or any part of the purchase price or
cost of the installation, construction or improvement of any property.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Gaming Company" means either (A) a company that (1) has
equity securities listed on the New York Stock Exchange, the American Stock
Exchange or quoted on the Nasdaq National Market, (2) has a market
capitalization of at least $250.0 million and (3) derived at least $100.0
million of operating income (as defined by GAAP, but excluding depreciation
and amortization) for each of its last four fiscal quarters from activities
relating to the gaming business, other than Internet gaming, or (B) a
privately held entity that derived at least $100.0 million of operating income
(as defined by GAAP, but excluding depreciation and amortization) for each of
its last four fiscal quarters from activities relating to the gaming business,
other than Internet gaming.
"Quarterly Payment Date" means each March 31, May 31, August 31 and
December 15.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Indenture, among the Authority, the
Tribe and the Initial Purchasers and, with respect to any Additional Notes,
one or more registration rights agreements among the Tribe, the Authority and
the other parties thereto, relating to rights given by the Authority to the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
"Regulation S" means Regulation S promulgated under the Securities
Act.
22
"Regulation S Global Note" means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note in
the form of Exhibit A-1 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, issued in a denomination equal to the
outstanding principal amount 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 A-2 hereto deposited with or on behalf of the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes initially sold in reliance on Rule 903 of Regulation S.
"Related Party" means:
(1) any controlling stockholder, 80% (or more) owned
subsidiary, or immediate family member or heirs (in the case of an
individual) of any Principal; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially
holding an 80% or more controlling interest of which consist of any
one or more Principals and/or such other Persons referred to in the
immediately preceding clause (1).
"Release Condition" means, as of any date of determination, that: (1)
the Chukchansi Gold Resort & Casino is Operating, (2) the Authority's Fixed
Charge Coverage Ratio was at least 2.5 to 1.0 during the Mandatory Operating
Period and, if the Chukchansi Gold Resort & Casino was closed for an aggregate
of more than five days during the Mandatory Operating Period, the Authority's
Fixed Charge Coverage Ratio was at least 2.5 to 1.0 for the last full fiscal
quarter of the Mandatory Operating Period, (3) the aggregate amount of cash
and Cash Equivalents in the Cash Accumulation Account is at least equal to the
Required Accumulation Amount, (4) no amounts are outstanding under the Manager
Repayment Note, (5) no Default or Event of Default has occurred and is
continuing and (6) the Chukchansi Gold Resort & Casino has not ceased
Operating for more than five days during the Stub Period.
"Required Accumulation Amount" means at the time of determination (1)
an amount in cash equal to $3.0 million, multiplied by the number of completed
full fiscal quarters since the Initial Operating Date, less (2) any amounts
contained in the Cash Accumulation Account that are used to prepay the Notes
and in accordance with the terms of the Cash Accumulation Account Contribution
Agreement.
"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 Funds" means any Available Funds that are not (1)
distributable to the Tribe pursuant to clauses (4), (5) and (6) of Section
4.07(c) hereof, (2) required to be deposited into the Cash
23
Accumulation Account and (3) used to purchase notes in connection with an
Optional Excess Cash Offer or a Mandatory Excess Cash Offer, as adjusted in
accordance with Section 4.16(a) hereof.
"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 distribution compliance period
as defined in Regulation S.
"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.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Subordinated PIK Notes" means the Senior Subordinated
Pay-In-Kind Notes due 2009 with contingent interest, issued on the date of
this Indenture by the Authority, as in effect on the date of this Indenture.
"Senior Subordinated PIK Notes Indenture" means the indenture with
respect to the Senior Subordinated PIK Notes, dated as of the date of this
Indenture, among the Authority, the Tribe and U.S. Bank, N.A., as trustee, as
in effect on the date of this Indenture.
"Senior Subordinated PIK Notes Trustee" means the then acting trustee
under the Senior Subordinated PIK Notes Indenture.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Site" means each parcel of land on which all or any portion of the
Chukchansi Gold Resort & Casino is to be located, from time to time.
"State Bond Regulation" means Regulation CGCC-2 of the California
Gambling Control Commission, as the same may be amended, supplemented,
restated or replaced from time to time.
"State Gaming Agency" has the meaning ascribed thereto in the
Compact.
"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.
"Stub Period" shall mean, on any date of determination, the period
from the end of the Mandatory Operating Period through and including such date
of determination.
24
"Subordinated PIK Notes" means the Subordinated Pay-In-Kind Notes due
2009 with contingent interest, issued on the date of this Indenture by the
Authority, as in effect on the date of this Indenture.
"Subordinated PIK Notes Indenture" means the indenture with respect
to the Subordinated PIK Notes, dated as of the date of this Indenture, among
the Authority, the Tribe and U.S. Bank, N.A., as trustee, as in effect on the
date of this Indenture.
"Subordinated PIK Notes Trustee" means the then acting trustee under
the Subordinated PIK Notes Indenture.
"Subsidiary" means:
(1) any instrumentality, subdivision or subunit of the
Authority that has a separate legal existence or status; or
(2) with respect to any specified Person:
(a) any corporation, association or other business
entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of
directors, managers or trustees of the corporation,
association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person (or a
combination thereof); and
(b) any partnership (1) the sole general partner or
the managing general partner of which is such Person or a
Subsidiary of such Person or (2) the only general partners
of which are that Person or one or more Subsidiaries of such
Person (or any combination thereof).
"Tax Amounts" means (1) Manager Tax Amounts, (2) Manager Repayment
Note Tax Amounts, (3) L/C Provider Tax Amounts and (4) Permitted Tax
Distributions.
"Tax Amounts CPA" means any nationally recognized independent
accounting firm jointly selected by the Manager and the Authority.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical
Release H.15 (519) which has become publicly available at least two business
days prior to the purchase date or redemption date (or, if such Statistical
Release is no longer published, any publicly available source of similar
data)) most nearly equal to the then remaining average life of the Notes
measured from the prepayment date to October 1, 2006, provided, that if the
average life of the Notes is not equal to the constant maturity of a United
States Treasury security for which a weekly average yield is given, the
Treasury Yield shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the
average life of the Notes is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
"Tribal Council" means the governing body of the Tribe established
pursuant to Article IV Section 2 of the Constitution.
25
"Tribal Gaming Commission" means the Tribal Gaming Commission
established pursuant to Section 4 of the Tribal Gaming Ordinance.
"Tribal Gaming Ordinance" means the duly and validly adopted Tribal
Gaming Ordinance of the Tribe adopted by the Tribal Council on October 5,
2001, as amended on December 27, 2001 and approved by the NIGC on February 15,
2002, as required by IGRA.
"Tribe" has the meaning assigned to it in the preamble to this
Indenture.
"Tribal UCC" has the meaning assigned to it in the Cash Collateral
and Disbursement Agreement.
"True-up Amount" means, in respect of a particular taxable year, an
amount determined by the Tax Amounts CPA equal to the difference between (1)
the aggregate Tax Amounts actually distributed in respect of such taxable year
for the note in respect of which the True-up Amount is being determined and
(2) the aggregate Tax Amounts permitted to be distributed in respect of such
year for the note in respect of which the True-up Amount is being determined;
provided, however, that if there is an Adjustment Event, clause (1) will mean
the aggregate Tax Amounts as adjusted by the aggregate True-up Amounts
actually distributed in respect of such taxable year and clause (2) will mean
the aggregate amount permitted to be distributed in respect of such year, as
adjusted to take into account the results of the Adjustment Event.
Within 45 days following the immediately preceding calendar year or
within ten days following an Adjustment Event, the Tax Amounts CPA shall file
with the Trustee a written statement indicating in reasonable detail the
calculation of the True-up Amount. In the case of a True-up Amount due to the
Tax Amounts Recipients, the Tax Amounts payable on the immediately following
Quarterly Payment Date shall be increased by such True-up Amount. If the
available cash is not sufficient to pay the Tax Amounts payable on a Quarterly
Payment Date, the amount unpaid shall be carried over and increase the Tax
Amounts payable on the following Quarterly Payment Date. In the case of a
True-up Amount due to the Authority, the Tax Amounts payable on the
immediately following Quarterly Payment Date shall be reduced by such True-up
Amount and the excess, if any, of the True-up Amount over such Tax Amounts
shall be applied to reduce the immediately following Tax Amounts until such
True-up Amount is entirely offset.
"True-up Amount due to the Authority" means an amount equal to the
excess, if any, of the amount described in clause (1) of the definition of
True-up Amount over the amount described in clause (2) of the definition of
True-up Amount.
"True-up Amount due to the Tax Amounts Recipients" means an amount
equal to the excess, if any, of the amount described in clause (2) of the
definition of True-up Amount over the amount described in clause (1) of the
definition of True-up Amount.
"Trustee" means the party named as such in the preamble to this
Indenture 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.
"Unrestricted Global Note" means a permanent Global Note
substantially in the form of Exhibit A-1 attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges
26
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.
"U.S. Person" means a U.S. Person as defined in Rule 902(o) under
the Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
board of directors or management committee of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (x) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment
at final maturity, in respect of the Indebtedness, by (y) the number
of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
"Working Capital" means, on any date, the excess of Current Assets on
such date less Current Liabilities on such date.
Section 1.02 Other Definitions.
Defined in
Term Section
"AAA"............................................................... 11.05
"Affiliate Transaction"............................................. 4.12
"Applicable Courts"................................................. 11.02
"Authentication Order".............................................. 2.02
"Authority Assets".................................................. 11.01
"Change of Control Offer"........................................... 4.17
"Change of Control Payment"......................................... 4.17
"Change of Control Payment Date".................................... 4.17
"Covenant Defeasance"............................................... 8.03
"DTC"............................................................... 2.03
"Event of Default".................................................. 6.01
"Excess Cash Flow".................................................. 4.16
"Excess Loss Proceeds".............................................. 4.10
"Excess Proceeds"................................................... 4.09
"incur"............................................................. 4.08
"Governmental Action"............................................... 11.05
"Legal Defeasance".................................................. 8.02
"Mandatory Excess Cash Offer"....................................... 4.16
"Offer Amount"...................................................... 3.11
"Offer Period"...................................................... 3.11
"Optional Excess Cash Offer"........................................ 4.16
"Paying Agent"...................................................... 2.03
"Payment Default"................................................... 6.01
27
"Permitted Claims".................................................. 11.01
"Permitted Debt".................................................... 4.08
"Purchase Date"..................................................... 3.11
"Registrar"......................................................... 2.03
"Repurchase Offer".................................................. 3.11
"Restricted Payments"............................................... 4.07
"Tax Amounts Recipients"............................................ 4.07
"Tribal Party"...................................................... 11.01
Section 1.03......Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Authority 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:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
and
(7) references to sections of or rules under the Securities
Act will be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
28
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication will be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note will be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes will constitute, and
are hereby expressly made, a part of this Indenture and the Authority 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 will be substantially
in the form of Exhibits A-1 and A-2 attached hereto (including the Global Note
Legend thereon and the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note will represent such of the outstanding
Notes as will be specified therein and each shall provide that it represents
the aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby will be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S will be issued initially in the form of the Regulation S
Temporary Global Note, which will be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee, at its New York office, as
custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream Bank, duly executed by the Authority and
authenticated by the Trustee as hereinafter provided. The Restricted Period
will be terminated upon the receipt by the Trustee of:
(1) a written certificate from the Depositary, together with
copies of certificates from Euroclear and Clearstream Bank certifying
that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation
S Temporary Global 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 will take delivery of a beneficial ownership
interest in a 144A Global Note or an IAI Global Note bearing a
Private Placement Legend, all as contemplated by Section 2.06(b)
hereof); and
(2) an Officers' Certificate from the Authority.
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note will 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 will cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary
Global Note and the Regulation S Permanent
29
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.
(3) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Clearstream Banking" and "Customer Handbook"
of Clearstream will 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 Clearsteam.
Section 2.02 Execution and Authentication.
Two Officers must sign the Notes for the Authority 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 will nevertheless be
valid.
A Note will not be valid until authenticated by the manual signature
of the Trustee. The signature will be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Authority
signed by two Officers (an "Authentication Order"), authenticate Notes for
original issue up to the aggregate principal amount stated in paragraph 4 of
the Notes. The aggregate principal amount of Notes outstanding at any time may
not exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Authority 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 Authority.
Section 2.03 Registrar and Paying Agent.
The Authority will 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 will keep a register of the Notes and of their transfer and
exchange. The Authority 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 Authority
may change any Paying Agent or Registrar without notice to any Holder. The
Authority will notify the Trustee in writing of the name and address of any
Agent not a party to this Indenture. If the Authority fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Authority may act as Paying Agent or Registrar.
The Authority initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Authority initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
30
Section 2.04 Paying Agent to Hold Money in Trust.
The Authority will require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit
of Holders or the Trustee all money held by the Paying Agent for the payment
of principal, premium or Liquidated Damages, if any, or interest on the Notes,
and will notify the Trustee of any default by the Authority 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 Authority 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 Authority)
will have no further liability for the money. If the Authority acts as Paying
Agent, it will 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 Authority, the Trustee will serve
as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will 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 ss. 312(a). If the Trustee is
not the Registrar, the Authority will 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 Authority shall otherwise comply with TIA ss. 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Authority for Definitive Notes if:
(1) the Authority delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Authority within 120 days after the date of such
notice from the Depositary; or
(2) the Authority 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 Authority 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.
Upon the occurrence of either of the preceding events in (1) or (2)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a), however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 2.06(b), (c) or
(f) hereof.
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(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
will be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes will 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 will require
compliance with either subparagraph (1) or (2) below, as applicable, as well
as one or more of the other following subparagraphs, as applicable:
(1) 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
Purchasers). 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 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(1) above, the transferor of such beneficial interest must
deliver to the Registrar either:
(A) both:
(i) 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
(ii) instructions given in accordance with
the Applicable Procedures containing information
regarding the Participant account to be credited
with such increase; or
(B) both:
(i) 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
(ii) 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 (A) the
expiration of the Restricted Period and (B) 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
Authority in accordance with
32
Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(2) 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
of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(3) 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 2.06(b)(2) 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;
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Temporary
Global Note or the Regulation S Permanent Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transferee will take delivery in the
form of a beneficial interest in the IAI Global Note, then
the transferee 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.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an 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 2.06(b)(2) 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 (i) a
Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of the Authority;
(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
33
(D) the Registrar receives the following:
(i) 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
(ii) 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
Authority 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 equal to the
aggregate principal amount 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.
(1) 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 Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
34
(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, 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 Authority, 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 of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and
the Authority shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend
and shall be subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary Global
Note to Definitive Notes. Notwithstanding Sections 2.06(c)(1)(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 (A) the expiration of the Restricted Period and (B) 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.
(3) 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 (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in
Rule 144) of the Authority;
35
(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:
(i) 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
(ii) 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.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the conditions set forth
in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate
principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Authority
will execute and the Trustee will authenticate and deliver to the
Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(3) will be
registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest requests
through instructions to the Registrar from or through the Depositary
and the Participant or Indirect Participant. The Trustee will 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 2.06(c)(3) will not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) 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:
36
(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, 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, 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, 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;
(F) if such Restricted Definitive Note is being
transferred to the Authority 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 will cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI
Global Note.
(2) 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 (i) a
Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of the Authority;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
37
(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:
(i) 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
(ii) 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
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 2.06(d)(2), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) 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 will cancel
the applicable Unrestricted Definitive Note and increase or cause to
be increased the aggregate principal amount 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 (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has
not yet been issued, the Authority will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee will authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount 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 2.06(e), the Registrar will register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the requesting Holder must 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 must provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
38
(1) 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.
(2) 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 (i) a
broker-dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of the Authority;
(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:
(i) 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
(ii) 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 Authority to the effect that
such exchange or transfer is in compliance with the
Securities Act and that the restrictions on
39
transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain
compliance with the Securities Act.
(3) 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 Authority will issue
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered into the Exchange
Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (z) they
are not affiliates (as defined in Rule 144) of the Authority; and
(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee will cause
the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Authority will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate
principal amount.
(g) Legends. The following legends will 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.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ACCORDINGLY, NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR A BENEFICIAL INTEREST HEREIN, THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER OF THE SECURITY
THAT
40
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT, (c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED THAT THE ISSUER SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, RESALE, ASSIGNMENT, PLEDGE OR TRANSFER
PURSUANT TO CLAUSES (c), (d) OR (e) ABOVE TO REQUIRE THE DELIVERY OF AN
OPINION (IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER) OF COUNSEL
SATISFACTORY TO THE ISSUER, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE ISSUER, (2) TO THE ISSUER OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION; (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; AND NO
REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY
RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY; AND (C) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY THAT, UNLESS SUCH PERSON IS LICENSED
AS A LENDER PURSUANT TO THE PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS'
TRIBAL-STATE GAMING COMPACT OR IS EXEMPT FROM SUCH LICENSING REQUIREMENTS,
SUCH PURCHASER WILL NOT BE ABLE TO RECEIVE PAYMENTS ON THE NOTES AFTER AN
ACCELERATION AND WILL NOT BE ABLE TO ENFORCE THE NOTES OR THE INDENTURE
AGAINST THE ISSUER."
(B) Notwithstanding the foregoing, any Global Note
or Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(2), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or
(f) of this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) will not bear the Private
Placement Legend.
(2) Global Note Legend. Each Global Note will 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE AUTHORITY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
41
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) ("DTC"), TO THE AUTHORITY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN."
(3) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note will 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 THEREON.
PRIOR TO EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED
IN REGULATION S ("REGULATION S") UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT")), THIS SECURITY MAY NOT BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES (AS DEFINED IN REGULATION S), OR FOR THE ACCOUNT OR BENEFIT OF, A U.S.
PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A PERSON REASONABLY BELIEVED TO
BE A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ("RULE 144A")
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A AND THE INDENTURE REFERRED TO HEREIN OR TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT)."
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO THE SECURITIES."
(4) Original Issue Discount Legend. Each Note will bear a
legend in substantially the following form:
"FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT;
FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $914.76,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $85.24, THE ISSUE DATE IS OCTOBER 8,
2002 AND THE YIELD TO MATURITY IS 16.671% PER ANNUM."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
42
retained and canceled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note
or for Definitive Notes, the principal amount of Notes represented by such
Global Note will be reduced accordingly and an endorsement will 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
will be increased accordingly and an endorsement will be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Authority will execute and the Trustee will authenticate Global Notes
and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 or at the Registrar's request.
(2) No service charge will be made to a Holder of a Global
Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, but the Authority may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 3.11, 4.09, 4.10, 4.16, 4.17 and
9.05 hereof).
(3) The Registrar will 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.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the Authority, 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.
(5) The Authority will 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 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.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Authority 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 Authority shall be affected
by notice to the contrary.
43
(7) The Trustee will authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section
2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Authority
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Authority will issue and the Trustee, upon receipt
of an Authentication Order, will authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Authority,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Authority to protect the Authority, the
Trustee, any Agent and any authenticating agent from any loss that any of them
may suffer if a Note is replaced. The Authority may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Authority
and will be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Authority or an Affiliate of
the Authority holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount 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 Authority, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by
the Authority, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Authority,
will be considered as though not outstanding, except that for the purposes of
determining whether the Trustee will be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Authority may prepare and the Trustee, upon receipt of an Authentication
Order, will authenticate temporary Notes. Temporary Notes
44
will be substantially in the form of certificated Notes but may have
variations that the Authority considers appropriate for temporary Notes and as
may be reasonably acceptable to the Trustee. Without unreasonable delay, the
Authority will prepare and the Trustee will authenticate definitive Notes in
exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of
this Indenture.
Section 2.11 Cancellation.
The Authority at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else will cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and will destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes will be delivered
to the Authority. The Authority may not issue new Notes to replace Notes that
it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Authority defaults in a payment of interest on the Notes,
subject to the second sentence of Section 13.01 hereof, it will 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 Authority will 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 Authority will fix or cause to be fixed each
such special record date and payment date, provided that no such special
record date may 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
Authority (or, upon the written request of the Authority, the Trustee in the
name and at the expense of the Authority) will mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid and advises Holders of the
restrictions on payments contained in Article 13 hereof.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Authority elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it must furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
45
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
The Notes will not be listed on any national securities exchange. If
less than all of the Notes are to be redeemed or purchased in an offer to
purchase at any time, the Trustee will select Notes for redemption or purchase
on a pro rata basis among those Holders whose Notes are permitted to be
redeemed by Article 13 hereof.
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase and which are permitted to be redeemed by Article
13 hereof.
The Trustee will promptly notify the Authority in writing of the
Notes selected for redemption or purchase and, in the case of any Note
selected for partial redemption or purchase, the principal amount thereof to
be redeemed or purchased. Notes and portions of Notes selected will 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 or purchased, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, shall
be redeemed or purchased. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption or
purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.11 hereof, at least 30 days
but not more than 60 days before a redemption date, the Authority will 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, except that
redemption notices may be mailed more than 60 days prior to a redemption date
if the notice is issued in connection with a defeasance of the Notes or a
satisfaction and discharge of this Indenture pursuant to Articles 8 or 12 of
this Indenture.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Authority defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
46
(8) 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 Authority's request, the Trustee will give the notice of
redemption in the Authority's name and at its expense; provided, however, that
the Authority has delivered to the Trustee, at least 45 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, subject to Article 13 hereof. A
notice of redemption may not be conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase price date, the
Authority will deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued interest and
Liquidated Damages, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent will promptly return to the Authority
any money deposited with the Trustee or the Paying Agent by the Authority in
excess of the amounts necessary to pay the redemption or purchase price of,
and accrued interest and Liquidated Damages, if any, on, all Notes to be
redeemed or purchased.
If the Authority complies with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest will cease
to accrue on the Notes or the portions of Notes called for redemption or
purchase. If a Note is redeemed or purchased on or after an interest record
date but on or prior to the related interest payment date, then any accrued
and unpaid interest and Liquidated Damages, if any, 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 or purchase is not so paid upon
surrender for redemption or purchase because of the failure of the Authority
to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption or purchase date until such principal is paid,
and to the extent lawful on any interest not paid on such unpaid principal, in
each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Authority will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Authority a new Note
equal in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 Optional Redemption.
(a) The Notes are not redeemable at the Authority's option prior to
October 1, 2006.
(b) At any time on or after October 1, 2006, the Authority may,
subject to the second sentence of Section 13.01 hereof, 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 thereon and Liquidated Damages, if any,
on the Notes redeemed through and including the applicable redemption date, if
redeemed during the periods indicated below:
47
Year Percentage
---- ----------
October 1, 2006 to September 30, 2007................... 113.000%
October 1, 2007 to September 30, 2008................... 108.667%
October 1, 2008 to June 14, 2009........................ 104.333%
provided, that after any such redemption there is at least the Required
Accumulation Amount in cash and Cash Equivalents remaining the Cash
Accumulation Account.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Authority is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
Section 3.09 Mandatory Disposition Pursuant to Gaming Laws.
(a) Notwithstanding any other provisions of this Article 3, each
Holder, by accepting a Note, shall be deemed to have agreed that if any Gaming
Authority determines, and a Holder or Beneficial Owner of the Notes is
notified, that (i) such Holder or Beneficial Owner must 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, or any shorter period as may be
required by such Gaming Authority, or (ii) such Holder or Beneficial Owner
will not be licensed, qualified or found suitable under any applicable Gaming
Law, or any license, qualification or finding of suitability is not renewed
upon its expiration or is revoked, or (iii) such Holder or Beneficial Owner
has been found to be unsuitable for licensing, then the Authority, at its
option, may (A) 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 (1) 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 (2) the receipt of the
notice from the Gaming Authority that the Holder or Beneficial Owner shall not
be licensed, qualified or found suitable, or (B) subject to the second
sentence of Section 13.01 hereof, redeem the Notes of such Holder or
Beneficial Owner at a price equal to the least of (1) 100% of the principal
amount thereof, (2) the price at which such Holder or Beneficial Owner
acquired the Notes and (3) the fair market value of the Notes, together with,
in each case, to the extent permitted by the Compact, 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, or that such
license, qualification or finding of suitability has been revoked or will not
be renewed, the Holder or Beneficial Owner shall have no further rights (i) to
exercise any right conferred by the Notes, directly or indirectly, through any
trustee, nominee or any other Person or entity, or (ii) to receive any
interest, dividends, economic interests or any other distributions or payments
with respect to the Notes or any remuneration in any form from the Authority
for services rendered or otherwise, except the redemption price of the Notes.
(c) Any Holder or Beneficial Owner of Notes that is required to apply
for a license, qualification or a finding of suitability may be required to
pay all fees and costs of the licenses or investigation for the
48
qualification or finding of suitability by the applicable Gaming Authorities.
The Authority 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.
(d) The Authority will notify the Trustee in writing of any
disposition pursuant to this Section 3.09 as soon as is practicable. The
Trustee will be required to report the names of the record holders of Notes to
any Gaming Authority when required by law.
Section 3.10 [INTENTIONALLY OMITTED.]
Section 3.11 Repurchase Offers.
In the event that, pursuant to Section 4.09, 4.10 or 4.16 hereof, the
Authority is permitted or required to commence an offer to all Holders to
purchase Notes (a "Repurchase Offer"), it will follow the procedures specified
below, and in any such event this Section 3.11 shall be subject to the second
sentence of Section 13.01 hereof.
The Repurchase Offer shall be made to all Holders and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to
purchase or redeem with the proceeds of sales of assets (in the case of a
Repurchase Offer pursuant to Section 4.09) or with the proceeds from an event
of loss (in the case of a Repurchase Offer pursuant to Section 4.10). The
Repurchase Offer shall remain open for a period of at least 20 Business Days
following its commencement and not more than 30 Business Days, except to the
extent that a longer period is required by applicable law (the "Offer
Period"). No later than three Business Days after the termination of the Offer
Period (the "Purchase Date"), the Authority will apply all Excess Proceeds (in
the case of a Repurchase Offer pursuant to Section 4.09), all Excess Loss
Proceeds (in the case of a Repurchase Offer pursuant to Section 4.10), and all
Excess Cash Flow (in the case of a Repurchase Offer pursuant to Section 4.16)
(the "Offer Amount") to the purchase of Notes and, if applicable, such other
pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than
the Offer Amount has been tendered, all Notes and, if applicable, other
Indebtedness tendered in response to the Repurchase Offer. 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, and
Liquidated Damages, if any, will 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 will be payable to Holders who tender Notes pursuant to the
Repurchase Offer.
Upon the commencement of an Repurchase Offer, the Authority will
send, by first class mail, a notice to the Trustee and each of the Holders,
with a copy to the Trustee. The notice will contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Repurchase Offer. The notice, which will govern the terms of the Repurchase
Offer, will state:
(1) that the Repurchase Offer is being made pursuant to this
Section 3.11 and Section 4.09, 4.10 or 4.16 hereof, as applicable,
and the length of time the Repurchase Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
49
(4) that, unless the Authority defaults in making such
payment, any Note accepted for payment pursuant to the Repurchase
Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant
to a Repurchase Offer may elect to have Notes purchased in integral
multiples of $1,000 only;
(6) that Holders electing to have a Note purchased pursuant
to any Repurchase Offer will 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
Authority, a Depositary, if appointed by the Authority, or a Paying
Agent at the address specified in the notice at least three days
before the Purchase Date;
(7) that Holders will be entitled to withdraw their election
if the Authority, 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 the
name of the Holder, 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;
(8) that, if the aggregate principal amount of Notes and, if
applicable, other pari passu Indebtedness surrendered by Holders
exceeds the Offer Amount, the Authority will select the Notes and, if
applicable, other pari passu Indebtedness to be purchased on a pro
rata basis based on the principal amount of Notes and, if applicable,
such other pari passu Indebtedness surrendered (with such adjustments
as may be deemed appropriate by the Authority so that only Notes in
denominations of $1,000, or integral multiples thereof, will be
purchased); and
(9) that Holders whose Notes were purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Authority will, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, 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 will deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Authority in
accordance with the terms of this Section 3.11. The Authority, the Depositary
or the Paying Agent, as the case may be, will promptly (but in any case not
later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered
by such Holder and accepted by the Authority for purchase, and the Authority
will promptly issue a new Note, and the Trustee, upon written request from the
Authority will authenticate and mail or deliver such new Note to such Holder,
in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Authority to the Holder thereof.
Any Repurchase Offer will be in compliance with all applicable laws,
rules and regulations, including, if applicable, Regulation 14E under the
Exchange Act and the rules and regulations thereunder and all other applicable
Federal and state securities laws. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
3.11, the Authority will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this
Section 3.11 by virtue of such conflict.
Other than as specifically provided in this Section 3.11, any
purchase pursuant to this Section 3.11 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
50
ARTICLE 4.
COVENANTS OF THE AUTHORITY
Section 4.01 Payment of Notes.
The Authority will pay or cause to be paid the principal of, premium,
if any, and interest and Liquidated Damages, if any, on the Notes on the dates
and in the manner provided in the Notes. Principal, premium, if any, and
interest and Liquidated Damages, if any, will be considered paid on the date
due if the Paying Agent, if other than the Authority, holds as of 10:00 a.m.
Eastern Time on the due date money deposited by the Authority in immediately
available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due. The Authority will 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 Authority will 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 will 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 Authority will 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
affiliate 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 Authority in respect of the Notes and this Indenture
may be served. The Authority will 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 Authority fails to maintain any such required office or agency or
fails 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 Authority 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 will in any manner
relieve the Authority of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Authority
will 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 Authority hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Authority in accordance with
Section 2.03 hereof.
Section 4.03 Reports.
Whether or not required by the SEC, so long as any Notes are
outstanding, the Authority shall have its annual financial statements audited,
and its interim financial statements reviewed, by a nationally recognized firm
of independent accountants and shall furnish to the Holders, within the time
periods specified in the SEC's rules and regulations for such filings:
(1) all quarterly and annual financial information of the
Authority and the Manager that would be required to be contained in a
filing with the SEC on Forms 10-Q and 10-K if the Authority and the
Manager were required to file such forms, including a "Management's
51
Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information of the
Authority and the Manager only, a report on the annual financial
statements by their respective certified independent accountants; and
(2) all current reports that would be required to be filed
by the Authority and the Manager with the SEC on Form 8-K if the
Authority and the Manager were required to file such reports.
In addition, following the consummation of the Exchange Offer,
whether or not required by the SEC, the Authority shall file a copy of all of
the information and reports referred to in clauses (1) and (2) above with the
SEC for public availability within the time periods specified in the SEC's
rules and regulations (unless the SEC will not accept such a filing) and make
such information available to securities analysts and prospective investors
upon request. In addition, the Authority has agreed that, for so long as any
Notes remain outstanding, it 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
with respect to the Authority and the Manager if not obtainable from the SEC.
The Authority shall agree that, on or prior to the fifth Business Day of each
calendar month during the Construction Period, beginning November 1, 2002, it
shall issue a press release generally describing the progress of construction
on the Chukchansi Gold Resort & Casino and whether, during the prior month,
the construction had proceeded substantially in accordance with the
Construction Schedule.
Section 4.04 Compliance Certificate.
(a) The Authority 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 Authority during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining
whether the Authority has kept, observed, performed and fulfilled its
obligations under this Indenture and the Collateral Documents, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Authority has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and the Collateral
Documents and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture or the Collateral Documents
(or, if a Default or Event of Default has occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Authority 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 Authority 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 above shall be accompanied by a
written statement of the Authority's independent public accountants (who 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 Authority has
violated any provisions of Article 4 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) So long as any of the Notes are outstanding, the Authority will
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate
52
specifying such Default or Event of Default and what action the Authority is
taking or proposes to take with respect thereto.
Section 4.05 Taxes.
The Authority shall pay, prior to delinquency, all 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.
Section 4.06 Stay, Extension and Usury Laws.
The Authority covenants (to the extent that it may lawfully do so)
that it will 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 Authority (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) Except as set forth in subsections (b) and (c) below, the
Authority shall not, directly or indirectly:
(1) make any payment or distribution to the Tribe, any
agency, instrumentality or political subunit of the Tribe, any member
of the Tribe (other than customary salaries, benefits, loans,
commissions, fees, expense reimbursements and travel and other
advances, in each case, made in the ordinary course of business),
Holdings, any direct or indirect holders of Holdings' Equity
Interests in their capacity as such, the Manager, any direct or
indirect holder of the Manager's Equity Interests in their capacity
as such, the L/C Provider, any Affiliate of the Tribe, any Affiliate
of a member of the Tribe (other than payments made in the ordinary
course of business at customary rates with respect to goods or
services provided to the Authority) or any Affiliate of the Manager,
other than payments to the Manager of amounts due under the
Management Agreement, the Development Agreement, the Manager
Agreement and the Cash Accumulation Account Contribution Agreement,
and payments to the L/C Provider of the Commitment Fee; provided,
however, that this provision shall not prohibit, within five days
following each applicable Quarterly Payment Date if on such date the
Authority's Fixed Charge Coverage Ratio is at least 1.5 to 1.0, the
payment of Tax Amounts to holders of the Senior Subordinated PIK
Notes, the Subordinated PIK Notes, the Manager Repayment Note, the
Cash Accumulation Account Contribution Agreement or the Letter of
Credit Note (collectively, the "Tax Amounts Recipients"), as the case
may be, with respect to any period beginning on or after the date of
this Indenture; provided, further, that Tax Amounts that are
permitted to be paid to Tax Amounts Recipients during any particular
taxable year shall be the lesser of (i) Tax Amounts that are required
to be paid to such recipients pursuant to the terms of the Senior
Subordinated PIK Notes, the Subordinated PIK Notes, the Manager
Repayment Note, the Cash Accumulation Account Contribution Agreement
and the Letter of Credit Note as the case may be and (ii) $2.1
million per year;
(2) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness that is expressly subordinated to the Notes, except a
payment of interest or principal at the Stated Maturity thereof; or
53
(3) make any Restricted Investment (all such payments and
other actions set forth in these clauses (1) through (3) being
collectively referred to as "Restricted Payments");
provided, however, that if (i) no Default or Event of Default has occurred and
is continuing and (ii) no amounts are outstanding under the Manager Repayment
Note, the Authority may, within two Business Days after the completion of any
Optional Excess Cash Offer made pursuant to Section 4.16 hereof, make
Restricted Payments with any Excess Cash Flow not utilized to make payments on
the Notes in connection with such Optional Excess Cash Offer.
(b) So long as no Default has occurred and is continuing or would be
caused thereby, the provisions of Section 4.07(a) will not prohibit:
(1) the making of a Restricted Payment described in clauses
(1) through (3) of Section 4.07(a) if, at the time thereof, (i) the
Chukchansi Gold Resort & Casino is Operating, (ii) the Authority's
Fixed Charge Coverage Ratio was at least 2.5 to 1.0 during the
Mandatory Operating Period and, if the Chukchansi Gold Resort &
Casino was closed for an aggregate of more than five days during the
Mandatory Operating Period, the Authority's Fixed Charge Coverage
Ratio was at least 2.5 to 1.0 for the last full fiscal quarter of the
Mandatory Operating Period, (iii) the aggregate amount of cash and
Cash Equivalents in the Cash Accumulation Account is at least equal
to the Required Accumulation Amount, and (iv) the Chukchansi Gold
Resort & Casino shall not have ceased Operating for more than five
days during the Stub Period;
(2) the making of any payment pursuant to and consistent
with the terms of any development agreement between the Authority and
the Manager executed after the date of this Indenture which
agreement: (i) relates to the expansion of the Chukchansi Gold Resort
& Casino or any additions thereto; (ii) provides for payments and/or
fees to the Manager that are consistent with the Development
Agreement, relative to the size of the proposed expansion or addition
to the Chukchansi Gold Resort & Casino as measured by projected
gaming positions; and (iii) is on terms that are no less favorable to
the Authority than the terms of the Development Agreement; provided,
that (A) the Authority delivers to the Trustee a resolution of the
Management Board set forth in an Officers' Certificate certifying
that the terms of such agreement are, taken as a whole, no less
favorable to the Authority than the terms of the Development
Agreement and that the agreement has been approved by a majority of
the disinterested members of the Management Board and (B) if such
agreement provides for payments and/or fees to the Manager in excess
of $5.0 million, the Authority delivers to the Trustee an opinion as
to the fairness to the Authority of such agreement from a financial
point of view issued by an accounting, appraisal or investment
banking firm of national standing; and
(3) the making of any payments to Holdings, any direct or
indirect holders of Holdings' Equity Interests in their capacity as
such, the Manager, any direct or indirect holder of the Manager's
Equity Interests in their capacity as such, the L/C Provider, or any
Affiliate of the Manager if such payments are made in the ordinary
course of business at customary rates with respect to goods or
services provided to the Authority.
(c) Beginning with the end of the Authority's first full fiscal
quarter commencing after the Initial Operating Date (provided, that solely for
purposes of this Section 4.07(c), Minimum Facilities shall not include the
hotel, restaurants or parking area), the Authority shall, to the extent
available, distribute all Available Funds in cash within 40 days after the end
of each of its full fiscal quarters (except with respect to the Minimum
Monthly Guaranteed Payment to the Tribe, which shall be paid in monthly
installments as and when required by the terms of the Management Agreement) as
follows:
54
(1) first, the Authority shall distribute the Minimum
Monthly Guaranteed Payment (in an amount equal to $100,000 per month)
to the Tribe;
(2) second, the Authority shall deposit 100% of the
remaining Available Funds for such fiscal quarter or other cash held
by the Authority into the Capital Replacement Reserve Account until
the amount in the Capital Replacement Reserve Account equals the
amount required to be on deposit in the Capital Replacement Reserve
(as defined in the Management Agreement) if the Manager, as of such
date, had fully complied with its obligations under the Management
Agreement with respect to the Capital Replacement Reserve;
(3) third, the Authority shall deposit 100% of the remaining
Available Funds for such fiscal quarter or other cash held by the
Authority into the Cash Accumulation Account until the amount in the
Cash Accumulation Account equals the Required Accumulation Amount,
excluding the fiscal quarter with respect to which such distribution
is being made;
(4) fourth, the Authority shall distribute 25% of the
remaining Available Funds for such fiscal quarter to the Tribe and
deposit 75% of such funds into the Cash Accumulation Account until
the amount in the Cash Accumulation Account equals the Required
Accumulation Amount;
(5) fifth, of the next $3.0 million of Available Funds for
such fiscal quarter, the Authority shall distribute 50% to the Tribe;
and
(6) sixth, of any remaining Available Funds for such fiscal
quarter, the Authority shall distribute 75% to the Tribe.
Notwithstanding the foregoing, (i) if any Default or Event of Default has
occurred and is continuing, (ii) if the Authority is not able to incur $1.00
of additional Indebtedness pursuant to Section 4.08(a) hereof at the time the
Available Funds are required to be distributed with respect to any fiscal
quarter under this Section 4.07(c) or (iii) if at the time of such
distribution there is any amount outstanding under the Manager Repayment Note,
no Restricted Payment may be made to the Tribe pursuant to clauses (4) through
(6) of this Section 4.07(c); provided, however, that in the event the
Authority would be permitted to make a distribution under any of clauses (4)
through (6) of this Section 4.07(c) but for the existence of amounts
outstanding under the Manager Repayment Note, the Authority shall be permitted
to repay the Manager Repayment Note from the Available Funds that would have
otherwise been distributed to the Tribe pursuant to clauses (4) through (6) of
this Section 4.07(c); provided, further, that any Available Funds used to
repay such Manager Repayment Note shall be deemed to have been distributed to
the Tribe pursuant to this 4.07(c).
(d) The Authority may use the Restricted Funds for any purpose not
otherwise prohibited by this Indenture.
(e) Funds in the Cash Accumulation Account may be invested only in
Cash Equivalents. Funds in the Cash Accumulation Account may be used by the
Authority to make payments on the Notes in accordance with the Cash
Accumulation Account Contribution Agreement. Distributions to the Tribe shall
be deposited by the Authority in a Tribal bank account designated by the
Authority. IN NO EVENT SHALL THE MINIMUM MONTHLY GUARANTEED PAYMENT BE
RESTRICTED BY THIS SECTION 4.07.
(f) 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 Authority
pursuant to the Restricted Payment. The fair market value of any assets or
securities that
55
are required to be valued by this Section 4.07 shall be determined by the
Management Board whose resolution with respect thereto shall be delivered to
the Trustee. The Management Board's 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 $5.0 million. Not
later than the date of making any Restricted Payment in excess of $5.0
million, the Authority shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by this Section 4.07 were computed,
together with a copy of any fairness opinion or appraisal required by this
Indenture.
Section 4.08 Incurrence of Indebtedness.
(a) The Authority shall not, 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; provided, however, that the
Authority may incur Indebtedness if:
(1) the Fixed Charge Coverage Ratio for the
Authority'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
1.0, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred at the beginning
of such four-quarter period; and
(2) the Indebtedness is expressly subordinated in
right of payment to the Notes; provided, however, that this
clause (2) shall apply only to Indebtedness to be incurred
under this Section 4.08(a) to the extent that such
incurrence will cause the aggregate amount of Indebtedness
incurred and still outstanding under this Section 4.08(a)
immediately after such incurrence to be in excess of $25.0
million; and
(3) the Weighted Average Life to Maturity of the
Indebtedness is greater than the remaining Weighted Average
Life to Maturity of the Notes.
(b) The provisions of Section 4.08(a) will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(1) the incurrence by the Authority of (i)
Indebtedness represented by (x) the Initial Notes and the
Exchange Notes and (y) the Senior Subordinated PIK Notes,
(ii) its obligations arising under the Collateral Documents
to the extent such obligations would represent Indebtedness
and (iii) Indebtedness incurred from time to time pursuant
to the Subordinated PIK Notes, the Manager Repayment Note,
the Manager Agreement or the Letter of Credit Note;
(2) the incurrence by the Authority of letters of
credit and related reimbursement agreements, bankers
acceptances and performance completion bonds (with letters
of credit being deemed to have a principal amount equal to
the maximum potential liability of the Authority under the
related reimbursement or other similar agreement) in an
aggregate principal amount not to exceed $2.0 million at any
one time outstanding under this clause (2);
(3) the incurrence by the Authority of Indebtedness
represented by Purchase Money Indebtedness or Capital Lease
Obligations incurred in connection with the purchase or
capital lease of furniture, fixtures and equipment in an
aggregate principal amount or accreted value, as applicable,
including all Permitted Refinancing Indebtedness incurred to
extend, refinance, renew, replace, defease or refund any
Indebtedness incurred pursuant to this clause (3), not to
56
exceed $25.0 million at any time outstanding under this clause (3);
provided, that such incurrence does not cause the aggregate amount of
Indebtedness outstanding pursuant to this clause (3) and clause (4)
of this Section 4.08(b) to exceed $25.0 million;
(4) the incurrence by the Authority of any
Indebtedness in an aggregate principal amount, or accreted
value, as applicable, including all Permitted Refinancing
Indebtedness incurred to extend, refinance, renew, replace,
defease or refund any Indebtedness incurred pursuant to this
clause (4), not to exceed $5.0 million at any time
outstanding under this clause (4); provided, that such
incurrence does not cause the aggregate amount of
Indebtedness outstanding pursuant to this clause (4) and
clause (3) of this Section 4.08(b) to exceed $25.0 million;
(5) the incurrence by the Authority of Permitted
Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to extend, refinance, renew,
replace, defease or refund Indebtedness that was permitted
to be incurred under Section 4.08(a) hereof, clause (1), (3)
or (4) of this Section 4.08(b) or this clause (5); and
(6) the incurrence by the Authority of Indebtedness
represented by loans from Holdings (other than the
Subordinated PIK Note); provided, that (A) the payment of
principal, interest and premium, if any, on such
Indebtedness is expressly subordinate in right of payment to
the Notes, the Senior Subordinated PIK Notes and the Manager
Repayment Note, (B) the maturity date of such Indebtedness
occurs after September 14, 2009 and (C) Holdings is not
entitled to receive any payment on such Indebtedness until
all of the Authority's obligations to the Holders with
respect to the Notes, the Senior Subordinated PIK Notes and
the Manager Repayment Note shall have been paid in full.
(c) The Authority shall not incur any Indebtedness (including
Permitted Debt) that is contractually subordinated in right of payment to any
other Indebtedness of the Authority 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 Authority
shall be deemed to be contractually subordinated in right of payment to any
other Indebtedness of the Authority solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.08, 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 (1) through
(6) of Section 4.08(b) hereof, or is entitled to be incurred pursuant to
Section 4.08(a) hereof, the Authority shall be permitted to classify such item
of Indebtedness on the date of its incurrence, or later reclassify all or a
portion of such item of Indebtedness, in any manner that complies with this
Section 4.08.
Section 4.09 Asset Sales.
(a) The Authority shall not consummate an Asset Sale unless:
(1) the Chukchansi Gold Resort & Casino is Operating;
(2) the Authority receives consideration at the time of such
Asset Sale at least equal to the fair market value of the assets sold
or otherwise disposed of;
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(3) such fair market value is determined by the Authority's
Management Board and evidenced by a resolution of that Management
Board set forth in an Officers' Certificate delivered to the Trustee;
and
(4) at least 85% of the consideration therefor received by
the Authority is in the form of cash. For purposes of this Section
4.09 and not for purposes of the definition of "Net Proceeds" (except
to the extent set forth in that definition with respect to the
conversion of non-cash proceeds to cash), each of the following shall
be deemed to be cash:
(A) any liabilities (as shown on the Authority's
most recent balance sheet) of the Authority (other than
contingent liabilities and liabilities that are by their
terms subordinated to the Notes) that are assumed by the
transferee of any such assets pursuant to a customary
novation agreement that releases the Authority from further
liability with respect thereto;
(B) any securities, notes or other obligations
received by the Authority from such transferee that are
(subject to ordinary settlement periods) converted by the
Authority into cash (to the extent of the cash received in
that conversion) within 30 days of the receipt thereof; and
(C) any assets the Authority would be permitted to
acquire with the Net Proceeds of an Asset Sale pursuant to
the terms of this Section 4.09.
In addition, the Authority may not consummate an Asset Sale with
respect to Key Project Assets.
(b) Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Authority may apply such Net Proceeds, at its option, to make
a capital expenditure with respect to the Chukchansi Gold Resort & Casino or
acquire long-term assets used or useful in connection with the operation of
the Chukchansi Gold Resort & Casino; provided, however, that the Authority
promptly grants to the Trustee, on behalf of the Holders, a first priority
perfected security interest, subject to any Permitted Liens, on such property
or assets on the terms set forth in, and to the extent required by, this
Indenture and the Collateral Documents. Pending the final application of any
such Net Proceeds, the Authority shall temporarily invest such Net Proceeds in
Cash Equivalents which will be held in an account in which the Trustee shall
have a first priority perfected security interest, subject to Permitted Liens,
for the benefit of the Holders in accordance with this Indenture and the
Collateral Documents.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph will constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million,
the Authority will, subject to the second sentence of Section 13.01 hereof,
make a Repurchase Offer to all Holders and all holders of other Indebtedness
that is pari passu with the Notes containing provisions similar to those set
forth in this Indenture with respect to offers to purchase or redeem such
other Indebtedness with the proceeds of sales of assets in accordance with
Section 3.11 hereof, to purchase the maximum principal amount of Notes and
such other pari passu Indebtedness that may be purchased out of the Excess
Proceeds. The offer price in any Repurchase Offer pursuant to this Section
4.09 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. If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Authority may use such Excess Proceeds for any purpose not
otherwise prohibited by this Indenture and the Collateral Documents. If the
aggregate principal amount of Notes and such other pari passu Indebtedness
tendered into such Repurchase Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other pari passu Indebtedness to be
purchased on a pro rata basis based on the principal amount of Notes and such
other pari passu
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Indebtedness tendered. Upon completion of each Repurchase Offer pursuant to
this Section 4.09, the amount of Excess Proceeds shall be reset at zero.
(d) Any Repurchase Offer pursuant to this Section 4.09 will be in
compliance with all applicable laws, rules and regulations, including, if
applicable pursuant to this Section 4.09, Regulation 14E under the Exchange
Act and the rules and regulations thereunder and all other applicable Federal
and state securities laws. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of Section 3.11 hereof, the
Authority will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under Section 3.11 hereof
by virtue of such conflict.
Section 4.10 Events of Loss.
(a) Within 365 days after any Event of Loss with respect to all or
any portion of the Chukchansi Gold Resort & Casino with a fair market value
(or replacement cost, if greater) in excess of $1.0 million, the Authority may
apply the Net Loss Proceeds from such Event of Loss to the rebuilding, repair,
replacement or construction of improvements to the Chukchansi Gold Resort &
Casino, with no concurrent obligation to make any purchase of any Notes;
provided, that:
(1) the Authority delivers to the Trustee within 60
days of such Event of Loss a written opinion from a
reputable contractor that the Chukchansi Gold Resort &
Casino with at least the Minimum Facilities can be rebuilt,
repaired, replaced or constructed, and in a condition to be
Operating, within 360 days of the Event of Loss;
(2) the Authority delivers to the Trustee an
Officers' Certificate certifying that the Authority has
available from Net Loss Proceeds or other sources sufficient
funds to complete the rebuilding, repair, replacement or
construction described in clause (1) above; and
(3) the Net Loss Proceeds are less than $40.0
million.
(b) Any Net Loss Proceeds that are not reinvested or are not
permitted to be reinvested as provided in the first sentence of Section
4.10(a) shall be deemed "Excess Loss Proceeds." Within ten days following the
date that the aggregate amount of Excess Loss Proceeds exceeds $5.0 million,
the Authority will, subject to the second sentence of Section 13.01 hereof,
make a Repurchase Offer to all Holders and all holders of other Indebtedness
that is pari passu with the Notes containing provisions similar to those set
forth in this Indenture with respect to offers to purchase or redeem with
proceeds of events of loss in accordance with Section 3.11 hereof to purchase
or redeem such other Indebtedness with the proceeds of events of loss, to
purchase the maximum principal amount of Notes and such other pari passu
Indebtedness that may be purchased out of the Excess Loss Proceeds. The offer
price in any Repurchase Offer pursuant to this Section 4.10 will 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. If any
Excess Loss Proceeds remain after consummation of a Repurchase Offer, the
Authority may use such Excess Loss Proceeds for any purpose not otherwise
prohibited by this Indenture and the Collateral Documents. If the aggregate
principal amount of Notes and other pari passu Indebtedness tendered into such
Repurchase Offer exceeds the amount of Excess Loss Proceeds, the Trustee shall
select the Notes and such other pari passu Indebtedness to be purchased on a
pro rata basis. Upon completion of any such Repurchase Offer pursuant to this
Section 4.10, the amount of Excess Loss Proceeds shall be reset at zero.
(c) Pending the final application of any Net Loss Proceeds, the
Authority shall deposit such Net Loss Proceeds into an account in which the
Trustee shall have a first priority perfected security interest, subject to
Permitted Liens, and may invest such Net Loss Proceeds only in Cash
Equivalents; provided
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that such Cash Equivalents are held in such account. These pledged funds will
be released to the Authority to pay for or reimburse the Authority for the
actual cost of a permitted use of the Net Loss Proceeds as provided in Section
4.10(a), or the Repurchase Offer, in each case pursuant to the terms of the
Collateral Documents.
(d) In the event of an Event of Loss pursuant to clause (3) of the
definition of "Event of Loss" with respect to any assets that have a fair
market value (or replacement cost, if greater) in excess of $1.0 million, the
Authority will be required to receive consideration (1) at least equal to the
fair market value (evidenced by a resolution of the Authority's Management
Board set forth in an Officers' Certificate delivered to the Trustee) of the
property or assets subject to the Event of Loss and (2) with respect to any
"Event of Loss" of any portion of the Chukchansi Gold Resort & Casino, at
least 85% of which is in the form of Cash Equivalents.
(e) Any Repurchase Offer pursuant to this Section 4.10 will be in
compliance with all applicable laws, rules and regulations, including, if
applicable, Regulation 14E under the Exchange Act and the rules and
regulations thereunder and all other applicable Federal and state securities
laws. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of Section 3.11 hereof, the Authority will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under Section 3.11 hereof by virtue of such
conflict.
Section 4.11 Merger, Consolidation, or Sale of Assets.
The Authority 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 Authority shall not consolidate or merge with or
into any other Person.
Section 4.12 Transactions with Affiliates.
(a) The Authority shall not 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, the Tribe, any agency, instrumentality or
political subunit of the Tribe, any member of the Tribe, Holdings or any
direct holder or Beneficial Owner of five percent or more of Holdings' Equity
Interests, the Manager or any direct holder or Beneficial Owner of five
percent or more of any of the Manager's Equity Interests, the L/C Provider or
any Affiliate of the Tribe, any Affiliate of any member of the Tribe, any
Affiliate of the Manager or any Affiliate of the L/C Provider (each, an
"Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to the Authority than those that would have been obtained
in a comparable transaction by the Authority with an unrelated
Person; and
(2) the Authority delivers to the Trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $1.0 million, a resolution of the
Management Board set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with
this Section 4.12 and that such Affiliate Transaction has
been approved by a majority of the disinterested members of
the Management Board; provided, that if there are no
disinterested members of the Management Board, such
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Affiliate Transaction must be approved unanimously by the
members of the Management Board; and
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, an opinion as to
the fairness to the Holders of such Affiliate Transaction
from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of Section
4.12(a):
(1) entering into customary employee compensation
arrangements that are approved by a majority of disinterested members
of the Management Board; provided, that if there are no disinterested
members of the Management Board, such compensation arrangements must
be approved unanimously by the members of the Management Board;
(2) the execution of, or taking actions or making payments
contemplated by, the Collateral Documents, the Senior Subordinated
PIK Notes, the Subordinated PIK Notes, the Manager Repayment Note,
the Letter of Credit Note, the Registration Rights Agreement, the
Development Agreement, the Manager Agreement or the Management
Agreement;
(3) Permitted Investments and Restricted Payments that are
not prohibited by Section 4.07; and
(4) the making of any payments to Holdings or any direct or
indirect holders of Holdings' Equity Interests, the Manager or any
direct or indirect holder of the Manager's Equity Interests, the L/C
Provider, or any Affiliate of the Manager if such payments are made
in the ordinary course of business at customary rates with respect to
goods or services provided to the Authority.
Section 4.13 Liens.
The Authority shall not, directly or indirectly, create, incur,
assume or suffer to exist any Lien of any kind on any assets now owned or
hereafter acquired by the Authority, or any proceeds, income or profits
therefrom, or collaterally assign the income therefrom, except Permitted
Liens.
Section 4.14 Line of Business.
The Authority shall not engage in any business, development or
investment activity, other than a Permitted Business.
Section 4.15 Governmental Existence.
The Authority will do or cause to be done all things necessary to
preserve and keep in full force and effect (1) its existence in accordance
with the respective organizational, statutory, constitutional or legal
documents, in each case as amended from time to time, of the Authority and the
Tribe and (2) all material rights (charter and statutory), licenses and
franchises of the Authority.
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Section 4.16 Excess Cash Offers.
(a) If, at any time after the Initial Operating Date and prior to
October 1, 2006, the amount of the Authority's Restricted Funds exceeds the
Excess Cash Flow Threshold by $10.0 million (such excess will constitute
"Excess Cash Flow"), the Chukchansi Gold Resort & Casino is Operating and has
not ceased Operating for more than five days during the Mandatory Operating
Period or for more than five days during the Stub Period and no Default or
Event of Default has occurred and is continuing:
(i) the Authority may, subject to the second sentence of
Section 13.01 hereof, make an offer (an "Optional Excess Cash Offer")
to Holders of the Notes to purchase the outstanding principal amount
of Notes, in whole or in part, with up to 100% of the Authority's
Excess Cash Flow at a purchase price equal to the greater of (a) 100%
of the principal amount thereof and (b) the Make-Whole Price, in each
case together with accrued and unpaid interest that could accrue
thereon and Liquidated Damages, if any, through and including the
applicable purchase date; or
(ii) if the Authority does not make an Optional Excess Cash
Offer, it must, subject to the second sentence of Section 13.01
hereof, make an offer (a "Mandatory Excess Cash Offer") to Holders of
the Notes to purchase the outstanding principal amount of Notes, in
whole or in part, with up to 100% of the Authority's Excess Cash Flow
at a purchase price equal to 100% of the principal amount of the
Notes plus accrued and unpaid interest and Liquidated Damages, if
any, to the date of purchase; provided, that, in either case, after
any such purchase there is at least the Required Accumulation Amount
in cash and Cash Equivalents remaining in the Cash Accumulation
Account. Any Excess Cash Flow remaining after the consummation of an
Optional Excess Cash Offer may be used to make Restricted Payments in
accordance with Section 4.07 hereof or used for any purpose not
prohibited by the Indenture and the Collateral Documents and shall no
longer be deemed to be Restricted Funds. Any Excess Cash Flow
remaining after consummation of a Mandatory Excess Cash Offer may be
used for any purpose not prohibited by the Indenture and the
Collateral Documents and shall no longer be deemed to be Restricted
Funds. Upon completion of any Optional Excess Cash Offer or Mandatory
Excess Cash Offer, the amount of Excess Cash Flow shall be reset at
zero.
(b) The Authority will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in
connection with each repurchase of Notes pursuant to an Excess Cash Offer. To
the extent that the provisions of any securities laws or regulations conflict
with the provisions of Section 3.11 or this Section 4.16, the Authority will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under Section 3.11 hereof or this
Section 4.16 by virtue of such conflict.
Section 4.17 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, subject to the second
sentence of Section 13.01 hereof, the Authority shall make an offer (a "Change
of Control Offer") to each Holder to repurchase all or any part (equal to
$1,000 or an integral multiple of $1,000) of each Holder's Notes at a purchase
price equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages on the Notes repurchased, if any, to
the date of purchase (the "Change of Control Payment"). Within ten business
days following any Change of Control, the Authority 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 Change of Control
Payment Date and stating:
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(1) that the Change of Control Offer is being made pursuant
to this Section 4.17 and that all Notes tendered shall be accepted
for payment;
(2) 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");
(3) that any Note not tendered shall continue to accrue
interest;
(4) that, unless the Authority 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;
(5) 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;
(6) that Holders shall be entitled to withdraw their
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 telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in
part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an integral
multiple thereof.
The Authority 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 in Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.17, the Authority shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.17 by virtue of such conflict.
(b) On the Change of Control Payment Date, the Authority shall, to
the extent lawful:
(1) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of
Notes properly tendered; and
(3) 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 Authority.
The Paying Agent shall promptly mail to each Holder of Notes properly
tendered the Change of Control Payment for such 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
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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 Authority
shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.17,
the Authority shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in this Section 4.17 and purchases all Notes validly tendered and not
withdrawn under the Change of Control Offer.
Section 4.18 Limitation on Sale and Leaseback Transactions.
The Authority shall not enter into any sale and leaseback transaction
unless:
(1) the Authority could have (a) incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and
leaseback transaction under the Fixed Charge Coverage Ratio test in
Section 4.08(a) hereof and (b) incurred a Lien to secure such
Indebtedness pursuant to the provisions of Section 4.13 hereof;
(2) the gross cash proceeds of that sale and leaseback
transaction are at least equal to the fair market value, as
determined in good faith by the Management Board and set forth in an
Officers' Certificate delivered to the Trustee, of the property that
is the subject of that sale and leaseback transaction; and
(3) the transfer of assets in that sale and leaseback
transaction is permitted by, and the Authority applies the proceeds
of such transaction in compliance with, Section 4.09 hereof.
Section 4.19 Limitation on Subsidiaries.
The Authority shall not create any instrumentality, subdivision or
subunit. The Authority shall not form, acquire or own any Subsidiary.
Section 4.20 Limitation on Status as Investment Company.
The Authority shall not become an investment company (as that term is
defined in the Investment Company Act), or otherwise become subject to
regulation under the Investment Company Act.
Section 4.21 Insurance.
The Authority shall maintain insurance with carriers against such
risks and in such amounts as is customarily carried by similar businesses with
such deductibles, retentions, self insured amounts and coinsurance provisions
as are customarily carried by similar businesses of similar size, including,
without limitation, property and casualty. Customary insurance coverage shall
be deemed to include, without limitation, the following:
(1) 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;
(2) comprehensive general liability insurance with minimum
limits of $1.0 million;
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(3) umbrella or excess liability insurance providing excess
liability coverages over and above the foregoing underlying insurance
policies up to a minimum limit of $25.0 million;
(4) business interruption insurance at all times for a
period of at least 365 days; and
(5) property insurance protecting the property against
losses or damages as is customarily covered by an "all-risk" policy
or a property policy covering "special" causes of loss for a business
of similar type and size; provided, however, that such insurance
shall provide coverage of not less than the lesser of (x) 120% of the
outstanding principal amount of the Notes plus accrued and unpaid
interest and (y) 100% of actual replacement value (as determined at
each policy renewal based on the F.W. Dodge Building Index or some
other recognized means) of any improvements customarily insured
consistent with industry standards and, in each case, with a
deductible no greater than 2% of the insured value of the Chukchansi
Gold Resort & Casino 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 insurance required by this Section 4.20 (except worker's
compensation) shall name the Trustee as additional insured or loss payee, as
the case may be, with losses in excess of $1.0 million payable jointly to the
Authority and the Trustee (unless a Default or Event of Default has occurred
and is then continuing, in which case all losses are payable solely to the
Trustee), with no recourse against the Trustee for the payment of premiums,
deductibles, commissions or club calls, and for at least 30 days notice of
cancellation. All such insurance policies shall be issued by carriers having
an A.M. Best & Company, Inc. rating of A or higher and a financial size
category of not less than X, or if such carrier is not rated by A.M. Best &
Company, Inc., having the financial stability and size deemed appropriate by
an opinion from a reputable insurance broker. The Authority shall deliver to
the Trustee on the date of this Indenture and each anniversary of the date of
this Indenture a certificate of an insurance agent describing the insurance
policies obtained by the Authority together with an Officer's Certificate
stating that such policies comply with this Section 4.20 and the related
applicable provisions of the Collateral Documents.
Section 4.22 Construction.
The Authority shall construct the Chukchansi Gold Resort & Casino,
including the furnishing, fixturing and equipping thereof, with diligence and
continuity in a good and workmanlike manner substantially in accordance with
the Plans and within the Authority Budget. If on any of January 15, February
15 or March 15, 2003, any of the Manager, the Construction Manager or the
Independent Construction Consultant has not delivered an Officers' Certificate
to the Trustee certifying that construction of the Chukchansi Gold Resort &
Casino is proceeding substantially in accordance with the Plans and within the
Authority Budget and that, as of such date, it reasonably believes that the
Chukchansi Gold Resort & Casino will be Operating by the Gaming Device
Operating Deadline, the Authority shall use its reasonable efforts to cause
the Construction Manager to accelerate construction of the casino and the
buffet or, if the Authority determines that with such acceleration it would
still be unable to open the casino or buffet by the Gaming Device Operating
Deadline, the Authority shall direct the Construction Manager to accelerate
construction of the events center, such that 1,250 of the Tribe's gaming
devices can be placed in commercial operation by the Gaming Device Operating
Deadline.
Section 4.23 Use of Proceeds.
The Authority shall, on the date of this Indenture, deposit
approximately $113.2 million into the Construction Disbursement Account and
approximately $32.4 million into the Interest Reserve Account. Funds in the
Interest Reserve Account shall be used only to pay the first three interest
payments on the Notes. The funds in the Construction Disbursement Account and
the Interest Reserve Account may be
65
invested only in Cash Equivalents. All funds in the Construction Disbursement
Account and the Interest Reserve Account shall be disbursed only in accordance
with the Cash Collateral and Disbursement Agreement.
Section 4.24 Gaming Licenses and Other Permits.
The Authority shall use its best efforts to obtain and retain in full
force and effect at all times all Gaming Licenses and all other
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits or registrations from or with any governmental authority
that are necessary for the operation of the Chukchansi Gold Resort & Casino;
provided, that if in the course of the exercise of its governmental or
regulatory functions the Tribal Gaming Commission is required to suspend or
revoke any consent, permit or license or close or suspend any operation of any
part of the Chukchansi Gold Resort & Casino as a result of any noncompliance
with law, the Authority shall use its best efforts to promptly and diligently
correct such noncompliance or replace any personnel causing such noncompliance
so that the Chukchansi Gold Resort & Casino shall be opened and fully
operating as promptly as practicable.
The Authority shall provide the Trustee, promptly after receipt by
the Authority, with any notice of non-compliance, violation, temporary closure
order or assessment of civil fines from the NIGC (pursuant to IGRA) and any
notice of non-compliance, violation of any Gaming Laws by any other Gaming
Authority, including the State Gaming Agency and the Tribal Gaming Commission.
Section 4.25 Modification or Transfer of Certain Agreements.
The Authority shall not amend, waive or modify, or take or refrain
from taking any action that has the effect of amending, waiving or modifying,
any provision of the Development Agreement or the Management Agreement;
provided, however, that either agreement may be amended or modified so long as
the payments to be made to the Manager thereunder as so amended or modified
are no greater in the aggregate than the payments provided for the Manager
pursuant to the terms of such agreements on the date this Indenture.
Section 4.26 Ownership Interests in the Authority.
The Authority shall not permit any Person other than the Tribe to
acquire any right to elect or appoint any members of the Management Board or
any executive officer of the Authority.
Section 4.27 Further Assurances.
The Authority shall execute and deliver such additional instruments,
certificates or documents, and use commercially reasonable efforts to take all
such actions as may be reasonably required from time to time in order to:
(1) carry out more effectively the purposes of the
Collateral Documents;
(2) subject to the Liens created by any of the Collateral
Documents any of the properties, rights or interests required to be
encumbered thereby;
(3) create, grant, perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and the
Liens created, or intended to be created, by the Collateral
Documents; and
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(4) better assure, convey, grant, assign, transfer,
preserve, protect and confirm to the Trustee any of the rights
granted or intended to be granted to the Trustee under any other
instrument executed in connection therewith or granted to the
Authority under the Collateral Documents or under any other
instrument executed in connection therewith.
Upon the exercise by the Trustee or any Holder of any power, right,
privilege or remedy under this Indenture or any of the Collateral Documents
which requires any consent, approval, recording, qualification or
authorization of any governmental authority (including, without limitation,
any Gaming Authority), the Authority shall execute and deliver all
applications, certifications, instruments and other documents and papers that
may be required from the Authority for such governmental consent, approval,
recording, qualification or authorization.
Section 4.28 Payments for Consent.
The Authority shall not, directly or indirectly, pay or cause to be
paid any consideration to or for the benefit of any Holder of the Notes for or
as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Notes or any Collateral Document unless such
consideration is offered to be paid and is paid to all Holders that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
ARTICLE 5.
COVENANTS OF THE TRIBE
Section 5.01 Prohibited Activities.
Except as required by federal, state or local law, the Tribe shall
not, and shall not permit any of its representatives, political subunits or
councils, agencies or instrumentalities, to, directly or indirectly:
(a) increase or impose any tax, levy or other similar monetary
payment or reimbursement obligation on the Authority or on any patrons of the
Chukchansi Gold Resort & Casino or on any activity at the Chukchansi Gold
Resort & Casino (gaming or otherwise), other than:
(1) any payments due under any agreement in effect on the
date of this Indenture or any such payments that are not materially
adverse to the economic interests of Holders pursuant to the Notes or
any of the Collateral Documents or the ability of the Authority to
timely perform in full all of its obligations under this Indenture,
the Notes or the Collateral Documents; or
(2) those which are reasonable nondiscriminatory charges for
utilities or other governmental services supplied by the Tribe and
used by the Authority in an amount not to exceed the reasonable cost
of such services and a reasonable allowance for administrative costs;
(b) subject to the last two paragraphs of this Section 5.01 and
Section 5.02, amend the Tribal Gaming Ordinance, the Authority Ordinance, the
arbitration code or uniform commercial code in effect on the date of this
Indenture in any manner that would be materially adverse to the interests or
rights of Holders under the Notes or any of the Collateral Documents, restrict
or eliminate the exclusive right of the Authority to conduct gaming operations
on behalf of the Tribe, conduct or permit any other entity to conduct gaming
operations on any property owned, directly or beneficially, or controlled by
the Tribe or materially and adversely alter, modify or amend any regulation
relating to a Holder's rights under the Notes or any of the Collateral
Documents;
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(c) take any other action, enter into any agreement, amend its
Constitution or enact any ordinance, law, rule or regulation that would
adversely prejudice or have a material adverse effect on any of the rights of
the Holders under this Indenture, the Notes or any of the Collateral
Documents;
(d) assert that any waiver of the Authority or the Tribe, any choice
of judicial forum, designation of governing law or any remedy expressly
authorized in this Indenture or in any Collateral Document is void or
unenforceable; or
(e) fail to timely pay or cause to be paid any tax, imposition,
judgment, award or charge of any nature which, if not paid, would permit
enforcement of a lien on the Site or the Chukchansi Gold Resort & Casino,
other than any such payment that is being contested in good faith and, during
the time such payment is being contested, does not create any risk of
foreclosure or forfeiture of the Site or the Chukchansi Gold Resort & Casino.
In addition, except as specifically provided in this Indenture, the
Tribe shall not, and shall not permit the Authority or any of the Tribe's
representatives, political subunits, councils, agencies or instrumentalities
to, directly or indirectly impose, levy, tax or otherwise make any charge on
this Indenture, the Notes, the Collateral Documents or any payments or
deposits to be made thereunder, including without limitation upon the payment
of any principal, premium, interest or Liquidated Damages, if any.
Notwithstanding the foregoing, or any other provision of this Indenture, the
Tribal Gaming Commission shall be permitted to reasonably exercise in good
faith its governmental and regulatory functions authorized or required under
the Compact or the Tribal Gaming Ordinance.
Any action taken by the Tribe to comply with federal or state law
that would otherwise violate this Section 5.01 shall be taken only after prior
written notice to the Trustee accompanied with an Officers' Certificate and
Opinion of Counsel that such action is required by federal or state law.
Section 5.02 Permitted Amendments to Tribal Gaming Ordinance.
The Tribe agrees that any amendments made to the Tribal Gaming
Ordinance shall be a legitimate effort to comply with the Compact or IGRA or
to ensure that the Authority conducts its gaming operations in a manner that
adequately protects the environment, the public health and safety or the
integrity of the Authority or operation of the Chukchansi Gold Resort & Casino
and not with the purpose of delaying or hindering the repayment of the Notes.
The Tribe and the Authority agree that any licensure or investigation of any
Holder, in its capacity as such Holder or otherwise, shall be conducted in
good faith and with a reasonable basis therefore.
Section 5.03 Further Assurances Regarding Authority; No Conveyance or
Encumbrance of Land.
To the extent within its lawful power, the Tribe shall take all such
action and shall refrain from taking such action as is necessary to cause the
Authority at all times to be a wholly-owned or wholly-controlled entity
created under the laws of the Tribe, permitted under all other applicable
laws, including IGRA, to have access to the Site and to operate the business
of the Authority (including such gaming as permitted under IGRA and the
Compact) and to timely perform all of the Authority's obligations under this
Indenture, the Notes and the Collateral Documents. The Tribe shall not convey
or encumber, or permit to be conveyed or encumbered, any interest in land
constituting all or a portion of the Site, other than a transfer of fee title
in the land to the U.S. government to be held in trust for the benefit of the
Tribe, and except for the creation of Permitted Liens.
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Section 5.04 Incurrence of Obligations Affecting Authority.
The Tribe shall not permit or incur any consensual liability of the
Tribe (or of any other instrumentality or subunit of the Tribe) that is a
legal obligation of the Authority, or for which the Authority's assets may be
bound, other than a liability that the Authority is permitted or not
prohibited from incurring on its own behalf under this Indenture.
Section 5.05 Receipt of Prohibited Payments from the Authority.
In the event that the Tribe receives any payment from the Authority
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 to, the Authority promptly, and in any event
immediately upon receipt of a written request from the Trustee or the
Authority.
Section 5.06 Payment In Full of Obligations to Holders of Notes Before
Certain Payments to the Tribe.
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 Authority or the Chukchansi Gold Resort & Casino,
the Holders shall be entitled to receive payment in full with respect to all
principal, premium, interest, Liquidated Damages, if any, and other amounts
owing in respect of each of the Notes before any payment or any distribution
to the Tribe.
Section 5.07 Consent to Liens Securing Obligations.
The Tribe hereby consents, agrees and acknowledges to the creation of
the Liens securing the Obligations under the Notes, this Indenture and the
Collateral Documents created under the Notes, this Indenture or the Collateral
Documents.
Section 5.08 Limitation on Actions of Tribe.
The Tribe shall not, and shall not permit the Authority or any of the
Tribe's representatives, political subunits, councils, agencies or
instrumentalities to, exercise any power of eminent domain over any property
that is used or useful in connection with the operations of the Chukchansi
Gold Resort & Casino. Except as required by federal or state law, the Tribe
shall not enact any statute, law, ordinance or rule that would have a material
adverse effect on the rights of the Holders under this Indenture or any of the
Collateral Documents.
Section 5.09 Bankruptcy Restrictions.
(a) The Tribe shall not, pursuant to or within the meaning of any
Bankruptcy Law, appoint or consent to the appointment of a custodian of the
Authority or for all or substantially all of the property of the Authority.
(b) The Tribe agrees that it shall not 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
Holders provided for in this Indenture or the Collateral Documents.
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Section 5.10 Exclusive Operation of Gaming Enterprise.
The Tribe agrees that the Authority shall have sole and exclusive
jurisdiction to operate any Gaming enterprise on behalf of the Tribe or any
political subunit thereof and the Tribe shall not permit any Person other than
the Tribe to acquire any right to elect or appoint any members of the
Management Board or any executive office of the Authority.
Section 5.11 Exclusion From Licensing Requirements of Compact.
The Tribal Gaming Commission shall at all times provide a complete
exclusion from the licensing requirements of Section 6.4.6 of the Compact for
(i) all federally-regulated or state-regulated banks, savings and loans or
other federally- or state- regulated lending institutions, (ii) any agency or
federal, state or local government or (iii) any investor, who, alone or in
conjunction with another, holds less than 10% of any outstanding Indebtedness
evidenced by bonds issued by the Tribe or the Authority.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) the Authority defaults for 30 days in the payment when
due of interest on, or Liquidated Damages with respect to, the Notes;
(2) the Authority defaults in the payment when due (at
maturity, upon redemption or otherwise) of the principal of, or
premium, if any, on the Notes;
(3) the Authority fails to comply with the provisions of
Section 4.09, 4.10, 4.11, 4.15, 4.17 and 4.22 hereof;
(4) the Authority fails to perform or comply with the
provisions of Section 4.07 or 4.08 hereof, or any of the covenants
set forth in the Collateral Documents, for 30 days after notice to
the Authority by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding, voting as a
single class;
(5) the Authority or the Tribe (with respect to its
obligations under this Indenture) fails to observe or perform any
other covenant, representation, warranty or other agreement in this
Indenture or the Notes not set forth in clause (3) or (4) above for
60 days after notice to the Authority by the Trustee or the Holders
of at least 25% in aggregate principal amount of the Notes then
outstanding, voting as a single class;
(6) a default occurs 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
Authority (or the payment of which is guaranteed by the Authority),
whether such Indebtedness or Guarantee now exists, or is created
after the date of this Indenture (other than a default under the
Senior Subordinated PIK Notes, the Subordinated PIK Notes, the
Manager Repayment Note or the Letter of Credit Note resulting from
the Authority's failure to make a change of control offer or an asset
sale offer, as applicable, to the holders of such notes), if that
default:
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(A) 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
(B) results in the acceleration of such
Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which
has been so accelerated, as applicable, aggregates to $5.0 million or
more;
(7) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction
against the Authority, which judgment or judgments are not paid,
discharged or stayed for a period of 60 days; provided that the
aggregate of all such undischarged judgments exceeds $5.0 million;
(8) any of the Collateral Documents cease, for any reason
(other than pursuant to the terms thereof), to be in full force and
effect, or the Authority asserts that any of the Collateral Documents
cease to be in full force and effect, or any security interest
created, or purported to be created, by any of the Collateral
Documents ceases to be enforceable and of the same effect and the
priority purported to be created thereby;
(9) any representation or warranty made by the Authority in
any Collateral Document or contained in any certificate, document or
financial or other statement furnished by the Authority at any time
under or in connection with any Collateral Document proves to have
been inaccurate in any material respect on or as of the date made or
deemed to be made;
(10) the L/C Provider defaults in the performance of its
obligations set forth in, or repudiates its obligations under, the
Letter of Credit Drawdown Agreement, and such default is not cured
within 30 days;
(11) an Event of Default occurs and is continuing under the
Manager Agreement (as defined in such agreement);
(12) the Manager:
(a) defaults in the performance of its obligations set forth in, or
repudiates its obligations under, the Development Agreement, Management
Agreement or Cash Accumulation Account Contribution Agreement and either:
(A) such default is not cured within 30 days; or
(B) a new manager meeting the requirements of a
Permitted Replacement Manager has not assumed and complied
with the Manager's obligations under such agreements as
required by the definition of Permitted Replacement Manager
within 30 days thereof,
unless in any such event, either (i) the Manager continues
in all material respects to provide services to the
Authority in compliance with the Management Agreement, or
(ii) such transaction constitutes a Change of Control; or
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(b) is terminated or resigns as manager of the Chukchansi Gold Resort
& Casino or otherwise ceases to be the manager (other than as set forth in
clause (a) above) of the Chukchansi Gold Resort & Casino unless:
(A) a Permitted Replacement Manager has assumed and
complied with the Manager's obligations under the
Development Agreement, Management Agreement and Cash
Accumulation Account Contribution Agreement as required by
the definition of Permitted Replacement Manager within 30
days thereof, or
(B) such termination or withdrawal constitutes a
Change of Control;
(13) the Initial Operating Date does not occur by the
Operating Deadline or any Gaming License is lost, revoked or
suspended and, as a result, the Chukchansi Gold Resort & Casino
ceases Operating for a period of more than 90 consecutive days;
(14) the Authority, pursuant to or within the meaning of
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a custodian of
it or for all or substantially all of its property,
(D) makes a general assignment for the benefit of
its creditors, or
(E) generally is not paying its debts as they
become due; or
(15) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Authority in an
involuntary case;
(B) appoints a custodian of the Authority for all
or substantially all of the property of the Authority; or
(C) orders the liquidation of the Authority;
and the order or decree remains unstayed and in effect for
60 consecutive days.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (14) or (15)
of Section 6.01 hereof, with respect to the Authority, all outstanding Notes
will become due and payable immediately without further action or notice,
subject to the second sentence of Section 13.01 hereof. 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, subject to the second
sentence of Section 13.01 hereof, declare all the Notes to be due and payable
immediately. The Holders of a majority in aggregate principal amount of the
then outstanding Notes by written notice to the Trustee may on behalf of all
of the Holders rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if
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all existing Events of Default (except nonpayment of principal, interest or
premium that has become due solely because of the acceleration) have been
cured or waived.
If an Event of Default occurs on or after October 1, 2006 by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of
the Authority with the intention of avoiding payment of the premium that the
Authority would have had to pay if the Authority 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 and subject to the second sentence of
Section 13.01 hereof, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to October 1,
2006 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Authority with the intention of avoiding the prohibition on
redemption of the Notes prior to October 1, 2006, then, upon acceleration of
the Notes and subject to the second sentence of Section 13.01 hereof, an
additional premium shall also become and be immediately due and payable in an
amount, for the periods set forth below, as set forth below (expressed as a
percentage of the principal amount of the Notes on the date of payment that
would otherwise be due but for the provisions of this sentence):
Year Percentage
---- ----------
October 1, 2002 to September 30, 2003......... 120.00%
October 1, 2003 to September 30, 2004......... 118.25%
October 1, 2004 to September 30, 2005......... 116.50%
October 1, 2005 to September 30, 2006......... 114.75%
As promptly as practicable following any acceleration of the Notes,
the Trustee shall send a written notice to all Holders advising the Holders of
the following:
(1) an acceleration of the Notes has occurred; and
(2) under the terms of this Indenture and the Notes, neither
the Trustee nor the Authority may make any payments of principal or
interest on the Notes (i) as a result of any enforcement action
commenced by or on behalf of the Trustee or any Holder or (ii) after
payment of the Notes has been accelerated because of a default under
this Indenture, except, in each case, to a Holder that is licensed or
exempted from licensing by the Tribal Gaming Commission in accordance
with the Compact.
Section 6.03 Payment of Operating Expenses.
Following an Event of Default (other than an Event of Default
described in clause (14) or (15) of Section 6.01), and only until the Holders
of at least 25% in principal amount of the then outstanding Notes direct the
Trustee to cease the disbursement of funds in the Deposit Accounts to pay
Operating Expenses, the Trustee shall not prohibit funds in the Deposit
Account to be disbursed to the Authority for the payment of Operating Expenses
if the Authority delivers to the Trustee:
(1) a certificate executed by at least two officers of the
Authority that states that such funds will be used to pay Operating
Expenses and identifies the payees of such funds and the basis for
such payments; and
(2) a certificate executed by at least two Officers of the
Manager confirming the information provided in the Authority's
certificate.
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Section 6.04 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 and
Liquidated Damages, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture, subject to the
second sentence of Section 13.01 hereof.
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 6.05 Waiver of Past Defaults.
Holders of not less than a majority in aggregate 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 the principal of, premium and Liquidated Damages, if any, or
interest on, the Notes (including in connection with an offer to purchase);
provided, however, that the Holders of a majority in aggregate 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 6.06 Control by Majority.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability.
Section 6.07 Limitation on Suits.
Subject to Section 6.08 and the second sentence of Section 13.01
hereof, a Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(1) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(2) 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;
(3) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(4) 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
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(5) 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 6.08 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to
the second sentence of Section 13.01 hereof, the right of any Holder of a Note
to receive payment of principal, premium and Liquidated Damages, if any, and
interest on 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; provided that
a Holder shall not have the right to institute any such suit for the
enforcement of payment if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of the Lien of this
Indenture upon any property subject to such Lien.
Section 6.09 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, subject to the second sentence of Section 13.01 hereof, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Authority for the whole amount of principal of,
premium and Liquidated Damages, if any, and interest remaining unpaid on the
Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 6.10 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, subject to the second sentence of Section 13.01 hereof, the Holders of
the Notes allowed in any judicial proceedings relative to the Authority (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.
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Section 6.11 Priorities.
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: subject to the second sentence of Section 13.01
hereof, to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium and
Liquidated Damages, if any and interest, respectively; and
Third: to the Authority 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 6.11.
Section 6.12 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 6.12 does not apply to a suit by the Trustee, a suit by
a Holder of a Note pursuant to Section 6.08 hereof, or a suit by Holders of
more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
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opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee will 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:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(2) the Trustee will 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
(3) the Trustee will 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 will require the Trustee to expend
or risk its own funds or incur any liability. The Trustee will be under no
obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder has offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee will not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Authority. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may 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 will
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel will 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 will not
be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee will 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 Authority will be sufficient if
signed by an Officer of the Authority.
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(f) The Trustee will 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 have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might
be incurred by it in compliance with such request or direction.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Authority or any
Affiliate of the Authority with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Authority's use of the proceeds from the Notes or any
money paid to the Authority or upon the Authority's direction under any
provision of this Indenture, it will not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it will 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 will 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 or
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.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
will comply with TIA ss. 313(b)(2). The Trustee will also transmit by mail all
reports as required by TIA ss. 313(c).
(b) A copy of each report at the time of its mailing to the Holders
of Notes will be mailed by the Trustee to the Authority and filed by the
Trustee with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA ss. 313(d). The Authority will promptly notify the Trustee
when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Authority will pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation will not be limited by
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any law on compensation of a trustee of an express trust. The Authority will
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 will include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
(b) The Authority will 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
Authority (including this Section 7.07) and defending itself against any claim
(whether asserted by the Authority 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 will notify
the Authority promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Authority will not relieve the Authority of
its obligations hereunder. The Authority will defend the claim and the Trustee
will cooperate in the defense. The Trustee may have separate counsel and the
Authority will pay the reasonable fees and expenses of such counsel. The
Authority is not required to pay for any settlement made without its consent,
which consent will not be unreasonably withheld.
(c) The obligations of the Authority under this Section 7.07 will
survive the satisfaction and discharge of this Indenture.
(d) To secure the Authority's payment obligations in this Section
7.07, the Trustee will 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 will survive the satisfaction and
discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(15) or (16) 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.
(f) The Trustee will comply with the provisions of TIAss. 313(b)(2)
to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Authority. The Holders of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Authority in writing. The
Authority may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) 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;
(3) a custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
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(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Authority will 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 Authority.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the
Authority, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) 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.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Authority. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its
succession to Holders. The retiring Trustee will 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 of the Trustee
pursuant to this Section 7.08, the Authority's obligations under Section 7.07
hereof will continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act will be the
successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will 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
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11 Preferential Collection of Claims Against Authority.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
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ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Authority may, at the option of its Management Board evidenced by
a resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Authority's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Authority will, 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
Authority will be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which will 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 clauses (1) and (2) 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 Authority, shall
execute proper instruments acknowledging the same), except for the following
provisions which will survive until otherwise terminated or discharged
hereunder:
(1) 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
from the trust referred to in Section 8.04 hereof;
(2) the Authority's obligations with respect to such Notes
under Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Authority's obligations in connection
therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Authority 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 Authority's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Authority will, 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, 4.14, 4.16, 4.17, 4.18, 4.19,
4.20, 4.21, 4.22, 4.23, 4.24, 4.25, 4.26, 4.27 and 4.28 hereof, Section
5.01(a), Section 5.01(e) and the last paragraph of Section 5.01 and
Sections 5.04, 5.05, 5.06 and 5.10 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 hereof
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes will
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 will continue to be
deemed "outstanding" for all other purposes hereunder (it being understood
that such Notes will not be deemed outstanding for accounting purposes).
For this purpose, Covenant Defeasance means that, with respect to
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the outstanding Notes, the Authority may omit to comply with and will have no
liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such
omission to comply will 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 will be unaffected thereby. In addition, upon the
Authority's exercise under Section 8.01 hereof of the option applicable to
this Section 8.03 hereof, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(6) hereof will not
constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
(1) the Authority must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders of 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, interest and premium and Liquidated Damages, if
any, on the outstanding Notes on the stated date for payment thereof
or on the applicable redemption date, as the case may be, and the
Authority must specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof,
the Authority has delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming
that:
(A) the Authority has received from, or there has
been published by, the Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has
been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as
a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(3) in the case of an election under Section 8.03 hereof,
the Authority must deliver to the Trustee an Opinion of Counsel in
the United States 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;
(4) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied
to such deposit);
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(5) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under,
any material agreement or instrument (other than this Indenture) to
which the Authority is a party or by which the Authority is bound;
(6) the Authority must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Authority
with the intent of preferring the Holders of Notes over the other
creditors of the Authority with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Authority or
others; and
(7) the Authority must deliver to the Trustee an Officers'
Certificate stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance have been
complied with, and an Opinion of Counsel stating that the conditions
set forth in clauses (1) (with respect to validity and perfection of
the security interest), (2), (3) and (5) above have been satisfied.
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
will 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 Authority 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 Authority will 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.
Notwithstanding anything in this Article 8 to the contrary, the
Trustee will deliver or pay to the Authority from time to time upon the
request of the Authority 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(1) 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.
Section 8.06 Repayment to Authority.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Authority, in trust for the payment of the principal of, premium
or Liquidated Damages, if any, or interest on any Note and remaining unclaimed
for two years after such principal, premium or Liquidated Damages, if any, or
interest has become due and payable shall be paid to the Authority on its
request or (if then held by the Authority) will be discharged from such trust;
and the Holder of such Note will thereafter be permitted to look only to the
Authority for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Authority as
trustee thereof, will 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 Authority cause to be published once, in the New York Times
and
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The Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which will not be less
than 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Authority.
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 Authority's obligations under this
Indenture and the Notes will 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 Authority makes any payment of principal of, premium or Liquidated
Damages, if any, or interest on any Note following the reinstatement of its
obligations, the Authority will be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Authority and the
Trustee may amend or supplement this Indenture, the Notes or the Collateral
Documents without the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes or to alter the provisions of Article 2
hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;
(3) 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 the
Note;
(4) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(5) to provide for the issuance of Additional Notes;
(6) to enter into additional or supplemental Collateral
Documents;
(7) to comply with all applicable rules and regulations of
the NIGC, the BIA or any governmental authority; or
(8) to comply with the provisions of DTC, Euroclear or
Clearstream or the Trustee with respect to the provisions of this
Indenture or the Notes relating to the transfers and exchanges of
Notes or beneficial interests therein.
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Upon the request of the Authority accompanied by a resolution of its
Management Board authorizing the execution of any such amended or supplemental
Indenture or Collateral Documents, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee will join with the
Authority and the Tribe in the execution of any amended or supplemental
Indenture or Collateral Documents 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 will not be obligated to enter into
such amended or supplemental Indenture or Collateral Documents that affects
its own rights, duties or immunities under this Indenture, the Collateral
Documents or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Authority and the
Trustee may amend or supplement this Indenture (including, without limitation,
Sections 3.11, 4.09, 4.10, 4.16 and 4.17 hereof), the Notes or the Collateral
Documents with the consent of the Holders of a majority in principal amount of
the Notes (including, without limitation, Additional Notes, if any) then
outstanding voting as a single class (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and, subject to Sections 6.05 and 6.08 hereof, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium or Liquidated Damages, if any, or
interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture,
the Notes or the Collateral Documents may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes voting
as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes).
Notwithstanding any other provision of this Indenture, any amendment
to, or waiver of, Section 4.13 hereof or Article 10 hereof shall require the
consent of the Holders of at least 66 2/3% in aggregate principal amount of
the Notes then outstanding.
Upon the request of the Authority accompanied by a resolution of its
Management Board authorizing the execution of any such amended or supplemental
Indenture, Notes or Collateral Documents, 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 will join with the Authority and the Tribe in
the execution of such amended or supplemental Indenture, Notes or Collateral
Documents unless such amended or supplemental Indenture, Notes or Collateral
Documents directly affects the Trustee's own rights, duties or immunities
under this Indenture, the Notes, the Collateral Documents or otherwise, in
which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture, Notes or Collateral
Documents.
It is 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 is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Authority will mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Authority to mail such notice, or any defect therein, will not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.05 and 6.08 hereof,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Authority with any provision of this Indenture, the Notes and
the Collateral Documents. However,
85
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):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of
the Notes, except as provided above with respect to Sections 3.11,
4.09, 4.10, 4.16 and 4.17 hereof;
(3) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of
principal of, interest or premium or Liquidated Damages, if any, on
the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the
then outstanding Notes and a waiver of the payment default that
resulted from such acceleration);
(5) make any Note payable in money other than that stated in
the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults 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;
(7) waive a redemption payment with respect to any Note
(other than a payment required by Sections 3.11, 4.09, 4.10, 4.16 and
4.17 hereof);
(8) release all or substantially all of the Collateral from
the Lien created by this Indenture or the Collateral Documents
(except in accordance with the provisions thereof); or
(9) make any change in Section 6.05 or 6.08 hereof or in the
foregoing amendment and waiver provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will 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.
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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 Authority 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 will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental Indenture or
Collateral Documents authorized pursuant to this Article 9 if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Authority may not sign an amendment or
supplemental Indenture, Notes or Collateral Documents until the Management
Board approves it. In executing any amended or supplemental Indenture, Notes
or Collateral Documents, the Trustee will be entitled to receive and (subject
to Section 7.01 hereof) will be fully protected in relying upon, in addition
to the documents required by Section 14.04 hereof, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such amended or
supplemental Indenture, Notes or Collateral Documents is authorized or
permitted by this Indenture.
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01 Collateral Documents.
Subject to the Liens permitted by the Collateral Documents and the
second sentence of Section 13.01 hereof, the due and punctual payment of the
principal of and interest and Liquidated Damages, if any, on the Notes when
and as the same shall be due and payable, whether on an interest payment date,
at maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest and Liquidated Damages (to
the extent permitted by law), if any, on the Notes and performance of all
other obligations of the Authority to the Holders of Notes or the Trustee
under this Indenture and the Notes, according to the terms hereunder or
thereunder, are secured as provided in the Collateral Documents which the
Authority has entered into simultaneously with the execution of this
Indenture. Each Holder of Notes, by its acceptance thereof, consents and
agrees to the terms of the Collateral Documents (including, without
limitation, the provisions providing for foreclosure and release of
Collateral) as the same may be in effect or may be amended from time to time
in accordance with its terms and authorizes and directs the Trustee to enter
into the Collateral Documents and to perform its obligations and exercise its
rights thereunder in accordance therewith. The Authority will deliver to the
Trustee copies of all documents required to be delivered to the Trustee
pursuant to the Collateral Documents, and will do or cause to be done all such
acts and things as may be necessary or proper, or as may be required by the
provisions of the Collateral Documents, to assure and confirm to the Trustee
the security interest in the Collateral contemplated hereby, by the Collateral
Documents or any part thereof, as from time to time constituted, so as to
render the same available for the security and benefit of this Indenture and
of the Notes secured hereby, according to the intent and purposes herein
expressed. The Authority will take, upon request of the Trustee, any and all
actions reasonably required to cause the Collateral Documents to create and
maintain, as security for the Obligations of the Authority hereunder, a valid
and enforceable perfected first priority Lien in and on all the Collateral, in
favor of the Trustee for the benefit of the Holders of Notes, superior to and
prior to the rights of all third Persons and subject to no other Liens than
Permitted Liens.
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Section 10.02 Security Interest During an Event of Default.
If an Event of Default occurs and is continuing, the Trustee may, in
addition to any rights and remedies available to it under this Indenture and
the Collateral Documents, take such action as it deems advisable to protect
and enforce its rights in the Collateral, including the institution of sale or
foreclosure proceedings.
So long as no Event of Default shall have occurred and be continuing,
and subject to certain terms and conditions set forth in this Indenture and
the Collateral Documents, the Authority will be entitled to receive the
benefit of all cash dividends, interest and other payments made upon or with
respect to the Collateral pledged by it and to exercise any voting and other
consensual rights pertaining to the Collateral pledged by it. Upon the
occurrence and continuation of an Event of Default:
(1) all rights of the Authority to exercise such voting or
other consensual rights will cease, and all such rights shall become
vested in the Trustee, which, to the extent permitted by law, will
have the sole right to exercise such rights;
(2) all rights of the Authority to receive all cash
dividends, interest and other payments made upon or with respect to
the Collateral will cease and such cash dividends, interest and other
payments will be paid to the Trustee; and
(3) the trustee may sell the Collateral or any part of the
Collateral in accordance with the terms of the Collateral Documents.
Under the terms of this Indenture and the Collateral Documents, so
long as an Event of Default is continuing, the Trustee will determine the
circumstances and manner in which the Collateral will be disposed of,
including, but not limited to, the determination of whether to release all or
any portion of the Collateral from the Liens created by the Collateral
Documents and whether to foreclose on the Collateral following an Event of
Default.
Section 10.03 Recording and Opinions.
(a) The Authority will furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either:
(1) stating that, in the opinion of such counsel, all action
has been taken with respect to the recording, registering and filing
of this Indenture, financing statements or other instruments
necessary to make effective the Lien intended to be created by the
Collateral Documents, and reciting with respect to the security
interests in the Collateral, the details of such action; or
(2) stating that, in the opinion of such counsel, no such
action is necessary to make such Lien effective.
(b) The Authority will furnish to the Trustee on January 1 in each
year beginning with January 1, 2003, an Opinion of Counsel, dated as of such
date, either:
(1) (A) stating that, in the opinion of such counsel, action
has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of all supplemental
indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien
of the Collateral Documents and reciting with respect to the security
interests in the Collateral the details of such action or referring
to prior
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Opinions of Counsel in which such details are given, and (B) stating
that, in the opinion of such counsel, based on relevant laws as in
effect on the date of such Opinion of Counsel, all financing
statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12
months fully to preserve and protect, to the extent such protection
and preservation are possible by filing, the rights of the Holders of
Notes and the Trustee hereunder and under the Collateral Documents
with respect to the security interests in the Collateral;
(2) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien and assignment.
(c) The Authority will otherwise comply with the provisions
of TIA ss.314(b).
Section 10.04 Release of Collateral.
(a) Subject to subsections (b), (c) and (d) of this Section 10.04,
Collateral may be released from the Lien and security interest created by the
Collateral Documents at any time or from time to time in accordance with the
provisions of the Collateral Documents or as provided hereby. In addition,
upon the request of the Authority pursuant to an Officers' Certificate
certifying that all conditions precedent hereunder have been met and stating
whether or not such release is in connection with an Asset Sale and (at the
sole cost and expense of the Authority) the Trustee will release Collateral
that is sold, conveyed or disposed of in compliance with the provisions of
this Indenture and the Collateral Documents; provided, that if such sale,
conveyance or disposition constitutes an Asset Sale, the Authority will apply
the Net Proceeds in accordance with Section 4.09 hereof. Upon receipt of such
Officers' Certificate the Trustee shall execute, deliver or acknowledge any
necessary or proper instruments of termination, satisfaction or release to
evidence the release of any Collateral permitted to be released pursuant to
this Indenture or the Collateral Documents.
(b) No Collateral may be released from the Lien and security interest
created by the Collateral Documents pursuant to the provisions of the
Collateral Documents unless the certificate required by this Section 10.04 has
been delivered to the Trustee.
(c) At any time when a Default or Event of Default has occurred and
is continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise), no release of Collateral pursuant to the provisions
of the Collateral Documents will be effective as against the Holders of Notes.
(d) The release of any Collateral from the terms of this Indenture
and the Collateral Documents will not be deemed to impair the security under
this Indenture in contravention of the provisions hereof if and to the extent
the Collateral is released pursuant to the terms of this Indenture or the
Collateral Documents. To the extent applicable, the Authority will cause TIA
ss. 313(b), relating to reports, and TIA ss. 314(d), relating to the release
of property or securities from the Lien and security interest of the
Collateral Documents and relating to the substitution therefor of any property
or securities to be subjected to the Lien and security interest of the
Collateral Documents, to be complied with. Any certificate or opinion required
by TIA ss. 314(d) may be made by an Officer of the Authority except in cases
where TIA ss. 314(d) requires that such certificate or opinion be made by an
independent Person, which Person will be an independent engineer, appraiser or
other expert selected or approved by the Trustee in the exercise of reasonable
care.
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Section 10.05 Certificates of the Authority.
The Authority will furnish to the Trustee, prior to each proposed
release of Collateral pursuant to the Collateral Documents:
(1) all documents required by TIAss.314(d); and
(2) an Opinion of Counsel to the effect that such
accompanying documents constitute all documents required by TIA
ss.314(d).
The Trustee may, to the extent permitted by Sections 7.01 and 7.02
hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
Section 10.06 Certificates of the Trustee.
In the event that the Authority wishes to release Collateral in
accordance with the Collateral Documents and has delivered the certificates
and documents required by the Collateral Documents and Sections 10.04 and
10.05 hereof, the Trustee will determine whether it has received all
documentation required by TIA ss. 314(d) in connection with such release and,
based on such determination and the Opinion of Counsel delivered pursuant to
Section 10.05(2), will deliver a certificate to the Trustee setting forth such
determination.
Section 10.07 Authorization of Actions to Be Taken by the Trustee Under the
Collateral Documents.
Subject to the provisions of Section 7.01 and 7.02 hereof, the
Trustee may, in its sole discretion and without the consent of the Holders of
Notes, on behalf of the Holders of Notes, take all actions it deems necessary
or appropriate in order to:
(1) enforce any of the terms of the Collateral Documents;
and
(2) collect and receive any and all amounts payable in
respect of the Obligations of the Authority hereunder.
The Trustee will have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Collateral
Documents or this Indenture, and such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and the interests of the
Holders of Notes in the Collateral (including power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
hereunder or be prejudicial to the interests of the Holders of Notes or of the
Trustee).
Section 10.08 Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents.
The Trustee is authorized to receive any funds for the benefit of the
Holders of Notes distributed under the Collateral Documents, and to make
further distributions of such funds to the Holders of Notes according to the
provisions of this Indenture.
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Section 10.09 Termination of Security Interest.
Upon the payment in full of all Obligations of the Authority under
this Indenture and the Notes, or upon Covenant Defeasance or Legal Defeasance,
the Trustee will, at the request of the Authority, deliver a certificate to
the Trustee stating that such Obligations have been paid in full, and to
release the Liens pursuant to this Indenture and the Collateral Documents.
ARTICLE 11.
WAIVER OF SOVEREIGN IMMUNITY; WAIVER OF TRIBAL COURTS AND FORUMS
Section 11.01 Irrevocable Waiver of Sovereign Immunity.
Each of the Authority and the Tribe (each a "Tribal Party") hereby
unconditionally and irrevocably waives its sovereign immunity and any and all
defenses based thereon with respect to any claim, demand, dispute, action or
cause of action arising under or in any way connected with or related or
incidental to this Indenture or the Notes, as the same may be amended or
modified from time to time, whether now existing or hereafter arising and
whether sounding in tort, contract or otherwise (collectively "Permitted
Claims"). Such waiver shall extend (a) to permit the interpretation,
enforcement and the seeking of legal or equitable relief and remedies (whether
through an award or granting of specific performance, injunction, mandamus,
damages or otherwise) by the parties hereto (and their successors and assigns
permitted hereunder) through arbitration proceedings as herein provided, and
(b) to permit judicial actions to compel, enter judgment upon, enforce, modify
or vacate any award or interim injunctive relief related to the arbitration
proceedings in any of the Applicable Courts described in Section 11.02 below.
In connection with the foregoing waiver of sovereign immunity by each
of the Authority and the Tribe:
(a) Duration. The duration of such waiver shall commence on the date
hereof and continue with respect to each of the Authority and the Tribe until
one year after all obligations of such Tribal Party hereunder have been
completely performed and any amounts, if any, owed hereunder from the
Authority have been indefeasibly paid in full;
(b) Grantees. The grantee(s) of the waiver are the Trustee and the
Holders, together with their successors and assigns hereunder;
(c) Scope. The scope of the waiver applies to all Permitted Claims;
(d) Property and Funds. The only property, assets or rights against
which any award, judgment or other order for relief arising from this waiver
may be enforced are "Authority Assets" as defined in the Authority Ordinance
whether held in the name of the Authority, the Tribe or any branch,
department, agency, instrumentality, division, subsidiary, authority,
enterprise, corporation, business or other entity directly or indirectly owned
or controlled in whole or in part by either the Authority or the Tribe.
Notwithstanding the foregoing, any revenues or other property transferred by
the Authority to any other Tribal Party in compliance with this Indenture
shall, upon transfer, no longer constitute Authority Assets;
(e) Jurisdictions. The courts with jurisdiction with respect to the
Permitted Claims are the Applicable Courts (as defined in Section 11.02 below)
(subject to the obligation of each Tribal Party to submit to arbitration as
provided herein); and
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(f) Governing Law. The law applicable to the waiver and the Permitted Claims
shall be the internal laws of the State of New York, except where application
of the uniform commercial code of the State of New York will not recognize a
lien and the perfection of a lien on any Authority Assets as security for any
performance of the Authority or the Tribe hereunder, and the uniform
commercial code of the Tribe will recognize the lien or the perfection of the
lien, in which case the law the Tribe, as applicable, that recognizes the lien
and perfection shall apply.
Section 11.02 Designation of Applicable Courts and Jurisdiction.
Each of the Authority and Tribe hereby irrevocably consents to the
following courts, jurisdictions and venues for the judicial actions described
in Section 11.01 above (the "Applicable Courts"): (a) the United States
District Court for the Southern District of New York, and all courts to which
any appeal therefrom may be available; (b) any court of the State of New York,
and all courts to which any appeal therefrom may be available; (c) if none of
the foregoing courts shall have or accept jurisdiction, then any other federal
or state court, and all courts to which any appeal therefrom may be available;
and (d) if none of the foregoing courts shall have or accept jurisdiction,
then any court of the Tribe (in the case of any Permitted Claim to which the
Tribe or the Authority is a party).
Section 11.03 Additional Waivers as to Tribal Courts.
Each of the Authority and the Tribe hereby unconditionally and
irrevocably waives the jurisdiction of any tribal courts now or hereafter
existing or created with respect to any Permitted Claim, except as provided in
clause (d) of Section 11.02 above. Each of the Authority and the Tribe
unconditionally and irrevocably waives the application of any rule or doctrine
relating to exhaustion of tribal remedies or comity that might otherwise
require a Permitted Claim be heard in a tribal court.
Section 11.04 Agreement not to Contest.
In connection with any Permitted Claim, each of the Authority and the
Tribe agrees it will not dispute before or in any court, arbitration panel or
other forum, the validity and binding effect of its waiver of sovereign
immunity, consent to arbitration proceedings, consent to judicial proceedings,
or waivers of the right to assert application of any rules or doctrines of
exhaustion of tribal remedies or comity with respect to tribal court, all to
the extent contained herein.
Section 11.05 Arbitration.
All Permitted Claims must be resolved by binding arbitration under
the commercial arbitration rules of the American Arbitration Association (the
"AAA"), as modified by this Section 11.05. Notwithstanding any other provision
of this Article 11, an arbitrator shall not have the power to compel, negate,
assume, usurp or in any manner affect any Governmental Action unless any
Governmental Action or failure to take any Governmental Action constitutes a
breach of this Indenture by the Tribe or the Authority. "Governmental Action"
means any resolution, ordinance, statute, regulation, order or decision
regardless of how constituted having the force of law or legal authorization
of the Tribe, the Authority or any instrumentality or agency of the Tribe.
(a) Commencement of Proceedings. An arbitration proceeding may be
commenced only by the Tribe, the Authority, the Trustee, or the extent
remedies may be enforced directly by a Holder, by the Holder, by the filing of
a Statement of Claim (within the meaning of the AAA rules) with the AAA and
serving a copy thereof on the other parties affected by the Permitted Claim. A
single arbitrator shall hear the Permitted Claim, and shall be selected in
accordance with the rules of the AAA.
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(b) Qualification of Arbitrators. No person shall be eligible to
serve as an arbitrator if the person is related to, affiliated with or has
represented in a legal capacity any party to the arbitration proceeding or any
party to this Indenture. The arbitrator shall be an attorney admitted to
practice and in good standing before the highest court of a state, who is
experienced in advising clients in connection with commercial borrowings or
the issuance of debt securities.
(c) Discovery. Any party shall be permitted to engage in any
discovery permitted under the rules of the AAA. However, all discovery shall
be completed within 90 days following the initial filing of the Statement of
Claim.
(d) Hearing. The hearing on the arbitration shall be held in the City
of Los Angeles, California, and commence and be completed no more than 30 days
after the close of discovery, and the arbitrator shall render an award in
writing within 30 days of the completion of the hearing, which shall contain
findings of facts and conclusions of law. The parties hereto further agree
that any arbitrator appointed hereunder may award interim injunctive relief
before the final arbitration award. Any controversy concerning whether an
issue is arbitrable shall be determined by the arbitrator.
(e) Enforcement. Proceedings to enter judgment upon, enforce, modify
or vacate any award or interim injunctive relief may be commenced in any of
the Applicable Courts. Any such proceedings shall be governed (i) by the
Federal Arbitration Act, if the matter will be heard in federal court, (ii)
the tribal arbitration code adopted by Resolution No. 2001-34 of the Tribal
Council, as amended by an amendment thereto adopted on July 30, 2002 by Tribal
Council Resolution No. 2002-39, provided that the standards of review of the
award in all cases shall be consistent with the Federal Arbitration Act, (iii)
by the applicable state arbitration code, if the matter will be heard in state
court, and (iv) by the arbitration code of the Tribe, if the matter will be
heard in a tribal court, provided that the standards of review of the award in
all cases shall be consistent with the Federal Arbitration Act.
(f) Prohibition on Punitive Damages. Each party hereto agrees that
each party has equal bargaining power and that each has freely entered into
this agreement after such consultation with its attorneys as it has deemed
advisable, and that notwithstanding any other provision herein, no arbitrator
shall have the power to award punitive damages and any such award shall be
null and void and of no effect.
(g) Validity of Arbitration Provisions. Each party hereto agrees that
these arbitration provisions are valid, binding and enforceable, and, to the
extent permitted by law, waives any defense or claim to the contrary.
(h) Full faith and credit. The Authority, the Tribe and the tribal
courts of the Tribe now or hereafter existing shall give full faith and credit
to any award, order or decree rendered in any arbitration or by any federal or
state court in accordance with this Section 11.05, and, to the extent
reasonably necessary, shall issue such orders and exercise such legal powers
as may reasonably be necessary to effectuate the same. The Tribe shall cause
the police powers of the Tribe to be available to secure and support any such
enforcement efforts with respect to the Tribe or the Authority, and all police
or other law enforcement officials of the Tribe to carry out any orders that
may be entered by the Tribe or its tribal court pursuant to this Section
11.05. The Authority and the Tribe agree that judgment enforcement remedies
generally available throughout the State of New York may be applied on lands
held by or in trust for or under the control of the Tribe with respect to any
matter that is a proper subject of arbitration under this Section 11.05.
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Section 11.06 Non-Impairment.
Neither the Authority, the Tribe nor any of their respective
Affiliates will: (i) adopt, enact, promulgate or otherwise place into effect
any law or legal requirement that impairs or interferes, or could impair or
interfere, in any manner, with any right or remedy of another party hereunder
or their successors and assigns (it being understood and agreed that any such
law or legal requirement that is adopted, enacted, promulgated or otherwise
placed into effect without the prior written consent of any affected party,
successor or assign shall be void and of no effect); or (ii) demand, impose or
receive any tax, charge, assessment, fee or other imposition or impose any
regulatory or licensing requirement against a party, their successors or
assigns, except in connection with licensing required by the Compact.
ARTICLE 12.
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) 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
Authority) have been delivered to the Trustee for cancellation; or
(b) 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 Authority 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 and
Liquidated Damages, if any, and accrued interest to the date of maturity or
redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of such deposit or will 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 Authority is a party or by which the Authority is bound;
(3) the Authority has paid or caused to be paid all sums
payable by it under this Indenture; and
(4) the Authority has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward
the payment of the Notes at maturity or the redemption date, as the
case may be.
In addition, the Authority must deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
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Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 12.01, the provisions of Section 12.02 and Section 8.06
will survive. In addition, nothing in this Section 12.01 will be deemed to
discharge those provisions of Section 7.07 hereof, that, by their terms,
survive the satisfaction and discharge of this Indenture.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited with
the Trustee pursuant to Section 12.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Authority
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), interest and
Liquidated Damages, if any, for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds
except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 12.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the Authority's obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
12.01; provided that if the Authority has made any payment of principal of,
premium, if any, or interest on any Notes because of the reinstatement of its
obligations, the Authority shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.
Notwithstanding anything in this Article 12 to the contrary, the
Trustee will deliver or pay to the Authority from time to time upon the
request of the Authority any money or non-callable Government Securities held
by it as provided in Section 12.01 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof 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.
ARTICLE 13.
SPECIAL PROVISIONS REGARDING UNLICENSED AND NON-EXEMPT HOLDERS
Section 13.01 Special Provisions Regarding Unlicensed and Non-Exempt Holders.
If any Notes are transferred to a Holder (or Beneficial Owner) that
is not licensed or exempted from licensing by the Tribal Gaming Commission in
accordance with the Compact, then neither the transferee Holder (or Beneficial
Owner) nor any person acting on behalf of that transferee Holder (or
Beneficial Owner), including the Trustee, has any right to enforce any payment
obligation relating to the Notes against any revenues, property or rights of
the Authority or the Tribe, or any branch, department, agency,
instrumentality, division, subsidiary, enterprise, authority or wholly-owned
corporation or business of the Tribe (whether through the exercise of voting
rights or otherwise), until such time as the transferee holder is licensed or
exempted from licensing by the Tribal Gaming Commission in accordance with the
Compact. Notwithstanding any other provision of this Indenture, the Trustee,
the Authority and the Tribe are prohibited from making any payment on the
Notes (1) as a result of any enforcement action commenced by or on behalf of
the Trustee or any Holder or (2) after payment of the Notes has been
accelerated because of a default under this Indenture, except in each case to
a Holder that is licensed or exempted from licensing by the Tribal Gaming
Commission in accordance with the Compact.
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The foregoing provisions of this Section 13.01 shall not apply to any
Person who is not licensed as a Financial Source (or exempted from such
requirement) to the extent the Compact or the State Bond Regulation is ever
amended to not require such Person to be licensed as a Financial Source.
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss.318(c), the imposed duties will control.
Section 14.02 Notices.
Any notice or communication by the Authority, the Tribe 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), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others' address:
If to the Authority:
Chukchansi Economic Development Authority
46575 Road 417
Coarsegold, California 93614
Telecopier No.: (559) 642-4075
Attention: Chairperson
With a copy to:
Monteau & Peebles LLP
1001 Second Street
Sacramento, California 95814-3201
Telecopier No.: (916) 441-2067
Attention: John Peebles
If to the Tribe:
Picayune Rancheria of Chukchansi Indians
46575 Road 417
Coarsegold, California 93614
Telecopier No.: (559) 642-4075
Attention: Chairperson
If to the Trustee:
U.S. Bank, N.A.
180 East 5th Street
St. Paul, Minnesota 55101
Telecopier No.: (651) 244-0711
Attention: Corporate Trust Department
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The Authority, Tribe 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)
will 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 answered back, if telexed; 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 will 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 will also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it will
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 Authority mails a notice or communication to Holders, it will
mail a copy to the Trustee and each Agent at the same time.
Section 14.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Authority,
the Tribe, the Trustee, the Registrar and anyone else shall have the
protection of TIA ss. 312(c).
Section 14.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Authority to the Trustee to
take any action under this Indenture, the Authority shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 14.05 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
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which must include the statements set forth in
Section 14.05 hereof) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been satisfied.
Section 14.05 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 ss. 314(a)(4)) must comply with the provisions of TIA
ss. 314(e) and must include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 14.06 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 14.07 No Personal Liability of the Tribe, Directors, Officers,
Employees and Members.
Neither the Tribe nor any director, officer, officeholder, employee
agent, representative or member of the Authority or the Tribe, as such, will
have any liability for any obligations of the Authority under the Notes, this
Indenture, the Collateral Documents or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such 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.
Section 14.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. WITH RESPECT TO THE
CREATION, ATTACHMENT, PERFECTION OR PRIORITY OF THE SECURITY INTEREST IN ANY
COLLATERAL SECURING THE NOTES, THE GOVERNING LAW SHALL BE THE UNIFORM
COMMERCIAL CODE OF NEW YORK, UNLESS NO PERFECTED SECURITY INTEREST IS
RECOGNIZED UNDER THAT LAW, IN WHICH CASE THE UNIFORM COMMERCIAL CODE OF THE
STATE OF CALIFORNIA, AS ADOPTED AND MODIFIED BY THE TRIBE AS ITS LAW, SHALL
APPLY. THE TRIBE AND THE AUTHORITY AGREE THAT THE TRANSACTIONS UNDER THIS
INDENTURE, INCLUDING THE EXECUTION HEREOF, THE LENDING OF MONEY AND THE
ISSUANCE OF THE NOTES HEREUNDER, OCCURRED OUTSIDE THE TRIBE'S RANCHERIA IN THE
STATE OF NEW YORK.
Section 14.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Authority or of any other Person. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 14.10 Successors.
All agreements of the Authority in this Indenture and the Notes will
bind its successors. All agreements of the Trustee in this Indenture will bind
its successors.
98
Section 14.11 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 14.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
Section 14.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and will in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
99
SIGNATURES
Dated as of October 8, 2002
CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY
a wholly-owned unincorporated enterprise of the
Picayune Rancheria of Chukchansi Indians
By: /s/ Dixie Jackson
---------------------------------------
Name: Dixie Jackson
Title: Chairperson
PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS
a federally recognized Indian tribe
By: /s/ Dixie Jackson
---------------------------------------
Name: Dixie Jackson
Title: Chairperson
U.S. BANK, N.A. a
national banking
association
By: /s/ Frank P. Leslie III
---------------------------------------
Name: Frank P. Leslie III
Title: Vice President
S-1
EXHIBIT A-1
[Face of Note]
==============================================================================
CUSIP ______
14 1/2% [Series A] [Series B] Senior Notes due 2009
No. ___ $___________
CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY
promises to pay to _____________________
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on June 15, 2009.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Dated: October 8, 2002
CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. Bank, N.A., as Trustee
By: _________________________________
Authorized Signatory
==============================================================================
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[Back of Note]
14 1/2% [Series A] [Series B] Senior Notes due 2009
[Insert the Global Note Legend, if applicable pursuant to the provisions of
the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
[Insert the Original Issue Discount Legend, if applicable pursuant to the
provisions of the Indenture]
Capitalized terms used herein have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
(1) INTEREST. The Chukchansi Economic Development Authority
(the "Authority"), a wholly owned unincorporated enterprise of the
Picayune Rancheria of Chukchansi Indians, a sovereign tribe
recognized by the United States pursuant to 25 C.F.R. Part 83 (the
"Tribe"), promises to pay interest on the principal amount of this
Note at 14 1/2% per annum from October 8, 2002 until maturity and
shall pay the Liquidated Damages, if any, payable pursuant to Section
5 of the Registration Rights Agreement referred to below. The
Authority will 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 will
accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided,
however, that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date
referred to on the face hereof (each a "Record Date") 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 April 1, 2003. The Authority
will 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 will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages, if any,
(without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Authority will 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
applicable 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 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal,
premium and Liquidated Damages, if any, and interest at the office or
agency of the Authority maintained for such purpose within or without
the City and State of New York, or, at the option of the Authority,
payment of interest and Liquidated Damages, if any, may be made by
check mailed to the Holders at their addresses set forth in the
register of Holders; provided, that payment by wire transfer of
immediately available funds will 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 will
have provided wire transfer instructions to the Authority or the
Paying Agent. Such payment will 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.
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(3) PAYING AGENT AND REGISTRAR. Initially, U.S. Bank, N.A.,
the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Authority may change any Paying Agent or Registrar
without notice to any Holder. The Authority may act in any such
capacity.
(4) INDENTURE AND COLLATERAL DOCUMENTS. The Authority issued
the Notes under an Indenture dated as of October 8, 2002 (the
"Indenture"), among the Authority, 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 (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes are
subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are secured obligations of the Authority
limited to $178.0 million in aggregate principal amount. The Notes
are secured by the Collateral set forth in the Collateral Documents.
(5) OPTIONAL REDEMPTION.
The Notes are not redeemable at the Authority's option prior
to October 1, 2006.
Subject to the second sentence of Section 16 hereof, at any
time on or after October 1, 2006, the Authority will have the option
to redeem the Notes, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the periods indicated
below:
Year Percentage
---- ----------
October 1, 2006 to September 30, 2007....... 113.000%
October 1, 2007 to September 30, 2008....... 108.667%
October 1, 2008 to June 14, 2009............ 104.333%
(6) MANDATORY REDEMPTION.
The Company will not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
(7) MANDATORY DISPOSITION PURSUANT TO GAMING LAWS.
(a) Each Holder, by accepting a Note, shall be
deemed to have agreed that, if any Gaming Authority
determines, and a Holder or Beneficial Owner of the Notes is
notified, that (i) such Holder or Beneficial Owner must
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 or any shorter period
as may be required by such Gaming Authority, or (ii) such
Holder or Beneficial Owner will not be licensed, qualified
or found suitable under applicable Gaming Law, or any
license, qualification or finding of suitability is not
renewed upon its expiration or is revoked, or (iii) such
Holder or Beneficial Owner has been found to be unsuitable
for licensing then, the Authority, at its option, may (A)
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
(1) 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 (2) the receipt
of the notice from the Gaming Authority that the Holder or
Beneficial Owner shall not be licensed, qualified or found
suitable;
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or (B) subject to the second sentence of Section 16 hereof,
redeem the Notes of such Holder or Beneficial Owner at a
price equal to the least of (1) 100% of the principal amount
thereof, (2) the price at which such Holder or Beneficial
Owner acquired the Notes and (3) the fair market value of
the Notes, together with, in each case, to the extent
permitted by the Compact, 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, or that such license, qualification or
finding of suitability has been revoked or will not be
renewed, the Holder or Beneficial Owner shall, to the extent
required by applicable law, have no further rights (i) to
exercise any right conferred by the Notes, directly or
indirectly, through any trustee, nominee or any other Person
or entity, or (ii) to receive any interest, dividends,
economic interests or any other distributions or payments
with respect to the Notes or any remuneration in any form
from the Authority for services rendered or otherwise,
except the redemption price of the Notes.
(c) Any Holder or Beneficial Owner of Notes that is
required to apply for a license, qualification or a finding
of suitability may be required to pay all fees and costs of
the licenses and any investigation for the qualification or
finding of suitability by the applicable Gaming Authorities.
The Authority 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.
(d) The Authority will notify the Trustee in
writing of any disposition pursuant to this Section 7 as
soon as is practicable. The Trustee will be required to
report the names of the record holders of Notes to any
Gaming Authority when required by law.
(8) REPURCHASE OFFERS.
(a) Change of Control Offer. Subject to the
restrictions set forth in Section 16 hereof, if there is a
Change of Control, the Authority will 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 thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date
of purchase (the "Change of Control Payment Date"). Within
ten days following any Change of Control, the Authority will
mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the
Indenture.
(b) Asset Sale Offer. If the Authority consummates
any Asset Sales, within five days of each date on which the
aggregate amount of Excess Proceeds exceeds $5.0 million,
the Authority will, subject to the second sentence of
Section 16 hereof, commence an offer to all Holders of Notes
(including any Additional Notes) and all holders of other
Indebtedness that is pari passu with the Notes containing
provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of
sales of assets or of an event of loss (a "Asset Sale
Offer"), as applicable, pursuant to Section 3.11 of the
Indenture to purchase the maximum principal amount of Notes
(including any Additional Notes) and other pari passu
Indebtedness, as applicable, that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued
and unpaid interest and Liquidated Damages thereon, if any,
to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture.
To the extent that the aggregate
A-1-4
amount of Notes (including any Additional Notes) and other
pari passu Indebtedness tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Authority may
use such deficiency for any purpose not otherwise prohibited
by the Indenture. If the aggregate principal amount of Notes
and other pari passu Indebtedness surrendered by holders
thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and other pari passu Indebtedness to
be purchased on a pro rata basis. Holders of Notes that are
the subject of an offer to purchase will receive an Asset
Sale Offer from the Authority prior to any related purchase
date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
(c) Event of Loss Offer. If the Authority has
Excess Loss Proceeds, within ten days of each date on which
the aggregate amount of Excess Loss Proceeds exceeds $5.0
million, the Authority will, subject to the second sentence
of Section 16 hereof, commence an offer to all Holders of
Notes (including any Additional Notes) and all holders of
other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in the
Indenture with respect to offers to purchase or redeem with
the proceeds from an event of loss (an "Event of Loss
Offer"), pursuant to Section 3.11 of the Indenture to
purchase the maximum principal amount of Notes (including
any Additional Notes) and other pari passu Indebtedness that
may be purchased out of the Excess Loss Proceeds at an offer
price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date fixed for
the closing of such offer, in accordance with the procedures
set forth in the Indenture. To the extent that the aggregate
amount of Notes (including any Additional Notes) and other
pari passu Indebtedness, as applicable, tendered pursuant to
an Event of Loss Offer is less than the Excess Loss
Proceeds, the Authority may use such deficiency for any
purpose not otherwise prohibited by the Indenture. If the
aggregate principal amount of Notes and other pari passu
Indebtedness surrendered by holders thereof exceeds the
amount of the Excess Loss Proceeds, the Trustee shall select
the Notes and other pari passu Indebtedness, as applicable,
to be purchased on a pro rata basis. Holders of Notes that
are the subject of an offer to purchase will receive an
Event of Loss Offer from the Authority prior to any related
purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
(d) Excess Cash Offers. If, at any time after the
Initial Operating Date and prior to October 1, 2006, the
Authority has Excess Cash Flow and is permitted or required,
as the case may be, to make an Optional Excess Cash Offer or
a Mandatory Excess Cash Offer, the Authority will, subject
to the second sentence of Section 16 hereof, commence an
offer to all Holders of Notes (including any Additional
Notes) (an "Excess Cash Offer") pursuant to Section 3.11 of
the Indenture to purchase the maximum principal amount of
Notes (including any Additional Notes) that may be purchased
out of the Excess Cash Flow at the offer prices set forth in
Section 4.16 of the Indenture in accordance with the
procedures set forth in the Indenture. To the extent that
the aggregate amount of Notes (including any Additional
Notes) tendered pursuant to any Excess Cash Offer is less
than the Excess Cash Flow, the Authority may use such
deficiency as set forth in Section 4.16 of the Indenture. If
the aggregate principal amount of Notes surrendered by
holders thereof exceeds the Excess Cash Flow, the Trustee
shall select the Notes to be purchased on a pro rata basis.
Holders of Notes that are the subject of an offer to
purchase will receive an Excess Cash Offer from the
Authority prior to any related purchase date and may elect
to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" on the reverse of the
Notes.
(e) The Authority will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent
those laws
A-1-5
and regulations are applicable in connection with each
repurchase of Notes pursuant to any Change of Control Offer,
Asset Sale Offer, Event of Loss Offer or Excess Cash Offer.
To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 8,
the Authority will comply with the applicable securities
laws and regulations and will not be deemed to have breached
its obligations under this Section 8 by virtue of such
conflict.
(9) NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of
the Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Notes or portions
thereof called for redemption.
(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
Authority may require a Holder to pay any taxes and fees required by
law or permitted by the Indenture. The Authority need not exchange or
register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Authority need not exchange or register
the transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed or during the period between a record date
and the corresponding Interest Payment Date.
(11) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(12) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Notes or the Collateral Documents 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, 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 amount of the then outstanding Notes and Additional
Notes, if any, voting as a single class. Any amendment to, or waiver
of, the provisions of any of the Collateral Documents relating to
Section 4.13 of the Indenture or Article 10 thereof will require the
consent of the Holders of at least 66-2/3% in principal amount of the
Notes then outstanding. Without the consent of any Holder of a Note,
the Indenture, the Notes or the Collateral Documents may be amended
or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of
certificated Notes, 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, to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act, to provide for the issuance of Additional Notes, to
enter into additional or supplemental Collateral Documents, to comply
with all applicable rules and regulations of the NIGC, the BIA or any
governmental authority or to comply with the provisions of DTC,
Euroclear or Clearstream or the Trustee with respect to the
provisions of the Indenture or the Notes relating to the transfers
and exchange of Notes or beneficial interests therein.
(13) DEFAULTS AND REMEDIES. Events of Default include:
A-1-6
(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 principal of or
premium, if any, on the Notes when the same becomes due and
payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise,
(c) failure by the Authority to comply with Section
4.09, 4.10, 4.11, 4.15, 4.17 or 4.22 of the Indenture;
(d) failure by the Authority to comply with Section
4.07 or 4.08, or any of the covenants set forth in the
Collateral Documents for 30 days after notice to the
Authority by the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding voting as a
single class;
(e) failure by the Authority or the Tribe (with
respect to its obligations under the Indenture) for 60 days
after notice to the Authority by the Trustee or the Holders
of at least 25% in principal amount of the Notes then
outstanding voting as a single class to comply with or
observe certain other covenants, representations, warranties
or agreements in the Indenture;
(f) default under certain other agreements relating
to Indebtedness of the Authority (or the payment of which is
guaranteed by the Authority), whether such Indebtedness or
Guarantee exists now, or is created after the date of the
Indenture (other than a default under the Senior
Subordinated PIK Notes, the Subordinated PIK Notes, the
Manager Repayment Note or the Letter of Credit Note
resulting from the Authority's failure to make a change of
control offer or asset sale offer to the holders of such
notes) which default is caused by the failure to pay
principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of any grace period
provided in such Indebtedness or results in the acceleration
of such Indebtedness prior to its express maturity;
(g) certain final judgments for the payment of
money aggregating in excess of $5.0 million that remain
undischarged for a period of 60 days;
(h) any of the Collateral Documents cease, for any
reason (other than pursuant to the terms thereof), to be in
full force and effect, or the Authority asserts that any of
the Collateral Documents cease to be in full force and
effect, or any security interest created, or purported to be
created, by any of the Collateral Documents ceases to be
enforceable and of the same effect and priority purported to
be created thereby;
(i) the representations and warranties of the
Authority in the Collateral Documents or set forth in any
certificate, document or financial or other statement
furnished by the Authority under or in connection with any
such Collateral Document proves to have been inaccurate in
any material respect on or as of the date made or deemed to
be made;
(j) the L/C Provider defaults in the performance of
its obligations set forth in, or repudiates its obligations
under, the Letter of Credit Drawdown Agreement, and such
default remains uncured for 30 days;
(k) an Event of Default occurs and is continuing
under the Manager Agreement;
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(l) the Manager (A) defaults in the performance of
its obligations set forth in, or repudiates its obligations
under, the Development Agreement, the Management Agreement
or the Cash Accumulation Account Contribution Agreement and
either (1) such is default is not cured within 30 days or
(2) a new manager meeting the requirements of a Permitted
Replacement Manager has not assumed and complied with the
Manager's obligations under such agreements as required by
the definition of Permitted Replacement Manager within 30
days thereof, unless in any such event, either (x) the
Manager continues in all material respects to provide
services to the Authority in compliance with the Management
Agreement, or (y) such transaction constitutes a Change of
Control or (B) is terminated or resigns as the manager of
the Chukchansi Gold Resort & Casino or otherwise ceases to
be the manager (other than as set forth in clause (A) above)
of the Chukchansi Gold Resort & Casino unless (1) a
Permitted Replacement Manager has assumed and complied with
the Manager's obligations under the Development Agreement,
the Management Agreement and the Cash Accumulation Account
Contribution Agreement as required by the definition of
Permitted Replacement Manager within 30 days thereof, or (2)
such termination or withdrawal constitutes a Change of
Control;
(m) the Initial Operating Date does not occur by
the Operating Deadline or any Gaming License is lost,
revoked or suspended and, as a result, the Chukchansi Gold
Resort & Casino ceases Operating for a period of more than
90 consecutive days; and
(n) certain events of bankruptcy or insolvency with
respect to the Authority.
If any 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 subject to the second sentence of Section 16 hereof.
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect
to the Authority, all outstanding Notes will become due and payable
without further action or notice, subject to the second sentence of
Section 16 hereof. Holders 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) 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 on, or the principal of,
the Notes. The Authority is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the
Authority is required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
In the case of any Event of Default occurring after October
1, 2006, by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Authority with the intention of
avoiding payment of the premium that the Authority would have had to
pay if the Authority had then elected to redeem the Notes pursuant to
the optional redemption provisions of the Indenture, an equivalent
premium will also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes, subject
to the second sentence of Section 16 hereof. If an Event of Default
occurs prior to October 1, 2006, by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Authority with
the intention of avoiding the prohibition on redemption of the Notes
prior to October 1, 2006, then the premium specified in the Indenture
shall also become immediately due and payable to the extent
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permitted by law upon the acceleration of the Notes, subject to the
second sentence of Section 16 hereof.
(14) TRIBAL COVENANTS. All of the covenants of the Tribe set
forth in Article 5 of the Indenture are hereby incorporated herein
with the same force and effect as though set forth in their entirety
herein.
(15) TRUSTEE DEALINGS WITH AUTHORITY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Authority, and may otherwise deal
with the Authority, as if it were not the Trustee.
(16) SPECIAL PROVISIONS REGARDING UNLICENSED AND NON-EXEMPT
HOLDERS. If this Note is transferred to a Holder (or Beneficial
Owner) that is not licensed or exempted from licensing by the Tribal
Gaming Commission in accordance with the Compact, the neither that
transferee Holder (or Beneficial Owner) nor any Person acting on
behalf of that transferee Holder (or Beneficial Owner), including the
Trustee, shall have any right to enforce any payment obligation
relating to the Notes against any revenues, property or rights of the
Authority or the Tribe, or any branch, department, agency,
instrumentality, division, subsidiary, enterprise, authority or
wholly-owned corporation or business of the Tribe (whether through
the exercise of voting rights or otherwise) until such time as the
transferee Holder is licensed or exempted from licensing by the
Tribal Gaming Commission in accordance with the Compact. The Trustee,
the Authority and the Tribe are prohibited from making any payment on
the Notes (1) as a result of any enforcement action commenced by or
on behalf of the Trustee or any Holder or (2) after payment of the
Notes has been accelerated because of a default under the Indenture,
except in each case to a Holder that is licensed or exempted from
licensing by the Tribal Gaming Commission in accordance with the
Compact.
(17) NO RECOURSE AGAINST OTHERS. Neither the Tribe nor any
director, officer, officeholder, employee, agent, representative or
member of the Authority or the Tribe, as such, will have any
liability for any obligations of the Authority under the Notes, the
Indenture, the Collateral Documents or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance
of the Notes.
(18) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(19) ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(20) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided
to Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes will have all the rights set
forth in the Registration Rights Agreement dated as of October 8,
2002, among the Authority, the Tribe and the initial purchasers of
the Notes or, in the case of Additional Notes, Holders of Restricted
Global Notes and Restricted Definitive Global Notes will have the
rights set forth in one or more registration rights agreements among
the Authority, the Tribe and the other parties thereto, relating to
rights given by the Authority and the Tribe to purchasers of any
Additional Notes (collectively, the "Registration Rights Agreement").
A-1-9
(21) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Authority 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.
(22) WAIVER OF SOVEREIGN IMMUNITY; WAIVER OF TRIBAL COURTS
AND FORUMS; CONSENT TO JURISDICTIONS; APPLICABLE LAW; MANDATORY
ARBITRATION OF PERMITTED CLAIMS; PERMITTED COURT ACTIONS. All
provisions of the Indenture relating to the Tribe's and the
Authority's waivers of sovereign immunity and rights to resolve
disputes in arbitration, as well as consents and agreements of the
Tribe and the Authority to applicable laws and jurisdictions for the
resolution of disputes and the agreements of the Tribe and the
Authority to arbitrate certain permitted claims, are hereby
incorporated herein with the same force and effect as though set
forth at length herein.
The Authority will furnish to any Holder upon written request and
without charge a copy of the Indenture, any of the Collateral Documents and/or
the Registration Rights Agreement. Requests may be made to:
Chukchansi Economic Development Authority
46575 Road 417
Coarsegold, California 93614
Telephone: (559) 683-6633
Telecopy: (559) 642-4075
Attention: Chairperson
A-1-10
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 Authority. 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).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Authority
pursuant to Section 4.09, 4.10, 4.16 or 4.17 of the Indenture, check the
appropriate box below:
Section 4.09 Section 4.10 Section 4.16 Section 4.17
If you want to elect to have only part of the Note purchased by the
Authority pursuant to Section 4.09, 4.10, 4.16 or 4.17 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).
A-1-1
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 of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized officer
in Principal Amount Principal Amount decrease of Trustee or
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
- ---------------- ------------------- ------------------- ------------------ ------------------
A-1-1
EXHIBIT A-2
[Face of Regulation S Temporary Global Note]
______________________________________________________________________________
CUSIP ___________
14 1/2% [Series A] [Series B] Senior Notes due 2009
No. ___ $__________
CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY
promises to pay to ___________________
or registered assigns,
the principal sum of _________________________________________________________
Dollars on June 15, 2009.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Dated: October 8, 2002
CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. Bank, N.A., as Trustee
By:__________________________________
Authorized Signatory
________________________________________________________________________________
A-2-1
[Back of Regulation S Temporary Global Note]
14 1/2% [Series A] [Series B] Senior Notes due 2009
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 THEREON.
PRIOR TO EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED
IN REGULATION S ("REGULATION S") UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT")), THIS SECURITY MAY NOT BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES (AS DEFINED IN REGULATION S), OR FOR THE ACCOUNT OR BENEFIT OF, A U.S.
PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A PERSON REASONABLY BELIEVED TO
BE A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ("RULE 144A")
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A AND THE INDENTURE REFERRED TO HEREIN OR TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT).
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY
THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE
SECURITIES.
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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE AUTHORITY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
A-2-2
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ACCORDINGLY, NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR A BENEFICIAL INTEREST HEREIN, THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER OF THE SECURITY
THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT, (c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"(AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED THAT THE ISSUER SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, RESALE, ASSIGNMENT, PLEDGE OR TRANSFER
PURSUANT TO CLAUSES (c), (d) OR (e) ABOVE TO REQUIRE THE DELIVERY OF AN
OPINION (IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER) OF COUNSEL
SATISFACTORY TO THE ISSUER, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE ISSUER, (2) TO THE ISSUER OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION; (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; AND NO
REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY
RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY; AND (C) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY, THAT UNLESS SUCH PERSON IS LICENSED
AS A LENDER PURSUANT TO THE PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS'
TRIBAL-STATE GAMING COMPACT OR IS EXEMPT FROM SUCH LICENSING REQUIREMENTS,
SUCH PURCHASER WILL NOT BE ABLE TO RECEIVE PAYMENTS ON THE NOTES AFTER AN
ACCELERATION AND WILL NOT BE ABLE TO ENFORCE THE NOTES OR THE INDENTURE
AGAINST THE ISSUER.
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT;
FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $914.76,
A-2-3
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $85.24, THE ISSUE DATE IS OCTOBER 8,
2002 AND THE YIELD TO MATURITY IS 16.671% PER ANNUM.
Capitalized terms used herein have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
(1) INTEREST. The Chukchansi Economic Development Authority
(the "Authority"), a wholly owned unincorporated enterprise of the
Picayune Rancheria of Chukchansi Indians, a sovereign tribe
recognized by the United States pursuant to 25 C.F.R. Part 83 (the
"Tribe"), promises to pay interest on the principal amount of this
Note at 14 1/2% per annum from October 8, 2002 until maturity and
shall pay the Liquidated Damages, if any, payable pursuant to Section
5 of the Registration Rights Agreement referred to below. The
Authority will 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 will
accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided,
however, that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date
referred to on the face hereof (each a "Record Date") 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 April 1, 2003. The Authority
will 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 will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages, if any,
(without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Note is exchanged for one or
more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be
entitled to the same benefits as other Notes under the Indenture.
(2) METHOD OF PAYMENT. The Authority will 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
applicable 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 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal,
premium and Liquidated Damages, if any, and interest at the office or
agency of the Authority maintained for such purpose within or without
the City and State of New York, or, at the option of the Authority,
payment of interest and Liquidated Damages, if any, may be made by
check mailed to the Holders at their addresses set forth in the
register of Holders; provided, that payment by wire transfer of
immediately available funds will 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 will
have provided wire transfer instructions to the Authority or the
Paying Agent. Such payment will 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.
A-2-4
(3) PAYING AGENT AND REGISTRAR. Initially, U.S. Bank, N.A.,
the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Authority may change any Paying Agent or Registrar
without notice to any Holder. The Authority may act in any such
capacity.
(4) INDENTURE AND COLLATERAL DOCUMENTS. The Authority issued
the Notes under an Indenture dated as of October 8, 2002 (the
"Indenture"), among the Authority, 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 (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes are
subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are secured obligations of the Authority
limited to $178.0 million in aggregate principal amount. The Notes
are secured by the Collateral set forth in the Collateral Documents.
(5) OPTIONAL REDEMPTION.
The Notes are not redeemable at the Authority's option prior
to October 1, 2006.
Subject to the second sentence of Section 16 hereof, at any
time on or after October 1, 2006, the Authority will have the option
to redeem the Notes, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the periods indicated
below:
Year Percentage
---- ----------
October 1, 2006 to September 30, 2007.............. 113.000%
October 1, 2007 to September 30, 2008.............. 108.667%
October 1, 2008 to June 15, 2009................... 104.333%
(6) MANDATORY REDEMPTION.
The Company will not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
(7) MANDATORY DISPOSITION PURSUANT TO GAMING LAWS.
(a) Each Holder, by accepting a Note, shall be
deemed to have agreed that, if any Gaming Authority
determines, and a Holder or Beneficial Owner of the Notes is
notified, that (i) such Holder or Beneficial Owner must
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 or any shorter period
as may be required by such Gaming Authority, or (ii) such
Holder or Beneficial Owner will not be licensed, qualified
or found suitable under applicable Gaming Law, or any
license, qualification or finding of suitability is not
renewed upon its expiration or is revoked, or (iii) such
Holder or Beneficial Owner has been found to be unsuitable
for licensing then, the Authority, at its option, may (A)
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
(1) 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 (2) the receipt
of the notice from the Gaming Authority that the Holder or
Beneficial Owner shall not be licensed, qualified or found
suitable;
A-2-5
or (B) subject to the second sentence of Section 16 hereof,
redeem the Notes of such Holder or Beneficial Owner at a
price equal to the least of (1) 100% of the principal amount
thereof, (2) the price at which such Holder or Beneficial
Owner acquired the Notes and (3) the fair market value of
the Notes, together with, in each case, to the extent
permitted by the Compact, 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, or that such license, qualification or
finding of suitability has been revoked or will not be
renewed, the Holder or Beneficial Owner shall, to the extent
required by applicable law, have no further rights (i) to
exercise any right conferred by the Notes, directly or
indirectly, through any trustee, nominee or any other Person
or entity, or (ii) to receive any interest, dividends,
economic interests or any other distributions or payments
with respect to the Notes or any remuneration in any form
from the Authority for services rendered or otherwise,
except the redemption price of the Notes.
(c) Any Holder or Beneficial Owner of Notes that is
required to apply for a license, qualification or a finding
of suitability may be required to pay all costs of the
licenses and any investigation for the qualification or
finding of suitability by the applicable Gaming Authorities.
The Authority 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.
(d) The Authority will notify the Trustee in
writing of any disposition pursuant to this Section 7 as
soon as is practicable. The Trustee will be required to
report the names of the record holders of Notes to any
Gaming Authority when required by law.
(8) REPURCHASE OFFERS.
(a) Change of Control Offer. Subject to the
restrictions set forth in Section 16 hereof, if there is a
Change of Control, the Authority will 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 thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date
of purchase (the "Change of Control Payment Date"). Within
ten days following any Change of Control, the Authority will
mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the
Indenture.
(b) Asset Sale Offer. If the Authority consummates
any Asset Sales, within five days of each date on which the
aggregate amount of Excess Proceeds exceeds $5.0 million,
the Authority will, subject to the second sentence of
Section 16 hereof, commence an offer to all Holders of Notes
(including any Additional Notes) and all holders of other
Indebtedness that is pari passu with the Notes containing
provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of
sales of assets or of an event of loss (a "Asset Sale
Offer"), as applicable, pursuant to Section 3.11 of the
Indenture to purchase the maximum principal amount of Notes
(including any Additional Notes) and other pari passu
Indebtedness, as applicable, that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued
and unpaid interest and Liquidated Damages thereon, if any,
to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture.
To the extent that the aggregate
A-2-6
amount of Notes (including any Additional Notes) and other
pari passu Indebtedness tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Authority may
use such deficiency for any purpose not otherwise prohibited
by the Indenture. If the aggregate principal amount of Notes
and other pari passu Indebtedness surrendered by holders
thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and other pari passu Indebtedness to
be purchased on a pro rata basis. Holders of Notes that are
the subject of an offer to purchase will receive an Asset
Sale Offer from the Authority prior to any related purchase
date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
(c) Event of Loss Offer. If the Authority has
Excess Loss Proceeds, within ten days of each date on which
the aggregate amount of Excess Loss Proceeds exceeds $5.0
million, the Authority will, subject to the second sentence
of Section 16 hereof, commence an offer to all Holders of
Notes (including any Additional Notes) and all holders of
other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in the
Indenture with respect to offers to purchase or redeem with
the proceeds from an event of loss (an "Event of Loss
Offer"), pursuant to Section 3.11 of the Indenture to
purchase the maximum principal amount of Notes (including
any Additional Notes) and other pari passu Indebtedness that
may be purchased out of the Excess Loss Proceeds at an offer
price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date fixed for
the closing of such offer, in accordance with the procedures
set forth in the Indenture. To the extent that the aggregate
amount of Notes (including any Additional Notes) and other
pari passu Indebtedness, as applicable, tendered pursuant to
an Event of Loss Offer is less than the Excess Loss
Proceeds, the Authority may use such deficiency for any
purpose not otherwise prohibited by the Indenture. If the
aggregate principal amount of Notes and other pari passu
Indebtedness surrendered by holders thereof exceeds the
amount of the Excess Loss Proceeds, the Trustee shall select
the Notes and other pari passu Indebtedness, as applicable,
to be purchased on a pro rata basis. Holders of Notes that
are the subject of an offer to purchase will receive an
Event of Loss Offer from the Authority prior to any related
purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
(d) Excess Cash Offers. If, at any time after the
Initial Operating Date and prior to October 1, 2006, the
Authority has Excess Cash Flow and is permitted or required,
as the case may be, to make an Optional Excess Cash Offer or
a Mandatory Excess Cash Offer, the Authority will, subject
to the second sentence of Section 16 hereof, commence an
offer to all Holders of Notes (including any Additional
Notes) (an "Excess Cash Offer") pursuant to Section 3.11 of
the Indenture to purchase the maximum principal amount of
Notes (including any Additional Notes) that may be purchased
out of the Excess Cash Flow at the offer prices set forth in
Section 4.16 of the Indenture in accordance with the
procedures set forth in the Indenture. To the extent that
the aggregate amount of Notes (including any Additional
Notes) tendered pursuant to any Excess Cash Offer is less
than the Excess Cash Flow, the Authority may use such
deficiency as set forth in Section 4.16 of the Indenture. If
the aggregate principal amount of Notes surrendered by
holders thereof exceeds the Excess Cash Flow, the Trustee
shall select the Notes to be purchased on a pro rata basis.
Holders of Notes that are the subject of an offer to
purchase will receive an Excess Cash Offer from the
Authority prior to any related purchase date and may elect
to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" on the reverse of the
Notes.
(e) The Authority will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other securities
laws
A-2-7
and regulations thereunder to the extent those laws and
regulations are applicable in connection with each
repurchase of Notes pursuant to any Change of Control Offer,
Asset Sale Offer, Event of Loss Offer or Excess Cash Offer.
To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 8,
the Authority will comply with the applicable securities
laws and regulations and will not be deemed to have breached
its obligations under this Section 8 by virtue of such
conflict.
(9) NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of
the Notes held by a Holder are to be redeemed. On and after the
redemption date Interest ceases to accrue on Notes or portions
thereof called for redemption.
(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
Authority may require a Holder to pay any taxes and fees required by
law or permitted by the Indenture. The Authority need not exchange or
register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Authority need not exchange or register
the transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed or during the period between a record date
and the corresponding Interest Payment Date.
This Regulation S Temporary Global Note is exchangeable in whole or
in part for one or more Global Notes only (i) on or after the termination of
the 40-day restricted period (as defined in Regulation S) and (ii) upon
presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon exchange of this
Regulation S Temporary Global Note for one or more Global Notes, the Trustee
shall cancel this Regulation S Temporary Global Note.
(11) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(12) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Notes or the Collateral Documents 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, 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 amount of the then outstanding Notes and Additional
Notes, if any, voting as a single class. Any amendment to, or waiver
of, the provisions of any of the Collateral Documents relating to
Section 4.13 of the Indenture or Article 10 thereof will require the
consent of the Holders of at least 66-2/3% in principal amount of the
Notes then outstanding. Without the consent of any Holder of a Note,
the Indenture, the Notes or the Collateral Documents may be amended
or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of
certificated Notes, 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, to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act, to provide for the issuance of Additional Notes, to
enter into additional or supplemental Collateral Documents, to comply
with all applicable rules and regulations of the
A-2-8
NIGC, the BIA or any governmental authority or to comply with the
provisions of DTC, Euroclear or Clearstream or the Trustee with
respect to the provisions of the Indenture or the Notes relating to
the transfers and exchange of Notes or beneficial interests therein.
(13) DEFAULTS AND REMEDIES. Events of Default include:
(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 principal of or
premium, if any, on the Notes when the same becomes due and
payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise,
(c) failure by the Authority to comply with Section
4.09, 4.10, 4.11, 4.15, 4.17 or 4.22 of the Indenture;
(d) failure by the Authority to comply with Section
4.07 or 4.08, or any of the covenants set forth in the
Collateral Documents for 30 days after notice to the
Authority by the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding voting as a
single class;
(e) failure by the Authority or the Tribe (with
respect to its obligations under the Indenture) for 60 days
after notice to the Authority by the Trustee or the Holders
of at least 25% in principal amount of the Notes then
outstanding voting as a single class to comply with or
observe certain other covenants, representations, warranties
or agreements in the Indenture;
(f) default under certain other agreements relating
to Indebtedness of the Authority (or the payment of which is
guaranteed by the Authority), whether such Indebtedness or
Guarantee exists now, or is created after the date of the
Indenture (other than a default under the Senior
Subordinated PIK Notes, the Subordinated PIK Notes, the
Manager Repayment Note or the Letter of Credit Note
resulting from the Authority's failure to make a change of
control offer or asset sale offer to the holders of such
notes) which default is caused by the failure to pay
principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of any grace period
provided in such Indebtedness or results in the acceleration
of such Indebtedness prior to its express maturity;
(g) certain final judgments for the payment of
money aggregating in excess of $5.0 million that remain
undischarged for a period of 60 days;
(h) any of the Collateral Documents cease, for any
reason (other than pursuant to the terms thereof), to be in
full force and effect, or the Authority asserts that any of
the Collateral Documents cease to be in full force and
effect, or any security interest created, or purported to be
created, by any of the Collateral Documents ceases to be
enforceable and of the same effect and priority purported to
be created thereby;
(i) the representations and warranties of the
Authority in the Collateral Documents or set forth in any
certificate, document or financial or other statement
furnished by the Authority under or in connection with any
such Collateral Document proves to have been inaccurate in
any material respect on or as of the date made or deemed to
be made;
A-2-9
(j) the L/C Provider defaults in the performance of
its obligations set forth in, or repudiates its obligations
under, the Letter of Credit Drawdown Agreement, and such
default remains uncured for 30 days;
(k) an Event of Default occurs and is continuing
under the Manager Agreement;
(l) the Manager (A) defaults in the performance of
its obligations set forth in, or repudiates its obligations
under, the Development Agreement, the Management Agreement
or the Cash Accumulation Account Contribution Agreement and
either (1) such is default is not cured within 30 days or
(2) a new manager meeting the requirements of a Permitted
Replacement Manager has not assumed and complied with the
Manager's obligations under such agreements as required by
the definition of Permitted Replacement Manager within 30
days thereof, unless in any such event, either (x) the
Manager continues in all material respects to provide
services to the Authority in compliance with the Management
Agreement, or (y) such transaction constitutes a Change of
Control or (B) is terminated or resigns as the manager of
the Chukchansi Gold Resort & Casino or otherwise ceases to
be the manager (other than as set forth in clause (A) above)
of the Chukchansi Gold Resort & Casino unless (1) a
Permitted Replacement Manager has assumed and complied with
the Manager's obligations under the Development Agreement,
the Management Agreement and the Cash Accumulation Account
Contribution Agreement as required by the definition of
Permitted Replacement Manager within 30 days thereof, or (2)
such termination or withdrawal constitutes a Change of
Control;
(m) the Initial Operating Date does not occur by
the Operating Deadline or any Gaming License is lost,
revoked or suspended and, as a result, the Chukchansi Gold
Resort & Casino ceases Operating for a period of more than
90 consecutive days; and
(n) certain events of bankruptcy or insolvency with
respect to the Authority.
If any 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 subject to the second sentence of Section 16 hereof.
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect
to the Authority, all outstanding Notes will become due and payable
without further action or notice, subject to the second sentence of
Section 16 hereof. Holders 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) 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 on, or the principal of,
the Notes. The Authority is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the
Authority is required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
In the case of any Event of Default occurring after October
1, 2006, by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Authority with the intention of
avoiding payment of the premium that the Authority would have had to
pay if the Authority had then elected to redeem the Notes pursuant to
the optional redemption provisions of the
A-2-10
Indenture, an equivalent premium will also become and be immediately
due and payable to the extent permitted by law upon the acceleration
of the Notes, subject to the second sentence of Section 16 hereof. If
an Event of Default occurs prior to October 1, 2006, by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of
the Authority with the intention of avoiding the prohibition on
redemption of the Notes prior to October 1, 2006, 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, subject to the second sentence of Section 16 hereof.
(14) TRIBAL COVENANTS. All of the covenants of the Tribe set
forth in Article 5 of the Indenture are hereby incorporated herein
with the same force and effect as though set forth in their entirety
herein.
(15) TRUSTEE DEALINGS WITH AUTHORITY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Authority, and may otherwise deal
with the Authority, as if it were not the Trustee.
(16) SPECIAL PROVISIONS REGARDING UNLICENSED AND NON-EXEMPT
HOLDERS. If this Note is transferred to a Holder (or Beneficial
Owner) that is not licensed or exempted from licensing by the Tribal
Gaming Commission in accordance with the Compact, the neither that
transferee Holder (or Beneficial Owner) nor any Person acting on
behalf of that transferee Holder (or Beneficial Owner), including the
Trustee, shall have any right to enforce any payment obligation
relating to the Notes against any revenues, property or rights of the
Authority or the Tribe, or any branch, department, agency,
instrumentality, division, subsidiary, enterprise, authority or
wholly-owned corporation or business of the Tribe (whether through
the exercise of voting or otherwise) until such time as the
transferee Holder is licensed or exempted from licensing by the
Tribal Gaming Commission in accordance with the Compact. The Trustee,
the Authority and the Tribe are prohibited from making any payment on
the Notes (1) as a result of any enforcement action commenced by or
on behalf of the Trustee or any Holder or (2) after payment of the
Notes has been accelerated because of a default under the Indenture,
except in each case to a Holder that is licensed or exempted from
licensing by the Tribal Gaming Commission in accordance with the
Compact.
(17) NO RECOURSE AGAINST OTHERS. Neither the Tribe nor any
director, officer, officeholder, employee, agent, representative or
member of the Authority or the Tribe, as such, will have any
liability for any obligations of the Authority under the Notes, the
Indenture, the Collateral Documents or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance
of the Notes.
(18) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(19) ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(20) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided
to Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes will have all the rights set
forth in the Registration Rights Agreement dated as of October 8,
2002, among the Authority, the Tribe and the initial purchasers of
the Notes or, in the case of Additional Notes, Holders of Restricted
Global Notes and Restricted Definitive Global Notes will have the
rights set forth in one or more registration rights agreements among
the Authority, the Tribe and the other parties thereto, relating to
rights given by the Authority and the Tribe to purchasers of any
Additional Notes (collectively, the "Registration Rights Agreement").
(21) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Authority 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.
(22) WAIVER OF SOVEREIGN IMMUNITY; WAIVER OF TRIBAL COURTS
AND FORUMS; CONSENT TO JURISDICTIONS; APPLICABLE LAW; MANDATORY
ARBITRATION OF PERMITTED CLAIMS; PERMITTED COURT ACTIONS. All
provisions of the Indenture relating to the Tribe's and the
Authority's waivers of sovereign immunity and rights to resolve
disputes by arbitration, as well as consents and agreements of the
Tribe and the Authority to applicable laws and jurisdictions for the
resolution of disputes and the agreements of the Tribe and the
Authority to arbitrate certain permitted claims, are hereby
incorporated herein with the same force and effect as though set
forth at length herein.
The Authority will furnish to any Holder upon written request and
without charge a copy of the Indenture, any of the Collateral Documents and/or
the Registration Rights Agreement. Requests may be made to:
Chukchansi Economic Development Authority
46575 Road 417
Coarsegold, California 93614
Telephone: (559) 683-6633
Telecopy: (559) 642-4075
Attention: Chairperson
A-2-12
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 Authority. 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).
A-2-1
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Authority
pursuant to Section 4.09, 4.10, 4.16 or 4.17 of the Indenture, check the
appropriate box below:
Section 4.09 Section 4.10 Section 4.16 Section 4.17
If you want to elect to have only part of the Note purchased by the
Authority pursuant to Section 4.09, 4.10, 4.16 or 4.17 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).
A-2-1
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 of
Amount of decrease this Global Note Signature of
in Principal Amount Amount of increase in following such authorized officer
of Principal Amount of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- ---------------- ---------------- ------------- ---------
A-2-1
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Chukchansi Economic Development Authority
46575 Road 417
Coarsegold, California 93614
Telephone: (559) 683-6633
Telecopy: (559) 642-4075
Attention: Chairperson
U.S. Bank, N.A.
180 East 5th Street
St. Paul, Minnesota 55101
Telephone: (651) 244-8677
Telecopy: (651) 244-0711
Attention: Corporate Trust Department
Re: 14 1/2% Senior Notes Due 2009
-----------------------------
Reference is hereby made to the Indenture, dated as of October 8,
2002 (the "Indenture"), among the Chukchansi Economic Development Authority, a
wholly owned unincorporated enterprise of the Picayune Rancheria of Chukchansi
Indians (the "Tribe"), as issuer (the "Authority"), the Tribe and U.S. Bank,
N.A., as trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
_
1. |_| 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 Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "qualified institutional buyer" within
the meaning of Rule 144A in a transaction meeting the requirements of Rule
144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.
_
2. |_| Check if Transferee will take delivery of a beneficial
interest in the Temporary Regulation S Global Note, the Permanent Regulation S
Global Note or a Definitive Note pursuant to Regulation S. The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and, accordingly, the Transferor hereby further certifies
that (i) the Transfer is not being made to a Person in the United States and
(x) at the time the buy order was originated, the
B-1
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 Purchasers). 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 Permanent Regulation S Global Note, the Temporary
Regulation S 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 Company 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
_
(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.
B-2
_
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 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 Authority.
_______________________________________
[Insert Name of Transferor]
By: ___________________________________
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
_
(a) |_| 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-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Chukchansi Economic Development Authority
46575 Road 417
Coarsegold, California 93614
Telephone: (559) 683-6633
Telecopy: (559) 642-4075
Attention: Chairperson
U.S. Bank, N.A. 180 East 5th Street
St. Paul, Minnesota 55101 Telephone: (651) 244-8677 Telecopy: (651) 244-0711
Attention: Corporate Trust Department
Re: [14 1/2% Senior Notes Due 2009]
-----------------------------
(CUSIP ________)
Reference is hereby made to the Indenture, dated as of October 8,
2002 (the "Indenture"), among the Chukchansi Economic Development Authority, a
wholly owned unincorporated enterprise of the Picayune Rancheria of Chukchansi
Indians (the "Tribe"), as issuer (the "Authority"), the Tribe and U.S. Bank,
N.A., as trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
_
1. |_| Exchange of Restricted Definitive Notes or Beneficial
Interests in a Restricted Global Note for Unrestricted Definitive Notes or
Beneficial Interests in an Unrestricted Global Note
_
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and in accordance
with the Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
_
(b) |_| 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
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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, the Owner hereby certifies
that the Restricted Definitive Note is being acquired for the Owner's own
account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
_
(b) |_| 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, 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.
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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: ______________________
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Chukchansi Economic Development Authority
46575 Road 417
Coarsegold, California 93614
Telephone: (559) 683-6633
Telecopy: (559) 642-4075
Attention: Chairperson
U.S. Bank, N.A.
180 East 5th Street
St. Paul, Minnesota 55101
Telephone: (651) 244-8677
Telecopy: (651) 244-0711
Attention: Corporate Trust Department
Re: 14 1/2% Senior Notes Due 2009
-----------------------------
Reference is hereby made to the Indenture, dated as of October 8,
2002 (the "Indenture"), among the Chukchansi Economic Development Authority, a
wholly owned unincorporated enterprise of the Picayune Rancheria of Chukchansi
Indians (the "Tribe"), as issuer (the "Authority"), the Tribe and U.S. Bank,
N.A., as trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
_
(a) |_| 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 Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and
to the Company a signed letter substantially in the form of this letter and an
Opinion of Counsel in form reasonably acceptable to the Authority 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
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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
Authority such certifications, legal opinions and other information as you and
the Authority 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 Authority 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: _______________________
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