EXHIBIT 4.4
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE
FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
(Face of Note)
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND THE REGULATIONS THEREUNDER, THIS SECURITY
IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT
OF THIS NOTE, (1) THE ISSUE PRICE IS $976.86; (2) THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS $13.14; (3) THE ISSUE DATE IS MARCH 22, 2002; AND (4) THE YIELD TO
MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 12%.
CUSIP No: 76118P AC 7
11 1/2% First Mortgage Notes due 2009
No. $
RESORTS INTERNATIONAL HOTEL AND CASINO, INC.
promises to pay to or registered assigns,
the principal sum of Dollars on September 15, 2009.
Interest Payment Dates: March 15 and September 15, commencing September 15, 2002
Record Dates: March 1 and September 1
Dated:
RESORTS INTERNATIONAL HOTEL AND
CASINO, INC.
By: _______________________________
Name:
Title:
Certificate of Authentication:
This is one of the Global Notes
referred to in the within-mentioned Indenture:
BANKERS TRUST COMPANY, as Trustee
By: _________________________________
Authorized Signatory
Dated:
(Back of Note)
11 1/2 % First Mortgage Notes due 2009
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. Resorts International Hotel and Casino, Inc., a
Delaware corporation (the "Company"), promises to pay interest on the principal
amount of this Note at 11 1/2 % per annum. The Company shall pay interest and
Liquidated Damages, if any, semi-annually on March 15 and September 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). Interest on the Notes shall accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance of this Note. The Company shall pay interest
(including Accrued Bankruptcy 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 2% per annum in excess of the rate then in effect; it shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) and Liquidated Damages to the persons who are
registered Holders at the close of business on the March 1 or September 1 next
preceding the Interest Payment Date, even if such Notes are canceled after such
Record Date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture (as defined below) with respect to defaulted
interest. The Notes shall be payable as to principal, premium, interest and
Liquidated Damages, if any, at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds shall be required with respect to principal of and interest, premium and
Liquidated Damages on all Global Notes and all other Notes the Holders of more
than $1,000 in aggregate principal amount of Notes which shall have provided
wire transfer instructions to the Company or the Paying Agent. Such payment
shall be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, Bankers Trust
Company, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture
dated as of March 22, 2002 ("Indenture") among the Company, the Guarantors and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code xx.xx. 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 obligations under the Indenture, the Disbursement
Agreement, the Notes and the Guarantees thereof are secured by the Collateral
described in the Collateral Documents, subject to the provisions of such
documents. Holders are referred to the Collateral Documents for a statement of
such terms.
5. Optional Redemption. On or after March 15, 2007, the
Company may redeem all or a part of the Notes upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the applicable Redemption Date, if
redeemed during the 12-month period beginning on March 15 of the years indicated
below:
Year ........................... Percentage
2007 ........................... 106.0%
2008 ........................... 103.0%
2009 ........................... 100.0%
In addition, at any time on or prior to March 15, 2005, the
Company may on one occasion redeem up to 35% of the aggregate principal amount
of Notes issued under the Indenture at a redemption price of 111.5% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to the Redemption Date, with the net cash proceeds of any
Equity Offering which results in gross proceeds to the Company of at least $20.0
million; provided that:
(1) at least 65% of the aggregate principal amount of Notes
issued under the Indenture remains outstanding immediately after the
occurrence of such redemption (excluding from the amount of Notes
included in such 65% Notes held by the Company and its Subsidiaries);
and
(2) the redemption must occur within 60 days after the date of
the closing of such Equity Offering.
Except pursuant to the preceding paragraph and paragraph 7
below, the Notes shall not be redeemable at the Company's option prior to March
15, 2007.
6. Mandatory Redemption. The Company shall not be required to
make mandatory redemption payments with respect to the Notes.
7. Mandatory Disposition in Accordance with Gaming Laws. If
any Gaming Authority requires that a Holder or beneficial owner of Notes be
licensed, qualified or found suitable under any applicable Gaming Law and such
Holder or beneficial owner (i) fails to apply for a license, qualification or a
finding of suitability within 30 days (or such lesser period as may be required
by the applicable Gaming Authority) after being requested to do so by the Gaming
Authority or (ii) is denied such license or qualification or not found suitable,
the Company shall have the right, at its option, (1) to require any such Holder
or beneficial owner to dispose of its Notes within 30 days (or such earlier date
as may be required by the applicable Gaming Authority) of the occurrence of the
event described in clause (i) or (ii) above or (2) to redeem the Notes of such
Holder or beneficial owner at a redemption price equal to the lesser of (x) the
principal amount thereof, together with accrued and unpaid interest and
Liquidated Damages, if any, to the date of the denial of license or
qualification or of the finding of unsuitability by such Gaming Authority, (y)
the price at which such Holder or beneficial owner acquired the Notes, together
with accrued and unpaid interest and Liquidated Damages, if any, to the date of
the denial of license or qualification or of the finding of unsuitability by
such Gaming Authority and (z) the Fair Market Value of such Notes. The Company
shall notify the Trustee in writing of any redemption pursuant to Section 3.09
of the Indenture as soon as practicable.
Immediately upon a determination by a Gaming Authority that a
Holder or beneficial owner of the Notes will not be licensed, qualified or found
suitable, the Holder or beneficial owner will, to the extent required by
applicable law, have no further rights (i) to receive any interest or dividends
with respect to the Notes; or (ii) to exercise, directly or through any trustee
or nominee, any right conferred by the Notes; or (iii) receive any remuneration
in any form for services rendered or otherwise.
The Holder or beneficial owner that is required to apply for a
license, qualification or a finding of suitability shall pay all fees and costs
of applying for and obtaining the license, qualification or finding of
suitability and of any investigation by the applicable Gaming Authorities.
Neither the Company nor any Subsidiary shall be liable therefor.
8. Change of Control Offer. Upon the occurrence of a Change of
Control, the Company shall offer to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of such Holder's Notes pursuant to the offer
described below at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated Damages
thereon to the date of purchase. Within 30 days following any Change
of Control, the Company shall mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes pursuant to the procedures required by the
Indenture and described in such notice. The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.
9. 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 Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 Business Days before a selection of Notes to be redeemed.
10. Persons Deemed Owners. The registered holder of a Note may
be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture, the Guarantees or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes, and any existing Default or noncompliance
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.
Without the consent of any Holder of a Note, the Indenture, the Guarantees or
the Notes may be amended or supplemented, among other things, to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's obligations to Holders in case of a merger or consolidation, to
make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights under the Indenture
of any such Holder, or to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA.
12. Defaults and Remedies. Events of Default are set forth in
the Indenture. 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. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) 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 Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture and the Collateral Documents, and the Company 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.
13. Ranking and Security. The Notes shall be senior secured
obligations of the Company and shall effectively rank senior to all of the
Company's existing and future unsecured Indebtedness to the extent of the
Collateral granted by the Company.
The Company's Obligations under the Notes shall be
unconditionally guaranteed on a senior basis, jointly and severally, by each of
the Guarantors. The Guarantees shall be senior secured obligations of the
Guarantors and shall effectively rank senior to all of the Guarantors' existing
and future unsecured Indebtedness to the extent of the Collateral granted by
such Guarantors.
Pursuant to the Collateral Documents, the Notes and the
Guarantees shall be secured by a first priority Lien (subject to certain
exceptions described therein) on the Collateral.
14. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
15. No Recourse Against Others. A past, present or future
director, officer, employee, incorporator member, partner or stockholder, of the
Company and each Subsidiary, as such, shall not have any liability for any
obligations of the Company under the Notes, the Guarantees or the Indenture 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.
16. Authentication. This Note shall not be valid until
authenticated by the manual or facsimile signature of the Trustee or an
authenticating agent.
17. 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).
18. Additional Rights of Holders of Notes. In addition to the
rights provided to Holders under the Indenture, Holders of Notes shall have all
the rights set forth in the Registration Rights Agreement dated as of the Issue
Date, among the Company and the Initial Purchasers.
19. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request
and without charge a copy of this Indenture, the Collateral Documents and/or the
Registration Rights Agreement. Requests may be made to:
Resorts International Hotel and Casino, Inc.
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X'Xxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
GUARANTEE
The Guarantors listed below (hereinafter referred to as the
"Guarantors," which term includes any successors or assigns under the Indenture
and any additional Guarantors), have irrevocably and unconditionally guaranteed
the Guarantee Obligations, which include that: (a) the principal of, and premium
and interest and Liquidated Damages, if any, on the 11 1/2 First Mortgage Notes
due 2009 (the "Notes") of Resorts International Hotel and Casino, Inc. (the
"Company"), shall be duly and punctually paid in full when due, whether at
maturity, by acceleration or otherwise, and interest on overdue principal, and
premium, if any, and (to the extent permitted by law) interest on any interest,
if any, on the Notes and all other obligations of the Company to the Holders or
the Trustee hereunder or under the Notes or under the Collateral Documents
(including fees, expenses or other) shall be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Holders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 12 of the Indenture and reference is hereby made to such Indenture for
the precise terms of this Guarantee. The obligations are secured by a pledge of
the Collateral pursuant to Articles 10 and 11 of the Indenture and the
Collateral Documents.
No past, present or future director, officer, employee,
incorporator, member, partner or stockholder of each Guarantor shall have any
liability under this Guarantee by reason of his or its status as such and each
Holder of Notes by accepting a Note waivers and releases all such liability.
This waiver and release are part of the consideration for the issuance of the
Notes.
Except as set forth in the Indenture, this is a continuing
Guarantee and shall remain in full force and effect and shall be binding upon
each Guarantor and its successors and assigns until full and final payment of
all of the Company's Obligations under the Notes and the Indenture and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders, and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a Guarantee of payment and
not of collectibility.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
The obligations of each Guarantor under its Guarantee shall be
limited to the extent necessary to insure that it does not constitute a
fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE 12 OF THE INDENTURE ARE INCORPORATED
HEREIN BY REFERENCE.
Capitalized terms used herein have the same meanings given in
this Indenture unless otherwise indicated.
Dated as of March 22, 2002
GUARANTORS:
RESORTS INTERNATIONAL HOTEL, INC.
By:
------------------------------------
Name:
Title:
NEW PIER OPERATING COMPANY, INC.
By:
------------------------------------
Name:
Title:
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.11, 4.14 or 4.16 of the Indenture, check the box
below:
[ ] Section 4.11 [ ] Section 4.14 [ ] Section 4.16
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.11, 4.14 or 4.16 of the Indenture, state the amount you
elect to have purchased: $___________
Date: Your Signature:
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(Sign exactly as your name appears on the Note)
Tax Identification No.:
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Signature Guarantee:
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Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
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 Certificated Note, or exchanges of a
part of another Global Note or Certificated Note for an interest in this Global
Note, have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
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