ex10328k060710.htm


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
10.32

    


    Execution
Version

    


    SUPPLEMENTAL
INDENTURE NO 1

     

    THIS
SUPPLEMENTAL INDENTURE NO. 1 (“Supplemental Indenture”) dated
as of June 1, 2010 is entered into between BMB MUNAI INC., a corporation duly
organized and existing under the laws of the State of Nevada (the “Issuer”) and THE BANK OF NEW
YORK MELLON, a banking corporation organized under the laws of the State of New
York, as trustee (the “Trustee”).

    


    WHEREAS,
the Issuer and the Trustee entered into an indenture dated as of September 19,
2007, (as may be amended, supplemented or replaced from time to time, the “Indenture”), providing for the
issuance by the Issuer of U.S. $60,000,000 aggregate principal amount of 5.0%
Convertible Senior Notes due 2012 (the “Notes”);

    


    WHEREAS,
pursuant to Section 7.1(a)(vii) of the Indenture, the Issuer is permitted to
make any change that would provide additional rights or benefits to the Holders
provided that such modification does not adversely affect the interests of the
Holders in any material respect, without the consent of the
Holders;

    


    WHEREAS,
the Issuer wishes to amend the Indenture for the benefit of each of the holders
of Notes by adding an additional option for the holders of the Notes to require
the Issuer to redeem the Notes on the Fourth Put Date (as defined below) and
providing for related acceleration and exercise mechanics without in any way
limiting or affecting the existing redemption or other rights relating to the
Notes;

    


    WHEREAS,
the Issuer and Counsel have confirmed by Opinion of Counsel that this amendment
does not adversely affect the interests of the Holders in any material
respect;

    


    WHEREAS
the Issuer and 100 % of the holders have been in discussions regarding a
possible restructuring;

    


    WHEREAS
100% of the holders are aware that the Company is or may be currently in default
under certain covenants (specifically Sections 9.7, 9.8, 9.10-12, 9.21 and 9.24)
and have waived the Company's compliance with those covenants until the earlier
to occur of (i) September 1, 2010 and (ii) the Fourth Put Date (as defined
below); and

    


    WHEREAS,
this Supplemental Indenture No. 1 is supplemental to the Indenture.

    


    NOW, THEREFORE, it is mutually
covenanted and agreed as follows:

    


    ARTICLE
I

    AMENDMENTS

    


    SECTION
1.1  Supplemental
Indenture.  Upon execution of this Supplemental Indenture No.
1, the Indenture shall henceforth be read and construed as one document with
this Supplemental Indenture No. 1.

    


    SECTION
1.2  Definitions.  For
all purposes of this Supplemental Indenture No. 1:

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    (a)           All
capitalized terms used but not defined herein shall be have the meanings
ascribed to them in the Indenture; and

    


    (b)           As
used in Section 10.2, the term “Put Settlement Date” shall
mean, (i) in relation to the options described in Sections 10.2(a) and 10.2(b)
hereof, the date that is 10 New York Business Days following the date on which
the Holder validly deposits a Put Option Notice with the Paying and Conversion
Agent; (ii) in relation to the option described in Section 10.2(c)(i) hereof,
the Third Put Date as defined in Section 10.2(c)(i) hereof, and (iii) in
relation to the option described in Section 10.2(c)(ii) hereof, the Fourth Put
Date as defined in Section 10.2(c)(ii) hereof.

    


    ARTICLE
II

    REDEMPTION
AT THE OPTION OF NOTEHOLDERS

    


    SECTION
2.1  Amendment of
Redemption at the Option of Noteholders.  Section 10.2 of the
Indenture is hereby amended and restated to read in its entirety as
follows:

    


    
      	
              10.2  

            	
              The
      Issuer shall, at the option of the Holder of any Note, redeem such
      Note:

            


    

    


    (a)           in
the event that the Initial Shelf Registration Statement has not been filed on or
prior to the Filing Deadline Date, on any day following the Filing Deadline Date
until, but excluding, the Shelf Registration Statement Filing Date (the “First Put Exercise Period”) at
a price equal to 110% of its principal amount together with interest accrued but
unpaid to such date; or

    


    (b)           in
the event the Shelf Registration Statement Effective Date has not occurred, on
any day following the one (1) year anniversary of the Original Issue Date (the
“Anniversary”) until,
but excluding, the earlier of the day that is 45 days after the Anniversary or
the Shelf Registration Statement Effective Date (the “Second Put Exercise Period”)
at a price equal to 110% of its principal amount together with interest accrued
but unpaid to such date; or

    


    (c)           on
either (i) July 13, 2010 (the “Third Put Date”) or (ii) such
date that is two (2) New York Business Days after the date of a Put Option
Notice given by a Noteholder after June 13, 2010 but on or before September 13,
2010 (the “Fourth Put
Date”), in either case at a price equal to 104% of its principal amount
together with interest accrued but unpaid to such date.

    


    In order
to exercise the option contained in clause (a) or (b) above, the Holder of a
Note must, during the First Put Exercise Period or the Second Put Exercise
Period, as applicable, deposit with the Paying and Conversion Agent such Note
Certificate and a duly completed Put Option Notice.

    


    In order
to exercise the option contained in clause (c)(i) above, the Holder of a Note
must, not less than 30 nor more than 60 days before the relevant Put Settlement
Date, deposit with the Paying and Conversion Agent a duly completed Put Option
Notice and, in the case of a Put Option Notice relating to Notes evidenced by a
Note Certificate, such Note Certificate

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    In order
to exercise the option contained in clause (c)(ii) above, the Holder of a Note
must, after June 13, 2010 and on or before September 13, 2010, deposit with the
Paying and Conversion Agent a duly completed Put Option Notice and, in the case
of a Put Option Notice relating to Notes evidenced by a Note Certificate, such
Note Certificate.

    


    The
Paying and Conversion Agent with which a Note is so deposited shall deliver a
duly completed receipt for such Note (a “Put Option Receipt”) to the
depositing Noteholder.  No Note, once deposited with a duly completed
Put Option Notice in accordance with this Section 10.2, may be withdrawn; provided, however, that if,
prior to the relevant Put Settlement Date, any such Note becomes immediately due
and payable or, upon due presentation of any such Note on the relevant Put
Settlement Date, payment of the redemption money is improperly withheld or
refused, the Paying and Conversion Agent shall mail notification thereof to the
depositing Noteholder at such address as may have been given by such Noteholder
in the relevant Put Option Notice and shall hold such Note at its Specified
Office for collection by the depositing Noteholder against surrender of the
relevant Put Option Receipt.  For so long as any Outstanding Note is
held by the Paying and Conversion Agent in accordance with this Section 10.2,
the depositor of such Note and not such Paying and Conversion Agent shall be
deemed to be the Holder of such Note for all purposes.  Should a
Holder of any Note redeem such Note in accordance with this Section 10.2, the
Issuer shall give notice to Noteholders in accordance with Section 12.2
hereof.

    


    The
Issuer shall give notice to the Noteholders as soon as practicable following
such event of the Shelf Registration Statement Filing Date and the Shelf
Registration Statement Effective Date, in accordance with Section 12.2 hereof
and, in the absence of such notice, the Shelf Registration Statement Filing Date
and the Shelf Registration Statement Effective Date shall be deemed not to have
occurred for the purposes of this Section 10.2.

    


    SECTION
2.2  Notice.
The Issuer shall provide notice to the Trustee and each Noteholder in accordance
with the Indenture within three (3) Business Days of the receipt of any Put
Option Notice.

    


    SECTION
2.3  Amendments with
Respect to the Indenture.  Except as amended hereby, the
Indenture shall remain in full force and effect and is hereby ratified, adopted
and confirmed in all respects.  All references to “this Indenture”,
“hereunder”, “hereof”, “herein”, or words of like import, and all references to
the Indenture in any other agreement or documents shall hereafter be deemed to
refer to the Indenture as amended hereby.

    


    ARTICLE
III

    PROVISIONS
OF GENERAL APPLICATION

    


    SECTION
3.1  Severability.  In
case any provision in or obligation under this Supplemental Indenture No. 1
shall be invalid, illegal, or unenforceable in any jurisdiction, the validity,
legality, and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.

    


    SECTION
3.2  The
Trustee. The recitals and statements in this Supplemental Indenture shall
be taken as the statements of the Issuer and the Trustee assumes no
responsibility for their accuracy or correctness. The Trustee shall not be
responsible or accountable in any manner whatsoever for or with respect to the
validity or sufficiency of the Supplemental Indenture.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    SECTION
3.3  Effect of
headings.  The Clause headings herein are for convenience only
and shall not affect the construction hereof.

    


    SECTION
3.4  Governing
Law.  The Internal law of the State of New York will govern and
be used to construe this Supplemental Indenture, the Indenture (as supplemented
and amended hereby) and the Notes (as supplemented and amended
hereby).

    


    SECTION
3.5  Consent to
Jurisdiction and Service.  The Issuer agrees that any suit,
action or proceeding against the Issuer brought by any Holder or the Trustee
arising out of or based upon this Supplemental Indenture, the Indenture or the
Notes may be instituted in any state or Federal court in the Borough of
Manhattan, New York, and any appellate court from any thereof, and each of them
irrevocably submits to the non−exclusive jurisdiction of such courts in any
suit, action or proceeding. The Issuer irrevocably waives, to the fullest extent
permitted by law, any objection to any suit, action, or proceeding that may be
brought in connection with this Supplemental Indenture, the Indenture or the
Notes, including such actions, suits or proceedings relating to securities laws
of the United States of America or any state thereof, in such courts whether on
the grounds of venue, residence or domicile or on the ground that any such suit,
action or proceeding has been brought in an inconvenient forum. The Issuer
agrees that final judgment in any such suit, action or proceeding brought in
such court shall be conclusive and binding upon the Issuer and may be enforced
in any court to the jurisdiction of which the Issuer is subject by a suit upon
such judgment; provided
that service of process is effected upon the Issuer in the manner
provided by the Indenture.

    


    SECTION
3.6  Counterparts.  This
Supplemental Indenture No. 1 may be executed in any number of counterparts, and
by the different parties hereto in separate counterparts, and each of which when
so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.  This
Supplemental Indenture No. 1 shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.

    


    IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No.
1 to be duly executed by their respective officers duly authorized, all as of
the day and year first written above.

    


    BMB
MUNAI, INC.

    in its
capacity as Issuer

    


    


    By:           /s/ Askar
Tashtitov

    Name: Askar Tashtitov

    Title: President

    


    THE BANK
OF NEW YORK MELLON,

    in its
capacity as Trustee

    


    


    By:           /s/ Marco
Thuo

    Name: Marco Thuo

    Title: Vice President