Exhibit 4.4
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.08 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ENTERPRISE.
CUSIP 0000XXX0
No. E-001 **$200,000,000**
THE MISSISSIPPI BAND OF CHOCTAW INDIANS d/b/a
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
9 1/4% Senior Notes due 2009
The Mississippi Band of Choctaw Indians d/b/a Choctaw Resort
Development Enterprise (the "ENTERPRISE" which term includes any successor under
the Indenture hereinafter referred to), a business enterprise of the Mississippi
Band of Choctaw Indians, a federally recognized Indian Tribe and sovereign
nation (the "TRIBE"), for value received, promises to pay to CEDE & CO., or its
registered assigns, the principal sum of TWO HUNDRED MILLION DOLLARS
($200,000,000) on April 1, 2009.
Interest Payment Dates: April 1 and October 1, commencing October 1, 2001.
Record Dates: March 15 and September 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Enterprise has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
THE MISSISSIPPI BAND OF CHOCTAW
INDIANS D/B/A CHOCTAW RESORT
DEVELOPMENT ENTERPRISE
By:
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Name: Xxxxxxx Xxxxxx
Title: Chairman of the Board
By:
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Name: Xxxxxxxx Xxx
Title: Secretary-Treasurer
This is one of the 9 1/4% Senior Notes due 2009 described in the
within-mentioned Indenture.
Dated: [ ], 2001
FIRSTAR BANK, N.A.,
as Trustee
By:
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Authorized Signatory
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THE MISSISSIPPI BAND OF CHOCTAW INDIANS d/b/a
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
9 1/4% Senior Notes due 2009
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. The Enterprise promises to pay interest on the
principal amount of this Note at 9 1/4% per annum from the Issue Date until
maturity. The Enterprise shall pay interest semi-annually in arrears on April 1
and October 1 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest on the
Notes shall accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of original issuance; PROVIDED that
if there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; PROVIDED FURTHER that the first Interest
Payment Date shall be October 1, 2001. The Enterprise shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
2. METHOD OF PAYMENT. The Enterprise shall pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the March 15 or September 15 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.13
of the Indenture with respect to defaulted interest. The Notes shall be payable
as to principal, premium and interest at the office or agency of the Enterprise
maintained for such purpose in The City of New York maintained for such
purposes, or, at the option of the Enterprise, payment of interest may be made
by check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds shall be required with respect to principal of and interest and premium
on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Enterprise or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Firstar Bank, N.A., the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Enterprise may change any Paying Agent or Registrar without notice to any
Holder. The Enterprise or any of its Restricted Subsidiaries may act in any such
capacity.
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4. INDENTURE. The Enterprise issued the Notes under an Indenture
dated as of March 30, 2001 ("INDENTURE") among the Enterprise, the Tribe and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended. The Notes are subject to all such terms, and Holders are referred to
the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are
obligations of the Enterprise limited to $200,000,000 in aggregate principal
amount. The Indenture pursuant to which this Note is issued provides that up to
$50.0 million of Additional Notes may be issued thereunder.
5. OPTIONAL REDEMPTION. Except as set forth in paragraphs 6, 7 and 8
below, the Enterprise shall not have the option to redeem the Notes prior to
April 1, 2005. Thereafter, the Enterprise shall have the option to redeem the
Notes, in whole or in part, upon not less than 30 nor more than 60 days' prior
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on April 1
of the years indicated below (subject to the right of Holder on the relevant
record date to receive interest due on the related Interest Payment Date):
YEAR PERCENTAGE
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2005............................................ 104.6250%
2006............................................ 102.3125%
2007 and thereafter............................. 100.0000%
6. GAMING REDEMPTION. (a) If any Gaming Authority in any
jurisdiction in which the Enterprise or any of its Subsidiaries conducts gaming
requires that a Holder or Beneficial Owner of the Notes obtain a license,
qualification or finding of suitability under any applicable Gaming Laws and the
Holder or Beneficial Owner does not apply for a license, qualification or
finding of suitability within 30 days after being requested to do so by such
Gaming Authority (or such lesser period that may be required by such Gaming
Authority) or if such Holder or beneficial owner shall not be licensed,
qualified or found suitable, then the Enterprise, at its option, may (i) require
such Holder or Beneficial Owner to dispose of such Holder or Beneficial Owner's
Notes within 30 days, or any earlier date as may be required by the Gaming
Authority, of (A) the termination of the 30-day period described above for the
Holder or Beneficial Owner to apply for a license, qualification or finding of
suitability, or (B) the receipt of the notice from the Gaming Authority that the
Holder or beneficial owner shall not be licensed, qualified or found suitable or
(ii) redeem the Notes of such Holder or Beneficial Owner at a price equal to the
least of (A) 100% of the principal amount thereof or (B) the price at which such
Holder or Beneficial Owner acquired the Notes, and (C) the fair market value of
the Notes, together with, in either case, accrued and unpaid interest thereon to
the earlier of the date of redemption or the date of the finding of
unsuitability by such Gaming Authority, which may be less than 30 days following
the notice of redemption if so ordered by such Gaming Authority.
(b) Immediately upon a determination that a Holder or Beneficial
Owner shall not be licensed, qualified or found suitable, the Holder or
Beneficial Owner shall have no further right (1) to exercise any right conferred
by the Notes, directly or indirectly, through any trustee,
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nominee or any other Person or entity, or (2) to receive any interest or other
distribution or payment with respect to the Notes or any remuneration in any
form from the Enterprise for services rendered or otherwise, except the
redemption price of the Notes.
(c) The Holder or Beneficial Owner of Notes applying for a license,
qualification or a finding of suitability must pay all costs of the licenses or
investigation for this qualification or finding of suitability. The Enterprise
is not required to pay or reimburse any Holder or Beneficial Owner of Notes who
is required to apply for any license, qualification or finding of suitability.
The Enterprise is not required to pay or reimburse any Holder of the Notes or
Beneficial Owner who is required to apply for such license, qualification or
finding of suitability for the costs of the licensure or investigation for such
qualification or finding of suitability.
7. MANDATORY REDEMPTION. Except as set forth in Paragraph 8 below,
the Enterprise shall not be required to make mandatory redemption payments or
sinking fund payments with respect to the Notes.
8. REPURCHASE AT OPTION OF HOLDER. (a) If there is a Change of
Control, the Enterprise shall be required to make an offer (a "CHANGE OF CONTROL
OFFER") to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price equal to 101% of the
aggregate principal amount of Notes repurchased plus accrued and unpaid interest
to the date of purchase (the "CHANGE OF CONTROL PAYMENT"). Within 20 days
following any Change of Control, the Enterprise shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Notes on the date specified in such notice,
which date shall be no earlier than 30 days and no later than 60 days from the
date such notice is mailed, pursuant to the procedures required by the Indenture
and described in such notice.
(b) When the aggregate amount of Excess Proceeds from one or more
Asset Sales exceeds $10.0 million, the Enterprise shall commence an offer
("ASSET SALE OFFER") pursuant to Section 4.10 of the Indenture to all Holders of
Notes to purchase the maximum principal amount of Notes that may be purchased
out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be
equal to 100% of principal amount plus accrued and unpaid interest to the date
of purchase, and shall be payable in cash, in accordance with the procedures set
forth in the Indenture. If any Excess Proceeds remain after consummation of an
Asset Sale Offer, the Enterprise or the Restricted Subsidiary may use such
Excess Proceeds for any purpose not otherwise prohibited by the Indenture. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset
at zero.
9. SELECTION AND NOTICE OF REDEMPTION. If less than all of the Notes
are to be redeemed at any time, the Trustee will select Notes for redemption as
follows: (i) if the Notes are listed, in compliance with the requirements of the
principal national securities exchange on which the Notes are listed, or (ii) if
the Notes are not so listed, on a pro rata basis, by lot or by any method as the
Trustee deems fair and appropriate. No Notes of $1,000 or less may be redeemed
in part. Except as otherwise provided in the Indenture, notices of redemption
will be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each Holder to be redeemed at its registered address.
Notices of redemption may not be
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conditional. If any Note is to be redeemed in part only, the notice of
redemption that relates to that Note will state the portion of the principal
amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note will be issued in the name of the Holder
thereof upon cancellation of the original Note. Notes called for redemption
become due on the date fixed for redemption. On and after the redemption date,
interest ceases to accrue on Notes or portions of them called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Enterprise may require a Holder to pay any taxes and fees required by
law or permitted by the Indenture. The Enterprise is not required to transfer or
exchange any Note selected for redemption. Also, the Enterprise is not required
to transfer or exchange any Note for a period of 15 days before a selection of
Notes to be redeemed.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note will be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes and Additional Notes, if any, voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes), and any existing default or compliance with
any provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal of the then outstanding Notes and
Additional Notes, if any, voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes). Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of Definitive Notes, to provide for the assumption of the Enterprise's
obligations to Holders of the Notes in case of a merger or consolidation or sale
of all or substantially all of the assets of the Enterprise, to make any change
that would provide any additional rights or benefits to the Holders of the Notes
or that does not adversely affect the legal rights under the Indenture of any
such Holder, or to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act, or to
provide for the issuance of Additional Notes in accordance with the limitations
set forth in the Indenture.
13. DEFAULTS AND REMEDIES. In the case of an Event of Default, as
defined in the Indenture, arising from certain events of bankruptcy or
insolvency with respect to the Enterprise or any of its Restricted Subsidiaries,
all outstanding Notes will become due and payable immediately and automatically
without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Holders of the Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may
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withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may, on behalf of the Holders of all
of the Notes, waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest or the principal of, the Notes.
In the case of any Event of Default occurring by reason of any
willful action or inaction taken or not taken by the Enterprise or on their
behalf with the intention of avoiding payment of the premium that the Enterprise
would have had to pay if it then had elected to redeem the Notes pursuant to the
optional redemption provisions of the Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes. If an Event of Default occurs prior to April
1, 2005, by reason of any willful action (or inaction) taken (or not taken) by
the Enterprise or on its behalf with the intention of avoiding the prohibition
on redemption of the Notes prior to April 1, 2005, then the premium specified in
the Indenture shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
14. TRUSTEE DEALINGS WITH ENTERPRISE. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Enterprise or its Affiliates, and may otherwise deal with the
Enterprise or its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. Neither the Tribe nor any tribal
member, council member, official, agent, director, officer, employee,
incorporator or stockholder of the Enterprise or the Tribe or Holder of an
Ownership Interest of the Enterprise or any of its Subsidiaries will have any
liability for any of the Enterprise's or any Subsidiary Guarantors' obligations
under the Notes, the Indenture, any Subsidiary Guarantees, or for any claim
based on, in respect of, or by reason of, these obligations or their creation.
Each Holder by accepting a Note waives and releases these individuals from this
liability. The waiver and release are part of the consideration for issuance of
the Notes.
16. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Enterprise has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Enterprise shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
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The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise
P.O. Box 6090, Choctaw Branch
Philadelphia, MS 39350
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Comptroller
and
Attorney General of the Mississippi Band of
Choctaw Indians
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
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(Insert assignee's legal name)
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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to transfer this Note on the books of the Enterprise. The agent may
substitute another to act for him.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
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* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Enterprise
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased by the
Enterprise pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$
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Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
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Signature Guarantee*:
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* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal
Amount of Amount of Amount at
Decrease in Increase in Maturity Signature of
Principal Principal of this Global Authorized
Amount at Amount at Note Officer
Maturity Maturity Following such of Trustee or
Date of of this Global of this Global Decrease (or Note
Exchange Note Note increase) Custodian
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