Exhibit 10.12
TRUST INDENTURE
BETWEEN
MISSISSIPPI BUSINESS FINANCE CORPORATION
AND
STANDARD FEDERAL-CORPORATE AND INSTITUTIONAL TRUST, A DIVISION
OF LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE
JANUARY 1, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions............................................................................4
ARTICLE II
DESCRIPTION, AUTHORIZATION, MANNER OF
EXECUTION, AUTHENTICATION, REGISTRATION
AND TRANSFER OF BONDS
SECTION 2.01. Authorization of Bonds................................................................13
SECTION 2.02. Series 2004 Bonds.....................................................................13
SECTION 2.03. Redemption............................................................................14
SECTION 2.04. Method of Partial Redemption..........................................................14
SECTION 2.05. Additional Bonds......................................................................15
SECTION 2.06. Bonds Mutilated, Destroyed, Stolen or Lost............................................15
SECTION 2.07 Temporary Bonds.......................................................................16
SECTION 2.08. Execution.............................................................................17
SECTION 2.09. Negotiability, Transfer and Registry..................................................17
SECTION 2.10. Regulations with Respect to Exchanges and Transfers...................................18
SECTION 2.11. Authentication........................................................................18
SECTION 2.12. Destruction of Bonds..................................................................18
ARTICLE III
AUTHENTICATION AND DELIVERY OF BONDS
SECTION 3.01. Bonds Equally and Ratably Secured.....................................................18
SECTION 3.02. Provisions for Issuance of Series 2004 Bonds..........................................19
SECTION 3.03. Provisions for Issuance of Additional Bonds...........................................20
SECTION 3.04. Provisions for Issuance of Refunding Bonds............................................21
SECTION 3.05. Limited Obligations...................................................................22
ARTICLE IV
CONSTRUCTION AND ACQUISITION OF PROJECT
SECTION 4.01. Covenant to Proceed With Reasonable Dispatch..........................................22
SECTION 4.02. Covenant to Comply with Laws..........................................................22
ARTICLE V
CONSTRUCTION FUND
SECTION 5.01. Establishment of Construction Fund....................................................23
SECTION 5.02. Held in Trust.........................................................................23
SECTION 5.03. Use of Moneys.........................................................................23
SECTION 5.04. Retention of Requisitions.............................................................23
SECTION 5.05. Completion of Project.................................................................23
SECTION 5.06. Disposition of Surplus Funds..........................................................23
ARTICLE VI
BOND FUND
SECTION 6.01. Establishment of Bond Fund............................................................24
SECTION 6.02. Flow of Funds.........................................................................24
ARTICLE VII
SECURITY FOR AND INVESTMENT OF MONEYS
SECTION 7.01. Security..............................................................................25
SECTION 7.02. Investment of Funds...................................................................25
SECTION 7.03. Transfer of Balance...................................................................25
SECTION 7.04 Acknowledgement of Security Interest; Control.........................................25
SECTION 7.05 Control of Securities Accounts........................................................25
SECTION 7.06 Control of Deposit Accounts...........................................................25
SECTION 7.07 Trustee's UCC Jurisdiction............................................................25
ARTICLE VIII
REDEMPTION OF BONDS
SECTION 8.01. Method of Redemption..................................................................26
SECTION 8.02. Notice of Redemption..................................................................26
SECTION 8.03. Payment of Redeemed Bonds.............................................................26
ARTICLE IX
PARTICULAR COVENANTS OF THE ISSUER
SECTION 9.01. Payment of Bonds......................................................................27
SECTION 9.02. Maintain Its Existence................................................................27
SECTION 9.03. Payments Under Loan Agreement; No Amendment
to Loan Agreement without Consent.....................................................27
SECTION 9.04. Further Documents.....................................................................28
SECTION 9.05. Payment of Taxes and Assessments; Compliance
with Regulations; No Creation of Liens or Charges.....................................28
SECTION 9.06. Extension of Payment of Bonds.........................................................28
ARTICLE X
DEFAULTS AND REMEDIES
SECTION 10.01. Events of Default.....................................................................29
SECTION 10.02. Trustee's Enforcement of Rights of Issuer.............................................29
SECTION 10.03. Proceedings by Trustee................................................................29
SECTION 10.04. Effect of Discontinuance or Abandonment...............................................30
SECTION 10.05. Rights of Registered Owners of the Bonds..............................................30
SECTION 10.06. Restriction on Registered Owners' Action..............................................30
SECTION 10.07. Power of Trustee to Enforce...........................................................31
SECTION 10.08. Remedies Not Exclusive................................................................31
SECTION 10.09. Effect of Waiver......................................................................31
SECTION 10.10. Application of Moneys.................................................................31
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.01. Appointment and Acceptance of Duties..................................................32
SECTION 11.02. Responsibilities......................................................................33
SECTION 11.03. Powers................................................................................33
SECTION 11.04. Compensation..........................................................................33
SECTION 11.05. No Duty to Maintain Insurance.........................................................33
SECTION 11.06. Notice of Event of Default............................................................33
SECTION 11.07. Action Upon Default...................................................................34
SECTION 11.08. Limitation of Liability...............................................................34
SECTION 11.09. Ownership of Bonds....................................................................34
SECTION 11.10. No Duty to Invest.....................................................................34
SECTION 11.11. Construction of Provisions of Indenture...............................................34
SECTION 11.12. Resignation...........................................................................34
SECTION 11.13. Removal...............................................................................35
SECTION 11.14. Appointment of Successor Trustee......................................................35
SECTION 11.15. Successor Trustee.....................................................................35
SECTION 11.16. Failure to Appoint a Successor Trustee................................................35
SECTION 11.17. Acceptance by Successor Trustee.......................................................35
SECTION 11.18. Merger or Consolidation...............................................................36
SECTION 11.19. Action Upon Event of Default..........................................................36
SECTION 11.20. Notice of Occurrence of Event of Default..............................................36
SECTION 11.21. Intervention by Trustee...............................................................36
SECTION 11.22. Appointment and Acceptance of Paying Agent............................................36
SECTION 11.23. Resignation or Removal of Paying Agent;
Appointment of Successor..............................................................36
SECTION 11.24. Trust Estate May Be Vested in Separate or Co-Trustee..................................37
ARTICLE XII
EXECUTION OF INSTRUMENTS BY REGISTERED OWNERS AND
PROOF OF OWNERSHIP OF BONDS
SECTION 12.01. Execution of Instruments; Proof of Ownership..........................................38
ARTICLE XIII
MODIFICATION OF INDENTURE AND SUPPLEMENTAL INDENTURES
SECTION 13.01. Supplemental Indentures with Consent of the Company
But Without Consent of Registered Owners..............................................38
SECTION 13.02. Trustee Authorized to Enter Into Supplemental Indenture...............................39
SECTION 13.03. Supplemental Indentures with Consent of Registered
Owners of the Bonds and the Company...................................................40
ARTICLE XIV
DEFEASANCE
SECTION 14.01. Defeasance............................................................................40
SECTION 14.02. Bonds Deemed to Have Been Paid........................................................41
ARTICLE XV
MISCELLANEOUS
SECTION 15.01. Dissolution of Issuer.................................................................42
SECTION 15.02. Parties Interested Herein.............................................................42
SECTION 15.03. Severability of Invalid Provisions....................................................42
SECTION 15.04. No Recourse on Bonds..................................................................43
SECTION 15.05. Notice................................................................................43
SECTION 15.06. Counterparts..........................................................................43
SECTION 15.07. Governing Law.........................................................................43
SECTION 15.08 References to Senior Notes............................................................43
ARTICLE XVI
BOND FORM
SECTION 16.01. Bond Form.............................................................................44
EXECUTION ......................................................................................53
ACKNOWLEDGMENTS ......................................................................................54
THIS
TRUST INDENTURE, dated as of January 1, 2004, between the
Mississippi Business Finance Corporation (the "Issuer"), a public corporation
organized and existing under the laws of the State of
Mississippi (the "State"),
and Standard Federal-Corporate and Institutional Trust, a division of LaSalle
Bank National Association, a national banking corporation organized and existing
under the laws of the United States of America, as Trustee (the "Trustee");
WITNESSETH:
WHEREAS, the Issuer is authorized by the provisions of Section
00-00-000, ET SEQ.,
Mississippi Code of 1972, as amended and supplemented (the
"Act"), to, among other things, provide and finance economic development
projects in order to promote, xxxxxx and support economic development within the
State; and
WHEREAS, the Issuer is further authorized to issue revenue bonds for
the purpose of providing funds to pay all or a part of the cost of providing and
financing the aforementioned economic development projects; and
WHEREAS, the Issuer has duly authorized as a project under the Act by
Premier Entertainment Biloxi LLC, a limited liability corporation organized and
existing under the laws of the State of Delaware (the "Company"), the
acquisition, construction, equipping and installation of a hotel and related
improvements (as further described herein, the "Project") in the City of Biloxi,
Xxxxxxxx County,
Mississippi; and
WHEREAS, the Issuer has obtained from the
Mississippi Department of
Economic and Community Development (the "Department"), Certificate of Public
Convenience and Necessity No. 338-MBFC dated November 20, 2003, authorizing the
Issuer to issue the Series 2004 Bonds (as hereinafter defined); and
WHEREAS, the Issuer has duly authorized the issuance of its
Mississippi
Business Finance Corporation Industrial Development Revenue Bonds, Series 2004
(Premier Entertainment Biloxi LLC Project) (the "Series 2004 Bonds") pursuant to
the Act in the aggregate principal amount of up to $60,000,000; and
WHEREAS, the proceeds of the Series 2004 Bonds will be used to finance
a portion of the cost of the acquisition, construction, equipping and
installation of the Project; and
WHEREAS, the proceeds of the Series 2004 Bonds will be lent to the
Company pursuant to a Loan Agreement between the Issuer and the Company, dated
as of January 1, 2004 (the "Loan Agreement"); and
WHEREAS, pursuant to the provisions of the Loan Agreement, the Company
has agreed to make loan payments to be sufficient to pay the principal of,
premium, if any, and interest on the Series 2004 Bonds as and when the same
shall become due and payable; and
WHEREAS, to evidence its obligation to pay the amounts due under the
Loan Agreement, the Company has authorized, executed and delivered a Series 2004
Note (as hereinafter defined) to the Issuer; and
1
WHEREAS, the Issuer has assigned its interests under and to the Loan
Agreement and the Series 2004 Note to the Trustee for the benefit of the holders
from time to time of the Series 2004 Bonds; and
WHEREAS, the Issuer, at a meeting thereof duly convened and held, has
duly authorized the execution and delivery of this Indenture and the execution
and issuance hereunder of the Series 2004 Bonds upon and subject to the terms
and conditions hereinafter set forth; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Series 2004 Bonds, when executed and issued by the Issuer,
authenticated by the Trustee and delivered, the valid and binding legal
obligations of the Issuer in accordance with their terms and to make this
Indenture a valid and binding agreement for the security of the Series 2004
Bonds authenticated and delivered under this Indenture;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS
TRUST INDENTURE
WITNESSETH:
That the Issuer, in consideration of the premises, the acceptance by
the Trustee of the trusts hereby created, the purchase and acceptance of the
Series 2004 Bonds by the purchaser or purchasers thereof, one dollar duly paid
to the Issuer by the Trustee at or before the execution and delivery of these
presents and other good and valuable consideration, the receipt of which is
hereby acknowledged, and in order to secure the payment of the principal of,
premium, if any, and interest on all Bonds outstanding hereunder from time to
time, according to their tenor and effect, and such other payments required to
be made under this Indenture, and to secure the observance and performance by
the Issuer of all the covenants, expressed or implied herein and in the Series
2004 Bonds, does hereby grant, bargain, sell, convey, assign, pledge and set
over unto the Trustee, and unto its successors in the trusts hereunder, and to
them and their successors and assigns forever, all right, title and interest of
the Issuer in, to and under, subject to the terms and conditions of this
Indenture, any and all of the following:
A. all loan payments and other revenues and receipts to be derived
by the Issuer under the Loan Agreement;
B. the Loan Agreement, including but not limited to the Issuer's
rights to receive the loan payments and other revenues and receipts payable
thereunder, the liens and security interests created thereby, and the Issuer's
rights to enforce the Loan Agreement, provided, however, that the Issuer hereby
reserves its rights under the Loan Agreement to receive notices, the payment of
Administration Expenses (as hereinafter defined) and indemnification payments,
all as provided in the Loan Agreement;
C. the Series 2004 Note, including, without limitation, all payments
to be made by the Company pursuant to the Series 2004 Note;
D. the proceeds of the Series 2004 Bonds (subject to provisions
pertaining to the use thereof set forth herein and in the Loan Agreement) and
all funds and accounts held by the Trustee under this Indenture;
E. any and all other property of every kind and nature from time to
time hereafter by delivery or by writing of any kind, conveyed, mortgaged, sold,
pledged, assigned and transferred,
2
as and for additional security hereunder by the Issuer or by any other person,
firm or entity in its behalf or with its written consent to the Trustee, and the
Trustee is hereby authorized to receive any and all such property at any and all
times and to hold and apply the same subject to the terms hereof;
F. any income received by the Trustee from the investment of the
proceeds of the Series 2004 Bonds and other funds held by the Trustee hereunder
(subject to provisions pertaining to the use thereof set forth herein and in the
Loan Agreement); and
G. the proceeds of any of the foregoing.
TO HAVE AND TO HOLD all the same hereby pledged, conveyed and assigned,
or agreed or intended so to be, to the Trustee and its successors in said trust
and to it and its assigns forever;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid, the principal of the Bonds issued and
secured hereunder, the interest due or to become due thereon, at the times and
in the manner mentioned in such Bonds and premium, if any, according to the true
intent and meaning thereof, shall well and truly keep, perform and observe all
the covenants and conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid to the Trustee
all sums of money due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this Indenture and all rights,
titles and interests hereby granted shall cease and terminate, otherwise this
Indenture to be and remain in full force and effect;
THIS
TRUST INDENTURE FURTHER WITNESSETH:
That, and it is expressly declared, all Bonds issued and secured
hereunder are to be issued, authenticated and delivered and all of the rights
and property hereby pledged are to be dealt with and disposed of under, upon and
subject to the terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes as hereinafter expressed, and the Issuer has agreed and
covenanted, and does hereby agree and covenant, with the Trustee and with the
respective holders and owners, from time to time, of the said Bonds, as follows:
3
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms set forth below shall have the
following meanings in this Indenture, unless the context clearly otherwise
requires. Except where the context otherwise requires, words importing the
singular number shall include the plural number and vice versa. Capitalized
terms used and not defined herein shall have the meanings ascribed to them in
the Loan Agreement.
ACCOUNT:
"Account" shall mean the Bond Fund, the Construction Fund, the Company
Direct Disbursement Account and the Trustee Disbursement Account.
ACT:
"Act" shall mean Section 00-00-000, ET SEQ.,
Mississippi Code of 1972,
as amended and supplemented.
ADDITIONAL BONDS:
"Additional Bonds" shall mean Bonds of any series, other than the
Series 2004 Bonds, duly issued, authenticated and delivered pursuant to this
Indenture.
ADDITIONAL NOTES:
"Additional Notes" shall mean notes of any series, other than the
Series 2004 Note, duly issued and delivered pursuant to the Loan Agreement, as
the same may be amended.
ADMINISTRATION EXPENSES:
"Administration Expenses" shall mean the reasonable and necessary fees,
costs or expenses incurred or payable by the Company to the Issuer pursuant to
the Loan Agreement or this Indenture, including, but not limited to, the initial
fee of the Issuer equal to $40,000, and the reasonable compensation and expenses
paid to or incurred by the Trustee or any Paying Agent under the Loan Agreement
or this Indenture. The Administration Expenses of the Issuer and the Trustee
shall be paid directly to the Issuer and the Trustee, respectively, on or prior
to the Initial Closing Date.
AFFILIATE:
"Affiliate" shall mean any person, firm or corporation controlled by,
or under common control with the Company and any person, firm or corporation
directly or indirectly controlling the Company.
4
AUTHORIZED COMPANY REPRESENTATIVE:
"Authorized Company Representative" shall mean any person or persons at
the time designated to act on behalf of the Company by a written certificate,
signed on behalf of the Company by its Chief Executive Officer or its President
or one of its Vice Presidents or the Project Director for the Project or other
duly authorized Person and furnished to the Issuer and the Trustee, containing
the specimen signature of each such person.
BOND COUNSEL:
"Bond Counsel" shall mean an attorney-at-law or a firm of attorneys,
designated by the Issuer, of nationally recognized standing in matters
pertaining to the issuance of bonds by states and their political subdivisions,
duly admitted to the practice of law before the highest court of any state of
the United States of America.
BOND COUNSEL'S OPINION:
"Bond Counsel's Opinion" shall mean an opinion signed by Bond Counsel
and satisfactory to the Issuer and the Trustee.
BOND FUND:
"Bond Fund" shall mean the fund created under Section 6.01 of this
Indenture and held by the Trustee.
BOND PURCHASE CONTRACT:
"Bond Purchase Contract" shall mean the bond purchase contract
concerning the Series 2004 Bonds among the Issuer, the Company and the
Purchaser.
BOND REGISTER AND BOND REGISTRAR:
"Bond Register" and "Bond Registrar" shall have the respective meanings
specified in Section 2.09 of this Indenture.
BONDS:
"Bond" or "Bonds" shall mean any Bond or all of the Bonds, as the case
may be, of the Issuer authorized and issued by the Issuer, authenticated by the
Trustee and delivered under this Indenture.
The term "outstanding under this Indenture" or "outstanding hereunder"
or "outstanding", when used with reference to Bonds, shall mean, except as
otherwise provided in Sections 9.03 and 13.03 of this Indenture, at any date as
of which the amount of outstanding Bonds is to be determined, the aggregate of
all Bonds authorized, issued, authenticated and delivered under this Indenture,
except:
5
(a) Bonds canceled or surrendered to the Trustee for cancellation
pursuant to Section 2.12 of this Indenture prior to such date;
(b) Bonds deemed to have been paid as provided in Section 14.02 of
this Indenture; and
(c) Bonds in lieu of or in substitution for which other Bonds shall
have been authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Trustee and the Company is presented that any such Bond is
held by a bona fide Registered Owner in due course.
BUSINESS DAY:
"Business Day" shall mean any day, other than a Saturday or Sunday, on
which the Trustee is not closed and on which the payment system of the Federal
Reserve System is operational.
CLOSING DATE:
"Closing Date" shall mean each date after the Initial Closing Date on
which any portion of the Series 2004 Bonds are delivered to the Purchaser in
exchange for the sale price thereof.
COMPANY:
"Company" shall mean Premier Entertainment Biloxi LLC, a limited
liability corporation organized and existing under the laws of the State of
Delaware, or any corporation, limited liability company, partnership or sole
proprietorship which is the surviving, resulting or transferee person in any
merger, consolidation or transfer of assets permitted under Section 5.02 of the
Loan Agreement and shall also mean, unless the context otherwise requires, an
assignee of the Company as permitted by Section 6.01 of the Loan Agreement.
COMPANY DIRECT DISBURSEMENT ACCOUNT:
"Company Direct Disbursement Account" shall mean the Company Direct
Disbursement Account created pursuant to Section 5.01 herein and held by the
Trustee in the Construction Fund.
COMPLETION DATE:
"Completion Date" shall have the meaning set forth in the Loan
Agreement.
CONSTRUCTION FUND:
"Construction Fund" shall mean the fund created under Section 5.01 of
the Indenture and held by the Trustee, which shall contain the Trustee
Disbursement Account and the Company Direct Disbursement Account.
6
CORPORATE TRUST OFFICE:
"Corporate Trust Office" shall mean the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at Standard
Federal-Corporate and Institutional Trust, a division of LaSalle Bank National
Association, 0000 Xxxx Xxx Xxxxxx, Xxxx, Xxxxxxxx 00000 Attention: Corporate
Trust Department.
COST OR COST OF THE PROJECT:
"Cost" or "Cost of the Project" shall mean and be deemed to include the
definition of the term "Cost" as that term is defined in the Act, including, but
not limited to the following to the extent such are incurred after the sixtieth
(60th) day preceding November 19, 2003: (a) obligations of the Issuer or of the
Company incurred for labor, materials, machinery, equipment and other expenses
and to architects, contractors, builders and materialmen in connection with the
acquisition, construction, equipping and installation of the Project and
improvements thereto including, but not limited to, the cost of improvement of
the Project Site; (b) the cost of contract or performance bonds or of other
bonds and of insurance of all kinds that may be required or necessary prior to
or during the course of construction, installation and equipping of the Project;
(c) all costs of architectural and engineering services, including the expenses
of the Issuer and the Company for test borings, surveys, test and pilot
operations, estimates, plans and specifications and preliminary investigations
therefor, and for supervising construction, as well as for the performance of
all other duties required by or as a result of the proper construction,
installation and equipping of the Project; (d) compensation and expenses of the
Issuer and the Trustee; legal, accounting, financial and printing expenses, fees
and all other expenses incurred in connection with the issuance of the Bonds;
(e) all other costs which the Issuer or the Company shall be required to pay
under the terms of any contract or contracts for the acquisition (by purchase,
lease or otherwise), construction, installation and equipping of the Project;
(f) any sums required to reimburse the Issuer or the Company for advances made
by either of them for any of the above items, or for any other costs incurred
and for work done by either of them, which are properly chargeable to the
Project being acquired, constructed, installed and equipped; (g) Administration
Expenses of the Issue and the Trustee which are payable as of the Initial
Closing Date; and (h) any other expenses or fees of the Issuer or the Trustee,
which in the opinion of the Issuer or the Trustee are related to the Project or
the Bonds.
EQUIPMENT:
"Equipment" shall mean those items of machinery, equipment, fixtures
and other tangible personal property which (a) have been or are to be acquired
and installed at or on the Project Site, (b) were acquired with, or the cost of
which has been reimbursed with, proceeds of the Series 2004 Bonds and (c) are
described in Exhibit B to the Loan Agreement as the same may be changed from
time to time and any item of machinery, equipment, fixtures and other tangible
personal property which may be acquired and installed at or on the Project Site
in substitution therefor pursuant to the provisions of the Loan Agreement, and
renewals and replacements of any of the foregoing less such property as may be
released pursuant to the provisions of the Loan Agreement or taken by the
exercise of the power of eminent domain, all as they may at any time exist.
7
EVENT OF DEFAULT:
"Event of Default", "event of default", "Default" or "default" shall
mean any Event of Default specified in Section 10.01 of this Indenture.
EXECUTIVE DIRECTOR:
"Executive Director" shall mean the Executive Director of the
Mississippi Business Finance Corporation.
GOVERNMENT OBLIGATIONS:
"Government Obligations" shall have the meaning ascribed thereto in the
Loan Agreement.
INDENTURE:
"Indenture" shall mean this
Trust Indenture as amended or supplemented
from time to time in accordance with the provisions hereof.
INITIAL CLOSING DATE:
"Initial Closing Date" shall mean the first date on which any portion
of the Series 2004 Bonds is sold to the Purchaser.
INVESTMENT SECURITIES:
"Investment Securities" shall mean any one of the following, if and to
the extent the, same are at the time legal for the investment of the Issuer's
funds:
(a) Government Obligations;
(b) certificates of deposit, time deposits or other banking
arrangements issued by any single A or better rated domestic bank, bank and
trust company or national banking association, but no more than $50,000,000 in
any single financial institution;
(c) commercial paper that is rated A-1 or better by Standard & Poor's
Rating Group or P-1 or P-2 by Xxxxx s Investors Service, Inc.;
(d) Treasury or Agency repurchase agreements with any single A or
better rated domestic bank, bank and trust company or national banking
association, including the Trustee, which shall be authorized to engage in the
banking business and are a member of the Federal Reserve System;
(e) investments in a money market fund as authorized by Section
91-13-8,
Mississippi Code of 1972, as amended;
(f) any form of investment approved by the Purchaser; and
8
(g) Dreyfus Cash Management Institutional Shares.
ISSUER:
"Issuer" shall mean the Mississippi Business Finance Corporation,
constituting a public corporation of the State, its successors and assigns, and
any public corporation resulting from or surviving any consolidation or merger
to which it or its successors may be a party.
LOAN AGREEMENT:
"Loan Agreement" shall mean the Loan Agreement dated as of the date
hereof between the Issuer and the Company and any and all modifications,
alterations, amendments and supplements thereto made in accordance with the
provisions thereof and this Indenture.
NOTES:
"Notes" shall mean the promissory notes of the Company, including the
Series 2004 Note, issued pursuant to the Loan Agreement, as the same may be
amended or supplemented.
OFFICERS' CERTIFICATE:
"Officers' Certificate" shall mean a certificate signed by the
President, Executive Director, or an officer of the Board of Directors of the
Issuer duly authorized by resolution of such Board to sign such certificate and
the Secretary.
OPINION OF COUNSEL:
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee.
PAYING AGENT:
"Paying Agent" shall mean any paying agent for the Series 2004 Bonds
(and may include the Trustee) and its successor or successors appointed pursuant
to the provisions of this Indenture.
9
PAYMENT DATE:
"Payment Date" means, as to the Series 2004 Bonds, the Final Maturity
Date and any other date on which principal is payable pursuant to the redemption
provisions of Section 2.03 herein, and as to any other Series of Bonds, each
date designated as a Payment Date in the applicable Supplemental Indenture.
PERMITTED ENCUMBRANCES:
"Permitted Encumbrances" shall have the meaning ascribed thereto in the
Loan Agreement.
PERSON OR PERSON:
"Person" or "person" shall mean, as the case may be, any individual,
sole proprietorship, limited liability company, corporation, partnership
(including, without limitation, general and limited partnerships), joint
venture, association, joint stock company, trust, unincorporated organization or
government, any agency or political subdivision thereof or public corporation.
PRESIDENT:
"President" shall mean the President of the Mississippi Business
Finance Corporation.
PROJECT:
"Project" shall have the meaning ascribed thereto in the Loan
Agreement.
PROJECT SITE:
"Project Site" shall mean the real property described in Exhibit A to
the Loan Agreement on which the Project will be situated.
PROPERTY:
"Property" shall mean any interest in any kind of asset, whether real,
personal or mixed, or tangible or intangible.
PURCHASER:
"Purchaser" shall mean
Premier Finance Biloxi Corp., a Delaware
corporation, in its capacity as the initial purchaser of the Series 2004 Bonds.
10
RECORD DATE:
"Record Date" shall mean with respect to any Series of Bonds, the last
Business Day preceding any Payment Date.
REDEMPTION PRICE:
"Redemption Price" shall mean the principal of and accrued interest on
the Series 2004 Bonds or portion thereof to be redeemed.
REGISTERED OWNER:
"Registered Owner" shall mean the Person or Persons in whose name or
names the particular Bond or Bonds shall be registered on the Bond Register.
REVENUES:
"Revenues" shall mean all payments, receipts and revenues payable by
the Company to the Issuer under the Loan Agreement (except payment of
Administration Expenses and indemnification payments pursuant to Sections 4.03
and 4.11, respectively, of the Loan Agreement) and any other payments, receipts
and revenues derived by the Issuer from the Company under the Loan Agreement.
SECRETARY:
"Secretary" shall mean the Secretary of the Mississippi Business
Finance Corporation.
SENIOR NOTES:
"Senior Notes" shall mean the __ % First Mortgage Notes due _____, 2012
issued by Premier Entertainment Biloxi LLC and
Premier Finance Biloxi Corp.
pursuant to the terms of the Senior Notes Indenture, together with all
additional notes issued by Premier Entertainment Biloxi LLC and
Premier Finance
Biloxi Corp. from time to time under the Senior Notes Indenture, including all
notes issued in exchange or replacement therefore.
SENIOR NOTES INDENTURE:
"Senior Notes Indenture" shall mean that certain indenture dated as of
January __, 2004 by and among Premier Entertainment Biloxi LLC,
Premier Finance
Biloxi Corp. and Standard Federal-Corporate and Institutional Trust, a division
of LaSalle Bank National Association, in its capacity as trustee for the benefit
of the holders of the Senior Notes (as the same may be amended, modified or
supplemented from time to time).
SENIOR NOTES TRUSTEE:
"Senior Notes Trustee" shall mean Standard Federal-Corporate and
Institutional Trust, a division of LaSalle Bank National Association, in its
capacity as trustee under the Senior Notes Indenture, together with its
successors in such capacity.
11
SERIES OR SERIES OF BONDS:
"Series" or "Series of Bonds" shall mean all of the Bonds authenticated
and delivered on original issuance in a simultaneous transaction, and any Bonds
thereafter authenticated and delivered in lieu of or in substitution for such
Bonds, pursuant to the provisions of this Indenture, regardless of variations in
maturity, interest rate, or other provisions.
SERIES 2004 BONDS:
"Series 2004 Bonds" shall mean the Mississippi Business Finance
Corporation Industrial Development Revenue Bonds, Series 2004 (Premier
Entertainment Biloxi LLC Project) issued under the Indenture.
SERIES 2004 NOTE:
"Series 2004 Note" shall mean the Promissory Note of the Company issued
by the Company in connection with the issuance and sale of the Series 2004
Bonds.
STATE:
"State" shall mean the State of Mississippi.
SUBSIDIARY:
"Subsidiary" shall mean any corporation, 50% or more of the voting
shares of stock of which are owned directly or indirectly by the Company.
SUPPLEMENTAL INDENTURE:
"Supplemental Indenture" or "indenture supplemental hereto" shall mean
any indenture supplemental to or amendatory of this Indenture as originally
executed which is duly executed and delivered in accordance with the provisions
of this Indenture.
TERM NOTE DATE:
"Term Note Date" shall mean the earlier of (i) January 1, 2007, or (ii)
the Completion Date.
TRUSTEE:
"Trustee" shall mean Standard Federal-Corporate and Institutional
Trust, a division of LaSalle Bank National Association (and its corporate
successors) and its successor under this Indenture, a national banking
corporation, having power and authority to accept and execute trusts, and having
a corporate trust office in Troy, Michigan.
TRUSTEE DISBURSEMENT ACCOUNT:
"Trustee Disbursement Account" shall mean the Trustee Disbursement
Account created pursuant to Section 5.01 herein and held by the Trustee in the
Construction Fund.
12
ARTICLE II
DESCRIPTION, AUTHORIZATION, MANNER OF
EXECUTION, AUTHENTICATION, REGISTRATION AND
TRANSFER OF BONDS
SECTION 2.01. AUTHORIZATION OF BONDS. The Bonds may, at the election
of the Issuer, be issued in one or more Series and, except as hereinafter
provided, shall be designated generally with such appropriate particular
designations added to or incorporated in such title for the Bonds of any
particular Series as the Issuer may determine. Each Bond shall bear upon the
face thereof the designation so selected for the Series to which it belongs. The
Bonds shall be issuable only in fully registered form and in any denominations.
SECTION 2.02. SERIES 2004 BONDS.
(a) There shall be issued under and secured by this Indenture a
Series of Bonds to be designated as Mississippi Business Finance Corporation
Industrial Development Revenue Bonds, Series 2004 (Premier Entertainment Biloxi
LLC Project) in the aggregate principal amount of up to $60,000,000. The
principal amount of the Series 2004 Bonds shall be issued from time to time as
provided herein and in the Bond Purchase Contract. The Series 2004 Bonds shall
be dated as of the date of the first disbursement of any of the proceeds
thereof.
The Series 2004 Bonds shall be initially issued in the form of one
fully registered bond and may not be submitted in exchange for more than one
fully registered Bond until the Term Note Date at which time the Series 2004
Bond may, but shall not be required to, be submitted to the Trustee pursuant to
the provisions of Section 2.09 herein, in exchange for more than one fully
registered bond.
The principal amount of the Series 2004 Bonds shall be issued from time
to time as follows: (i) $500,000 principal amount of the Series 2004 Bonds shall
be issued on the Initial Closing Date and the proceeds thereof shall be
deposited into the Company Direct Disbursement Account in the Construction Fund,
(ii) in the Purchaser's discretion, there shall be issued additional principal
amounts of the Series 2004 Bonds from time to time and the proceeds thereof
shall be deposited into the Company Direct Disbursement Account in the
Construction Fund, provided, that the Purchaser shall never pay the Trustee an
amount for deposit into the Company Direct Disbursement Account in the
Construction Fund if such deposit results in said Account having more than
$500,000 on deposit therein, (iii) upon the submission of requisitions by the
Company to the Trustee pursuant to the provisions of Section 5.03(a) hereof, a
principal amount of the Series 2004 Bonds shall be issued in an amount equal to
the amount set forth in such requisitions and the proceeds thereof shall be
deposited into the Trustee Disbursement Account in the Construction Fund.
With respect to requisitions to be paid by the Trustee from amounts in
the Trustee Disbursement Account in the Construction Fund pursuant to Section
5.03(a) hereof, upon receipt of each requisition by the Trustee, the Trustee
shall telephonically notify the Purchaser of the principal amount of the Series
2004 Bonds which the Purchaser must purchase, which shall be the amount set
forth in such requisition. Promptly upon receipt of such notice, the Purchaser
shall, pursuant to the provisions of the Bond Purchase Contract, pay to the
Trustee the principal
13
amount of such Bond requisitioned by the Company, which amount shall be
deposited into the Trustee Disbursement Account in the Construction Fund and the
Trustee shall make a notation of such principal amount purchased on the Series
2004 Bond.
Each time the Purchaser provides the Trustee with any amount for
deposit into the Company Direct Disbursement Account in the Construction Fund,
the Trustee shall also make a notation of such amount evidencing an additional
purchase of the Series 2004 Bonds.
The amount shown on the grid attached to the Series 2004 Bond shall be
deemed to be conclusive evidence of the principal amount of the Series 2004
Bonds purchased by the Purchaser, absent manifest error.
Any portion of the Series 2004 Bonds not sold to the Purchaser by the
Term Note Date shall not be issued or delivered thereafter. Notwithstanding
anything herein to the contrary, until the Term Note Date, the Trustee shall
maintain custody of the Series 2004 Bond as agent of the Purchaser; provided,
however that the Trustee acknowledges that the Purchaser has pledged the Series
2004 Bond to the Senior Note Trustee to secure the payment of the Senior Notes.
(b) From the Initial Closing Date until the maturity of the Series
2004 Bonds, the Series 2004 Bonds shall bear interest on the principal amount
thereof which has been disbursed pursuant to the provisions of Section 3.03 of
the Loan Agreement and which remains outstanding at a rate equal to four percent
(4%) per annum. Interest shall be calculated on the basis of the actual number
of days elapsed for a year having 360 days. The determination of the interest
rate and the amount of interest due on each Payment Date shall be made by the
Bondholder and the Trustee shall not be liable for any miscalculation of the
interest rate or interest due on the Bonds.
Interest on the outstanding principal amount of the Series 2004 Bonds
shall be paid on each Payment Date with respect to the amount of principal being
paid on such date.
All payments shall be applied first to accrued interest and then to the
outstanding principal of the Series 2004 Bonds.
The final maturity date of the Series 2004 Bonds shall be January 1,
2014, and all outstanding principal plus accrued and unpaid interest shall be
due and payable on such date. The Series 2004 Bonds shall be subject to
redemption prior to maturity as provided herein.
All payments of principal of, premium, if any, and interest on the
Series 2004 Bonds shall be payable in any coin or currency of the United States
of America which, at the time of payment is legal tender for the payment of
public and private debts and shall be made to the Registered Owner thereof as of
the Record Date, in the case of principal and premium, if any, at the Corporate
Trust Office of the Trustee upon presentation and surrender thereof, and in the
case of interest, by mail, by check, or if requested in writing by a Registered
Owner who holds Bonds in the amount of at least $500,000 by bank wire or bank
transfer as such Registered Owner may specify in writing or otherwise as the
Trustee and such Registered Owner may agree.
SECTION 2.03. REDEMPTION. The Series 2004 Bonds are subject to
optional redemption prior to maturity, in accordance with Article VIII hereof
and subject to the order of payment as set forth in Section 6.02 hereof, in
whole or in part at any time at the option of the Company, upon not less than
forty-five (45) days' written notice by the Company to the Trustee
14
(which may be waived), at a redemption price equal to the principal amount
thereof, plus accrued interest thereon to the date of redemption, without
premium; provided, the Company has agreed in the Loan Agreement that it will not
exercise its right to optionally redeem the Bonds until the earlier of the
following: (i) one year following the Initial Closing Date and (ii) six months
following completion of the Project, as evidenced by delivery to the Trustee of
the certificate described in Section 3.05 of the Loan Agreement.
SECTION 2.04. METHOD OF PARTIAL REDEMPTION. Unless otherwise provided
herein, in the event of a partial redemption pursuant to Section 2.03 hereof,
the Series 2004 Bonds to be partially redeemed shall be selected by lot by the
Trustee unless otherwise agreed to by the Registered Owners and the Company.
SECTION 2.05. ADDITIONAL BONDS. Subject to determination from time to
time by the Issuer, and subject to the provisions of Section 3.03 hereof and
with the prior written consent of the Senior Notes Trustee and the Registered
Owners of one hundred percent (100%) of the Series 2004 Bonds then outstanding,
as expressed from time to time in one or more Supplemental Indentures, the Bonds
of any Series other than the Series 2004 Bonds:
(a) shall be dated, shall bear interest at a rate or rates not in
excess of the maximum rate then permitted by applicable law, shall be payable
and shall mature by their terms at such time or times as may be provided in the
Supplemental Indenture creating the Series of which such Bonds are a part;
(b) shall be payable, both as to principal and interest and premium,
if any, at such place or places as the Issuer may determine in any coin or
currency of the United States of America which, at the time of payment, is legal
tender for the payment of public and private debts;
(c) May have such exchange privileges as may be determined by the
Issuer;
(d) shall have such particular designations added to their title as
the Issuer may determine, and may be in such denominations as may be determined
by the Issuer;
(e) May be limited as to the maximum principal amount thereof which
may be authenticated by the Trustee and delivered or which may be at any time
outstanding, and an appropriate insertion in respect of such limitation may, but
need not, be made in the Bonds of such Series;
(f) May contain provisions for the redemption thereof at such
redemption price or prices, at such time or times, upon such notice, in such
manner and upon such other terms and conditions, not inconsistent with the
provisions of Article VIII of this Indenture and the terms of the Loan
Agreement, as may be determined by the Issuer and permitted by applicable law;
(g) May have mandatory provisions requiring payments of sinking fund
requirements for the purchase and sinking fund redemption of such Bonds, in such
amounts, at such time or times, in such manner and upon such terms and
conditions, not inconsistent with the provisions of this Indenture, as shall be
set forth in such Supplemental Indenture; and
15
(h) May contain such provisions with respect to acceleration of
maturity on the happening of specified events, and such other special terms and
conditions, not contrary to the provisions hereof or of the Act, as may be
determined by the Issuer.
SECTION 2.06. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In the
event any outstanding Bond, whether temporary or definitive, is mutilated, lost,
stolen or destroyed, the Trustee shall, upon written request of the Issuer,
authenticate and deliver a new Bond of the same Series, principal amount and
maturity and of like tenor as the mutilated, lost, stolen or destroyed Bond in
exchange and substitution for such mutilated Bond, or in lieu of and
substitution for such lost, stolen or destroyed Bond upon presentation of an
open indemnity bond in favor of the Trustee and the Issuer which is satisfactory
to the Trustee.
Application for exchange and substitution of mutilated, lost, stolen or
destroyed Bonds shall be made to the Trustee, in writing, at the Corporate Trust
Office. In every case the applicant for a substitute Bond shall furnish to the
Issuer and to the Trustee such security or indemnity as may be required by them
to save each of them and any Paying Agent harmless. In every case of loss, theft
or destruction of a Bond, the applicant shall also furnish to the Issuer and to
the Trustee evidence to their satisfaction of the loss, theft or destruction and
of the ownership of such Bond, and in every case of mutilation of a Bond, the
applicant shall surrender to the Trustee the Bond so mutilated.
Upon the issuance of any substitute Bond, the Issuer and the Trustee
may charge the Registered Owner of such Bond with their fees and expenses in
connection therewith. Every substitute Bond issued pursuant to the provisions of
this Section 2.06 by virtue of the fact that any Bond is lost, stolen or
destroyed shall constitute an original additional contractual obligation of the
Issuer, whether or not the lost, stolen or destroyed Bond shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionally with any and all other Bonds duly
issued under this Indenture to the same extent as the Bonds in substitution for
which such Bonds were issued.
The provisions of this Section 2.06 are exclusive and shall preclude
(to the extent lawful) all of the rights and remedies with respect to the
payment of mutilated, lost, stolen or destroyed Bonds, including those granted
by any law or statute now existing or hereafter enacted.
SECTION 2.07. TEMPORARY BONDS. Until Bonds in definitive form of any
Series are ready for delivery, the Issuer may execute, and upon its request in
writing, the Trustee shall authenticate and deliver in lieu of any thereof and
subject to the same provisions, limitations and conditions, one or more printed,
lithographed or typewritten Bonds in temporary form, substantially of the tenor
of the Bonds as set forth above in this Article II, with appropriate omissions,
variations and insertions. Bonds in temporary form, prepared at the expense of
the Company, will be for such principal amounts as the Issuer shall determine.
Until exchanged for Bonds in definitive form, such Bonds in temporary
form shall be entitled to the lien and benefit of this Indenture. The Issuer
shall, without unreasonable delay, prepare, execute and deliver to the Trustee,
and thereupon, upon the presentation and surrender of the Bond or Bonds in
temporary form to the Trustee at the Corporate Trust Office, the Trustee shall
authenticate and deliver, in exchange therefor, a Bond or Bonds of the same
maturity and Series, in definitive form in the authorized denominations, and for
the same aggregate principal
16
amount, as the Bond or Bonds in temporary form surrendered. Such exchange shall
be made at the Company's expense and without making any charge therefor to any
Registered Owner.
SECTION 2.08. EXECUTION. All the Bonds shall, from time to time, be
executed on behalf of the Issuer by, or bear the manual or facsimile signature
of, the Executive Director or President and its corporate seal (which may be in
facsimile) shall be thereunto affixed (or imprinted or engraved if facsimile)
and attested by the manual or facsimile signature of the Secretary.
If any of the officers who shall have signed or sealed any of the Bonds
or whose facsimile signature shall be upon the Bonds shall cease to be such
officer of the Issuer before the Bonds so signed and sealed shall have been
actually authenticated by the Trustee or delivered by the Issuer, such Bonds
nevertheless may be authenticated, issued and delivered with the same force and
effect as though the person or persons who signed or sealed such Bonds or whose
facsimile signature shall be upon the Bonds had not ceased to be such officer or
officers of the Issuer; and also any such Bond may be signed and sealed on
behalf of the Issuer by those persons who, at the actual date of the execution
of such Bonds, shall be the proper officers of the Issuer, although at the date
of such Bond any such person shall not have been such officer of the Issuer.
SECTION 2.09. NEGOTIABILITY, TRANSFER AND REGISTRY.
(a) The Bonds may be transferred and title thereto shall pass, only
in the manner provided and as set forth in paragraph (c) below. The Issuer
hereby designates the Trustee as initial Bond Registrar to keep the books for
the registration and for the transfer of Bonds as provided in this Indenture.
All Bonds presented for transfer, exchange, redemption or payment, shall be
accompanied by a written instrument or instruments of transfer or authorization
for exchange, in form and with guaranty of signature satisfactory to the
Trustee, duly executed by the Registered Owner or by his attorney duly
authorized in writing. No charge shall be made to the Registered Owner for the
transfer and registration of the Bonds except for a sum sufficient to pay any
tax, fee or governmental charge that may be imposed with respect thereto.
(b) The Issuer, the Trustee, the Bond Registrar and any Paying Agent
may deem and treat the Registered Owner of any registered Bond as the absolute
owner of such Bond for the purpose of receiving any payment on such Bond and for
all other purposes of this Indenture and the Loan Agreement, whether payment of
such Bond shall be current or not, and neither the Issuer, nor the Trustee, nor
the Bond Registrar nor any Paying Agent shall be affected by any notice to the
contrary. Payment of, or on account of, the principal of and interest and
premium, if any, on any registered Bond shall be made to such Registered Owner
or upon his written order. All such payments shall be valid and effectual to
satisfy and discharge the liability upon such Bond to the extent of the sum or
sums so paid.
(c) The Bonds shall be initially registered in the name of the
Purchaser as to principal and interest on the books kept by the Bond Registrar.
Following the Term Note Date, upon surrender for transfer of any Bond at the
office of the Bond Registrar, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees, one or
more new fully registered Bonds of the same Series for the aggregate principal
amount which the Registered Owner is entitled to receive.
17
(d) The Registered Owner of the Series 2004 Bonds will pledge the
Series 2004 Bonds to the Senior Notes Trustee to secure payments of the Senior
Notes and such security interest shall be noted on the face of the Series 2004
Bonds.
At the option of the Registered Owners, Bonds of any Series may be
exchanged for other Bonds of such Series of any authorized denomination, of a
like aggregate principal amount, upon surrender of the Bonds to be exchanged at
any such office or agency. Any transfers involving subsequent registration shall
be made on the books kept by the Bond Registrar. No transfer shall be valid
unless (1) made by written assignment, (2) noted on books of the Bond Registrar
and (3) unless a new registered bond shall be issued, noted in the books kept by
the Bond Registrar as of the date of registration and the name of the Registered
Owner thereof.
SECTION 2.10. REGULATIONS WITH RESPECT TO EXCHANGES AND TRANSFERS. In
all cases in which the privilege of exchanging Bonds or registering the transfer
of Bonds is exercised, the Issuer shall execute and the Trustee, upon written
request of the Issuer, shall authenticate and deliver Bonds in accordance with
the provisions of this Indenture. All Bonds surrendered in any such exchanges or
upon any such registration of transfer shall forthwith be delivered to the
Trustee and canceled by it. There shall be no charge for any such exchange or
registration of transfer of Bonds to the Registered Owner, but the Issuer may
require the payment of a sum sufficient to pay any tax or other governmental
charge required to be paid with respect to any such exchange or registration of
transfer. Neither the Issuer nor the Trustee shall be required to register the
transfer or exchange of any Bond called for redemption in whole or in part.
SECTION 2.11. AUTHENTICATION. No Bond shall be secured by this
Indenture or be entitled to the benefit hereof or shall be valid or obligatory
for any purpose unless there shall be endorsed on such Bond the Trustee's
certificate of authentication, substantially in the form prescribed in this
Indenture, executed by the manual signature of a duly authorized officer of the
Trustee; and such certificate on any Bond issued by the Issuer shall be
conclusive evidence and the only competent evidence that such Bond has been duly
authenticated and delivered under this Indenture.
SECTION 2.12. DESTRUCTION OF BONDS. Upon the surrender to the Trustee
of any temporary or mutilated Bond, or any Bond acquired, redeemed, or paid at
maturity, the same shall forthwith be canceled and destroyed by the Trustee. If
such Bond is so destroyed, the Trustee shall deliver its certificate of
destruction to the Issuer.
ARTICLE III
AUTHENTICATION AND DELIVERY OF BONDS
SECTION 3.01. BONDS EQUALLY AND RATABLY SECURED. The aggregate
principal amount of Bonds which may be executed by the Issuer and authenticated
by the Trustee and delivered from time to time and secured by this Indenture is
not limited except as is or may be provided in this Indenture or as may be
limited by the Act and applicable law. All Bonds issued and to be issued
hereunder are, and are to be, to the extent provided in this Indenture, equally
and ratably secured by this Indenture without preference, priority or
distinction on account of the actual time or times of the authentication or
delivery or maturity of the Bonds, so that, subject as aforesaid, all Bonds at
any time outstanding hereunder shall have the same right, lien and
18
preference under and by virtue of this Indenture and shall all be equally and
ratably secured hereby with like effect as if they had all been executed,
authenticated and delivered simultaneously on the date hereof, whether the same
or any of them shall actually be disposed of at such date, or whether they, or
any of them, shall be disposed of at some future date, or whether they, or any
of them, shall have been authorized to be executed, authenticated and delivered
under Section 3.02 of this Indenture or may be authorized to be executed,
authenticated and delivered hereafter pursuant to the provision of this
Indenture.
SECTION 3.02. PROVISIONS FOR ISSUANCE OF SERIES 2004 BONDS. The
Series 2004 Bond in the aggregate principal amount of up to $60,000,000, being
the first Series of Bonds issued under this Indenture, shall forthwith be
executed by the Issuer and delivered to the Trustee for authentication,
provided, the Trustee shall not authenticate the Series 2004 Bonds unless and
until the Trustee shall have received the following:
(a) a copy of the resolution or resolutions adopted by the Issuer
authorizing the execution and delivery of the Loan Agreement and this Indenture
and the sale, issuance and delivery of the Series 2004 Bonds, duly certified by
the Secretary, under its corporate seal, to have been duly adopted by the Issuer
and to be in full force and effect on the date of such certification;
(b) an original executed counterpart of the Loan Agreement, this
Indenture and the Series 2004 Note;
(c) an original executed direction to the Trustee on behalf of the
Issuer and signed by the Executive Director and by the Secretary to authenticate
and deliver the Series 2004 Bonds to the purchasers therein identified upon
payment to the Trustee, but for the account of the Issuer, of a sum specified in
such direction (such proceeds shall be paid over to the Trustee and deposited in
the manner provided herein);
(d) an original executed counterpart of an opinion of counsel for the
Company, addressed to the Issuer and the Trustee and Bond Counsel, subject to
standard assumptions and qualifications of counsel for the Company, with respect
to the due organization and existence in good standing of the Company; its
qualification to do business and its good standing under the laws of the State
of Mississippi; its power to execute, deliver and perform its obligations under
the Loan Agreement, the Series 2004 Note, this Indenture and any other
instruments and documents executed and delivered by the Company in connection
herewith; the due authorization thereof by all requisite authorizing action on
the part of the Company; the due execution and delivery thereof on the part of
the Company; the execution and delivery of the Loan Agreement and the Series
2004 Note; and the performance of the obligations of the Company thereunder have
not resulted and will not result in a violation of the articles of incorporation
of the Company or its by-laws, and the legality, validity and binding effect
thereof as obligations of the Company enforceable in accordance with their terms
(except to the extent that the validity and enforceability thereof may be
limited by bankruptcy, reorganization or similar laws limiting the
enforceability of creditors' rights generally and except that no opinion need be
expressed as to the availability of any discretionary equitable remedies);
(e) an original executed counterpart of an approving opinion of Bond
Counsel with respect to the validity of the Series 2004 Bonds.
19
SECTION 3.03. PROVISIONS FOR ISSUANCE OF ADDITIONAL BONDS.
(a) Subsequent to the authentication, issuance and delivery of the
Series 2004 Bonds, and in accordance with Section 2.05 hereof, one or more
Series of Additional Bonds may be authenticated by the Trustee and delivered
upon original issuance for the purpose of providing funds to (1) complete
payment of the Cost of the Project, (2) pay the Cost of (i) enlargements,
improvements or extensions to any buildings included in the Project and/or (ii)
additions to or replacement of the items of Equipment as the Company may deem
desirable, or (3) pay the Cost of additional facilities relating to the Project.
(b) The Issuer may execute and deliver to the Trustee, and the
Trustee shall thereupon authenticate and deliver, such Additional Bonds to the
purchaser or purchasers thereof, provided that, prior to such authentication and
delivery, there shall have been delivered to the Trustee:
1. a copy of the resolution or resolutions adopted by the
Issuer authorizing such Additional Bonds and the execution and delivery by the
Issuer of a Supplemental Indenture providing for the terms and conditions upon
which such Bonds are to be issued, duly certified by the Secretary under its
corporate seal, to have been duly adopted by the Issuer and to be in full force
and effect on the date of such certification, together with an executed
counterpart of said Supplemental Indenture;
2. a copy, certified by the Secretary as described in paragraph
(b)(1) hereinabove, of the resolution or resolutions adopted by the Issuer
authorizing the execution and delivery by the Issuer of any agreement which is
necessary to amend the Loan Agreement and to provide for an additional
promissory note of the Company to (A) increase or adjust the payments to be made
under the Loan Agreement to an amount sufficient to pay, as and when the same
mature or become due, the principal of and interest and premium, if any, on all
outstanding Bonds, including such Additional Bonds (except to such extent as the
same may be payable out of moneys then in the Bond Fund or otherwise on deposit
with the Trustee in accordance with this Indenture), (B) include as part of the
Project all machinery, equipment, facilities, land and rights in land to be
financed by the issuance and sale of such Additional Bonds and (C) make such
other revisions to the Loan Agreement as are necessitated by the issuance of
such Additional Bonds; provided, however, that such other revisions shall not
prejudice the rights of the Registered Owners of outstanding Bonds as granted
them under the terms of this Indenture, together with a duly executed
counterpart of such amendatory agreement;
3. an original executed statement by the Company (A) approving
the issuance and delivery of such Additional Bonds and (B) certifying that the
Company is not then in default under the Series 2004 Note or the Loan Agreement;
4. copies, duly certified by the Secretary, of any approvals
required under the Act for the issuance of such Additional Bonds;
5. an original executed opinion of Bond Counsel, addressed to
the Trustee and the Issuer, to the effect that all of the conditions precedent
to the issuance of such Additional Bonds set forth in this Indenture, the
Supplemental Indenture and the Act have been satisfied;
6. an original executed direction to the Trustee on behalf of
the Issuer and signed by the Executive Director and the Secretary to
authenticate and deliver such Additional
20
Bonds to the purchaser therein identified upon payment to the Trustee, but for
the account of the Issuer, a sum specified in such direction plus accrued
interest on such Additional Bonds to the date of delivery, if any;
7. the original executed consents to the issuance of such
Additional Bonds required by Section 2.05 hereof.
The proceeds of such Additional Bonds shall be deposited with and held
and disbursed by the Trustee as provided in the Supplemental Indenture providing
for such Additional Bonds.
SECTION 3.04. PROVISIONS FOR ISSUANCE OF REFUNDING BONDS. After being
provided with the consent of the Senior Notes Trustee, the Issuer, if and to the
extent authorized by law, in addition to the Bonds authorized to be executed,
authenticated and delivered pursuant to the other provisions of this Article
III, may execute and deliver to the Trustee, and the Trustee shall thereupon
authenticate and deliver to or upon the written order of the President or the
Executive Director, Additional Bonds for the purpose of refunding all or any
part of the Bonds of any one or more Series issued under the provisions of this
Indenture and then outstanding, but only upon the receipt by the Trustee in
addition to the items required under Section 3.03 of this Indenture, of:
(a) a copy of a resolution or resolutions adopted by the Issuer
describing the Series of Bonds to be refunded and authorizing all necessary
action in connection with the refunding thereof pursuant to the provisions of
this Indenture, certified by the Secretary under its corporate seal to have been
duly adopted by the Issuer and to be in full force and effect on the date of
such certification;
(b) evidence in the form of an affidavit of publication satisfactory
to the Trustee that notice of redemption of the Bonds to be redeemed has been
published or given as provided in this Indenture, or that provisions
satisfactory to the Trustee have been made for the publication or giving of such
notice; and
(c) either (1) moneys in an amount sufficient to effect payment at
the applicable redemption price of those Bonds, if any, to be redeemed or of the
principal amount of those Bonds, if any, to be paid at maturity, together with
accrued interest on such Bonds to the redemption or maturity date, which moneys
shall be held by the Trustee or the Paying Agent in a separate account
irrevocably in trust for and assigned to the respective Registered Owners of the
Bonds to be refunded, or (2) Government Obligations in such principal amounts,
of such maturities, bearing such interest, and otherwise having such terms and
qualifications, as shall be necessary to comply with the provisions of Section
14.02 of this Indenture, and any moneys required pursuant to said Section, which
securities and moneys shall be held in trust and used only as provided in said
Section.
SECTION 3.05. LIMITED OBLIGATIONS. The Series 2004 Bonds, premium, if
any, together with the interest thereon, are limited obligations of the Issuer
and shall not constitute a debt, liability or general obligation of the State or
any political subdivision thereof (other than the Issuer) or a pledge of the
faith and credit of the State or any political subdivision thereof (other than
the Issuer). The Series 2004 Bonds are payable solely by the Issuer from the
Revenues and other funds and collateral pledged hereunder and under the Loan
Agreement. Neither the Issuer, the State, nor any other political subdivision
thereof, shall be obligated to pay
21
the Bonds, premium, if any, or the interest thereon or other costs incident
thereto except from the Revenues pledged by the Issuer or other monies held
hereunder for such purpose. No member or officer of the board of directors of
the Issuer nor any person executing the Series 2004 Bonds shall be liable
personally on the Series 2004 Bonds by reason of the issuance thereof. The
Issuer has no taxing powers.
ARTICLE IV
CONSTRUCTION AND ACQUISITION OF PROJECT
SECTION 4.01. COVENANT TO PROCEED WITH REASONABLE DISPATCH. Pursuant
to the provisions of the Loan Agreement, the Company will covenant to complete
the Project with reasonable dispatch.
SECTION 4.02. COVENANT TO COMPLY WITH LAWS. Pursuant to the
provisions of the Loan Agreement, the Company will covenant that in the
acquisition, construction, equipping and installation of the Project it will
comply in all material respects with all applicable requirements of the laws of
the State and with all applicable lawful requirements of any agency, board or
commission created under the laws of the State or of any other duly constituted
public authority with respect to the Project.
ARTICLE V
CONSTRUCTION FUND
SECTION 5.01. ESTABLISHMENT OF CONSTRUCTION FUND. There is hereby
created and established with the Trustee a fund designated as the "Mississippi
Business Finance Corporation--Premier Entertainment Biloxi LLC Construction
Fund". The Construction Fund shall consist of the Trustee Disbursement Account
and the Company Direct Disbursement Account. Pursuant to the provisions of
Section 2.02(a) hereof, proceeds of the sale of the Series 2004 Bonds shall be
caused to be paid from time to time to the Trustee and deposited into the
appropriate account of the Construction Fund. If, with regard to the sale of any
Additional Bonds, there is any interest accrued on such Series of Bonds to the
date of their delivery to the initial purchasers thereof, such amounts shall be
deposited by the Trustee in the Bond Fund hereinafter created and established.
The Trustee shall have authority to disburse amounts on deposit in the Trustee
Disbursement Account of the Construction Fund and the Company shall have
authority to disburse amounts on deposit in the Company Direct Disbursement
Account in accordance with the provisions of Section 5.03 hereof. Payments of
amounts to be disbursed by the Trustee may be made by check or wire sent by the
Trustee as directed in the applicable requisition submitted by the Authorized
Company Representative. Amounts to be disbursed by the Company from the Company
Direct Disbursement Account shall be made by check, signed by an Authorized
Company Representative.
SECTION 5.02. HELD IN TRUST. The moneys in the Construction Fund,
until applied in payment of any item of the Cost of the Project, shall be held
in trust by the Trustee and, pending such application, shall be subject to a
lien and charge in favor of the Registered Owners of the Bonds and for the
further security of such Registered Owners until disbursed as herein provided.
22
SECTION 5.03. USE OF MONEYS. The Trustee shall make payments from the
Trustee Disbursement Account in the Construction Fund and the Company shall make
payments from the Company Direct Disbursement Account in the Construction Fund,
in each event, to pay the Cost of the Project in accordance with the provisions
of this Section 5.03. The Company may not reimburse itself or an Affiliate for
amounts previously paid by the Company or an Affiliate for Costs of the Project
from the Company Direct Disbursement Account. Such reimbursements must be paid
by the Trustee from the Trustee Disbursement Account.
(a) Payments from the Trustee Disbursement Account.
(1) The Trustee shall make payments from the Trustee
Disbursement Account in the Construction Fund to pay the Costs of the Project
upon receipt by the Trustee of original executed requisitions (upon which both
the Trustee and the Issuer may conclusively rely and shall be protected in
relying) signed by an Authorized Company Representative, stating with respect to
each payment to be made: (i) the requisition number, (ii) the name and address
of the person to whom payment is due or, in the event such payment is to
reimburse the Company for expenses previously paid by the Company, the name and
the address of the person to whom payment previously has been made, (iii) the
amount to be paid, (iv) that there has been no Event of Default (as defined in
the Loan Agreement) by the Company under the Loan Agreement, and (v) that each
obligation, item of cost or expense mentioned therein has been properly
incurred, is a proper charge against the Construction Fund and has not been the
basis of any previous disbursement. The requisition shall be substantially in
the form of Exhibit D attached to the Loan Agreement.
(2) Each requisition shall be accompanied by copies of invoices
(evidencing payment, if such requisition is for reimbursement to the Company for
amounts previously paid by the Company) or other documentation supporting the
payment of Costs of the Project.
(b) Payments from the Company Direct Disbursement Account.
(1) The Company shall draw on moneys in the Company Direct
Disbursement Account in the Construction Fund by check signed by an Authorized
Company Representative payable only to a vendor or contractor providing services
or materials constituting a Cost of the Project.
(2) Not later than the 10th calendar day of each month, the
Company will provide the Trustee with executed requisitions relating to each
check which the Company had drawn on the Company Direct Disbursement Account in
the Construction Fund pursuant to Section 5.03(b)(1) during the preceding month,
in the same form as set forth in Section 5.03(a)(1), together with appropriate
attachments as set forth in Section 5.03(a)(2).
(3) The Trustee shall have no express or implied liability for
the Company's compliance with the requirements pertaining to the draws made from
the Company Direct Disbursement Account.
SECTION 5.04. RETENTION OF REQUISITIONS. For seven (7) years from the
date thereof the Trustee shall retain in its possession all requisitions or
copies thereof received by it as in this Indenture required, subject to the
inspection of the Issuer, its agents and representatives,
23
the Company, and the Registered Owners and their representatives at all
reasonable times at the Corporate Trust Office.
SECTION 5.05. COMPLETION OF PROJECT. Upon the Completion Date or
completion of any enlargements, improvements or extensions thereof or completion
of any additional facilities for which Bonds shall be issued, the Trustee shall
be furnished with the certificate of an Authorized Company Representative
described in Section 3.05 of the Loan Agreement.
SECTION 5.06. DISPOSITION OF SURPLUS FUNDS. If any moneys remain in
either account in the Construction Fund (including investment earnings therein)
after the Term Note Date and after payment of all costs then due and payable,
such moneys (except for amounts retained in the Construction Fund for payment of
Costs of the Project incurred but not then due and payable) shall be used to
redeem a portion of the Bonds in the manner provided in Section 2.03 herein;
provided, however, that such redemption shall not require the prior written
consent of the Senior Notes Trustee.
ARTICLE VI
BOND FUND
SECTION 6.01. ESTABLISHMENT OF BOND FUND. There is hereby created and
established with the Trustee a fund designated as the "Mississippi Business
Finance Corporation--Premier Entertainment Biloxi LLC Bond Fund". There shall be
deposited into the Bond Fund as and when received: (a) all loan payments
specified in Section 4.02 of the Loan Agreement and all payments made on the
Series 2004 Note; (b) any amounts to be deposited in the Bond Fund pursuant to
the provisions of a Supplemental Indenture; (c) all moneys received to effect
any redemption of Bonds pursuant to Section 2.03 of this Indenture; and (d) all
other moneys received by the Trustee that are required under or pursuant to any
of the provisions of the Loan Agreement, the Series 2004 Note or the Indenture
to be paid into the Bond Fund. In addition, there shall be deposited into the
Bond Fund from the proceeds of the sale of any Additional Bonds, immediately
upon the receipt thereof, the amount of accrued interest on such Additional
Bonds, if any. The Issuer hereby covenants and agrees that so long as any of the
Bonds issued hereunder are outstanding, it will deposit or cause to be deposited
in the Bond Fund sums, but only from the Revenues or other moneys or securities
available therefor, sufficient to meet and pay promptly the principal, premium,
if any, and interest on the Bonds as the same become due and payable.
SECTION 6.02. FLOW OF FUNDS. To the extent moneys are available in
the Bond Fund, the Trustee shall in the order provided below, withdraw from the
Bond Fund and apply such moneys on or before each date on which principal,
premium, if any, and interest is due for any Series of Bonds, an amount which
will be sufficient to pay the principal, premium, if any, and interest on such
Series of Bonds which will become due on each such date to the Registered Owners
of the Bonds.
Moneys in the Bond Fund shall be held in trust for the Registered
Owners of the Bonds and, except as otherwise expressly provided herein, shall be
used solely for the payment of the interest on the Bonds and for the payment of
principal of and the premium, if any, on the Bonds upon maturity, whether stated
or accelerated, or upon mandatory or optional redemption.
24
The Issuer hereby authorizes and directs the Trustee, and the Trustee
hereby agrees, to withdraw and make available at the principal office of the
Paying Agent sufficient funds from the Bond Fund to pay the principal of,
premium, if any, and interest on the Bonds upon maturity, whether stated or
accelerated, or upon mandatory or optional redemption.
Any amounts remaining in the Bond Fund after payment in full of the
Bonds and all other amounts required to be paid under this Indenture or the Loan
Agreement, shall be paid to the Company upon the expiration or sooner
cancellation or termination of the term of the Loan Agreement as provided in the
Loan Agreement.
Notwithstanding the above, if the Bondholder provides a certificate to
the Trustee to the effect that the Bondholder has received payment of the
principal of and interest on the Bonds as the same becomes due, no additional
amounts shall be required to be paid by the Company to the Trustee for deposit
into the Bond Fund.
ARTICLE VII
SECURITY FOR AND INVESTMENT OF MONEYS
SECTION 7.01. SECURITY. All moneys from time to time received by the
Trustee and held in any fund created under this Indenture shall be held in trust
by the Trustee for the benefit of the Registered Owners from time to time of the
Bonds entitled to be paid therefrom, subject to the provisions of Section 11.04
hereof and any other provisions of this Indenture. The initial Registered Owner
of the Series 2004 Bonds will pledge the Series 2004 Bonds to the Senior Notes
Trustee as security for the payment of the Senior Notes.
SECTION 7.02. INVESTMENT OF FUNDS. So long as the Bonds are
outstanding and there is no default under the Loan Agreement, moneys on deposit
to the credit of the Construction Fund or the Bond Fund shall, if requested by
the Company in accordance with Section 3.08 of the Loan Agreement, be invested
by the Trustee, to the extent permitted by law, in any Investment Securities. In
the absence of the direction of an Authorized Company Representative, the
Trustee shall invest any monies on deposit under this Indenture in investments
described in paragraph (g) of the definition of Investment Securities. Such
investments shall have maturity dates, or shall be subject to redemption by the
Trustee, at the option of the Trustee, on or prior to the dates the moneys
invested therein will be needed for the purposes of such funds. The Trustee may
make such investments utilizing the services of any qualified, duly licensed
securities agent or broker of its choice including the investment or bond
department of the Trustee.
The securities purchased with the moneys in each such fund shall be
deemed a part of such fund. The interest, including realized interest on
securities purchased at a discount, received on all such securities (after
deduction for accrued interest, commissions, if any, and premium paid from such
fund at time of purchase) shall be deposited by the Trustee in the fund from
which such investment was made. The Trustee shall not be liable or responsible
for any loss resulting from any such investment or resulting from the
redemption, sale or maturity of any such investment as authorized pursuant to
this Section 7.02. If at any time it shall become necessary that some or all of
the securities purchased with the moneys in any such fund be redeemed or sold in
order to raise moneys necessary to comply with the provisions of this
25
Indenture, the Trustee shall effect such redemption or sale, employing, in the
case of a sale, any commercially reasonable method of effecting the same.
SECTION 7.03. TRANSFER OF BALANCE. Any balance in any of the Funds
created under this Indenture or otherwise held by the Trustee after all the
Bonds, premium, if any, together with the interest thereon, have been paid in
full or provision for such payment has been made in accordance with Section
14.02 of this Indenture and all amounts due to the Trustee, Paying Agent and the
Issuer have been paid, shall be paid over to the Company.
SECTION 7.04. ACKNOWLEDGMENT OF SECURITY INTEREST AND CONTROL.
Pursuant to this Indenture, the Issuer has pledged to and created in favor of
the Trustee a security interest in and to the proceeds of the Series 2004 Bonds
(subject to provisions pertaining to the use thereof set forth herein and in the
Loan Agreement so long as no Event of Default has occurred and is continuing)
and in and to all funds and accounts held by the Trustee under this Indenture,
including, without limitation, the Construction Fund, the Bond Fund, the Company
Direct Disbursement Account and the Trustee Disbursement Account. All cash,
Revenues, Investment Securities, Government Obligations, instruments,
investments, securities entitlements and other securities at any time held in
any fund created under this Indenture or held by the Trustee pursuant to the
terms of this Indenture shall constitute collateral security for the payment and
performance by the Issuer of its obligations and shall at all times be subject
to the control of the Trustee, in trust, for the purposes of and on the terms
set forth in this Indenture.
SECTION 7.05. CONTROL OF SECURITIES ACCOUNTS. The Issuer and the
Trustee agree that (a) the Trustee is a "securities intermediary" within the
meaning of Section 8-102(14) of the UCC with respect to Investment Securities
and other "financial assets" within the meaning of Section 8-102(a)(9) of the
UCC (the "Financial Assets") from time to time on deposit in any Account or
otherwise in the possession of the Trustee under this Indenture; (b) each
Account maintained pursuant to this Indenture is and will be maintained as a
"securities account" within the meaning of Section 8-501 of the UCC; (c) the
Issuer is an "entitlement holder" within the meaning of Section 8-102(a)(7) of
the UCC in respect of the Financial Assets credited to any Account created
pursuant to this Indenture; (d) all Financial Assets in registered form or
payable to or to the order of and credited to any Account shall be registered in
the name of, payable to or to the order of, or specially endorsed to, the
Trustee or in blank and held by the Trustee; and (e) in no case will any
financial asset credited to any securities account be registered in the name of,
payable to or to the order of, or specially endorsed to the Issuer except to the
extent the foregoing have been specially endorsed to the Trustee or indorsed in
blank. If at any time the Trustee, in its capacity as securities intermediary,
shall receive an entitlement order (i.e. an order directing transfer or
redemption of any financial asset relating to any Account) or any instruction
(within the meaning of Section 9-104 of the UCC, i.e., an instruction directing
the disposition of funds in any Account) originated by the Trustee for the
benefit of the Registered Owners from time to time of the Bonds, the Trustee
shall comply with such entitlement order or instruction without further consent
by the Issuer or any other person. The Financial Assets in any Account shall not
be subject to deduction, set-off, banker's lien or any other right, including
such rights which may be held by the Trustee in its capacity as securities
intermediary, and the Trustee shall not grant, permit or consent to any other
lien, right or interest in the Financial Assets. Except for compensation to be
paid to the Trustee pursuant to Section 11.04 of this Indenture, the Trustee
subordinates and waives all claims of the Trustee (acting in its capacity as
securities intermediary within the meaning of Section 8-102 of the UCC) in any
Account created under this Indenture to the prior lien and security interest
granted for the benefit of the Registered Owners of the Bonds.
26
SECTION 7.06. CONTROL OF DEPOSIT ACCOUNTS. Until this Indenture
terminates in accordance with the terms hereof, the Trustee shall have "control"
within the meaning of Section 9-104 of the UCC of any deposit accounts created
pursuant to this Indenture. Funds shall be disbursed or paid from deposit
accounts strictly in accordance with the terms of this Indenture. The Issuer and
the Trustee agree that this Indenture is the only agreement executed by the
parties in which any right, title, interest, claim or lien has been or will be
created in any deposit account to be established pursuant to this Indenture.
Except for compensation to be paid to the Trustee pursuant to Section 11.04 of
this Indenture, the Trustee subordinates and waives all claims of the Trustee
(acting it is capacity as bank within the meaning of Section 9-102 of the UCC)
in any deposit account created under this Indenture to the prior lien and
security interest of granted for the benefit of the Registered Owners of the
Bonds.
SECTION 7.07. TRUSTEE'S UCC JURISDICTION. All references in this
Article VII to the "UCC" shall mean the Uniform Commercial Code in effect in the
State of Mississippi. . Regardless of any election or choice of law in this
Indenture or any other agreement related to the Series 2004 Bonds, the Trustee's
jurisdiction and the jurisdiction of the Trustee as depository shall be deemed
the State of Mississippi for purposes of Section 9-304 (b)(2) of the UCC, and
the respective jurisdiction of the Trustee and LaSalle Bank National Association
as securities intermediary shall be deemed the State of Mississippi for purposes
of Section 8-110(e) (2) of the UCC.
ARTICLE VIII
REDEMPTION OF BONDS
SECTION 8.01. METHOD OF REDEMPTION. Any redemption of all or any part
of the Bonds which are subject to redemption shall be made in the manner
provided in this Article VIII.
SECTION 8.02. NOTICE OF REDEMPTION. The Company shall give written
notice of any optional redemption to the Trustee at least 45 days prior to the
redemption date (which notification may be waived by the Trustee); provided,
that with respect to the Series 2004 Bonds, the Company shall not exercise its
option to redeem the Series 2004 Bonds unless it has first received the written
approval of the Senior Notes Trustee or unless such redemption is expressly
permitted under the terms of the Senior Notes Indenture. In the case of any
redemption, the Trustee shall give notice to the Registered Owner(s) in its own
name or in the name of the Issuer, as hereinafter provided in this Section 8.02,
that Bonds of a particular Series and maturity date identified by serial and/or
CUSIP numbers have been called for redemption and, in the case of Bonds to be
redeemed in part only, the portion of the principal amount thereof that has been
called for redemption (or if all the outstanding Bonds are to be redeemed, so
stating, in which event such serial numbers may be omitted), that they will be
due and payable on the date fixed for redemption (specifying such date) upon
surrender thereof at the Corporate Trust Office, at the applicable Redemption
Price (specifying such price), that all interest on the Bonds, or portions
thereof, so to be redeemed will cease to accrue on and after such date and that
the Registered Owners thereof are required to surrender such Bonds on or before
the date fixed for redemption.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impractical to mail to the Registered Owners of
registered Bonds notice of any event when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of
27
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
To the extent applicable, such notice may be conditioned upon the
deposit of sufficient moneys to effect such redemption at or prior to the date
fixed for redemption and if such moneys are not deposited, said Bonds shall
continue to be outstanding under this Indenture and not subject to redemption
pursuant to said notice.
SECTION 8.03. PAYMENT OF REDEEMED BONDS. If notice of redemption has
been given as provided in Section 8.02 of this Indenture, the Bonds or portions
thereof called for redemption shall be due and payable on the date fixed for
redemption at the Redemption Price. Payment of the Redemption Price shall be
made by the Trustee upon surrender of such Bonds. The Redemption Price shall be
paid out of the Bond Fund. The expense of giving notice and any other expenses
of redemption shall be paid by the Company. If there shall be called for
redemption less than the principal amount of a registered Bond, the Issuer shall
execute and deliver and the Trustee shall authenticate, upon surrender of such
Bond, and without charge to the Registered Owner thereof, at the option of the
Registered Owner, registered Bonds of like Series and maturity date for the
unredeemed portion of the principal amount of the registered Bond so
surrendered.
From and after the date fixed for redemption designated in such notice
(deposit of the Redemption Price having been made with the Trustee and notice
having been given or waived), notwithstanding that any Bonds so called for
redemption in whole or in part shall not have been surrendered for cancellation,
no further interest shall accrue upon the principal of any of the Bonds or
portions thereof so called for redemption; and such Bonds or portions thereof so
to be redeemed shall cease to be entitled to any lien, benefit or security under
this Indenture, and the Registered Owners thereof shall have no rights in
respect of such Bonds or portions thereof except to receive payment of the
Redemption Price thereof.
28
ARTICLE IX
PARTICULAR COVENANTS OF THE ISSUER
SECTION 9.01. PAYMENT OF BONDS. The Issuer will promptly pay from the
Revenues and other funds and collateral pledged hereunder the principal of,
premium, if any, and the interest on every Bond issued under and secured by this
Indenture at the places, on the dates and in the manner specified in this
Indenture and in said Bonds according to the true intent and meaning thereof.
SECTION 9.02. MAINTAIN ITS EXISTENCE. The Issuer will at all times
maintain its existence and will use its best efforts to maintain, preserve and
renew all its rights, powers, privileges and franchises; and it will cause the
Company to covenant to comply with all valid acts, rules, regulations, orders
and directions of any legislative, executive, administrative or judicial body
applicable to the Project or the Project Site.
SECTION 9.03. PAYMENTS UNDER LOAN AGREEMENT; NO AMENDMENT TO LOAN
AGREEMENT WITHOUT CONSENT. So long as any of the Bonds are outstanding, the
Issuer will require the Company to pay, or cause to be paid, all the payments
and other costs and charges payable by the Company under the Loan Agreement. The
Loan Agreement may not be amended, changed, modified, altered or terminated
without the prior written consent of the Issuer, the Senior Notes Trustee
(unless such amendment is expressly permitted under the terms of the Senior
Notes Indenture) and the Registered Owners of at least sixty-six and two-thirds
percent (66 2/3%) in aggregate principal amount of the Series 2004 Bonds then
outstanding; provided, that no such amendment, change, modification, alteration
or termination will reduce the percentage of the aggregate principal amount of
outstanding Bonds the consent of the Registered Owners of which is a requirement
for any such amendment, change, modification, alteration or termination. No
amendment, change, modification, alteration or termination of the Loan Agreement
shall be made other than pursuant to a written instrument signed by the Issuer
and the Company. The Loan Agreement may be amended, changed, modified, altered
or terminated without the consent of the Registered Owners of outstanding Bonds
to provide necessary changes in connection with the issuance of Additional
Bonds.
The Issuer will require the Company to make the payments due under the
Loan Agreement and to observe faithfully all of its covenants and agreements
under the Loan Agreement; and, in case the Company shall fail to make such
payments or observe said covenants and agreements, the Issuer will institute and
prosecute all such legal proceedings as may be appropriate for the protection of
the Registered Owners of the Bonds. The Loan Agreement specifically provides
that the rights of the Company under the Loan Agreement are subject to the lien
and rights, remedies and powers of the Trustee under this Indenture.
SECTION 9.04. FURTHER DOCUMENTS. The Issuer covenants that it will
from time to time execute and deliver such further instruments and take such
further action as may be reasonable and as may be required to carry out the
purpose of this Indenture; provided, however, that no such instru ments or
actions shall pledge the faith and credit or taxing power of the State, or any
political subdivision or public corporation of the State.
SECTION 9.05. PAYMENT OF TAXES AND ASSESSMENTS; COMPLIANCE WITH
REGULATIONS; NO CREATION OF LIENS OR CHARGES. The Issuer will: (a) pay or make
provision for
29
payment of, or cause the Company to pay or make provision for payment of, all
lawful taxes and assessments, including income, profits, property or excise
taxes, if any, or other municipal or governmental charges lawfully levied or
assessed by the federal, state or municipal government upon the Issuer with
respect to or upon the Project or the Project Site or any part thereof or upon
any payments in respect thereof under the Loan Agreement when the same shall
become due and (b) not create or suffer to be created any lien or charge upon
the payments in respect to the Loan Agreement or the Series 2004 Note; provided,
however, that nothing in this Section 9.05 contained shall require the Issuer or
the Company to pay any tax or assessment, observe or comply with any requirement
or pay or cause to be discharged or make provision for any such lien or charge
so long as the validity thereof shall be contested in good faith by appropriate
legal proceedings duly prosecuted or there shall have been provided a bond
satisfactory to the Trustee to discharge such lien or charge.
SECTION 9.06. EXTENSION OF PAYMENT OF BONDS. In order to prevent any
accumulation of claims for interest after maturity, the Issuer will not directly
or indirectly extend or assent to the extension of time of payment of any claims
for interest on any of the Bonds and will not directly or indirectly be a party
to or approve any such arrangement by purchasing or funding such claims for
interest or in any other manner. In case any such claim for interest shall be
extended or funded in violation of this Section 9.06, such claim for interest
shall not be entitled, in case of any default under this Indenture, to the
benefit or security of this Indenture except subject to the prior payment in
full of the principal of and premium, if any, on all Bonds issued and
outstanding under this Indenture, and of all claims for interest which shall not
have been so extended or funded.
ARTICLE X
DEFAULTS AND REMEDIES
SECTION 10.01. EVENTS OF DEFAULT. In case one or more of the following
events, in this Indenture referred to as the "Events of Default", shall happen
and be continuing for no less than five (5) days, that is to say, if
(a) payment of the principal of, premium, if any, or interest on the
Bonds shall not be made when the same shall become due and payable; or
(b) an "event of default" occurs and is continuing under the Loan
Agreement or the Series 2004 Note; or
(c) the Issuer shall fail to observe or perform in any material way
any covenant, condition, agreement or provision contained in the Bonds or in
this Indenture on the part of the Issuer to be performed other than those set
forth in (a) and (b) of this Section 10.01, and such failure shall continue for
sixty (60) days after written notice specifying such failure and requiring the
same to be remedied shall have been given to the Issuer and the Company by the
Trustee, which notice may be given by the Trustee in its discretion and shall be
given by the Trustee at the written request of the holders of not less than
sixty-six and two-thirds percent (66_%) in aggregate principal amount of all
Bonds then outstanding; or
(d) The Senior Notes Trustee shall notify the Trustee that there
exists an event of default under the Senior Notes Indenture; then, if the
Trustee shall have first received the written consent of all of the holders of
the Bonds to such declaration, the Trustee shall, by written notice
30
given to the Issuer and the Company by the Trustee, declare the principal of all
Bonds then outstanding to be due and payable immediately, and upon such
declaration the said principal, together with interest accrued thereon, shall
become due and payable immediately at the place of payment provided in the said
notice.
The Trustee may, with the consent of the holders of all of the Bonds
then outstanding, waive any Event of Default hereunder and its consequences and
may rescind and annul any declaration of maturity of principal of the Bonds.
SECTION 10.02. TRUSTEE'S ENFORCEMENT OF RIGHTS OF ISSUER. In any case
in which under the provisions of Section 10.01 of this Indenture the Trustee has
the right or is required to declare the principal of all Bonds then outstanding
to be due and payable immediately, or when the Bonds by their terms mature (upon
redemption or otherwise) and are not paid, the Trustee, as the assignee and
pledgee of all the right, title and interest of the Issuer in and to the Loan
Agreement, may enforce each and every right granted to the Issuer under the Loan
Agreement and this Indenture except those rights specifically retained by the
Issuer. The Bonds have been pledged by the Purchaser, as holder of the Bonds, to
the Senior Notes Trustee to secure payment of the Senior Notes. Until such
security interest is released in accordance with the Senior Notes Indenture,
only the Senior Notes Trustee, as secured party, shall have the right to declare
the principal of all Bonds due and payable immediately under Section 10.01 or to
otherwise vote or consent to any other action under this Indenture where the
vote or consent of the holders (or requisite number of Registered Owners) of the
Bonds is required. The Trustee acknowledges that the Purchaser, has granted a
first priority security interest in the Bonds in favor of the Senior Notes
Trustee, and agrees that (i) it holds the Bonds as agent for the Senior Notes
Trustee and (ii) it shall not deliver the Bonds to any other person or entity
without the prior written consent of the Senior Notes Trustee.
SECTION 10.03. PROCEEDINGS BY TRUSTEE. Upon the happening and
continuance of any Event of Default, then and in every such case the Trustee in
its discretion may, and upon the written request of the Registered Owners of at
least sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount
of the Bonds then outstanding, and upon receipt of indemnification satisfactory
to it, shall:
(a) by mandamus, or other suit, action or proceeding at law or in
equity, enforce all rights of the Registered Owners and require the Issuer or
the Company to carry out any agreements with or for the benefit of the
Registered Owners and to perform its or their duties under the Act, the Loan
Agreement and this Indenture;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the Issuer to account as if
it were the trustee of an express trust for the Registered Owners of the Bonds;
(d) by action or suit in equity enjoin any acts or things which may
be unlawful or in violation of the rights of the Registered Owners of the Bonds;
or
(e) exercise any and all rights available under law.
31
SECTION 10.04. EFFECT OF DISCONTINUANCE OR ABANDONMENT. In case any
proceeding taken by the Trustee on account of any default shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case the Issuer, the Trustee
and the Registered Owners shall be restored to their former positions and rights
under this Indenture, respectively, and all rights, remedies and powers of the
Trustee shall continue as though no such proceeding had been taken. No waiver or
rescission shall extend to any subsequent or other Event of Default or impair
any right consequent thereon.
SECTION 10.05. RIGHTS OF REGISTERED OWNERS OF THE BONDS. Anything in
this Indenture to the contrary notwithstanding, upon the happening and
continuance of any Event of Default the Registered Owners of not less than
sixty-six and two thirds percent (66_%) in aggregate principal amount of the
Bonds then outstanding shall have the right upon providing the Trustee security
and indemnity reasonably satisfactory (in the Trustee's sole discretion) to it
against the costs, expenses and liabilities to be incurred therein or thereby,
by an instrument in writing executed and delivered to the Trustee, to direct the
method and place of conducting all remedial proceedings to be taken by the
Trustee under this Indenture.
SECTION 10.06. RESTRICTION ON REGISTERED OWNERS' ACTION. No Registered
Owner of any of the Bonds shall have any right to institute any suit, action or
proceeding in equity or at law for the enforcement of any trust under this
Indenture, or any other remedy under this Indenture or on said Bonds, unless
such Registered Owner previously shall have given to the Trustee written notice
of an Event of Default as hereinabove provided after the right to exercise such
powers or rights of action, as the case may be, shall have accrued, and shall
have afforded the Trustee a reasonable opportunity either to proceed to exercise
the powers in this Indenture granted, or to institute such action, suit or
proceeding in its or their name; nor unless there also shall have been offered
to the Trustee security and indemnity reasonably satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee shall not have complied with such request within a reasonable time; and
such notification, request and offer of indemnity are hereby declared in every
such case to be conditions precedent to the execution of the trusts of this
Indenture or for any other remedy under this Indenture; it being understood and
intended that no one or more Registered Owners of the Bonds secured by this
Indenture shall have any right in any manner whatever by his or their action to
affect, disturb or prejudice the security of this Indenture, or to enforce any
right under this Indenture or under the Bonds, except in the manner in this
Indenture provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner in this Indenture provided and for
the equal benefit of all Registered Owners of outstanding Bonds. Notwithstanding
the foregoing provisions of this Section 10.06 or any other provision of this
Indenture, the obligation of the Issuer shall be absolute and unconditional to
pay, but solely from the Revenues and other funds and collateral pledged under
this Indenture, the principal of and premium, if any, and interest on the Bonds
to the respective Registered Owners thereof at the respective due dates thereof,
and nothing herein shall affect or impair the right of action, which is absolute
and unconditional, of such Registered Owners to enforce such payment.
SECTION 10.07. POWER OF TRUSTEE TO ENFORCE. All rights of action under
this Indenture or under any of the Bonds secured by this Indenture which are
enforceable by the Trustee may be enforced by them without the possession of any
of the Bonds, or the production thereof at the trial or other proceedings
relative thereto, and any such suit, action or proceedings
32
instituted by the Trustee shall be brought in its name, as trustee, for the
equal and ratable benefit of the Registered Owners of the Bonds subject to the
provisions of this Indenture.
SECTION 10.08. REMEDIES NOT EXCLUSIVE. No remedy in this Indenture
conferred upon or reserved to the Trustee or to the Registered Owners of the
Bonds is intended to be exclusive of any other remedy or remedies, and each and
every such remedy shall be cumulative, and shall be in addition to every other
remedy given under this Indenture or now or hereafter existing at law or in
equity or by statute.
SECTION 10.09. EFFECT OF WAIVER. No delay or omission of the Trustee
or of any Registered Owner of the Bonds to exercise any right or power accruing
upon any default or Event of Default shall impair any such right or power or
shall be construed to be a waiver of any such default or Event of Default, or an
acquiescence therein; and every power and remedy given by this Article X to the
Trustee and to the Registered Owners of the Bonds, respectively, may be
exercised from time to time and as often as may be deemed expedient.
SECTION 10.10. APPLICATION OF MONEYS. All moneys received by the
Trustee under this Article X shall be applied as follows:
FIRST -- To the payment of Administration Expenses;
SECOND-- To the payment of the persons entitled thereto of all
installments of interest then due on the Bonds, in the order of the maturity of
the installments of such interest and, if the amount available shall not be
sufficient to pay in full any particular installment, then to the payment
ratably, according to the amounts due on such installment, to the persons
entitled thereto;
THIRD -- To the payment to the persons entitled thereto of the unpaid
principal of and premium, if any, on any of the Bonds which shall have become
due (other than Bonds matured or called for redemption for the payment of which
moneys are held pursuant to the provisions of this Indenture), in the order of
their due dates, with interest on the principal of such Bonds accruing from the
respective dates upon which they became due, to the extent permitted by law, at
the rate per annum borne by any Bonds issued under this Indenture and then
outstanding and, if the amount available shall not be sufficient to pay in full
Bonds and premium, if any, due on any particular date, together with such
interest, then to the payment ratably, according to the amount of principal due
on such date, to the persons entitled thereto;
FOURTH -- To be held for the payment to the persons entitled thereto as
the same shall become due of the principal of and premium, if any, and interest
on the Bonds which may thereafter become due either at maturity or upon call for
redemption prior to maturity and, if the amount available shall not be
sufficient to pay in full Bonds due on any particular date, together with
interest and premium, if any, then due and owing thereon, payment shall be made
ratably according to the amount of principal due on such date to the persons
entitled thereto;
FIFTH -- To the Company, any remaining amounts.
Whenever moneys are to be applied pursuant to the provisions of this
Section 10.10, such moneys shall be applied at such times, and from time to
time, as the Trustee shall determine, having due regard to the amount of such
moneys available for application and the likelihood of
33
additional moneys becoming available for such application in the future.
Whenever the Trustee shall apply such funds, it shall fix the date (which shall
be the next succeeding Payment Date) upon which such application is to be made
and upon such date interest on the amounts of principal to be paid on such dates
shall cease to accrue. The Trustee shall give, by mailing, pursuant to Section
15.05 hereof, such notice of the deposit with it of any such moneys and of the
fixing of any such date.
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.01. APPOINTMENT AND ACCEPTANCE OF DUTIES. The Trustee
hereby accepts and agrees to the trusts hereby created, but only upon the
additional terms set forth in this Article XI, to all of which the Issuer agrees
and the respective Registered Owners of the Bonds, by their purchase and
acceptance thereof, agree.
SECTION 11.02. RESPONSIBILITIES. The recitals, statements and
representations in this Indenture or in the Bonds contained, save only the
Trustee's certificate of authentication upon the Bonds, shall be taken and
construed as made by and on the part of the Issuer, and not by the Trustee, and
the Trustee does not assume, and shall not have, any responsibility or
obligation for the correctness of any hereof or thereof. The Trustee shall have
no responsibility for any funds other than those funds actually paid to or
received or held by it hereunder. The Trustee shall pay to the Issuer the
Issuer's Administration Expenses immediately upon receipt of such amounts from
the Company. The Trustee need perform only those duties that are set forth in
this Indenture and no others.
SECTION 11.03. POWERS. The Trustee may execute any of the trusts or
powers of this Indenture and perform the duties required of it under this
Indenture by or through attorneys, agents, receivers, or employees, and shall be
entitled to obtain and rely on advice of counsel concerning all matters of trust
and its duties under this Indenture and the Trustee shall not be answerable for
the default or misconduct of any such attorney, agent, receiver, or employee
selected by it with reasonable care. The Trustee shall not be answerable for the
exercise of any discretion or power under this Indenture or for anything
whatever in connection with the trusts in this Indenture created, except only
for its own misconduct or negligence.
SECTION 11.04. COMPENSATION. The Company shall pay to the Trustee
reasonable compensation for all services rendered by it under this Indenture and
also all its reasonable expenses, charges and other disbursements and those of
its attorneys, agents, receivers and employees incurred in and about the
administration and execution of the trusts by this Indenture created and the
performance of its powers and duties under this Indenture.
SECTION 11.05. NO DUTY TO MAINTAIN INSURANCE. The Trustee shall be
under no duty to effect or to renew any policies of insurance or under any
liability for the failure of the Issuer or the Company to effect or renew
insurance; or to report or file claims or proofs of loss for any loss or damage
insured against or which may occur; nor shall the Trustee be liable as an
insurer.
SECTION 11.06. NOTICE OF EVENT OF DEFAULT. The Trustee shall not be
required to take notice, or to be deemed to have notice, of any default or Event
of Default under this
34
Indenture other than a default or Event of Default under Section 10.01(a) of
this Indenture, unless specifically notified in writing of such default or Event
of Default by the Registered Owners of at least sixty-six and two-thirds percent
(66 2/3%) in aggregate principal amount of the Series 2004 Bonds then
outstanding. The Trustee may, however, at any time, in its discretion, require
of the Issuer full information and advice as to the performance of any of the
covenants, conditions and agreements contained in this Indenture.
SECTION 11.07. ACTION UPON DEFAULT. The Trustee shall be under no
obligation to take any action in respect of any default or Event of Default or
otherwise, or toward the execution or enforcement of any of the trusts by this
Indenture created (with the exception of any actions required to be taken under
Section 11.20 hereof and under Section 10.01 hereof to accelerate the payment of
the Bonds, or to institute, appear in or defend any suit or other proceeding in
connection therewith), unless requested in writing so to do by Registered Owners
of the requisite number of Bonds then outstanding as provided in Article X, and
if in its opinion such action may tend to involve it in expense or liability,
unless furnished, from time to time as often as it may require, with reasonable
security and indemnity satisfactory to it (in its sole discretion); but the
foregoing provisions are intended only for the protection of the Trustee, and
shall not affect any discretion or power given by any provisions of this
Indenture to the Trustee to take action in respect of any default or Event of
Default without such notice or request from the Registered Owners of the Bonds,
or without security or indemnity.
SECTION 11.08. LIMITATION OF LIABILITY. The Trustee shall be protected
and shall incur no liability in acting or proceeding in good faith upon any
resolution, notice, telegram, request, consent, waiver, certificate, statements,
affidavit, voucher, bond, requisition or other paper or document which it shall
in good faith believe to be genuine and to have been authorized or signed by the
proper board or person or to have been prepared and furnished pursuant to any of
the provisions of this Indenture, and the Trustee shall be under no duty to make
any investigation or inquiry as to any statements contained or matters referred
to in any such instrument, but may accept and rely upon the same as conclusive
evidence of the truth and accuracy of such statements. The Trustee shall not be
bound to recognize any person as a Registered Owner of any Bond or to take any
action at his request unless evidence satisfactory to the Trustee of the
ownership of such Bond shall be furnished to the Trustee. The Trustee shall not
be responsible for any contamination or pollution concerns on the Project or
Project Site.
SECTION 11.09. OWNERSHIP OF BONDS. The Trustee and any bank or trust
company in common control with the Trustee may in good faith buy, sell, own,
hold and deal in any of the Bonds issued under and secured by this Indenture,
and may join in or take any action which any Registered Owner may be entitled to
take with like effect as if the Trustee were not a party to this Indenture. The
Trustee and any bank or trust company in common control with the Trustee, as
principal or agent, may also engage in or be interested in any financial or
other transaction with the Issuer or the Company, and may act as depository,
trustee, or agent for any committee or body of Registered Owners of the Bonds
issued under or secured by this Indenture or other obligations of the Issuer as
freely as if it were not Trustee under this Indenture.
SECTION 11.10. NO DUTY TO INVEST. The Trustee shall be under no
liability for interest upon any moneys which it may at any time receive under
any of the provisions of this Indenture, except (a) to the extent it fails to
comply with Section 7.02 of this Indenture, or (b) such as it may agree in
writing with the Issuer or the Company to pay thereon.
35
SECTION 11.11. CONSTRUCTION OF PROVISIONS OF INDENTURE. The Trustee
may, in reliance upon opinion of counsel, construe any of the provisions of this
Indenture insofar as the same may appear to be ambiguous or inconsistent with
any other provision thereof, and any construction of any such provisions of this
Indenture by the Trustee in good faith shall be binding upon the Registered
Owners. The Trustee may consult with its counsel with regard to legal questions,
and the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by it hereunder in
accordance therewith.
SECTION 11.12. RESIGNATION. The Trustee may at any time and for any
reason resign and be discharged of the trusts created by this Indenture by
executing an instrument in writing resigning such trust and specifying the date
when such resignation shall take effect, and filing the same with the Secretary
of the Issuer not less than thirty (30) days before the date specified in such
instrument when such resignation shall take effect. Such resignation shall take
effect on the day specified in such instrument and notice, unless a successor
Trustee shall not have been previously appointed and accepted such appointment
as hereinafter in this Article XI provided, in which event such resignation
shall take effect immediately on the appointment of and acceptance by such
successor Trustee.
SECTION 11.13. REMOVAL. The Trustee at any time and for any reason may
be removed by an instrument or instruments in writing appointing a successor
filed with the Trustee so removed and executed by the Registered Owners of at
least sixty-six and two thirds percent (66 2/3%) in aggregate principal amount
of the Bonds then outstanding.
SECTION 11.14. APPOINTMENT OF SUCCESSOR TRUSTEE. In case at any time
the Trustee shall resign, or shall be removed, or be dissolved, or if its
property or affairs shall be taken under the control of any state or federal
Court or administrative body because of insolvency or bankruptcy, or for any
other reason, a vacancy shall forthwith and ipso facto exist in the office of
Trustee, a successor may be appointed by the Registered Owners of at least
sixty-six and two thirds percent (66 2/3%) in aggregate principal amount of the
Bonds then outstanding, by an instrument or instruments in writing filed with
the Secretary of the Issuer, signed by such Registered Owners or by their
attorneys-in-fact duly authorized in writing and consented to in writing by the
Senior Notes Trustee. Copies of each instrument shall be promptly delivered by
the Issuer to the predecessor Trustee and to the Trustee so appointed.
Until a successor Trustee shall be appointed by the Registered Owners,
the Issuer, by an instrument authorized by resolution, shall appoint a Trustee
to fill such vacancy. Any new Trustee so appointed by the Issuer shall
immediately and without further act be superseded by a Trustee appointed by the
Registered Owners.
SECTION 11.15. SUCCESSOR TRUSTEE. Every successor in the trust
hereunder appointed pursuant to Section 11.14 of this Indenture shall be a bank
organized and doing business under the laws of the United States of America or
any state or territory thereof with trust powers, having combined capital and
surplus of at least $50,000,000 and consented to in writing by the Senior Notes
Trustee.
SECTION 11.16. FAILURE TO APPOINT A SUCCESSOR TRUSTEE. In case at any
time the Trustee shall resign and no appointment of a successor Trustee shall be
made pursuant to the foregoing provisions of this Article XI prior to the date
specified in the notice of resignation as the date when such resignation shall
take effect, the Trustee or the Registered Owner of any
36
Bond may apply to any court of competent jurisdiction to appoint a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint a successor Trustee.
SECTION 11.17. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor Trustee
appointed under this Article XI shall execute, acknowledge and deliver to the
Issuer an instrument accepting such appointment under this Indenture, and
thereupon such successor Trustee, without any further act, deed or conveyance,
shall become duly vested with all the estates, property, rights, powers, trusts,
duties and obligations of its predecessor in the trust under this Indenture,
with like effect as if originally named Trustee in this Indenture. Upon the
written request of such successor Trustee, the Trustee ceasing to act and the
Issuer shall execute and deliver an instrument transferring to such successor
Trustee all the estates, property, rights, powers and trusts under this
Indenture of the Trustee so ceasing to act, and the Trustee so ceasing to act
shall pay over to the successor Trustee all moneys and other assets at the time
held by it under this Indenture.
Any Trustee ceasing to act shall nevertheless retain a lien upon all
property and funds held or collected by such Trustee to secure any amount then
due it pursuant to the provisions of Section 11.04 of this Indenture.
SECTION 11.18. MERGER OR CONSOLIDATION. Any corporation or association
into which any Trustee under this Indenture may be merged or with which it may
be consolidated, or any corporation or association resulting from any merger or
consolidation to which any Trustee under this Indenture shall be a party, or any
corporation or association to which any Trustee under this Indenture may
transfer substantially all of its assets, shall be the successor Trustee under
this Indenture, without the execution or filing of any paper or any further act
on the part of the parties hereto, anything in this Indenture to the contrary
notwithstanding.
SECTION 11.19. ACTION UPON EVENT OF DEFAULT. Notwithstanding any other
provisions of this Article XI, the Trustee shall, provided it is indemnified to
its satisfaction, except as provided in Section 11.07 hereof, during the
existence of an Event of Default actually known to the Trustee, exercise such of
the rights and powers vested in it by this Indenture and use the same degree of
skill and care in their exercise as a prudent man would use and exercise under
the circumstances in the conduct of his own affairs provided, however, that the
liability of the Trustee shall only be to the extent provided in Section 11.03.
SECTION 11.20. NOTICE OF OCCURRENCE OF EVENT OF DEFAULT. Upon the
occurrence of an Event of Default actually known to the Trustee, the Trustee
shall, within thirty (30) days of such Event of Default becoming known to the
Trustee give written notice thereof by first class mail, postage prepaid, as
provided in Section 15.05 of this Indenture to each Registered Owner of Bonds
then outstanding at his last address appearing upon the Bond Register and the
Company, unless such Event of Default shall have been cured before the giving of
such notice.
SECTION 11.21. INTERVENTION BY TRUSTEE. In any judicial proceeding to
which the Issuer is a party and which in the opinion of the Trustee and its
counsel has a substantial bearing on the interests of Registered Owners of the
Bonds, the Trustee may in its own name and as trustee of an express trust
intervene on behalf of the Registered Owners of the Bonds and shall, upon
receipt of indemnity satisfactory to it, do so if requested in writing by the
Registered
37
Owners of at least twenty-five percent (25%) in aggregate principal amount of
the Bonds then outstanding if permitted by the court having jurisdiction in the
premises.
SECTION 11.22. APPOINTMENT AND ACCEPTANCE OF PAYING AGENT. The Trustee
is hereby appointed and does hereby accept its appointment as Paying Agent for
the Series 2004 Bonds. The Issuer may at any time or from time to time appoint
one or more other Paying Agents for the Series 2004 Bonds or any other Bonds, in
the manner and subject to the conditions set forth in Section 11.23 of this
Indenture for the appointment of a successor Paying Agent. Each Paying Agent
(other than the Trustee) shall signify its acceptance of the duties and
obligations imposed upon it by written instrument of acceptance deposited with
the Issuer and the Trustee.
SECTION 11.23. RESIGNATION OR REMOVAL OF PAYING AGENT; APPOINTMENT OF
SUCCESSOR. Any Paying Agent may at any time resign and be discharged of the
duties and obligations created by this Indenture by giving at least sixty (60)
days written notice to the Issuer and the Trustee. Any Paying Agent may be
removed at any time by an instrument filed with such Paying Agent and the
Trustee and signed by the Issuer. Any successor Paying Agent shall be appointed
by the Issuer, with the prior written approval of the Trustee, the Company and
the Senior Notes Trustee and shall be a bank or trust company duly organized
under the laws of the United States of America or any state or territory
thereof, having a capital stock and surplus aggregating at least $50,000,000,
and willing and able to accept the office on reasonable and customary terms and
authorized by law to perform all the duties imposed upon it by this Indenture.
In the event of the resignation or removal of any Paying Agent, such
Paying Agent shall pay over, assign and deliver any moneys held by it as Paying
Agent to its successor, or to the Trustee. In the event that for any reason
there shall be a vacancy in the office of any Paying Agent, the Trustee shall
act (or continue to act, as the case may be) as such Paying Agent.
SECTION 11.24. TRUST ESTATE MAY BE VESTED IN SEPARATE OR CO-TRUSTEE.
It is the purpose of this Indenture that there shall be no violation of any law
of any jurisdiction (including particularly the laws of the State) denying or
restricting the right of banking corporations or associations to transact
business as a trustee in such jurisdiction. It is recognized that in case of
litigation under this Indenture, the Loan Agreement or the Series 2004 Note, and
in particular in case of the enforcement of any of them, either on default, or
in case the Trustee, in reliance upon an opinion of counsel, deems that by
reason of any present or future law of any jurisdiction it may not exercise any
of the powers, rights or remedies herein granted to the Trustee or take any
other action which may be desirable or necessary in connection therewith, it may
be necessary that the Trustee appoint an additional individual or institution as
a separate or co-trustee. The following provisions of this Section 11.24 are
adopted to these ends:
(a) In the event that the Trustee appoints an additional individual
or institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and every
covenant and obligation necessary to the exercise thereof by such separate or
co-trustee shall run to and be enforceable by either of them.
38
(b) Should any deed, conveyance or instrument in writing from the
Issuer be required by the separate trustee or co-trustee so appointed by the
Trustee for more fully and certainly vesting in and confirming to him or it such
properties, rights, powers, trusts, duties and obligations, any and all such
deeds, conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer.
(c) In case any separate trustee or co-trustee, or a successor to
either, shall die, become incapable of acting, resign, be removed or be
dissolved, or shall be in the course of dissolution or liquidation, all the
estates, properties, rights, powers, trusts, duties and obligations of such
separate trustee or co-trustee, so far as permitted by law, shall vest in and be
exercised by the Trustee until the appointment of a new trustee or successor to
such separate trustee or co-trustee.
ARTICLE XII
EXECUTION OF INSTRUMENTS BY REGISTERED OWNERS AND
PROOF OF OWNERSHIP OF BONDS
SECTION 12.01. EXECUTION OF INSTRUMENTS; PROOF OF OWNERSHIP. Any
request, direction, consent or other instrument in writing required or permitted
by this Indenture to be signed or executed by Registered Owners may be in any
number of concurrent instruments of similar tenor and may be signed or executed
by such Registered Owners in person or by agent appointed by an instrument in
writing. Proof of the execution of any such instrument and of the ownership of
Bonds shall be sufficient for any purpose of this Indenture and shall be
conclusive in favor of the Trustee and any Paying Agent with regard to any
action taken, suffered or omitted by any of them under such instrument if made
in the following manner:
(a) The fact and date of the execution by any Person of any such
instrument may be proved by the certificate of any officer in any jurisdiction
who, by the laws thereof, has power to take acknowledgments within such
jurisdiction, to the effect that the Person signing such instrument acknowledged
before him the execution thereof, or by an affidavit of a witness to such
execution.
(b) The fact of the holding of Bonds under this Indenture by any
Registered Owner and the serial numbers of such Bonds and the date of his
holding the same shall be proved by the Bond Register.
Nothing contained in this Article XII shall be construed as limiting
the Trustee to such proof, it being intended that the Trustee may accept any
other evidence of the matters in this Article XII stated which to it may deem
(in its sole discretion) sufficient. Any request or consent of the Registered
Owner of any Bond shall bind every future Registered Owner of the same Bond and
any Bond or Bonds issued in exchange or substitution therefor or upon the
registration of transfer thereof in respect of anything done by the Trustee in
pursuance of such request or consent.
39
ARTICLE XIII
MODIFICATION OF INDENTURE AND SUPPLEMENTAL INDENTURES
SECTION 13.01. SUPPLEMENTAL INDENTURES WITH CONSENT OF THE COMPANY BUT
WITHOUT CONSENT OF REGISTERED OWNERS. Subject to the conditions and restrictions
in this Indenture contained, the Issuer, when the execution thereof is consented
to in writing by the Company may, without the consent of the Registered Owners,
enter into a Supplemental Indenture or Supplemental Indentures with the Trustee
(other than with respect to Sections 10.01, 13.01 and 13.02) which thereafter
shall form a part of this Indenture, for any one or more of the following
purposes:
(a) to cure any ambiguity or to cure, correct or supplement any
inconsistent provision contained in this Indenture or in any Supplemental
Indenture;
(b) to assign additional revenues under this Indenture;
(c) to accept additional security and instruments and documents of
further assurance with respect to the Project;
(d) to add to the covenants, agreements and obligations of the Issuer
under this Indenture, other covenants, agreements and obligations to be observed
for the protection of the Registered Owners, or to surrender or limit any right,
power or authority reserved to or conferred upon the Issuer in this Indenture,
including without limitation, the limitation of rights of redemption so that in
certain instances Bonds of different Series will be redeemed in some prescribed
relationship to one another for the protection of the Registered Owners of a
particular Series of Bonds;
(e) to evidence any succession to the Issuer and the assumption by
its successor of the covenants, agreements and obligations of the Issuer under
this Indenture, the Loan Agreement and the Bonds;
(f) to make necessary or advisable amendments or additions in
connection with the issuance of Additional Bonds in accordance with Section 3.03
hereof as do not adversely affect the interests of Registered Owners of
outstanding Bonds; or
(g) to permit the Trustee to comply with any obligations imposed upon
it by law.
The provisions of (g) above shall not be deemed to constitute a waiver
by the Trustee, the Issuer or any Registered Owner of any right which it may
have in the absence of this provision to contest the application of any change
in law to this Indenture or the Bonds.
The Issuer hereby covenants that it will perform all the requirements
of any such Supplemental Indenture which may be in effect from time to time; but
no restriction or obligation imposed by this Indenture upon the Issuer in
respect of any of the Bonds outstanding under this Indenture may, except as
otherwise provided in Section 13.03 of this Indenture, be waived or modified by
such Supplemental Indenture, or otherwise. Nothing in this Article XIII
contained shall affect or limit the right or obligation of the Issuer to execute
and deliver to the
40
Trustee any instrument of further assurance or other instrument which elsewhere
in this Indenture it is provided shall be delivered to the Trustee.
SECTION 13.02. TRUSTEE AUTHORIZED TO ENTER INTO SUPPLEMENTAL
INDENTURE. The Trustee is hereby authorized to enter into with the Issuer any
Supplemental Indenture authorized or permitted by the terms of this Indenture,
and to make the further agreements and stipulations which may be therein
contained, and the Trustee, in entering into any Supplemental Indenture, shall
be fully protected in relying on an Opinion of Counsel, in form and substance
satisfactory to the Trustee, to the effect that such Supplemental Indenture is
authorized or permitted by the provisions of this Indenture and is not
inconsistent with this Indenture.
SECTION 13.03. SUPPLEMENTAL INDENTURES WITH CONSENT OF REGISTERED
OWNERS OF THE BONDS AND THE COMPANY. Exclusive of Supplemental Indentures to
which reference is made in Section 13.01 hereof, any modification or alteration
of this Indenture or of the rights and obligations of the Issuer or of the
Registered Owners of the Bonds in any particular may be made with the consent of
the Company and (a) the Registered Owners of not less than sixty-six and two
thirds percent (66 2/3%) in aggregate principal amount of the Bonds then
outstanding, or (b) in case less than all of the several Series of Bonds, if
any, then outstanding are affected by the modifications or amendments, the
Registered Owners of not less than sixty-six and two thirds percent (66 2/3%) in
aggregate principal amount of the Bonds of each Series so affected then
outstanding; provided, however, that if such modification or amendment will, by
its terms, not take effect so long as any Bonds of any specified Series remain
outstanding, the consent of the Registered Owners of such Bonds shall not be
required and such Bonds shall not be deemed to be outstanding for the purpose of
any calculation of outstanding Bonds under this Section 13.03. No such
modification or alteration shall be made which will reduce the percentage of
aggregate principal amount of Bonds the consent of the Registered Owners of
which is required for any such modification or alteration, or permit the
creation by the Issuer of any lien prior to or, except to secure Additional
Bonds, on a parity with the lien of this Indenture upon the Revenues and other
funds and collateral pledged hereunder or which will affect the currency of
payment of the principal of, or interest or premium, if any, on, the Bonds.
For the purposes of this Indenture, a Series shall be deemed to be
affected by a modification or amendment of this Indenture if the same adversely
affects or diminishes the rights of the Registered Owners of Bonds of such
Series. The Trustee shall determine whether or not in accordance with the
foregoing provisions Bonds of any particular Series would be affected by any
modification or amendment of this Indenture and any such determination shall be
binding and conclusive on the Issuer and all the Registered Owners of Bonds.
For all purposes of this Article XIII, the Trustee shall be entitled to
rely upon an Opinion of Counsel with respect to the extent, if any, to which any
action affects the rights under this Indenture of any Registered Owners of Bonds
then outstanding.
ARTICLE XIV
DEFEASANCE
SECTION 14.01. DEFEASANCE. When at any time the whole amount of the
principal, premium, if any, and the interest so due and payable upon all of the
Bonds shall be paid, or provision shall have been made for the payment of the
same, together with all other sums
41
payable under this Indenture by the Issuer, and all Administration Expenses
shall have been paid or provided for through the deposit with the Trustee of
Government Obligations, the principal of and the interest to be earned thereon
is sufficient to pay all sums due in respect of the Bonds, then and in that
case, this Indenture and the lien created hereby shall be discharged and
satisfied and the Issuer shall be released from the covenants, agreements and
obligations of the Issuer contained in this Indenture, and the Trustee shall
assign and transfer to the Company, all property (in excess of the amounts
required for the foregoing) then held by the Trustee (including the Loan
Agreement and all payments thereunder and all balances in any fund or account
created under this Indenture), free and clear of any encumbrances other than
Permitted Encumbrances and shall execute such documents as may be reasonably
required by the Company in this regard.
When all of the Bonds of a particular Series shall have been paid and
if, at the time of such payment, the Issuer shall have kept, performed and
observed all the covenants and promises in such Bonds of a particular Series and
in this Indenture required or contemplated to be kept, performed and observed by
the Issuer or on its part on or prior to that time, then this Indenture shall be
considered to have been discharged in respect of such Bonds of a particular
Series and such Bonds shall cease to be entitled to the lien of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture or the
discharge of this Indenture in respect of a particular Series of Bonds, the
Trustee shall continue to be obligated to hold in trust any moneys or
investments then held by the Trustee for the payment of the principal of,
premium, if any, and interest on the Bonds, to pay to the Registered Owners of
Bonds the funds so held by the Trustee as and when such payment becomes due,
and, on written demand of the Company and the Issuer, the Trustee shall assign
and transfer to the Company, all property (in excess of the amounts required for
the foregoing) then held by the Trustee (including the Loan Agreement and all
payments thereunder and all balances in any Fund or account created under this
Indenture) and shall execute such documents as may be delivered by the Company
in this regard.
SECTION 14.02. BONDS DEEMED TO HAVE BEEN PAID. Bonds of any one or
more Series or interest installments for the payment or redemption of which
sufficient moneys shall have been held by the Trustee at the maturity or
redemption date thereof shall be deemed to be paid within the meaning and with
the effect provided in Section 14.01 of this Indenture. All outstanding Bonds of
any one or more Series shall prior to the maturity or redemption date thereof be
deemed to have been paid within the meaning and with the effect expressed in
Section 14.01 if (a) in case said Bonds are to be redeemed on any date prior to
their maturity, the Issuer shall have given to the Trustee in form satisfactory
to the Trustee irrevocable instructions to mail on a date in accordance with the
provisions of Section 8.02 hereof notice of redemption of such Bonds on said
redemption date, such notice to be given in accordance with the provisions of
Section 8.02 hereof, (b) there shall have been deposited with the Trustee
Government Obligations, the principal of and the interest on which when due, and
without any reinvestment thereof, will provide moneys which are certified by an
independent public accounting firm of nationally recognized standing to be of
such maturities or redemption dates and interest payment dates, and to bear such
interest, as shall be sufficient to pay when due the principal of and premium,
if any, and interest due and to become due on said Bonds on and prior to the
redemption date or maturity date thereof, as the case may be, or (c) in the
event any of said Bonds are not to be redeemed within the next succeeding sixty
(60) days, the Issuer shall have given the Trustee in form satisfactory to the
Trustee irrevocable instructions to mail, as soon as
42
practicable in the same manner as a notice of redemption is mailed pursuant to
Section 8.02 hereof, a notice to the Registered Owners of such Bonds that the
deposit required by (b) above has been made with the Trustee and that said Bonds
are deemed to have been paid in accordance with this Section 14.02 and stating
such maturity or redemption dates upon which moneys are to be available for the
payment of the principal of and premium, if any, on said Bonds. Neither the
securities deposited with the Trustee pursuant to this Section 14.02 nor
principal or interest payments on any such securities shall be withdrawn or used
for any purpose other than, and shall be held in trust for, the payment of the
principal of and premium, if any, and interest on said Bonds; provided that any
cash received from such principal or interest payments on such obligations
deposited with the Trustee, if not then needed for such purpose, shall, to the
extent practicable, and at the direction of the Company be reinvested in
Government Obligations maturing at times and in amounts sufficient to pay when
due the principal of and premium, if any, and interest to become due on said
Bonds on and prior to such redemption date or maturity date thereof, as the case
may be, and interest earned from such reinvestments shall be paid over to the
Company, as received by the Trustee, free and clear of any trust, lien or
pledge.
Subject to the provisions of Section 11.04 of this Indenture, any
release under this Section 14.02 shall be without prejudice to the right of the
Trustee to be paid reasonable compensation for all services rendered by it under
this Indenture and all its reasonable expenses, charges and other disbursements
and those of its attorneys, receivers, agents and employees, incurred on and
about the administration of trusts by this Indenture created and the performance
of its powers and duties under this Indenture.
ARTICLE XV
MISCELLANEOUS
SECTION 15.01. DISSOLUTION OF ISSUER. In the event of the dissolution
of the Issuer, all the covenants, stipulations, promises and agreements in this
Indenture contained, by or on behalf of, or for the benefit of, the Issuer,
shall bind or inure to the benefit of the successors of the Issuer from time to
time and any officer, board, commission, agency or instrumentality to whom or to
which any power or duty of the Issuer shall be transferred.
SECTION 15.02. PARTIES INTERESTED HEREIN. Except as in this Indenture
otherwise specifically provided, nothing in this Indenture expressed or implied
is intended or shall be construed to confer upon any Person other than the
Company, the Issuer, the Trustee and the Registered Owners of the Bonds issued
under this Indenture, any right, remedy or claim under or by reason of this
Indenture, this Indenture being intended to be for the sole and exclusive
benefit of the Company, the Issuer, the Trustee and the Registered Owners of the
Bonds issued under this Indenture.
SECTION 15.03. SEVERABILITY OF INVALID PROVISIONS. If any clause,
provision or section of this Indenture be held illegal or invalid by any court,
the invalidity of such clause, provision or section shall not affect any of the
remaining clauses, provisions or sections hereof, and this Indenture shall be
construed and enforced as if such illegal or invalid clause, provision or
section had not been contained herein.
43
SECTION 15.04. NO RECOURSE ON BONDS. No covenant or agreement
contained in the Bonds or in this Indenture shall be deemed to be the covenant
or agreement of any member, agent, attorney or employee of the Issuer in his
individual capacity, and neither the members of the Issuer, the attorney for the
Issuer, nor any official executing the Bonds shall be liable personally on the
Bonds or be subject to any personal liability or accountability by reason of the
issuance thereof.
SECTION 15.05. NOTICE. All notices, certificates, consents, requests
or other communications under this Indenture shall be sufficiently given and
shall be deemed given, unless otherwise required by this Indenture, when mailed
by registered or certified mail, return receipt requested (except as otherwise
provided in this Indenture), postage prepaid, addressed as follows:
If to the Issuer: Mississippi Business Finance Corporation
000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Executive Director
If to the Company: Premier Entertainment Biloxi LLC
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Chief Financial Officer
If to the Trustee: Standard Federal-Corporate and Institutional
Trust, a division of LaSalle Bank National
Association
0000 Xxxx Xxx Xxxxxx
Xxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
provided, however, all notices to Registered Owners shall be given by first
class mail, postage prepaid, to each Registered Owner of Bonds then outstanding
at his last address appearing upon the Bond Register. If requested by such other
parties, a duplicate copy of each notice, certificate, request or other
communication given under this Indenture to the Issuer, the Company or the
Trustee shall also be given to the others. The Company, the Issuer and the
Trustee may, by notice given under this Section 15.05, designate any further or
different addresses to which subsequent notices, certificates, requests or other
communications shall be sent.
SECTION 15.06. COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which, when so executed and delivered, shall be
an original; but such counter parts shall together constitute but one and the
same instrument.
SECTION 15.07. GOVERNING LAW. This Indenture shall be governed as to
validity, construction and performance by the laws of the State of Mississippi.
Regardless of any provision in any other agreement, for purposes of the UCC,
with respect to each Account, Mississippi shall be deemed to be the bank's
jurisdiction (within the meaning of Section 9-304 of the UCC) and the securities
intermediary's jurisdiction (within the meaning of Section 8-110 of the UCC).
The Accounts shall be governed by the laws of the State of Mississippi.
44
SECTION 15.08 REFERENCES TO SENIOR NOTES. All references in this
Indenture to the Senior Notes, the Senior Notes Indenture and to any rights of
the Senior Notes Trustee shall be effective only so long as any Senior Notes
remain outstanding under the Senior Notes Indenture. Upon the payment of all of
the Senior Notes in accordance with the provisions of the Senior Notes
Indenture, all such references and all such rights shall be deemed null and
void.
ARTICLE XVI
BOND FORM
SECTION 16.01. BOND FORM. The Series 2004 Bonds to be issued under
this Indenture, the form of Assignment, the provisions for registration and the
Trustee's Certificate of Authentication to be endorsed thereon are to be in
substantially the following form, respectively, with necessary and appropriate
variations, omissions and insertions as permitted or required by this Indenture:
THIS BOND HAS NOT BEEN REGISTERED UNDER FEDERAL OR STATE SECURITIES LAWS, AND
WAS ACQUIRED BY THE REGISTERED OWNER PURSUANT TO A REPRESENTATION THAT SUCH
OWNER WAS ACQUIRING SUCH BOND FOR INVESTMENT. EXCEPT WITH RESPECT TO THE PLEDGE
REFERENCED IN THE NEXT SUCCEEDING PARAGRAPH, THIS BOND MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED, TRANSFERRED, OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE BONDS UNDER APPLICABLE FEDERAL AND STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT REGISTRATION IS NOT REQUIRED THEREUNDER.
THIS BOND HAS BEEN PLEDGED BY
PREMIER FINANCE BILOXI CORP., THE INITIAL HOLDER
THEREOF, TO STANDARD FEDERAL-CORPORATE AND INSTITUTIONAL TRUST, A DIVISION OF
LASALLE BANK NATIONAL ASSOCIATION, IN ITS CAPACITY AS TRUSTEE UNDER THAT CERTAIN
TRUST INDENTURE BY AND AMONG PREMIER ENTERTAINMENT BILOXI LLC,
PREMIER FINANCE
BILOXI CORP. AND STANDARD FEDERAL-CORPORATE AND INSTITUTIONAL TRUST, A DIVISION
OF LASALLE BANK NATIONAL ASSOCIATION, DATED AS OF ____________ TO SECURE PAYMENT
OF THE SENIOR NOTES ISSUED THEREUNDER.
UNITED STATES OF AMERICA
STATE OF MISSISSIPPI
MISSISSIPPI BUSINESS FINANCE CORPORATION
INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 2004
(PREMIER ENTERTAINMENT BILOXI LLC PROJECT)
INTEREST RATE MATURITY DATE
4% JANUARY 1, 2014
REGISTERED OWNER:
PRINCIPAL SUM: AMOUNTS SHOWN ON GRID ATTACHED HERETO, BUT NOT MORE THAN SIXTY
MILLION DOLLARS ($60,000,000)
45
The Mississippi Business Finance Corporation, constituting a public
corporation of the State of Mississippi (the "Issuer"), for value received,
hereby promises to pay solely from the sources specified herein to the
Registered Owner or registered assigns, on January 1, 2014 (unless redeemed
prior thereto as provided herein), the aggregate unpaid principal amount
disbursed as shown on the grid attached hereto (the "Grid"), but not more than
Sixty Million Dollars ($60,000,000), together with interest on the outstanding
principal amount from and including the date such amount is disbursed as set
forth on the Grid, payable on each Payment Date (as hereinafter defined).
From the Initial Closing Date until the maturity of this Series 2004
Bond, this Series 2004 Bond shall bear interest on the principal amount hereof
which has been disbursed pursuant to the provisions of Section 3.03 of the Loan
Agreement and which remains outstanding at a rate equal to four percent (4%) per
annum. Interest shall be calculated on the basis of the actual number of days
elapsed for a year having 360 days.
Interest on the outstanding principal amount of this Series 2004 Bond
shall be paid on each Payment Date through and including the final maturity
date.
All payments shall be applied first to accrued interest and then to the
outstanding principal of this Bond.
The final maturity date of this Series 2004 Bond shall be January 1,
2014 (the "Final Maturity Date"), and all outstanding principal plus accrued
interest shall be due and payable on such date.
"Payment Date" means, as to the Series 2004 Bonds, the Final Maturity
Date and any other date on which principal is payable pursuant to the redemption
provisions of Section 2.03 of the Indenture, and as to any other Series of
Bonds, each date designated as a Payment Date in the applicable Supplemental
Indenture.
"Term Note Date" shall mean the earlier of (i) January 1, 2007, or (ii)
the date on which the Company submits the Completion Certificate to the Trustee
in accordance with the provisions of the Loan Agreement.
The principal amount of this Series 2004 Bond shall be issued from time
to time upon the submission of requisitions by the Company to the Trustee
pursuant to the provisions of Section 5.03 of the Indenture and Section 3.03 of
the Loan Agreement.
This Bond represents a part of the issue of bonds of the Issuer
designated as "Mississippi Business Finance Corporation Industrial Development
Revenue Bonds, Series 2004 (Premier Entertainment Biloxi LLC Project)" (the
"Series 2004 Bonds") issued in the aggregate principal amount of up to
$60,000,000 under and pursuant to the Constitution and laws of the State of
Mississippi, particularly Title 57, Chapter 10, Article 7, of the Mississippi
Code of 1972, as amended and as supplemented (the "Act"), and under and secured
by a
Trust Indenture between the Issuer and the Trustee (as hereinafter
defined), dated as January 1, 2004 (hereinafter, together with any and all
indentures supplementary thereto and amendatory thereof called the "Indenture").
This Bond is issued for the purpose of, and the proceeds will be used for,
financing the cost of a "business enterprise" (as defined in the Act), by
Premier Entertainment Biloxi LLC (the "Company") under and pursuant to a Loan
Agreement between the Issuer and
46
the Company dated as of January 1, 2004 (hereinafter, together with any and all
amendments thereof, called the "Loan Agreement"), pursuant to which the Company
is obligated to make loan payments sufficient to pay the principal of, premium,
if any, and interest on this Bond. The obligation to make loan payments is
evidenced by a promissory note dated as of the date of the Series 2004 Bonds
(the "Series 2004 Note"), executed by the Company. As provided in the Indenture,
Additional Bonds (as defined in the Indenture) may be issued in one or more
Series for the purpose of financing the completion of such facilities, the cost
of enlargements, improvements or expansions of such facilities and the cost of
acquisition and installation of additional facilities (such facilities, together
with any enlargements, improvements or expansions thereof, and any such
additional facilities and real property herein collectively called the
"Project").
Copies of the Indenture, the Loan Agreement and the Series 2004 Note
are on file at the Corporate Trust Office of the Trustee and reference is made
to the Indenture and the Loan Agreement for the provisions relating, among other
things, to the terms and security of the Series 2004 Bonds, the collection and
disposition of the revenues and receipts of the Issuer from or in connection
with the Project, the custody and application of the proceeds of the Series 2004
Bonds, the rights and remedies of the Registered Owners of the Series 2004
Bonds, the rights, duties and obligations of the Issuer, the Company and the
Trustee, and the modification or amendment of any of the foregoing documents.
The principal of, premium, if any, and interest on the Bonds are
payable from moneys deposited in the Bond Fund established pursuant to the
Indenture and held by the Trustee.
The principal of, premium, if any, and interest on this Bond shall be
payable in any coin or currency of the United States of America which, at the
time of payment is legal tender for the payment of public and private debts and
shall be made to the Registered Owner thereof in the case of principal and
premium, if any, at the Corporate Trust Office of Standard Federal-Corporate and
Institutional Trust, a division of LaSalle Bank National Association, as trustee
(the "Trustee") in Troy, Michigan, upon presentation and surrender thereof, and
in the case of interest, by mail to the Registered Owner hereof at his address
as it appears in the Bond Register at the close of business on the Record Date
which shall be the last business day preceding a Payment Date (as defined in the
Indenture), by check, or if requested in writing by a Registered Owner who holds
Bonds in the amount of at least $500,000 by bank wire or bank transfer as such
Registered Owner may specify.
This Bond and any Additional Bonds issued under and secured by the
Indenture are, and are to be secured, to the extent provided in the Indenture,
solely by a pledge of the revenues and receipts derived by the Issuer from or in
connection with the Project, including payments received under the Loan
Agreement and the Series 2004 Note. This Bond, together with the interest
hereon, is a limited obligation of the Issuer payable solely from the Revenues
(as defined in the Indenture) and other funds and collateral pledged under the
Indenture and the Loan Agreement. Neither the State of Mississippi nor any other
political subdivision thereof shall be obligated to pay the Bonds or the
interest thereon or other costs incident thereto except from the Revenues
pledged by the Issuer, and neither the faith and credit nor the taxing power of
the State of Mississippi or any political subdivision thereof is pledged to the
payment of the principal of, premium, if any, or the interest on, this Bond. The
Issuer has no taxing power.
47
The transfer of this Bond is registrable, as provided in the Indenture,
upon the Bond Register kept for that purpose at the above mentioned office of
the Trustee by the Registered Owner hereof in person, or by his attorney duly
authorized in writing, upon surrender of this Bond together with a written
instrument of transfer satisfactory to the Trustee duly executed by the
Registered Owner or his attorney duly authorized in writing. The Issuer and the
Trustee may deem and treat the person in whose name this Bond is registered as
the absolute owner hereof for the purpose of receiving payment of, or on account
of, the principal or premium, if any, hereof and interest due hereon and for all
other purposes.
The Series 2004 Bonds shall be subject to redemption prior to maturity,
in accordance with Article II and VIII of the Indenture and subject to the order
of payment as set forth in Section 6.02 of the Indenture, and as follows:
48
The Series 2004 Bonds are subject to optional redemption in whole or in
part on any date at the option of the Company, upon not less than forty-five
(45) days' written notice by the Company to the Trustee (which notification may
be waived by the Trustee), at a redemption price for each Series 2004 Bond
redeemed equal to the principal amount thereof, plus accrued interest thereon to
the date of redemption, without premium.
Unless the Registered Owners request in writing notification of
redemption (not in excess of 30 days), there shall be no required notice of
redemption provided to the Registered Owners. If this Bond or any portion hereof
shall have been duly called for redemption and payment of the Redemption Price
(as defined in the Indenture), together with unpaid interest accrued to the date
fixed for redemption, together with all other sums payable under the Indenture
and all Administration Expenses (as defined in the Indenture) shall have been
made or provided for, all as more fully set forth in the Indenture, interest on
this Bond or such portion shall cease to accrue from such date, and, from and
after such date this Bond or such portion shall no longer be entitled to any
lien, benefit, or security under the Indenture, and the Registered Owners hereof
shall have no rights in respect of this Bond or such portion except to receive
payment of such Redemption Price and unpaid interest accrued to the date fixed
for redemption.
This Bond shall not be entitled to any benefit under the Indenture or
be valid or become obligatory for any purpose until this Bond shall have been
authenticated by the execution by the manual signature of a duly authorized
officer of the Trustee of the Trustee's certificate of authentication hereon.
No covenant or agreement contained in this Bond or the Indenture shall
be deemed to be a covenant or agreement of any member, agent, or employee of the
Issuer in his individual capacity, and neither the members of the Issuer nor any
officer thereof executing this Bond shall be liable personally on this Bond or
be subject to any personal liability or accountability by reason of the issuance
of this Bond.
It is hereby certified and recited that all conditions, acts and things
required by law and the Indenture to exist, to have happened and to have been
performed precedent to and in the issuance of this Bond exist, have happened and
have been performed in due time, form and manner as required by law and the
Indenture, and that the issuance of this Bond and the issue of which it forms a
part are within every debt and other limit prescribed by the laws of the State
of Mississippi.
Reference is made to the further provisions of this Bond set forth on
the reverse side hereof. Such provisions shall for all purposes have the same
effect as if set forth on the face hereof.
49
IN WITNESS WHEREOF, the Issuer has caused this Bond to be signed in its
name and on its behalf by the manual or facsimile signature of its Executive
Director and its seal or a facsimile thereof to be impressed, imprinted or
otherwise reproduced hereon and attested by the manual or facsimile signature of
its Secretary as of the _________ day of ________________________, 2004.
(SEAL) MISSISSIPPI BUSINESS FINANCE
CORPORATION
ATTEST
By:
--------------------------- --------------------------------------
Secretary Executive Director
50
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Mississippi Business Finance Corporation
Industrial Development Revenue Bonds, Series 2004 (Premier Entertainment Biloxi
LLC Project) described in the within mentioned Indenture.
STANDARD FEDERAL-CORPORATE AND
INSTITUTIONAL TRUST, A DIVISION OF
LASALLE BANK NATIONAL ASSOCIATION, AS
TRUSTEE
By
------------------------------------
Authorized Representative
Date of Authentication:
51
(Form of Assignment)
FOR VALUE RECEIVED
The undersigned hereby sells, assigns and transfers unto (Please insert
name, address and Social Security Number or other identifying number of
Assignee)
the within bond of the Mississippi Business Finance Corporation and does hereby
constitute and appoint _______________________________ as attorney to transfer
the said Bond on the books of the within named Issuer, with full power of
substitution in the premises.
Dated:
----------------------------
Signature guaranteed
----------------------------------
REGISTERED OWNER
Insert Social Security Number or Other Tax NOTICE: Signature(s) to this
Identification Number of Assignor: assignment must correspond with the
name(s) of the Registered Owner(s)
as it appears on the face of the
within Bond in every particular,
without alteration or enlargement
or any change whatever and must be
guaranteed by a member firm of the
New York Stock Exchange or a
commercial bank or trust company
who is a member of a Medallion
Signature Guarantee Program.
52
VALIDATION CERTIFICATE
The issuance of the Bonds of which this Bond is one has been validated
and confirmed by decree of the Chancery Court of the First Judicial District of
Xxxxx County, Mississippi, rendered on this ____ day of _____________, 2004.
(SEAL) MISSISSIPPI BUSINESS FINANCE
CORPORATION
By
------------------------------------
Secretary
PRINCIPAL AMOUNT OF BOND PURCHASED
Principal Amount
Date Purchased Signature of Trustee
---- ---------------- ---------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
--------------- --------------------- -----------------------------------
53
IN WITNESS WHEREOF, the Mississippi Business Finance Corporation has
caused this Indenture to be executed by its Executive Director and its corporate
seal to be hereunto affixed, attested by its Secretary, and , as trustee has
caused this Indenture to be executed by its duly authorized officer and (if
applicable) its corporate seal to be hereunto affixed, attested by its duly
authorized officer, all as of the day and year first above written.
(SEAL) MISSISSIPPI BUSINESS FINANCE
CORPORATION
Attest:
/s/ Xxxxx Xxxxxx Xxxxx, Sr. By: Xxxxxxx X. Xxxxx
--------------------------- --------------------------
Secretary Executive Director
(SEAL)
U.S. BANK NATIONAL
ASSOCIATION,
AS TRUSTEE, AND ALSO IN ITS
CAPACITY AS SECURITIES
INTERMEDIARY AND BANK.
By /s/ Xxxxx Xxxxxx
------------------------
Title Vice President
---------------------
54
ACKNOWLEDGMENT OF ISSUER
STATE OF MISSISSIPPI )
)ss.
COUNTY OF XXXXX )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 14th day of January, 2004, within my
jurisdiction, the within named Xxxxxxx X. Xxxxx and Xxxxx Xxxxxx Xxxxx, Sr., who
acknowledged they are the Executive Director and Secretary, respectively, of the
Mississippi Business Finance Corporation, a Mississippi corporation, and that
for and on behalf of said corporation, and as its act and deed they executed the
above and foregoing instrument, after first having been duly authorized by said
corporation so to do.
/s/ Xxxxxxx Xxxxxx Keys
-----------------------------------------
Notary Public
(SEAL)
My Commission Expires:
April 29, 2007
-----------------------
55
ACKNOWLEDGMENT OF TRUSTEE
STATE OF ILLINOIS )
---------------------- )ss.
COUNTY OF XXXX )
---------------------
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 23rd day of January, 2004, within my
jurisdiction, the within named Xxxxx X. Xxxxxx and ______________________, who
acknowledged they are the Vice President and ___________________________,
respectively, of U.S. Bank National Association, a national banking corporation
organized and existing under the laws of the United States of America, and that
for and on behalf of said banking association and as its act and deed, they
executed the foregoing instrument, after first having been duly authorized by
said banking association so to do.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Notary Public
(SEAL)
My Commission Expires:
5/1/2005
----------------------
56
