Exhibit 1.1
Execution Copy
MOHEGAN TRIBAL GAMING AUTHORITY
$200,000,000
8 1/8% Senior Notes Due 2006
$300,000,000
8 3/4% Senior Subordinated Notes Due 2009
Purchase Agreement
New York, New York
February 24, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
As Representatives of the Initial Purchasers
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Mohegan Tribal Gaming Authority (the "Authority"), an instrumentality of the
Mohegan Tribe of Indians of Connecticut (the "Tribe"), proposes to issue and
sell to the several parties named in Schedule I hereto (the "Initial
Purchasers"), for whom you (the "Representatives") are acting as
representatives, $200,000,000 principal amount of its 8 1/8% Senior Notes due
2006 (the "Senior Securities") and $300,000,000 principal amount of its 8 3/4%
Senior Subordinated Notes due 2009 (the "Senior Subordinated Securities" and,
collectively with the Senior Securities, the "Securities"). The Senior
Securities are to be issued under an indenture (the "Senior Indenture") to be
dated as of March 3, 1999 among the Authority, the Tribe and First Union
National Bank as trustee (the "Senior Trustee"). The Senior Subordinated
Securities are to be issued under an indenture (the "Senior Subordinated
Indenture") to be dated as of March 3, 1999 among the Authority, the Tribe and
State Street Bank and Trust Company as trustee (the "Senior Subordinated
Trustee"). The Senior Indenture and the Senior Subordinated Indenture are
collectively referred to herein as the "Indentures", and the Senior Trustee and
the Senior Subordinated Trustee are collectively referred to herein as the
"Trustees". The Securities each have the benefit of a Registration Rights
Agreement (the "Senior Registration Rights Agreement" and the "Senior
Subordinated Registration Rights Agreement," collectively, the "Registration
Rights Agreements"), both to be dated as of March 3, 1999, between the Authority
and the Initial Purchasers, pursuant to which the Authority has agreed to
register under the Act another series of debt securities of the Authority each
with terms substantially identical to the Securities (collectively, the
"Exchange Securities") to be offered in exchange for the Securities (the
"Exchange Offer"), subject to the terms and conditions therein specified. To the
extent there
are no additional parties listed on Schedule I other than you, the term
Representatives as used herein shall mean you as the Initial Purchasers, and the
terms Representatives and Initial Purchasers shall mean either the singular or
plural as the context requires. The use of the neuter in this Purchase Agreement
shall include the feminine and masculine wherever appropriate. Certain terms
used herein are defined in Section 19 hereof.
The offering of the Securities is being made in connection with the Tender
Offer and Consent Solicitation for the Authority's 13 1/2% Senior Secured Notes
with Cash Flow Participation Interest and the arrangement of a senior secured
bank credit facility (the "Bank Credit Facility") (the "Concurrent
Transactions").
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Act in reliance upon exemptions from
the registration requirements of the Act.
In connection with the sale of the Securities, the Authority has prepared a
preliminary offering memorandum, dated February 3, 1999 (as amended or
supplemented at the Execution Time, including any and all exhibits thereto, the
"Preliminary Memorandum"), and a final offering memorandum, dated February 24,
1999 (as amended or supplemented at the Execution Time, including any and all
exhibits thereto the "Final Memorandum"). Each of the Preliminary Memorandum and
the Final Memorandum sets forth certain information concerning the Authority and
the Securities. The Authority hereby confirms that it has authorized the use of
the Preliminary Memorandum and the Final Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Securities by
the Initial Purchasers.
1. Representations and Warranties. The Authority represents and warrants to
each Initial Purchaser, as set forth below in this Section 1, and the Tribe
represents and warrants to each Initial Purchaser with respect to paragraphs
1(l),(o),(p) and (s) as set forth below.
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. At the Execution Time, on the
Closing Date or on any settlement date, as the case may be, the Final
Memorandum did not, and will not (and any amendment or supplement thereto,
at the date thereof, at the Closing Date and on any settlement date, will
not), contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Authority makes no representation or warranty as to the
information contained in or omitted from the Preliminary Memorandum or the
Final Memorandum, or any amendment or supplement thereto, in reliance upon
and in conformity with information furnished in writing to the Authority by
or on behalf of the Initial Purchasers through the Representatives
specifically for inclusion therein.
(b) Neither the Authority nor any of its Affiliates, nor any person
acting on its behalf (provided that no representation is made as to the
Initial Purchasers or any person acting on their behalf) has, directly or
indirectly, made offers or sales of any
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security, or solicited offers to buy any security, under circumstances that
would require the registration of the Securities under the Act.
(c) Neither the Authority nor any of its Affiliates, nor any person
acting on its behalf (provided that no representation is made as to the
Initial Purchasers or any person acting on their behalf) has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities in the
United States.
(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(e) Neither the Authority nor any of its Affiliates, nor any person
acting on its behalf (provided that no representation is made as to the
Initial Purchasers or any person acting on their behalf) has engaged in any
directed selling efforts with respect to the Securities, and each of them
has complied with the offering restrictions requirement of Regulation S
under the Act. Terms used in this paragraph have the meanings given to them
by Regulation S.
(f) The Authority expects to be advised by the NASD's PORTAL Market
that as of the Closing Date the Securities will have been designated
PORTAL-eligible securities in accordance with the rules and regulations of
the NASD.
(g) The Authority is not, and after giving effect to the offering and
sale of the Securities and the application of the net proceeds thereof as
described in the Final Memorandum will not be, an "investment company"
within the meaning of the Investment Company Act, without taking account of
any exemption arising out of the number of holders of the Authority's
securities.
(h) The Authority is in compliance with the reporting requirements of
Section 13 or 15(d) of the Exchange Act.
(i) The Authority has not paid or agreed to pay to any person any
compensation for soliciting another to purchase the Securities (except as
contemplated by this Purchase Agreement).
(j) The Authority has not taken, directly or indirectly, any action
designed to cause or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in the
stabilization or manipulation of the price of any security of the Authority
to facilitate the sale or resale of the Securities.
(k) The information provided by the Authority pursuant to Section 5(h)
hereof will not, at the date thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
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(l) The Tribe is a federally recognized Indian Tribe, with authority
to enter into and perform its obligations under the Agreements. The
Constitution of the Tribe, amended and restated in its entirety and
approved on April 12, 1996 (the "Constitution"), was validly adopted by the
Tribe, is effective according to its terms, and is the law of the Tribe.
(m) The Authority (A) has been duly established, is validly existing
under the Constitution, as amended, (B) has all requisite power and
authority to carry on its business as it is currently being conducted and
as described in the Final Memorandum and to own, lease and operate its
properties, and (C) is duly qualified and authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification except, with respect to
this clause (C), where the failure to be so qualified or in good standing
does not and could not reasonably be expected to (x) individually or in
aggregate, result in a material adverse effect on the properties, business,
results of operations, condition (financial or otherwise), affairs or
prospects of the Authority, (y) interfere with or adversely affect the
issuance or marketability of the Securities pursuant hereto or (z) in any
manner draw into question the validity of this Purchase Agreement or any
agreements or the transactions described in the Final Memorandum under the
caption "Use of Proceeds". The Authority will have no direct or indirect
subsidiaries as of the Closing Date.
(n) The statements in the Final Memorandum under the headings "Certain
Federal Income Tax Consequences," "Description of Notes," "Business--The
Expansion," "Business--Environmental Matters," "Description of Other
Indebtedness," "Mohegan Tribe of Indians of Connecticut," "Government
Regulation" and "Other Material Agreements" fairly summarize the matters
therein described.
(o) This Purchase Agreement has been duly authorized, executed and
delivered by the Authority and the Tribe; the Senior Indenture and the
Senior Subordinated Indenture have each been duly authorized and, assuming
due authorization, execution and delivery thereof by the Trustee, when
executed and delivered by the Authority and the Tribe, will constitute
legal, valid, binding instruments enforceable against the Authority and the
Tribe in accordance with their terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity and public policy provided,
however that the Authority makes no representation as to the choice of
laws); the Securities have been duly authorized, and, when executed and
authenticated in accordance with the provisions of the Senior Indenture or
the Senior Subordinated Indenture, as the case may be, and delivered to and
paid for by the Initial Purchasers, will have been duly executed and
delivered by the Authority and will constitute the legal, valid and binding
obligations of the Authority entitled to the benefits of the Senior
Indenture or the Senior Subordinated Indenture, as the case may be
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity and public policy provided, however, that the Authority makes no
representation as to the choice of laws); and the Senior Registration
Rights Agreement and the Senior Subordinated
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Registration Rights Agreement have been duly authorized and, when executed
and delivered by the Authority, will constitute legal, valid, binding and
enforceable instruments of the Authority (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity and public policy provided,
however, that the Authority makes no representation as to the choice of
laws).
(p) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required to be obtained or made by
the Authority or the Tribe in connection with the transactions contemplated
herein or in the Indentures, or the Registration Rights Agreements or the
Concurrent Transactions, except (A) such as will be obtained under the Act
and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Initial Purchasers in the manner contemplated herein and in the Final
Memorandum and the Registration Rights Agreements and (B) such as will be
obtained from the National Indian Gaming Commission ("NIGC") or its
Chairman, the Secretary of the Interior ("Secretary"), or the Bureau of
Indian Affairs ("BIA") prior to the Closing Date.
(q) None of the execution and delivery of the Indentures, this
Purchase Agreement or the Registration Rights Agreements, the issue and
sale of the Securities, the consummation of the Concurrent Transactions, or
the consummation of any other of the transactions herein or therein
contemplated, or the fulfillment of the terms hereof or thereof will
conflict with or result in (A) violation any of the organizational,
statutory or legal documents of the Authority or the Tribe, (B) default in
the performance of any bond, debenture, note, indenture, mortgage, deed of
trust note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Authority or the Tribe is
bound or any of their respective properties is subject, or (C) violation of
any local, tribal, state or federal law, statue, ordinance, rule,
regulation, requirement, judgment or court decree (including, without
limitation, any requirement, regulation or decree under the Indian Gaming
Regulatory Act of 1988 (collectively, "Gaming Regulations") applicable to
the Authority or any of its assets or properties (whether owned or
leased)), other than, in the case of clauses (B) and (C), any default or
violation that could not reasonably be expected to have a material adverse
effect on the Authority. To the best knowledge of the Authority, there
exists no condition that, with notice, the passage of time or otherwise,
would constitute a default under any such document or instrument.
(r) The historical financial statements and schedules of the Authority
included in the Final Memorandum present fairly in all material respects
the financial condition, results of operations and cash flows of the
Authority as of the dates and for the periods indicated, comply as to form
with the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); the selected financial data set forth under the
caption "Selected Financial Data" in the Final Memorandum fairly present,
on the basis stated in the Final Memorandum,
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the information included therein; the "As adjusted" financial information
included in the Final Memorandum includes assumptions that provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the related
"As adjusted" adjustments give appropriate effect to those assumptions, and
the "As adjusted" adjustments reflect the proper application of those
adjustments to the historical financial statement amounts in the "As
adjusted" financial information included in the Final Memorandum; the "As
adjusted" financial information included in the Final Memorandum complies
as to form in all material respects with the applicable accounting
requirements of Regulation S-X under the Act; and the "As adjusted"
adjustments have been properly applied to the historical amounts in the
compilation of that information.
(s) There is no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Authority, the Tribe or their respective property is pending or, to the
best knowledge of the Authority or the Tribe, threatened that (i) could
reasonably be expected to have a material adverse effect on the performance
of this Purchase Agreement, the Indentures, the Registration Rights
Agreements or the consummation of any of the transactions contemplated
hereby or thereby; or (ii) could reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Authority, except as set forth in
or contemplated in the Final Memorandum (exclusive of any amendment or
supplement thereto entered into after the date hereof).
(t) The Authority owns or leases all such properties as are necessary
to the conduct of its operations as presently conducted.
(u) The Authority is not (A) in violation any of the organizational,
statutory or legal documents of the Authority or the Tribe, (B) in default
in the performance of any bond, debenture, note, indenture, mortgage, deed
of trust note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Authority or the Tribe is
bound or any of their respective properties is subject, or (C) in violation
of any local, tribal, state or federal law, statue, ordinance, rule,
regulation, requirement, judgment or court decree (including, without
limitation, any Gaming Regulations applicable to the Authority or any of
its assets or properties (whether owned or leased)), other than, in the
case of clauses (B) and (C), any default or violation that could not
reasonably be expected to have a material adverse effect on the Authority.
To the best knowledge of the Authority, there exists no condition that,
with notice, the passage of time or otherwise, would constitute a default
under any such document or instrument other than a default that could not
reasonably be expected to have a material adverse effect.
(v) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Authority included in the Final Memorandum and delivered
their report with respect to the audited financial statements included in
the Final Memorandum, are independent public accountants with respect to
the Authority within the meaning of the Act and the applicable published
rules and regulations thereunder.
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(w) There are no stamp or other issuance or transfer taxes or duties
or other similar fees or charges required to be paid in connection with the
execution and delivery of this Purchase Agreement or the issuance or sale
by the Authority of the Securities.
(x) No action or proceeding with respect to any labor dispute with
employees of the Authority exists, or to the Authority's knowledge is
threatened or imminent.
(y) The Authority is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which it is engaged; all
policies of insurance and fidelity or surety bonds insuring the Authority
or its business, assets, employees, officers and Management Board Members
are in full force and effect; the Authority is in compliance with the terms
of such policies and instruments in all material respects; and there are no
claims by the Authority under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause; the Authority has not been refused any insurance coverage
sought or applied for; and the Authority has no reason to believe that it
will not be able to renew its existing insurance coverage as and when the
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Authority whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Memorandum (exclusive of any
amendment or supplement thereto).
(z) The Authority possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its business, and the Authority
has not received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the
Authority, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto).
(aa) The Authority maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
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(bb) The Authority (i) is in compliance with any and all applicable
tribal, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"); (ii) has received and is in compliance with all permits, licenses
or other approvals required of it under applicable Environmental Laws to
conduct its businesses; and (iii) has not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or
contaminants; except where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a material
adverse effect on the Authority, except as set forth in or contemplated in
the Final Memorandum (exclusive of any amendment or supplement thereto).
Except as set forth in the Final Memorandum, the Authority has not been
named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(cc) In the ordinary course of its business, the Authority
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Authority, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws, or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of
such review, the Authority has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Authority except as set
forth in or contemplated in the Final Memorandum (exclusive of any
amendment or supplement thereto).
(dd) The Authority owns, possesses, licenses or has other rights to
use on reasonable terms, all patents, patent applications, trade and
service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and
other intellectual property necessary for the conduct of its business as
now conducted or as proposed in the Final Memorandum to be conducted
(collectively, the "Intellectual Property"). Except as set forth in or
contemplated by the Final Memorandum (a) there are no rights of third
parties to any such Intellectual Property; (b) to the Authority's knowledge
there is no material infringement by third parties of any such Intellectual
Property; (c) there is no pending or, to the Authority`s knowledge,
threatened action, suit, proceeding or claim by others challenging the
Authority's rights in or to any such Intellectual Property, and the
Authority is unaware of any facts which would form a reasonable basis for
any such claim; (d) there is no pending or, to the Authority's knowledge,
threatened action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual Property, and the Authority is
unaware of any facts which would form a reasonable basis for any such
claim; (e) there is no pending or, the Authority's knowledge threatened
action, suit, proceeding or claim by others that the Authority infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Authority is unaware of any
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other fact which would form a reasonable basis for any such claim; (f) to
the Authority's knowledge, there is no U.S. patent or published U.S. patent
application which contains claims that dominate or may dominate any
Intellectual Property described in the Final Memorandum as being owned by
or licensed to the Authority or that interferes with the issued or pending
claims of any such Intellectual Property; and (g) there is no prior act of
which the Authority is aware that may render any U.S. patent held by the
Authority invalid or any U.S. patent application held by the Authority
unpatentable which has not been disclosed to the U.S. Patent and Trademark
Office.
(ee) The Authority has implemented a comprehensive, detailed program
to analyze and address the risk that the computer hardware and software
used by them may be unable to recognize and properly execute date-sensitive
functions involving certain dates prior to and any dates after December 31,
1999 (the "Year 2000 Problem"), and has determined that such risk will be
remedied on a timely basis and will not have a material adverse effect upon
the financial condition and results of operations of the Authority; and the
Authority believes, after due inquiry, that each supplier, vendor, customer
or financial service organization used or serviced by the Authority has
remedied or will remedy on a timely basis the Year 2000 Problem, except to
the extent that a failure to remedy by any such supplier, vendor, customer
or financial service organization would not have a material adverse effect
on the Authority. The Authority is in compliance with the Commission's
staff legal bulletin No. 5 dated January 12, 1998 related to Year 2000
compliance.
(ff) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which the Authority
believes to be reliable and accurate in all material respects.
Any certificate signed by any officer of the Authority and delivered to the
Representatives or counsel for the Initial Purchasers in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Authority (and not individually by such officer), as to matters covered thereby,
to each Initial Purchaser.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Authority agrees
to sell to each Initial Purchaser, and each Initial Purchaser agrees, severally
and not jointly, to purchase from the Authority, at a purchase price of 8 1/8%
of the principal amount thereof with respect to the Senior Securities and at a
purchase price of 8 3/4% of the principal amount thereof with respect to the
Senior Subordinated Securities, in each case plus accrued interest, if any, from
February 24, 1999 to the Closing Date, the principal amount of such Securities
set forth opposite such Initial Purchaser's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at 9:00 A.M., New York City time, on March 3, 1999, or at such time on
such later date (not later than March 10 1999) as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Authority or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for
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the respective accounts of the several Initial Purchasers against payment by the
several Initial Purchasers through the Representatives of the purchase price
thereof to or upon the order of the Authority by wire transfer payable in
same-day funds to the account specified by the Authority. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
4. Offering by Initial Purchasers. Each Initial Purchaser, severally and
not jointly, represents and warrants to and agrees with the Authority that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes after due inquiry to
be qualified institutional buyers (as defined in Rule 144A under the Act)
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is aware
that such sale is being made in reliance on Rule 144A or (ii) in accordance
with the restrictions set forth in Exhibit A hereto.
(b) Neither it nor any of its Affiliates nor any person acting on its
or their behalf has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any
offer or sale of the Securities in the United States.
(c) Neither it nor any of its Affiliates nor any person acting on its
or their behalf has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under circumstances that
would require the registration of the Securities under the Act.
5. Agreements. The Authority agrees with each Initial Purchaser that:
(a) The Authority will furnish to each Initial Purchaser and to
counsel for the Initial Purchasers, without charge, during the period
referred to in paragraph (c) below, as many copies of the Final Memorandum
and any amendments and supplements thereto as it may reasonably request.
(b) The Authority will not amend or supplement the Final Memorandum
without the prior written consent of the Representatives.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the Final
Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it should be necessary to amend
or supplement the Final Memorandum to comply with applicable law, the
Authority promptly (i) will notify the Representatives of any such event;
(ii) subject to the requirements of paragraph (b) of this Section 5, will
prepare an amendment or supplement that will correct such statement or
omission or effect such compliance; and (iii) will supply any supplemented
or amended Final Memorandum to the several Initial Purchasers and counsel
for the Initial Purchasers without charge in such quantities as you may
reasonably request.
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(d) The Authority will arrange, if necessary, for the qualification of
the Securities for sale by the Initial Purchasers under the laws of such
jurisdictions as the Initial Purchasers may designate and will maintain
such qualifications in effect so long as required for the sale of the
Securities; provided that in no event shall the Authority be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject. The Authority will
promptly advise the Representatives of the receipt by the Authority of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(e) The Authority will not, and will not permit any of its Affiliates
to, resell any Securities that have been acquired by any of them.
(f) Neither the Authority nor any of its Affiliates, nor any person
acting on its behalf will, directly or indirectly, make offers or sales of
any Security, or solicit offers to buy any Security, under circumstances
that would require the registration of the Securities under the Act.
(g) Neither the Authority, nor any of its Affiliates, nor any person
acting on its behalf will engage in any form of general solicitation or
general advertising (within the meaning of Regulation D) in connection with
any offer or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, the Authority will,
during any period in which they are not subject to and in compliance with
Section 13 or 15(d) of the Exchange Act or they are not exempt from such
reporting requirements pursuant to and in compliance with Rule 12g3-2(b)
under the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder)
of such restricted securities, upon the request of such holder or
prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Act. This covenant is intended to be for the benefit
of the holders, and the prospective purchasers designated by such holders,
from time to time of such restricted securities.
(i) So long as any of the Securities are outstanding, the Authority
will furnish to the Initial Purchasers (i) as soon as available, a copy of
each report of the Authority mailed to securityholders generally or filed
with any stock exchange or regulatory body and (ii) from time to time such
other information concerning the Authority as the Initial Purchasers may
reasonably request.
(j) Neither the Authority nor any of its Affiliates, nor any person
acting on its behalf will engage in any directed selling efforts with
respect to the Securities, and each of them will comply with the offering
restrictions requirement of Regulation S. Terms used in this paragraph have
the meanings given to them by Regulation S.
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(k) The Authority will cooperate with the Representatives and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(l) The Authority will not for a period of 180 days following the
Execution Time, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx
Inc., offer, sell or contract to sell, or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Authority
or any Affiliate of the Authority or any person in privity with the
Authority or any Affiliate of the Authority), directly or indirectly, or
announce the offering of, any debt securities issued or guaranteed by the
Authority (other than the Securities).
(m) The Authority will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any Security of the Authority to facilitate
the sale or resale of the Securities.
(n) The Authority agrees to pay the costs and expenses relating to the
following matters: (i) the preparation of the Indentures and the
Registration Rights Agreements, the issuance of the Securities and the fees
of the Trustee; (ii) the preparation, printing or reproduction of the
Preliminary Memorandum and Final Memorandum and each amendment or
supplement to either of them; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Preliminary Memorandum and Final
Memorandum, and all amendments or supplements to either of them, as may, in
each case, be reasonably requested for use in connection with the offering
and sale of the Securities; (iv) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any
stamp or transfer taxes in connection with the original issuance and sale
of the Securities; (v) the printing (or reproduction) and delivery of this
Purchase Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses
of counsel for the Initial Purchasers relating to such registration and
qualification); (vii) admitting the Securities for trading in the PORTAL
Market; (viii) the transportation and other expenses incurred by or on
behalf of Authority representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Authority's accountants and the fees and expenses of counsel (including
local and special counsel) for the Authority; and (x) all other costs and
expenses incident to the performance by the Authority of its obligations
hereunder.
(o) The Authority shall use the net proceeds received by it from the
sale of the Securities pursuant to this Purchase Agreement in the manner
specified in the Final Memorandum under the caption "Use of Proceeds."
12
6. Conditions to the Obligations of the Initial Purchasers. The obligations
of the Initial Purchasers to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the Authority
contained herein at the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof to the accuracy of the statements of the Authority
made in any certificates pursuant to the provisions hereof, to the performance
by the Authority of its obligations hereunder and to the following additional
conditions:
(a) The Authority shall have requested and caused Xxxxx & Xxxxxxx LLP,
counsel for the Authority, to furnish to the Representatives its opinion,
dated the Closing Date and addressed to the Representatives, to the effect
that:
(i) the Tribe is a federally recognized Indian tribe with authority to
enter into and perform its obligations under the Agreements. The
Constitution of the Tribe, as amended and restated in its entirety and
approved on April 12, 1996 (the "Constitution"), is effective
according to its terms and is the law of the Tribe;
(ii) the Mohegan Tribal Council (the "Tribal Council") is the
governing body of the Tribe, with power to bind the Tribe and to cause
the Tribe to enter into the Agreements, except insofar as its power
regarding agreements relating to gaming was delegated to the Authority
by the 1995 Amendment, Article XIII, and Mohegan Ordinance No.
95-7/15-1, "An Ordinance Establishing the Mohegan Tribal Gaming
Authority" (the "Gaming Authority Ordinance"), which was adopted and
made effective July 15, 1995. The Tribal Council and other officers of
the Tribe and the Management Board and the other officers of the
Authority that have approved, authorized the execution, and executed
the Agreements and possess authority to execute the Agreements and to
bind the Tribe and Authority thereto;
(iii) the Senior Indenture and the Senior Subordinated Indenture have
each been duly authorized, executed and delivered on behalf of the
Tribe and the Authority, and each constitutes a valid and binding
obligation of the Authority and the Tribe, enforceable against the
Authority and the Tribe in accordance with its terms (except, as the
enforcement thereof may be limited by bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other laws
regarding fraudulent conveyances, fraudulent transfers and
preferential transfers) and as may be limited by the exercise of
judicial discretion and the application of principles of equity
including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether the
Senior Indenture or Senior Subordinated Indenture is considered in a
proceeding at law or in equity) and conform in all material respects
to the descriptions thereof contained in the Final Memorandum under
the caption "Description of Notes;" the Senior Securities and the
Senior Subordinated Securities have
13
each been duly authorized on behalf of the Authority and, assuming due
execution, authentication, issuance and delivery in accordance with
the provisions of the Senior Indenture or the Senior Subordinated
Indenture, as the case may be, will each constitute a valid and
binding obligation of the Authority entitled to the benefits of the
Senior Indenture or the Senior Subordinated Indenture, as the case may
be, in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights (including, without limitation, the effect of statutory and
other laws regarding fraudulent conveyances, fraudulent transfers and
preferential transfers) and as may be limited by the exercise of
judicial discretion and the application of principles of equity
including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether the
Senior Securities or Senior Subordinated Securities are considered in
a proceeding at law or in equity) and conform in all material respects
to the descriptions thereof contained in the Final Memorandum under
the caption "Description of Notes;" the Senior Registration Rights
Agreement and the Senior Subordinated Registration Rights Agreement
have each been duly authorized, executed and delivered on behalf of
the Authority and constitute a valid and binding obligation of the
Authority, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other laws
regarding fraudulent conveyances, fraudulent transfers and
preferential transfers) and as may be limited by the exercise of
judicial discretion and the application of principles of equity
including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether the
Senior Registration Rights Agreement or Senior Subordinated
Registration Rights Agreement is considered in a proceeding at law or
in equity) and conform in all material respects to the description
thereof contained in the Final Memorandum under the caption
"Description of Notes;"
(iv) the information in the Final Memorandum under the headings
"Certain Federal Income Tax Consequences," "Business--The Expansion,"
"Business--Environmental Matters," "Description of Other
Indebtedness," "Mohegan Tribe of Indians of Connecticut," "Government
Regulation" and "Other Material Agreements" insofar as such
information constitutes matters of law or legal conclusions, or
purports to describe certain provisions of specified documents, has
been reviewed by such counsel and is correct, in all material
respects;
(v) no consent, approval, authorization, filing with or order of any
federal court or governmental agency or body is required to be
obtained or made by the Authority or the Tribe in connection with the
execution, delivery or performance as of the date hereof by each of
the Authority or
14
the Tribe of the Indentures and the Registration Rights Agreements
except (A) such as may be required under federal securities laws and
regulations or under the blue sky or securities laws of any
jurisdiction in connection with the purchase and sale of the
Securities by the Initial Purchasers in the manner contemplated in
this Purchase Agreement and the Final Memorandum and the Registration
Rights Agreements (B) such as may be required to be obtained or made
from or to the NIGC or its Chairman, the Secretary, or the BIA and
such other approvals (specified in such opinion) as have been
obtained;
(vi) the execution, delivery and performance as of the date hereof by
the Authority and the Tribe of the Indentures, this Purchase
Agreement, the Registration Rights Agreements, the issue and sale of
the Securities and the consummation as of the date hereof by the
Authority and the Tribe of the transactions contemplated thereby do
not (i) violate the Constitution, as amended, the Gaming Authority
Ordinance, Mohegan Ordinance No. 95-4 (adopted July 20, 1995), "An
Ordinance Establishing the Gaming Disputes Court" (the "Gaming
Disputes Court Ordinance"), the Mohegan Tribal Gaming Ordinance or the
Mohegan Compact; (ii) breach or constitute a default under certain
material contracts and agreements as enumerated by such counsel; or
(iii) to such counsel's knowledge, violate any federal statute or
regulation applicable to the Authority or the Tribe (other than
federal securities statutes and regulations, certain matters with
respect to which will be addressed elsewhere in such counsel's
opinion) or any existing judgment, order or decree of any court or
governmental agency that is binding on, the Authority or the Tribe;
(vii) assuming (A) the accuracy of the representations and warranties
of the Authority set forth in paragraphs (c), (d) and (e) in Section 1
of this Purchase Agreement and the Initial Purchasers set forth in
Section 4 of this Purchase Agreement, (B) the due performance by the
Authority of the covenants and agreements set forth in paragraphs (e),
(f), (g) and (j) of Section 5 of this Purchase Agreement and the due
performance by the Initial Purchasers of the covenants and agreements
set forth in Section 4 of this Purchase Agreement, (C) the Initial
Purchasers' compliance with the offering and transfer procedures
described in the Final Memorandum, (D) the accuracy of the
representations and warranties made in accordance with this Purchase
Agreement and the Final Memorandum by the Initial Purchasers and (E)
that each of the Initial Purchasers is either a "qualified
institutional buyer" as defined in Rule 144A of the Act or a person
who is not "U.S. person," in offers and sales outside the United
States made in reliance on Regulation S under the Act, it is not
necessary in connection with the offer, sale and delivery of the
Securities in the manner contemplated by this Purchase Agreement to
register the Securities under the Act or to qualify the Indentures
under the Trust Indenture Act of 1939,
15
it being understood that no opinion need be expressed as to any resale
of Securities subsequent to the initial resale thereof by the Initial
Purchasers;
(viii) the Authority is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Memorandum, will not be an "investment
company" as defined in the Investment Company Act;
(ix) the waivers of sovereign immunity from unconsented suit by the
Tribe and the Authority contained in the Agreements, as applicable,
are in compliance in all material respects with applicable federal and
tribal law and constitute valid and binding obligations of the Tribe
and the Authority, enforceable against the Tribe and the Authority in
accordance with their respective terms (including, without limitation,
the effect of statutory and other laws regarding fraudulent
conveyances, fraudulent transfers and preferential transfers) and as
may be limited by the exercise of judicial discretion and the
application of principles of equity including, without limitation,
requirements of good faith, fair dealing, conscionability and
materiality (regardless of whether the Agreements are considered in a
proceeding at law or in equity);
(x) the choice of governing law by the Authority and the Tribe
contained in the Agreements is in compliance in all material respects
with applicable federal and tribal law and constitutes a valid and
binding obligation of the Tribe and the Authority, enforceable against
the Tribe and the Authority in accordance with its terms (including,
without limitation, the effect of statutory and other laws regarding
fraudulent conveyances, fraudulent transfers and preferential
transfers) and as may be limited by the exercise of judicial
discretion and the application of principles of equity including,
without limitation, requirements of good faith, fair dealing,
conscionability and materiality (regardless of whether the Agreements
are considered in a proceeding at law or in equity);
(xi) there is no requirement, under the Indian Gaming Regulatory Act
of 1988 that any Note Holder, solely in his or her capacity as a Note
Holder, apply for or receive any individual license, any individual
certificate, or any other individual authorization from any federal
authority to acquire or retain the rights of a Note Holder under the
Indentures; and
(xii) the Construction Reserve Disbursement Agreement has been duly
authorized, executed and delivered on behalf of the Authority and
Tribe and constitutes a valid and binding obligation of both the
Authority and the Tribe, enforceable against the Authority and the
Tribe in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights (including, without limitation,
the effect of statutory and other laws regarding fraudulent
conveyances, fraudulent
16
transfers and preferential transfers) and as may be limited by the
exercise of judicial discretion and the application of principles of
equity including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether the
Construction Reserve Disbursement Agreement is considered in a
proceeding at law or in equity) and conform in all material respects
to the description thereof contained in the Final Memorandum under the
caption "Description of Notes."
Such counsel shall also indicate that while they have not undertaken to
determine independently and do not assume any responsibility for, the accuracy,
completeness, or fairness of the statements in the Final Memorandum, that no
facts have come to their attention which cause them to believe that (i) the
Final Memorandum, as of its date and as of the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (ii) there are any
legal or governmental proceedings pending or threatened against the Tribe and
the Authority that are required to be disclosed in the Final Memorandum, other
than those disclosed therein, or (iii) there are any contracts or documents of a
character required to be described in the Final Memorandum that are not
described or referred to therein; provided that in making the foregoing
statements (which shall not constitute an opinion), such counsel need not
express any views as to the financial statements and supporting schedules and
other financial and statistical information and data included in or omitted from
the Final Memorandum.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent they deem proper on certificates of responsible officers of the
Authority and the Tribe. References to the Final Memorandum in this Section 6(a)
include any amendment or supplement thereto at the Closing Date.
(b) The Authority shall have requested and caused Rome XxXxxxxx
Xxxxxxxx, P.C., counsel for The Tribe, to furnish to the Representatives
its opinion, dated the Closing Date and addressed to the Representatives,
to the effect that:
(i) the Tribe is a federally recognized Indian tribe, with full
authority to enter into, and perform its obligations under, the
Agreements. The Constitution of the Tribe, amended and restated in its
entirety and approved on April 12, 1996 (the "Constitution"), was
validly adopted by the Tribe, is effective according to its terms, and
is the law of the Tribe;
(ii) the Tribal Council (the "Tribal Council") is the governing body
of the Tribe, with full power to bind the Tribe and to cause the Tribe
to enter into the Agreements, except insofar as its power regarding
agreements relating to gaming was delegated to the Authority by the
1995 Amendment to the Constitution, Article XIII, and Mohegan
Ordinance No. 95-7/15-1, "An Ordinance Establishing the Mohegan Tribal
Gaming Authority" (the "Gaming Authority Ordinance"), which was
adopted and made effective July 15, 1995. The Tribal Council and other
officers of the Tribe and the
17
Management Board and the other officers of the Authority that have
approved, authorized the execution, and executed the Agreements, are
the duly elected or appointed officers of the Tribe and the Authority,
and possess full authority to execute the Agreements and to bind the
Tribe and Authority thereto;
(iii) the Gaming Authority Ordinance was validly adopted by the Tribal
Council, and is the governing law of the Tribe. The Authority is a
duly established and validly existing instrumentality of the Tribe;
(iv) the Mohegan Compact has been duly entered into and validly
authorized by the State of Connecticut and the Tribe, has been duly
approved by the Secretary of the Interior of the United States, such
approval has been duly published in the Federal Register, and no
further action is required to make the Mohegan Compact effective;
(v) the Mohegan Tribal Gaming Ordinance (the "Gaming Ordinance") was
validly adopted by the Tribal Council, and validly approved by the
National Indian Gaming Commission, and, as supplemented by the Gaming
Authority Ordinance and the Gaming Disputes Court Ordinance, is the
governing law of the Tribe;
(vi) the Gaming Disputes Court of the Tribe (the "Gaming Disputes
Court"), created by the Amendment to the Constitution and by Mohegan
Ordinance No. 95-4 (adopted July 20, 1995), "An Ordinance Establishing
the Gaming Disputes Court" (the "Gaming Disputes Court Ordinance"), is
a validly established judicial entity of the Tribe, having exclusive
jurisdiction for the Tribe over all disputes related to gaming on the
lands of the Tribe. The adoption by the Tribal Council in the Gaming
Disputes Ordinance of the rules of civil and appellate procedure, and
professional and judicial conduct, to govern the Gaming Disputes
Court, and the further adoption by the Tribal Council in "An Ordinance
Concerning Procedures for Appeal to the Gaming Disputes Court,"
Mohegan Ordinance No. 95-6 (adopted September 21, 1995) of procedures
for certain appeals to the Gaming Disputes Court, are valid and
effective acts of the Tribal Council, and those rules and procedures
are the law of the Tribe;
(vii) there is no requirement, under the Mohegan Compact, or the
Gaming Authority Ordinance, or the Gaming Ordinance, or any other law
of the Tribe, that any Note Holder, solely in his or her capacity as a
Note Holder, apply for or receive any individual license, any
individual certificate, or any other individual authorization from any
federal, state, or tribal governmental authority, to acquire or retain
the rights of a Note Holder under the Senior Indenture or the Senior
Subordinated Indenture; and
18
(viii) no consent, approval, authorization, filing with or order of
any tribal or Connecticut court or governmental agency or body is
required to be obtained or made by the Authority or the Tribe in
connection with the execution, delivery or performance as of the date
hereof by each of the Authority or the Tribe of the Senior Indenture,
the Senior Subordinated Indenture, the Senior Registration Rights
Agreement, the Senior Subordinated Registration Rights Agreement and
the Concurrent Transactions, except (A) such as may be required under
federal securities laws and regulations or under the blue sky or
securities laws of any jurisdiction in connection with the purchase
and sale of the Securities by the Initial Purchasers in the manner
contemplated in this Purchase Agreement and the Final Memorandum and
the Registration Rights Agreements (B) such as may be required to be
obtained or made from or to the NIGC or its Chairman, the Secretary,
or the BIA and such other approvals (specified in such opinion) as
have been obtained.
(c) Representatives shall have received from Xxxxxx & Xxxxxxx, counsel
for the Initial Purchasers, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Indentures, the Registration Rights Agreements,
the Final Memorandum (as amended or supplemented at the Closing Date) and
other related matters as the Representatives may reasonably require, and
the Authority shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Authority shall have furnished to the Representatives a
certificate of the Authority, signed by the Chairman of the Management
Board dated the Closing Date to the effect that he has carefully examined
the Final Memorandum, any amendment or supplement to the Final Memorandum
and this Purchase Agreement and that:
(i) the representations and warranties of the Authority in this
Purchase Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date, and the Authority has complied with all the agreements
and satisfied all the conditions on their its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(ii) since the date of the most recent financial statements included
in the Final Memorandum (exclusive of any amendment or supplement
thereto), there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Authority, whether or not arising from transactions on the
ordinary course of business except as set forth in or contemplated by
the Final Memorandum (exclusive of any amendment or supplement
thereto); and
(iii) no action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency
which
19
would, as of the date hereof, prevent the issuance of the Senior Notes
and the Senior Subordinated Notes. No action, suit or proceeding had
been commenced and is pending against or affecting or, to the best
knowledge of the Authority, threatened against the Authority before
any court or arbitrator or any governmental body, agency or official
that, if adversely determined, could reasonably be expected to result
in a material adverse effect on the Authority.
(e) At the Execution Time, the Representatives shall have received
from Xxxxxx Xxxxxxxx LLP, a letter, dated as of the Execution Time, in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act
and the applicable rules and regulations thereunder, containing statements
and information of the type ordinarily included in an accountant's "comfort
letters" to Representatives, delivered according to Statement of Auditing
Standards Nos. 72 and 76 (or any successor bulletins), with respect to the
audited and unaudited financial statements and certain financial
information contained in the Final Memorandum.
(f) At the Closing Date, the Representatives shall have received from
Xxxxxx Xxxxxxxx LLP, a "bring down comfort letter," dated as of the Closing
Date.
References to the Final Memorandum in Sections 6(e) - 6(f) include any
amendment or supplement thereto at the date of the applicable letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum (exclusive of any
amendment or supplement thereto), there shall not have been (i) any change
or decrease specified in the letter or letters referred to in paragraphs
(e) and (f) of this Section 6; or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), prospects, earnings, business or properties of the Authority,
except as set forth in or contemplated in the Final Memorandum (exclusive
of any amendment or supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to market the Securities as contemplated by the Final
Memorandum (exclusive of any amendment or supplement thereto).
(h) The Securities shall have been designated as PORTAL-eligible
securities in accordance with the rules and regulations of the NASD, and
the Securities shall be eligible for clearance and settlement through The
Depositary Trust Company.
(j) Prior to the Closing Date, the Authority shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
(k) The Authority shall have entered into (i) the Bank Credit
Facility; (ii) the Registration Rights Agreements; (iii) the Construction
Reserve Disbursement
20
Agreement; (iv) the Indentures; and (v) the Initial Purchasers shall have
received executed counterparts thereof.
(l) The Authority shall have (i) purchased, simultaneous with the
Offering, all of the Authority's 13 1/2% Senior Secured Notes due 2002 with
Cash Flow Participation Interest (the "Existing Secured Notes") that were
tendered pursuant to the Offer to Purchase and Consent Solicitation, dated
as of January 15, 1999 (the "Offer to Purchase"), and the Initial
Purchasers shall have received such documentation as they may reasonably
request to evidence the purchase thereof and (ii) executed the Supplemental
Indenture, between the Authority and First Union National Bank, as
specified in the Offer to Purchase.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Purchase
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Purchase Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel
for the Initial Purchasers, this Purchase Agreement and all obligations of the
Initial Purchasers hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be given
to the Authority in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be delivered
at the office of counsel for the Initial Purchasers, at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided for
herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Authority to perform any agreement
herein or comply with any provision hereof other than by reason of a default by
any of the Initial Purchasers, the Authority will reimburse the Initial
Purchasers severally through Xxxxxxx Xxxxx Xxxxxx Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution.
(a) The Authority agrees to indemnify and hold harmless each Initial
Purchaser, the directors, officers, employees and agents of each Initial
Purchaser and each person who controls any Initial Purchaser within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Memorandum, the Final Memorandum (or in any
supplement or amendment thereto) or any information provided by the Authority to
any holder or prospective purchaser of Securities pursuant to Section 5(h), or
in any amendment
21
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Authority will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in the Preliminary
Memorandum or the Final Memorandum, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information relating to
an Initial Purchaser furnished to the Authority by or on behalf of any Initial
Purchaser through the Representatives specifically for inclusion therein; and
provided, further, that the foregoing indemnity agreement with respect to the
Final Memorandum shall not inure to the benefit of the Purchasers from whom the
person asserting or causing any such losses, claims, damages or liabilities
purchased Securities (or to the benefit of any person controlling any Initial
Purchaser or any directors, officers, employees and agents of any Initial
Purchaser), if a copy of the Final Memorandum (or the Final Memorandum as
amended or supplemented) (if the Authority shall have timely furnished the
Initial Purchasers with sufficient copies thereof) was not sent or given by or
on behalf of the Initial Purchasers to such person at or prior to the written
confirmation of the sale of the Securities to such person and if the Final
Memorandum (or the Final Memorandum as amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage or liability. This indemnity
agreement will be in addition to any liability which the Authority may otherwise
have.
(b) Each Initial Purchaser severally and not jointly agrees to indemnify
and hold harmless the Authority, its directors, officers, and each controlling
person within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Authority to each Initial Purchaser,
but only with reference to written information relating to such Initial
Purchaser furnished to the Authority by or on behalf of such Initial Purchaser
through the Representatives specifically for inclusion in the Preliminary
Memorandum or the Final Memorandum (or in any amendment or supplement thereto).
This indemnity agreement will be in addition to any liability which any Initial
Purchaser may otherwise have. The Authority acknowledges that (i) the statements
set forth in the last paragraph of the cover page regarding the delivery of the
Securities, (ii) the legend on page (iii) concerning stabilization, syndicate
covering transactions and penalty bids and, the related disclosure under the
heading "Plan of Distribution," and (iii) the sentences related to concessions
and reallowances in the Preliminary Memorandum and the Final Memorandum,
constitute the only information furnished in writing by or on behalf of the
Initial Purchasers for inclusion in the Preliminary Memorandum or the Final
Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event,
22
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel, which counsel shall be reasonably satisfactory to the
indemnified party, and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, in which case the indemnifying party may
select another counsel subject to this clause (i); (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Authority and the Initial Purchasers agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Authority and one or more
of the Initial Purchasers may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Authority on the one hand and by
the Initial Purchasers on the other from the offering of the Securities;
provided, however, that in no case shall any Initial Purchaser (except as may be
provided in any agreement among the Initial Purchasers relating to the offering
of the Securities) be responsible for any amount in excess of the purchase
discount or commission applicable to the Securities purchased by such Initial
Purchaser hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Authority and the Initial Purchasers
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Authority on the one hand
and of the Initial Purchasers on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Authority shall be deemed to be equal
to the total net proceeds from the offering (before deducting expenses) received
by them, and benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions in each case set forth on
the
23
cover of the Final Memorandum. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Authority on the one hand or the Initial
Purchasers on the other, the intent of the parties and their relative knowledge,
information and opportunity to correct or prevent such untrue statement or
omission. The Authority and the Initial Purchasers agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Initial Purchaser within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of an Initial Purchaser shall have the same rights to contribution as such
Initial Purchaser, and each person who controls the Authority within the meaning
of either the Act or the Exchange Act and each officer and director of the
Authority shall have the same rights to contribution as the Authority subject in
each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial Purchasers
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Purchase Agreement, the remaining Initial Purchasers shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Initial Purchasers) the Securities which the defaulting Initial Purchaser or
Initial Purchasers agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule I hereto, the
remaining Initial Purchasers shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Initial Purchasers do not purchase all the Securities, this
Purchase Agreement will terminate without liability to any nondefaulting Initial
Purchaser or the Authority. In the event of a default by any Initial Purchaser
as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine
in order that the required changes in the Final Memorandum or in any other
documents or arrangements may be effected. Nothing contained in this Purchase
Agreement shall relieve any defaulting Initial Purchaser of its liability, if
any, to the Authority or any nondefaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. Termination. This Purchase Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Authority
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange; (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities; or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in
24
the sole judgment of the Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Memorandum (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Authority
or its officers and of the Initial Purchasers set forth in or made pursuant to
this Purchase Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Initial Purchasers or the Authority or
any of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Purchase Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax no. (212)
000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Xxxxxx Inc. at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: General Counsel; or, if
sent to the Authority, will be mailed, delivered or telefaxed to the Mohegan
Tribal Gaming Authority, (fax no. (000) 000-0000), 0 Xxxxxxx Xxx Xxxxxxxxx,
Xxxxxxxxxx, XX 00000, Attn: Xxxxxx X. Xxxxxx.
13. No Personal Liability. Neither the Tribe nor any director, officer,
office holder, employee or agent, representative or member of the Authority or
the Tribe or holder of an ownership interest of the Authority or the Tribe, as
such in their individual capacities, shall have any liability for any
obligations of the Authority or the Tribe under this Purchase Agreement.
14. Consent to Suit. The Tribe does not consent to the enforcement, levy,
or other execution of any judgment for money or other damages against any
assets, real or personal, of the Tribe, except that the Tribe and the Authority
consent to the enforcement and execution of any judgment, whether obtained as a
result of judicial, administrative, or arbitrational proceeding, against any
assets of the Authority. Subject to the foregoing, the Tribe and Authority waive
their respective sovereign immunity from unconsented suit, whether such suit be
brought in law or in equity, or in administrative proceedings or proceedings in
arbitration, to permit the commencement, maintenance, and enforcement of any
action, by any person with standing to maintain an action, to interpret or
enforce the terms of this Purchase Agreement and to enforce and execute any
judgment resulting therefrom against the Authority or the assets of the
Authority. Notwithstanding any provisions of law or canon of construction, the
Tribe and the Authority each intends this waiver to be interpreted liberally to
permit the full litigation of disputes arising under to out of this Purchase
Agreement. Without limiting the generality of the foregoing, the Tribe and the
Authority waive their immunity from unconsented suit to permit the maintenance
of the following actions:
(a) Courts. The Tribe and the Authority each waive their immunity from
unconsented suit to permit any court of competent jurisdiction to (i)
enforce and interpret the terms of this Purchase Agreement and award and
enforce the award of damages against the Authority owing as a consequence
of a breach thereof, whether such award is the product of litigation,
administrative proceedings or arbitration, (ii) determine whether any
consent or approval of the Tribe or the Authority has been improperly
25
granted or unreasonably withheld; (iii) enforce any judgment prohibiting
the Tribe or the Authority from taking any action, or mandating or
obligating the Tribe or the Authority to take any action, including a
judgment compelling the Tribe or the Authority to submit to binding
arbitration; and (iv) adjudicate any claim under the Indian Civil Rights
Act of 1968, 25 U.S.C. ss. 1302 (or any successor statute).
(b) Arbitration. The Tribe and the Authority each waive their immunity
from unconsented suit to permit arbitrators, appointed and acting under the
commercial arbitration rule of the American Arbitration Association,
whenever and to the extent any agreement to submit a matter to arbitration
is made by the Tribe or by the Authority, to (i) enforce and interpret the
terms of this Purchase Agreement and to award and enforce the award of any
damages against the Authority owing as a consequence thereof; (ii)
determine whether any consent or approval of the Tribe or the Authority has
been unreasonably withheld; and (iii) enforce any judgment prohibiting the
Tribe or the Authority from taking any action, or mandating or obligating
the Tribe or the Authority to take any action, including a judgment
compelling the Tribe or the Authority to submit to binding arbitration.
15. Successors. This Purchase Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other person will have
any right or obligation hereunder.
16. Applicable Law. This Purchase Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
17. Counterparts. This Purchase Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
18. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
19. Definitions. The terms which follow, when used in this Purchase
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of Regulation
D.
"Agreements" shall mean the Indentures, the Registration Rights Agreements
and the Construction Reserve Disbursement Agreement.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
26
"Closing Date" shall mean March 3, 1999.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean, the date and time that this Purchase Agreement
is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
Purchase Agreement and your acceptance shall represent a binding agreement
between the Authority and the several Initial Purchasers.
[Purchase Agreement Signature Pages Follow]
27
Very truly yours,
Mohegan Tribal Gaming Authority
By
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
28
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By
-------------------------------
Name:
Title:
For themselves and the other several Initial
Purchasers named in Schedule I to
the foregoing Agreement.
29
Accepted and Agreed to as of the date above written
MOHEGAN TRIBE OF INDIANS OF CONNECTICUT
By
-------------------------------
Xxxxxx X. Xxxxxx
Chair of Tribal Council
30
SCHEDULE I
Principal Amount of Senior
Initial Purchasers Securities to be Purchased
------------------ --------------------------
Xxxxxxx Xxxxx Xxxxxx Inc............................ $130,000,000
NationsBanc Xxxxxxxxxx Securities LLC............... $ 35,000,000
XX Xxxxx Securities Corporation..................... $ 15,000,000
Bear, Xxxxxxx & Co. Inc. ........................... $ 10,000,000
BancBoston Xxxxxxxxx Xxxxxxxx Inc. ................. $ 5,000,000
Fleet Securities, Inc. $ 5,000,000
------------
Total.................... $200,000,000
Principal Amount of Senior
Initial Purchasers Subordinated Securities
----------------- to be Purchased
--------------------------
Xxxxxxx Xxxxx Xxxxxx Inc............................ $195,000,000
NationsBanc Xxxxxxxxxx Securities LLC............... $ 52,500,000
XX Xxxxx Securities Corporation..................... $ 22,500,000
Bear, Xxxxxxx & Co. Inc............................. $ 15,000,000
BancBoston Xxxxxxxxx Xxxxxxxx Inc................... $ 7,500,000
Fleet Securities, Inc. $ 7,500,000
------------
Total.................... $300,000,000
31
EXHIBIT A
Selling Restrictions for Offers and
Sales outside the United States
(1)
(a) The Securities have not been and will not be registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. Each Initial Purchaser represents and agrees that, except as otherwise
permitted by Section 4(a)(i) of the Agreement to which this is an exhibit, it
has offered and sold the Securities, and will offer and sell the Securities, (i)
as part of their distribution at any time; and (ii) otherwise until 40 days
after the later of the commencement of the offering and the Closing Date, only
in accordance with Rule 903 of Regulation S under the Act. Accordingly, each
Initial Purchaser represents and agrees that neither it, nor any of its
Affiliates nor any person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities, and that
it and they have complied and will comply with the offering restrictions
requirement of Regulation S. Each Initial Purchaser agrees that, at or prior to
the confirmation of sale of Securities (other than a sale of Securities pursuant
to Section 4(a)(i) of the Agreement to which this is an exhibit), it shall have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it during the distribution
compliance period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Act") and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons (i)
as part of their distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the offering and February __, 1999,
except in either case in accordance with Regulation S or Rule 144A under
the Act. Terms used above have the meanings given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it has not
entered and will not enter into any contractual arrangement with any distributor
with respect to the distribution of the Securities, except with its Affiliates
or with the prior written consent of the Authority.
(c) Terms used in this section have the meanings given to them by
Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has not
offered or sold, and will not offer or sell, in the United Kingdom, by means of
any document, any Securities other than to persons whose ordinary business it is
to buy or sell shares or debentures, whether as principal or as agent (except in
circumstances which do not constitute an offer to the public within the meaning
of the Companies Act 1989 of Great Britain); (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 of the
United Kingdom
A-1
with respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Securities to a person who is of a kind
described in Article 9(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
A-2
