Exhibit 4.5
SENIOR
REGISTRATION RIGHTS AGREEMENT
Dated as of March 3, 1999
by and among
MOHEGAN TRIBAL GAMING AUTHORITY
and
XXXXXXX XXXXX XXXXXX INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XX XXXXX SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
FLEET SECURITIES, INC.
This Senior Registration Rights Agreement (this "Agreement") is made and
entered into as of March 3, 1999, by and among the Mohegan Tribal Gaming
Authority (the "Authority") an instrumentality of the Mohegan Tribe of Indians
of Connecticut (the "Tribe"), and Xxxxxxx Xxxxx Barney Inc., NationsBanc
Xxxxxxxxxx Securities LLC, XX Xxxxx Securities Corporation, Bear, Xxxxxxx & Co.
Inc., BancBoston Xxxxxxxxx Xxxxxxxx Inc. and Fleet Securities, Inc. (each an
"Initial Purchaser" and, collectively, the "Initial Purchasers"), each of whom
has agreed to purchase the Authority's 8 1/8% Initial Senior Notes due 2006 (the
"Initial Senior Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated February
24, 1999, (the "Purchase Agreement"), by and among the Authority, the Tribe and
the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Initial Senior Notes, the Authority has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Initial Purchasers set forth in Section
6 of the Purchase Agreement. Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to them in the Senior Notes Indenture,
dated March 3, 1999, between the Authority, the Tribe and First Union National
Bank, as Trustee, relating to the Initial Senior Notes and the Senior Exchange
Notes (the "Senior Notes Indenture").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings.
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day except a Saturday, Sunday or other day in the City of
New York, or in the city of the corporate trust office of the Trustee, on which
banks are authorized to not open for business.
Certificated Securities: Definitive Senior Notes, as defined in the Senior
Notes Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes of
this Agreement upon the occurrence of (a) the filing and effectiveness under the
Act of the Exchange Offer Registration Statement relating to the Senior Exchange
Notes to be issued in the Exchange Offer, (b) the maintenance of such Exchange
Offer Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the period required pursuant to
Section 3(b) hereof and (c) the delivery by the Authority to the Registrar under
the Senior Notes Indenture of Senior Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Initial Senior Notes
tendered by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
1
Exchange Notes: The Authority's 8 1/8% Senior Exchange Notes due 2006 to be
issued pursuant to the Senior Notes Indenture: (i) in the Exchange Offer or (ii)
as contemplated by Section 4 hereof.
Exchange Offer: (A) The exchange and issuance by the Authority of a
principal amount of Senior Exchange Notes (which shall be registered pursuant to
the Exchange Offer Registration Statement) equal to the outstanding principal
amount of Initial Senior Notes that are tendered by such Holders in connection
with such exchange and issuance and (B) the exchange and issuance by the
Authority of a principal amount of Senior Subordinated Exchange Notes (which
shall be registered pursuant to the Exchange Offer Registration Statement) equal
to the outstanding principal amount of Initial Senior Subordinated Notes that
are tendered by such Holders in connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose to
sell the Initial Senior Notes to certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Act, and pursuant to Regulation S
under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Prospectus: The prospectus included in a Registration Statement at the time
such Registration Statement is declared effective, as amended or supplemented by
any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Authority
relating to (a) an offering of Senior Exchange Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, in each case, (i) that is filed
pursuant to the provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: Each (A) Initial Senior Note, until the
earliest to occur of (i) the date on which such Initial Senior Note is exchanged
in the Exchange Offer for a Senior Exchange Note which is entitled to be resold
to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Act, (ii) the date on which such Initial Senior
Note has been disposed of in
2
accordance with a Shelf Registration Statement (and the purchasers thereof have
been issued Senior Exchange Notes), or (iii) the date on which such Initial
Senior Note is distributed to the public pursuant to Rule 144 under the Act and
each (B) Senior Exchange Note held by a Broker Dealer until the date on which
such Senior Exchange Note is disposed of by a Broker-Dealer pursuant to the
"Plan of Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
Tribe: The Mohegan Tribe of Indians of Connecticut, a sovereign tribe
recognized by the United States of America pursuant to 25 C.F.R. Section 83.
SECTION 2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Authority shall (i) cause the Exchange Offer Registration Statement
to be filed with the Commission as soon as practicable after the Closing Date,
but in no event later than 90 days after the Closing Date (such 90th day being
the "Filing Deadline"), (ii) use its best efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest possible time, but in
no event later than 150 days after the Closing Date (such 150th day being the
"Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Senior Exchange Notes
to be made under the Blue Sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, and (iv) upon the effectiveness of
such Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting (i)
registration of the Senior Exchange Notes to be offered in exchange for the
Initial Senior Notes that are Transfer Restricted Securities and (ii) resales of
Senior Exchange Notes by Broker-Dealers that tendered into the Exchange Offer
Initial Senior Notes that such Broker-Dealer acquired for its own account as a
result of market making activities or other trading activities (other than
Initial Senior Notes acquired directly from the Authority or any of its
Affiliates) as contemplated by Section 3(c) below.
(b) The Authority shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Authority shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Senior Exchange
Notes and the Senior Subordinated Exchange Notes shall be included in the
Exchange Offer Registration Statement. The Authority shall use its best efforts
to cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter (such 30th day being the
"Consummation Deadline").
(c) The Authority shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Initial Senior Notes acquired
directly from the Authority or any Affiliate of the Authority), may exchange
such Transfer Restricted Securities pursuant to the Exchange
3
Offer. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Transfer Restricted Securities held by any such Broker-Dealer, except
to the extent required by the Commission as a result of a change in policy,
rules or regulations after the date of this Agreement.
Because such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Senior
Exchange Notes received by such Broker-Dealer in the Exchange Offer, the
Authority shall permit the use of the Prospectus contained in the Exchange Offer
Registration Statement by such Broker-Dealer to satisfy such prospectus delivery
requirement. To the extent necessary to ensure that the prospectus contained in
the Exchange Offer Registration Statement is available for sales of Senior
Exchange Notes by Broker-Dealers, the Authority agrees to use its best efforts
to keep the Exchange Offer Registration Statement continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Section 6(a) and (c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of one year from the Consummation
Deadline or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold pursuant
thereto. The Authority shall provide sufficient copies of the latest version of
such Prospectus to such Broker-Dealers, promptly upon request, and in no event
later than one day after such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law (after the Authority has complied with the procedures set forth
in Section 6(a)(i) below) or (ii) if any Holder of Transfer Restricted
Securities shall notify the Authority within 20 Business Days following the
Consummation Deadline that (A) such Holder was prohibited by law or Commission
policy from participating in the Exchange Offer or (B) such Holder may not
resell the Senior Exchange Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Broker-Dealer and holds Initial
Senior Notes acquired directly from the Authority or any of its Affiliates, then
the Authority shall
(x) cause to be filed, on or prior to 30 days after the earlier of (i) the
date on which the Authority determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) above and (ii) the date
on which the Authority receives the notice specified in clause (a)(ii) above,
(such earlier date, the "Filing Deadline"), a shelf registration statement
pursuant to Rule 415 under the Act (which may be an amendment to the Exchange
Offer Registration Statement (the "Shelf Registration Statement")), relating to
all Transfer Restricted Securities, and
(y) shall use its best efforts to cause such Shelf Registration Statement
to become effective on or prior to 90 days after the Filing Deadline for the
Shelf Registration Statement (such 90th day the "Effectiveness Deadline").
If, after the Authority has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Authority is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e. clause (a)(i)
above), then the filing of the Exchange Offer Registration Statement shall be
deemed to satisfy the requirements of clause (x) above; provided that, in such
event, the Authority shall remain obligated to meet the Effectiveness Deadline
set forth in clause (y).
4
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Authority
shall use its best efforts to keep any Shelf Registration Statement required by
this Section 4(a) continuously effective, supplemented, amended and current as
required by and subject to the provisions of Sections 6(b) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i)) following
the Closing Date, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been
sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Authority in writing, within 20 days after receipt of a request therefor,
the information specified in Item 507 or 508 of Regulation S-K, as applicable,
of the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to additional interest pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to furnish promptly additional
information required to be disclosed in order to make the information previously
furnished to the Authority by such Holder not materially misleading.
SECTION 5. ADDITIONAL INTEREST
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (iii) the Exchange Offer has not
been Consummated on or prior to the Consummation Deadline or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded within 2 days by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself declared effective within 5 days of filing such post-effective amendment
to such Registration Statement (each such event referred to in clauses (i)
through (iv), a "Registration Default"), then the Authority hereby agrees to pay
to each Holder of Transfer Restricted Securities affected thereby additional
interest in an amount equal to 25 basis points per 90-day period of the
principal amount of Transfer Restricted Securities held by such Holder for the
90-day period or portion thereof that the Registration Default continues for the
first 90-day period immediately following the occurrence of such Registration
Default. The amount of the additional interest shall increase by an additional
25 basis points with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of additional
interest of 1% per annum of the principal amount of Transfer Restricted
Securities; provided that the Authority shall in no event be required to pay
additional interest for more than one Registration Default at any given time.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon Consummation of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of (iv) above, the additional interest
payable with respect to the Transfer Restricted Securities as a result of such
clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued additional interest shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Senior Notes
Indenture and the Senior Notes, on each Interest Payment Date, as more fully set
forth in the Senior Notes Indenture and the Senior Notes. Notwithstanding the
fact
that any securities for which additional interest is due cease to be Transfer
Restricted Securities, all obligations of the Authority to pay additional
interest with respect to securities shall survive until such time as such
obligations with respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Authority shall (x) comply with all applicable provisions of Section
6(c) below, (y) use its best efforts to effect such exchange and to permit the
resale of Senior Exchange Notes by Broker-Dealers that tendered in the Exchange
Offer Initial Senior Notes that such Broker-Dealer acquired for its own account
as a result of its market making activities or other trading activities (other
than Initial Senior Notes acquired directly from the Authority or any of its
Affiliates) being sold in accordance with the intended method or methods of
distribution thereof, and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a change in
Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Authority raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Authority hereby agrees to seek a no-action
letter or other favorable decision from the Commission staff allowing the
Authority to Consummate a Exchange Offer for such Transfer Restricted
Securities. In connection with the foregoing, the Authority hereby agrees
to take all actions as may be required in connection with the issuance of
such decision, including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the Commission staff an
analysis prepared by counsel to the Authority setting forth the legal
bases, if any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursuing a resolution (which
need not be favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker-Dealer) shall furnish, upon the request of the
Authority, prior to the Consummation of the Exchange Offer, a written
representation to the Authority (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an Affiliate of the Authority, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Senior Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Senior Exchange Notes in its ordinary course of business. As
a condition to its participation in the Exchange Offer, each Holder using
the Exchange Offer to participate in a distribution of the Senior Exchange
Notes shall acknowledge and agree that, if the resales are of Senior
Exchange Notes obtained by such Holder in exchange for Initial Senior Notes
acquired directly from the Authority or an Affiliate thereof, it (1) could
not, under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including, if applicable, any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be covered by
an effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Authority shall provide a supplemental letter to the
Commission (A) stating that the Authority is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), and Xxxxxx Xxxxxxx and Co.,
Inc. (available
6
June 5, 1991), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a representation that
the Authority has not entered into any arrangement or understanding with
any person to distribute the Senior Exchange Notes to be received in the
Exchange Offer and that, to the best of the Authority's information and
belief, each Holder participating in the Exchange Offer is acquiring the
Senior Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any person to participate in the
distribution of the Senior Exchange Notes received in the Exchange Offer
and (C) any other undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to clause (i) above,
if applicable.
(b) Shelf Registration Statement. In connection with the Shelf Registration
Statement, the Authority shall
(i) comply with all the provisions of Section 6(c) below and use its
best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information furnished
to the Authority pursuant to Section 4(b) hereof), and pursuant thereto the
Authority will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the
Act, which form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance
with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Initial
Senior Notes covered by any Shelf Registration Statement contemplated by
this Agreement, Senior Exchange Notes having an aggregate principal amount
equal to the aggregate principal amount of Initial Senior Notes sold
pursuant to the Shelf Registration Statement and surrendered to the
Authority for cancellation. The Authority shall register Senior Exchange
Notes on the Shelf Registration Statement for this purpose and issue the
Senior Exchange Notes to the purchaser(s) of securities subject to the
Shelf Registration Statement in the names as such purchaser(s) shall
designate.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Authority shall
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable.
Upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain an untrue
statement of material fact or omit to state any material fact necessary to
make the statements therein not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Authority shall file promptly an
appropriate amendment to such Registration Statement curing such defect,
and, if Commission review is required, use its best efforts to cause such
amendment to be declared effective as soon as practicable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be,
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in such Registration Statement or supplement to the Prospectus;
7
(iii) advise each Holder promptly and, if requested by such Holder,
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make
the statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Authority shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an 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;
(v) furnish to each Holder in connection with such exchange or sale,
if any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Holders in connection with such sale, if any, for a period
of at least five Business Days, and the Authority will use its best efforts
to reflect in each such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) when so filed with
the Commission, such comments proposed by such Holders. A Holder shall be
deemed to have objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading or
fails to comply with the applicable requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to each Holder in connection with such
exchange or sale, if any, make the Authority's representatives available
for discussion of such document and other customary due diligence matters,
and include such information in such document prior to the filing thereof
as such Holders may reasonably request;
(vii) make available, at reasonable times, for inspection by each
Holder and any attorney or accountant retained by such Holders, all
financial and other records, pertinent corporate documents of the Authority
and cause the Authority's officers, board members and employees to supply
all information reasonably requested by any such Holder, attorney or
accountant in
8
connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its effectiveness;
(viii) if requested by any Holders in connection with such exchange or
sale, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities, and make all
required filings of such Prospectus supplement or post-effective amendment
as soon as practicable after the Authority is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder in connection with such exchange or sale,
without charge, at least one copy of the Registration Statement, as first
filed with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(x) deliver to each Holder without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Authority
hereby consents to the use (in accordance with law) of the Prospectus and
any amendment or supplement thereto by each selling Holder in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(xi) upon the request of any Holder, enter into such agreements
(including underwriting agreements) and make such representations and
warranties and take all such other actions in connection therewith in order
to expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to any applicable Registration Statement contemplated
by this Agreement as may be reasonably requested by any Holder in
connection with any sale or resale pursuant to any applicable Registration
Statement. In such connection, the Authority shall
(A) upon request of any Holder, furnish (or in the case of
paragraphs (2) and (3), use its best efforts to cause to be furnished)
to each Holder, upon Consummation of the Exchange Offer or upon the
effectiveness of the Shelf Registration Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf of the
Authority by the Chairman of the Management Board confirming, as
of the date thereof, the matters set forth in Section 6(d) of the
Purchase Agreement and such other similar matters as such Holders
may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Authority covering such matters as such Holder may reasonably
request and are customarily given in similar offerings; and
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the case
may be, from the Authority's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 6(e) of the
Purchase Agreement; and
9
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance
with the matters covered in clause (A) above and with any customary
conditions contained in the any agreement entered into by the
Authority pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under
the securities or Blue Sky laws of such jurisdictions as the selling
Holders may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that the Authority shall not be required to register or
qualify as a foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such sale
of Transfer Restricted Securities;
(xiv) use its best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted Securities not
later than the effective date of a Registration Statement covering such
Transfer Restricted Securities and provide the Trustee under the Senior
Notes Indenture with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the Depository
Trust Company;
(xvi) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders with regard to any applicable Registration Statement,
as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) covering a 12-month
period beginning after the effective date of the Registration Statement (as
such term is defined in paragraph (c) of Rule 158 under the Act);
(xvii) cause the Senior Notes Indenture to be qualified under the TIA
not later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with the
Trustee and the Holders to effect such changes to the Senior Notes
Indenture as may be required for such Senior Notes Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its
best efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents required
to be filed with the Commission to enable such Senior Notes Indenture to be
so qualified in a timely manner; and
(xviii) provide promptly to each Holder, upon request, each document
filed with the Commission pursuant to the requirements of Section 13 or
15(d) of the Exchange Act.
10
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Authority of the existence of any
fact of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"Suspension Notice"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Authority that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus (in each case, the
"Recommencement Date"). Each Holder receiving a Suspension Notice hereby agrees
that it will either (i) destroy any Prospectuses, other than permanent file
copies, then in such Holder's possession which have been replaced by the
Authority with more recently dated Prospectuses or (ii) deliver to the Authority
(at the Authority's expense) all copies, other than permanent file copies, then
in such Holder's possession of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of the Suspension Notice. The
time period regarding the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended by a number of days
equal to the number of days in the period from and including the date of
delivery of the Suspension Notice to the date of delivery of the Recommencement
Date.
(e) Underwritten Offerings. No Holder may participate in any underwritten
Shelf Registration Statement hereunder unless such Holder (i) agrees to sell
such Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements entered into in connection therewith and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Authority's performance of or compliance
with this Agreement will be borne by the Authority, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Senior
Exchange Notes to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Authority and the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with listing the Senior
Exchange Notes on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Authority (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Authority will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any person, including special experts, retained by the
Authority.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Authority will reimburse
the Initial Purchasers and the Holders of Transfer Restricted Securities who are
tendering Initial Senior Notes into the Exchange Offer and/or selling or
reselling Initial Senior Notes or Senior Exchange Notes pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared. Notwithstanding the
foregoing, the Holders of any Initial Senior Notes or Exchange Senior Notes
being registered on the Shelf Registration Statement shall pay all agency or
brokerage fees and commissions and
11
underwriting discounts and commissions attributable to the sale of such Initial
Senior Notes or Exchange Senior Notes and the fees and disbursements of any
counsel retained by such Holders other than counsel referred to above.
SECTION 8. INDEMNIFICATION
(a) The Authority agrees to indemnify and hold harmless each Holder, its
directors, officers and each person, if any, who controls such Holder (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all losses, claims, damages, liabilities, judgments,
(including without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action that
could give rise to any such losses, claims, damages, liabilities or judgments)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary prospectus or Prospectus
(or any amendment or supplement thereto) provided by the Authority to any Holder
or any prospective purchaser of Senior Exchange Notes or registered Initial
Senior Notes, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by an untrue statement or omission or
alleged untrue statement or omission that is based upon information relating to
any of the Holders furnished in writing to the Authority by any of the Holders.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Authority and its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Authority to the same
extent as the foregoing indemnity from the Authority set forth in section (a)
above, but only with reference to information relating to such Holder furnished
in writing to the Authority by such Holder expressly for use in any Registration
Statement. In no event shall any Holder, its directors, officers or any person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general
12
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
indemnified parties and all such fees and expenses shall be reimbursed as they
are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 8(a), and by
the Authority, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than 20 Business Days after the indemnifying party shall have received a request
from the indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Authority, on the
one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 8(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Authority, on the one hand, and of the Holder, on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of the Authority, on the
one hand, and of the Holder, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Authority, on the one hand, or by the
Holder, on the other hand, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and judgments referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 8(a),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Authority and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any matter, including any action
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has
13
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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. The Holders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of
Transfer Restricted Securities held by each Holder hereunder and not joint.
SECTION 9. RULE 144A and RULE 144
The Authority agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Authority (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. CONSENT TO SUIT
The Authority waives its 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 Agreement, and to enforce and execute any
judgment resulting therefrom against the Authority or the assets of the
Authority. Notwithstanding any other provision of law or canon of construction,
the Authority intends this waiver to be interpreted liberally to permit the full
litigation of disputes arising under or out of this Agreement. Without limiting
the generality of the foregoing, the Authority waives its immunity from
unconsented suit to permit the maintenance of the following actions:
(i) Courts. The Authority waives its immunity from unconsented suit to
permit any court of competent jurisdiction to: (i) enforce and interpret
the terms of this Agreement, and award and enforce the award of damages
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 Authority has been
improperly granted or unreasonably withheld; (iii) enforce any judgment
prohibiting the Authority from taking any action, or mandating or
obligating the Authority to take any action, including a judgment
compelling 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).
(ii) Arbitration. The Authority waives its immunity from unconsented
suit to permit arbitrators, appointed and acting under the commercial
arbitration rules of the American Arbitration Association, whenever and to
the extent any agreement to submit a matter to arbitration is made by the
Authority, to: (i) enforce and interpret the terms of this Agreement and to
award and enforce the award of any damages owing as a consequence thereof;
(ii) determine whether any consent or approval of the Authority has been
unreasonably withheld; and (iii) enforce any judgment prohibiting the
Authority from taking any action, or mandating or obligating the Authority
to take any action, including a judgment compelling the Authority to submit
to binding arbitration.
SECTION 11. MISCELLANEOUS
(a) Remedies. The Authority acknowledges and agrees that any failure by the
Authority to comply with its obligations under Sections 3 and 4 hereof may
result in material irreparable injury to the
14
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Authority's
obligations under Sections 3 and 4 hereof. The Authority further agrees to waive
the defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Authority will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Authority's securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 11(c)(i), the Authority has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Authority has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Authority or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Authority, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent they may deem such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Senior Notes Indenture, with a copy to the Registrar
under the Senior Notes Indenture; and
(ii) if to the Authority:
Mohegan Tribal Gaming Authority
0 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
Xxxxx & Xxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X.X. Xxxxxx, Xx., Esq.
15
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee at the
address specified in the Senior Notes Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof or of the Purchase Agreement or the Senior Notes Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW).
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
MOHEGAN TRIBAL GAMING AUTHORITY
_______________________________
By:
Name:
Title:
XXXXXXX XXXXX BARNEY INC.
By:___________________________________
Name:
Title:
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By:___________________________________
Name:
Title:
XX XXXXX SECURITIES CORPORATION
By:___________________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:___________________________________
Name:
Title:
17
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
By:___________________________________
Name:
Title:
FLEET SECURITIES, INC.
By:___________________________________
Name:
Title:
18
================================================================================
CUSIP/CINS 608328 AA8
8 1/8% Senior Note due 2006
No. 1 $197,120,000
MOHEGAN TRIBAL GAMING AUTHORITY
promises to pay to Cede & Co.
or registered assigns,
the principal sum of One Hundred Ninety Seven Million, One Hundred Twenty
Thousand Dollars on January 1, 2006.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
Dated: March 3, 1999
MOHEGAN TRIBAL GAMING AUTHORITY
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
This is one of the Senior Notes referred to
in the within-mentioned Indenture:
FIRST UNION NATIONAL BANK,
as Trustee
By: __________________________________
Authorized Signatory
================================================================================
8 1/8% Senior Note due 2006
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE AUTHORITY.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED
UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER
EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE AUTHORITY THAT (A) SUCH SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE AUTHORITY SO
REQUESTS), SUBJECT TO THE RECEIPT BY THE REGISTRAR OF A CERTIFICATION OF THE
TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (2) TO THE AUTHORITY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTION SET FORTH IN (A) ABOVE.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST.
(a) The Mohegan Tribal Gaming Authority (the "Authority"), promises to pay
interest on the principal amount of this Senior Note at 8 1/8% per annum from
March 3, 1999 until maturity. The Authority will pay interest and Additional
Interest, if any, semi-annually in arrears on January 1 and July 1 of each year,
or if any such day is not a Business Day, on the next succeeding Business Day
(each an "Interest Payment Date"). Interest on the Senior Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that if there is no existing Default
in the payment of interest, and if this Senior Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment Date shall be July 1,
1999. The Authority shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest, if any, (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
(b) The Holder of this Senior Note is entitled to the benefits of the
Senior Registration Rights Agreement dated as of the date hereof, among the
Authority and the Initial Purchasers named therein (the "Senior Registration
Rights Agreement"). If (i) the Authority fails to file any of the Registration
Statements required by the Registration Rights Agreements on or before the date
specified for such filing, (ii) any of such Registration Statements is not
declared effective by the Commission on or prior to the date specified for such
effectiveness (the "Effectiveness Target Date"), (iii) the Authority fails to
consummate the Exchange Offer within 30 business days of the Effectiveness
Target Date with respect to the Exchange Offer Registration Statement, or (iv)
the Shelf Registration Statement or the Exchange Offer Registration Statement is
declared effective but thereafter ceases to be effective or usable in connection
with resales of Transfer Restricted Securities during the periods specified in
the Registration Rights Agreement (each such event referred to in clauses (i)
through (iv) above a "Registration Default"), then the Authority will pay
Additional Interest to each Holder of Senior Notes, with respect to the first
90-day period immediately following the occurrence of the first Registration
Default in an amount equal to 25 basis points per 90-day period of the principal
amount of Senior Notes held by such Holder. The amount of the Additional
Interest will increase by an additional 25 basis points with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of Additional Interest of 1% per annum of the principal amount
of Senior Notes.
(A) Except as expressly provided in this paragraph 1(b), Additional
Interest shall be treated as interest and any date on which Additional Interest
is due and payable shall be treated as an Interest Payment Date for all purposes
under this Senior Note and the Indenture.
(B) In the event that the Authority is required to pay Additional Interest
pursuant to this paragraph 1(b), the Authority shall notify the Trustee in
writing at least 15 days
prior to the first Interest Payment Date upon which such Additional Interest is
due; provided that, in the event that the obligation to pay such Additional
Interest occurs less than 15 days prior to such Additional Interest Date, such
notice shall be provided by the Authority to the Trustee as soon as reasonably
practicable prior to such Interest Payment Date.
2. METHOD OF PAYMENT. The Authority will pay interest on the Senior Notes
(except defaulted interest) and Additional Interest, if any, to the Persons who
are registered Holders of Senior Notes at the close of business on the December
15 or June 15 next preceding the Interest Payment Date, even if such Senior
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Senior Notes will be payable as to principal, premium
and Additional Interest, if any, and interest at the office or agency of the
Authority maintained for such purpose within or without the City and State of
New York, or, at the option of the Authority, payment of interest and Additional
Interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest, premium and Additional Interest on, all Global Senior Notes and all
other Senior Notes the Holders of which shall hold at least $1.0 million in
principal amount of Senior Notes and have provided wire transfer instructions to
the Authority or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, First Union National Bank, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The
Authority may change any Paying Agent or Registrar without notice to any Holder.
The Authority or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Authority issued the Senior Notes under an Indenture
dated as of March 3, 1999 ("Indenture") between the Authority and the Trustee.
The terms of the Senior Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code xx.xx. 77aaa-77bbbb). The Senior Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Senior Note
conflicts with the express provisions of the Indenture, the provisions of the
indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) The Authority may redeem all or a part of these Senior Notes upon not
less than 30 nor more than 60 days' notice, at a redemption price (expressed as
percentages of principal amount) equal to 100% of the principal amount thereof
plus the Applicable Premium, if any, plus accrued and unpaid interest thereon,
if any, to the applicable redemption date.
(b) Notwithstanding any other provisions of Article 3 of the Indenture, if
any Gaming Regulatory Authority requires that a Holder or beneficial owner of
the Notes be licensed, qualified or found suitable under any applicable gaming
laws in order to maintain any gaming license or franchise of the Authority under
any applicable gaming laws, and the Holder or beneficial owner fails to apply
for a license, qualification or finding of suitability within 30 days after
being requested to do so by such Gaming Regulatory Authority (or such lesser
period that
may be required by such Gaming Regulatory Authority) or if such Holder or
beneficial owner is not so licensed, qualified or found suitable, the Authority
has the right, at its option, (i) to require such Holder or beneficial owner to
dispose of such Holder's or beneficial owner's Senior Notes within 30 days of
receipt of such notice of such finding by the applicable Gaming Regulatory
Authority (or such earlier date as may be required by the applicable Gaming
Regulatory Authority) or (ii) to call for redemption of the Senior Notes of such
Holder or beneficial owner at a redemption price equal to the lesser of (1) the
principal amount thereof or (2) the price at which such Holder or beneficial
owner acquired the Senior Notes or (3) the current market price of the Senior
Notes, together with, in either case, accrued and unpaid interest and Additional
Interest, if any, to the earlier of the date of redemption or the date of the
finding of unsuitability by such Gaming Regulatory Authority, which may be less
than 30 days following the notice of redemption if so ordered by such Gaming
Regulatory Authority. The Authority shall not be required to pay or reimburse
any Holder or beneficial owner of Senior Notes who is required to apply for any
such license, qualification or finding of suitability for the costs of the
licensure or investigation for such qualification or finding of suitability.
Such expenses shall be the obligation of such Holder or beneficial owner.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Authority shall not be
required to make mandatory redemption payments with respect to the Senior Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Authority shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Senior Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest thereon, if any, to the date
of purchase (the "Change of Control Payment"). Within 20 Business Days following
any Change of Control, the Authority shall mail a notice to each Holder setting
forth the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Authority or a Subsidiary consummates any Asset Sales, within
five Business Days of each date on which the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Authority shall commence an offer to all Holders of
Senior Notes (as "Asset Sale Offer") pursuant to Section 3.10 of the Indenture
to purchase the maximum principal amount of Senior Notes that may be purchased
out of the Excess Proceeds at an offer price in cash in an amount equal to 100%
of the principal amount thereof plus accrued and unpaid interest and Additional
Interest thereon, if any, to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture. To the extent that
the aggregate amount of Senior Notes tendered pursuant to an Asset Sale Offer is
less than the Excess Proceeds, the Authority (or such Subsidiary) may use such
deficiency for any purpose not otherwise permitted by the Indenture. If the
aggregate principal amount of Senior Notes surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Senior Notes
to be purchased on a pro rata basis. Holders of Senior Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Authority prior to any related purchase date and may elect to have such Senior
Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Senior Notes.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Senior Notes are to be redeemed at its registered address. Senior Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Senior Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Senior
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Senior Notes may be registered and Senior Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Authority may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Authority need not
exchange or register the transfer of any Senior Note or portion of a Senior Note
selected for redemption, except for the unredeemed portion of any Senior Note
being redeemed in part. Also, the Authority need not exchange or register the
transfer of any Senior Notes for a period of 15 days before a selection of
Senior Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Senior Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Senior Subsidiary Guarantees or the Senior Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Senior Notes voting as a single class,
and any existing default or compliance with any provision of the Indenture, the
Senior Subsidiary Guarantees or the Senior Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Senior
Notes voting as a single class. Without the consent of any Holder of a Senior
Note, the Indenture, the Senior Subsidiary Guarantees or the Senior Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Senior Notes in addition to or in place of
certificated Senior Notes, to provide for the assumption of the Authority's or
Subsidiary Guarantor's obligations to Holders of the Senior Notes by a successor
to the Authority or such Subsidiary Guarantor, to make any change that would
provide any additional rights or benefits to the Holders of the Senior Notes or
that does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act, or to
allow any Subsidiary Guarantor to execute a supplemental indenture to the
Indenture and/or a Senior Subsidiary Guarantee with respect to the Senior Notes
provided that the Authority has obtained any required government approval to
ensure the enforceability of the Senior Notes and the Indenture.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest or Additional Interest on the Senior
Notes; (ii) default in payment when due of principal of or premium, if any, on
the Senior Notes when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or otherwise;
(iii) failure by the Authority or any of its Restricted Subsidiaries to comply
with Section 4.10 or 5.01 of the Indenture; (iv) failure by the Authority or any
of its Restricted Subsidiaries to observe or perform (A) any covenant described
in Section 4.07 or 4.09
of the Indenture for 30 days after notice to the Authority by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Senior Notes then
outstanding voting as a single class or (B) any other covenant, representation,
warranty or other agreement in the Indenture or the Senior Notes for 60 days
after notice to the Authority by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Senior Notes then outstanding voting as a
single class; (v) default under certain other agreements relating to
Indebtedness of the Authority or any of its Restricted Subsidiaries which
default results in the acceleration of such Indebtedness prior to its express
maturity; (vi) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; (vii) certain events of bankruptcy or
insolvency with respect to the Authority or any of its Restricted Subsidiaries;
(viii) revocation, termination, suspension or other cessation of effectiveness
of any Gaming License which results in the cessation or suspension of gaming
operations for a period of more than 90 consecutive days at the Resort; (ix)
cessation of gaming operations for a period of more than 90 consecutive days at
the Resort (other than as a result of a casualty loss); (x) the Lease ceases to
be in full force and effect; (xi) except as permitted by the Indenture, any
Senior Subsidiary Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Subsidiary Guarantor or any Person acting on its behalf shall deny
or disaffirm its obligations under such Subsidiary Guarantor's Senior Subsidiary
Guarantee; and (xii) failure by the Tribe to comply with the provisions of
Article 10 of the Indenture for 30 days after notice to the Authority and the
Tribe by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Senior Notes then outstanding voting as a single class. If any
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Senior Notes may declare
all the Senior Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Senior Notes will become due and payable without
further action or notice. Holders may not enforce the Indenture or the Senior
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Senior Notes
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Senior Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Senior
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Senior Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest on, or the principal of, the Senior Notes. The
Authority is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Authority is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH AUTHORITY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Authority or its Affiliates, and may otherwise deal with the Authority
or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A controlling person, director, officer,
employee or holder of an Ownership Interest of the Authority, as such, shall not
have any liability for any obligations of the Authority under the Senior Notes
or the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by
accepting a Senior Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Senior Notes.
15. AUTHENTICATION. This Senior Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SENIOR NOTES AND
RESTRICTED DEFINITIVE SENIOR NOTES. In addition to the rights provided to
Holders of Senior Notes under the Indenture, Holders of Restricted Global Senior
Notes and Restricted Definitive Senior Notes shall have all the rights set forth
in the Senior Registration Rights Agreement dated as of March 3, 1999, between
the Authority and the parties named on the signature pages thereof (the "Senior
Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Authority has
caused CUSIP numbers to be printed on the Senior Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Senior Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Authority will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Senior Registration Rights Agreement.
Requests may be made to:
Mohegan Tribal Gaming Authority
0 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:______________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Authority. The agent may substitute
another to act for him.
Date:__________________
Your Signature:_______________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
______________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Authority pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased by the
Authority pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$_______________________
Date:______________________
Your Signature:_______________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Indentification No.:______________________________
Signature Guarantee*:
______________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SENIOR NOTE
The following exchanges of a part of this Global Senior Note for an
interest in another Global Senior Note or for a Definitive Senior Note, or
exchanges of a part of another Global Senior Note or Definitive Senior Note for
an interest in this Global Senior Note, have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Senior Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Senior
Date of Exchange this Global Senior Note this Global Senior Note (or increase) Note Custodian
---------------- ----------------------- ----------------------- ---------------------- ---------------------
CUSIP/CINS U60742 AA8
8 1/8% Senior Note due 2006
No. 1 $2,880,000
MOHEGAN TRIBAL GAMING AUTHORITY
promises to pay to Cede & Co.
or registered assigns,
the principal sum of Two Million Eight Hundred Eighty Thousand Dollars on
January 1, 2006.
Interest Payment Dates: January 1, and July 1
Record Dates: December 15, and June 15
Dated: March 3, 1999
MOHEGAN TRIBAL GAMING AUTHORITY
By:___________________________________
Xxxxxx X. Xxxxxx
Chairman
By:___________________________________
Xxxxx X. Xxxxxxx
Vice Chair
This is one of the Senior Notes referred to
in the within-mentioned Indenture:
FIRST UNION NATIONAL BANK,
as Trustee
By: __________________________________
Authorized Signatory
================================================================================
8 1/8% Senior Note due 2006
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SENIOR NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SENIOR NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SENIOR NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR NOTES IN
DEFINITIVE FORM, THIS SENIOR NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"),
TO THE AUTHORITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED
UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER
EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE AUTHORITY THAT (A) SUCH SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
AUTHORITY SO REQUESTS), SUBJECT TO THE RECEIPT BY THE REGISTRAR OF A
CERTIFICATION OF THE TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (2) TO THE AUTHORITY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTION SET FORTH IN (A) ABOVE.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST.
(a) The Mohegan Tribal Gaming Authority (the "Authority"), promises to pay
interest on the principal amount of this Senior Note at 8 1/8% per annum from
March 3, 1999 until maturity. The Authority will pay interest and Additional
Interest, if any, semi-annually in arrears on January 1 and July 1 of each year,
or if any such day is not a Business Day, on the next succeeding Business Day
(each an "Interest Payment Date"). Interest on the Senior Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that if there is no existing Default
in the payment of interest, and if this Senior Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment Date shall be July 1,
1999. The Authority shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest, if any, (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
(b) The Holder of this Senior Note is entitled to the benefits of the
Senior Registration Rights Agreement dated as of the date hereof, among the
Authority and the Initial Purchasers named therein (the "Senior Registration
Rights Agreement"). If (i) the Authority fails to file any of the Registration
Statements required by the Registration Rights Agreements on or before the date
specified for such filing, (ii) any of such Registration Statements is not
declared effective by the Commission on or prior to the date specified for such
effectiveness (the "Effectiveness Target Date"), (iii) the Authority fails to
consummate the Exchange Offer within 30 business days of the Effectiveness
Target Date with respect to the Exchange Offer Registration Statement, or (iv)
the Shelf Registration Statement or the Exchange Offer Registration Statement is
declared effective but thereafter ceases to be effective or usable in connection
with resales of Transfer Restricted Securities during the periods specified in
the Registration Rights Agreement (each such event referred to in clauses (i)
through (iv) above a "Registration Default"), then the Authority will pay
Additional Interest to each Holder of Senior
Notes, with respect to the first 90-day period immediately following the
occurrence of the first Registration Default in an amount equal to 25 basis
points per 90-day period of the principal amount of Senior Notes held by such
Holder. The amount of the Additional Interest will increase by an additional 25
basis points with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of Additional
Interest of 1% per annum of the principal amount of Senior Notes.
(A) Except as expressly provided in this paragraph 1(b), Additional
Interest shall be treated as interest and any date on which Additional Interest
is due and payable shall be treated as an Interest Payment Date for all purposes
under this Senior Note and the Indenture.
(B) In the event that the Authority is required to pay Additional Interest
pursuant to this paragraph 1(b), the Authority shall notify the Trustee in
writing at least 15 days prior to the first Interest Payment Date upon which
such Additional Interest is due; provided that, in the event that the obligation
to pay such Additional Interest occurs less than 15 days prior to such
Additional Interest Date, such notice shall be provided by the Authority to the
Trustee as soon as reasonably practicable prior to such Interest Payment Date.
2. METHOD OF PAYMENT. The Authority will pay interest on the Senior Notes
(except defaulted interest) and Additional Interest, if any, to the Persons who
are registered Holders of Senior Notes at the close of business on the December
15 or June 15 next preceding the Interest Payment Date, even if such Senior
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Senior Notes will be payable as to principal, premium
and Additional Interest, if any, and interest at the office or agency of the
Authority maintained for such purpose within or without the City and State of
New York, or, at the option of the Authority, payment of interest and Additional
Interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest, premium and Additional Interest on, all Global Senior Notes and all
other Senior Notes the Holders of which shall hold at least $1.0 million in
principal amount of Senior Notes and have provided wire transfer instructions to
the Authority or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, First Union National Bank, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The
Authority may change any Paying Agent or Registrar without notice to any Holder.
The Authority or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Authority issued the Senior Notes under an Indenture
dated as of March 3, 1999 ("Indenture") between the Authority and the Trustee.
The terms of the Senior Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code xx.xx. 77aaa-77bbbb). The Senior Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Senior Note
conflicts with the express provisions of the Indenture, the provisions of the
indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) The Authority may redeem all or a part of these Senior Notes upon not
less than 30 nor more than 60 days' notice, at a redemption price (expressed as
percentages of principal amount) equal to 100% of the principal amount thereof
plus the Applicable Premium, if any, plus accrued and unpaid interest thereon,
if any, to the applicable redemption date.
(b) Notwithstanding any other provisions of Article 3 of the Indenture, if
any Gaming Regulatory Authority requires that a Holder or beneficial owner of
the Notes be licensed, qualified or found suitable under any applicable gaming
laws in order to maintain any gaming license or franchise of the Authority under
any applicable gaming laws, and the Holder or beneficial owner fails to apply
for a license, qualification or finding of suitability within 30 days after
being requested to do so by such Gaming Regulatory Authority (or such lesser
period that may be required by such Gaming Regulatory Authority) or if such
Holder or beneficial owner is not so licensed, qualified or found suitable, the
Authority has the right, at its option, (i) to require such Holder or beneficial
owner to dispose of such Holder's or beneficial owner's Senior Notes within 30
days of receipt of such notice of such finding by the applicable Gaming
Regulatory Authority (or such earlier date as may be required by the applicable
Gaming Regulatory Authority) or (ii) to call for redemption of the Senior Notes
of such Holder or beneficial owner at a redemption price equal to the lesser of
(1) the principal amount thereof or (2) the price at which such Holder or
beneficial owner acquired the Senior Notes or (3) the current market price of
the Senior Notes, together with, in either case, accrued and unpaid interest and
Additional Interest, if any, to the earlier of the date of redemption or the
date of the finding of unsuitability by such Gaming Regulatory Authority, which
may be less than 30 days following the notice of redemption if so ordered by
such Gaming Regulatory Authority. The Authority shall not be required to pay or
reimburse any Holder or beneficial owner of Senior Notes who is required to
apply for any such license, qualification or finding of suitability for the
costs of the licensure or investigation for such qualification or finding of
suitability. Such expenses shall be the obligation of such Holder or beneficial
owner.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Authority shall not be
required to make mandatory redemption payments with respect to the Senior Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Authority shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Senior Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest thereon, if any, to the date
of purchase (the "Change of Control Payment"). Within 20 Business Days following
any Change of Control, the Authority shall mail a notice to each Holder setting
forth the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Authority or a Subsidiary consummates any Asset Sales, within
five Business Days of each date on which the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Authority shall commence an offer to all Holders of
Senior Notes (as "Asset Sale Offer") pursuant to Section 3.10 of the Indenture
to purchase the maximum principal amount of
Senior Notes that may be purchased out of the Excess Proceeds at an offer price
in cash in an amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest and Additional Interest thereon, if any, to the date fixed
for the closing of such offer, in accordance with the procedures set forth in
the Indenture. To the extent that the aggregate amount of Senior Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Authority
(or such Subsidiary) may use such deficiency for any purpose not otherwise
permitted by the Indenture. If the aggregate principal amount of Senior Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Senior Notes to be purchased on a pro rata basis.
Holders of Senior Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Authority prior to any related purchase
date and may elect to have such Senior Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Senior
Notes.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Senior Notes are to be redeemed at its registered address. Senior Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Senior Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Senior
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Senior Notes may be registered and Senior Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Authority may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Authority need not
exchange or register the transfer of any Senior Note or portion of a Senior Note
selected for redemption, except for the unredeemed portion of any Senior Note
being redeemed in part. Also, the Authority need not exchange or register the
transfer of any Senior Notes for a period of 15 days before a selection of
Senior Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
This Regulation S Temporary Global Note is exchangeable in whole or in part
for one or more Global Notes only (i) on or after the termination of the 40-day
restricted period (as defined in Regulation S) and (ii) upon presentation of
certificates (accompanied by an Opinion of Counsel, if applicable) required by
Article 2 of the Indenture. Upon exchange of this Regulation S Temporary Global
Note for one or more Global Notes, the Trustee shall cancel this Regulation S
Temporary Note.
10. PERSONS DEEMED OWNERS. The registered Holder of a Senior Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Senior Subsidiary Guarantees or the Senior Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Senior Notes voting as a single class,
and any existing default or compliance with any provision of the Indenture, the
Senior Subsidiary Guarantees or the Senior Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Senior
Notes voting as a single class. Without the consent of any Holder of a Senior
Note, the Indenture, the Senior Subsidiary Guarantees or the Senior Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Senior Notes in addition to or in place of
certificated Senior Notes, to provide for the assumption of the Authority's or
Subsidiary Guarantor's obligations to Holders of the Senior Notes by a successor
to the Authority or such Subsidiary Guarantor, to make any change that would
provide any additional rights or benefits to the Holders of the Senior Notes or
that does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act, or to
allow any Subsidiary Guarantor to execute a supplemental indenture to the
Indenture and/or a Senior Subsidiary Guarantee with respect to the Senior Notes
provided that the Authority has obtained any required government approval to
ensure the enforceability of the Senior Notes and the Indenture.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest or Additional Interest on the Senior
Notes; (ii) default in payment when due of principal of or premium, if any, on
the Senior Notes when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or otherwise;
(iii) failure by the Authority or any of its Restricted Subsidiaries to comply
with Section 4.10 or 5.01 of the Indenture; (iv) failure by the Authority or any
of its Restricted Subsidiaries to observe or perform (A) any covenant described
in Section 4.07 or 4.09 of the Indenture for 30 days after notice to the
Authority by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Senior Notes then outstanding voting as a single class or (B) any
other covenant, representation, warranty or other agreement in the Indenture or
the Senior Notes for 60 days after notice to the Authority by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Senior Notes then
outstanding voting as a single class; (v) default under certain other agreements
relating to Indebtedness of the Authority or any of its Restricted Subsidiaries
which default results in the acceleration of such Indebtedness prior to its
express maturity; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days; (vii) certain events of bankruptcy
or insolvency with respect to the Authority or any of its Restricted
Subsidiaries; (viii) revocation, termination, suspension or other cessation of
effectiveness of any Gaming License which results in the cessation or suspension
of gaming operations for a period of more than 90 consecutive days at the
Resort; (ix) cessation of gaming operations for a period of more than 90
consecutive days at the Resort (other than as a result of a casualty loss); (x)
the Lease ceases to be in full force and effect; (xi) except as permitted by the
Indenture, any Senior Subsidiary Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be in
full force and effect or any Subsidiary Guarantor or any Person acting on its
behalf shall deny or disaffirm its obligations under such Subsidiary Guarantor's
Senior Subsidiary Guarantee; and (xii) failure by the Tribe to comply with the
provisions of Article 10 of the Indenture for 30 days after notice to the
Authority and the Tribe by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Senior Notes then outstanding voting as a
single class. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Senior
Notes may declare all the Senior Notes to be due and payable. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Senior Notes will become due and
payable without further action or notice. Holders may not enforce the Indenture
or the Senior Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Senior Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Senior Notes
notice of any continuing Default or Event of Default (except a Default or Event
of Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Senior Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Senior Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on,
or the principal of, the Senior Notes. The Authority is required to deliver to
the Trustee annually a statement regarding compliance with the Indenture, and
the Authority is required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event
of Default.
13. TRUSTEE DEALINGS WITH AUTHORITY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Authority or its Affiliates, and may otherwise deal with the Authority
or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A controlling person, director, officer,
employee or holder of an Ownership Interest of the Authority, as such, shall not
have any liability for any obligations of the Authority under the Senior Notes
or the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Senior Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
15. AUTHENTICATION. This Senior Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SENIOR NOTES AND
RESTRICTED DEFINITIVE SENIOR NOTES. In addition to the rights provided to
Holders of Senior Notes under the Indenture, Holders of Restricted Global Senior
Notes and Restricted Definitive Senior Notes shall have all the rights set forth
in the Senior Registration Rights Agreement dated as of March 3, 1999, between
the Authority and the parties named on the signature pages thereof (the "Senior
Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Authority has
caused CUSIP numbers to be printed on the Senior Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Senior Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Authority will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Senior Registration Rights Agreement.
Requests may be made to:
Mohegan Tribal Gaming Authority
0 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:______________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Authority. The agent may substitute
another to act for him.
Date:__________________
Your Signature:_______________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
______________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Authority pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased by the
Authority pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$_______________________
Date:______________________
Your Signature:_______________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Indentification No.:______________________________
Signature Guarantee*:
______________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SENIOR NOTE
The following exchanges of a part of this Global Senior Note for an
interest in another Global Senior Note or for a Definitive Senior Note, or
exchanges of a part of another Global Senior Note or Definitive Senior Note for
an interest in this Global Senior Note, have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Senior Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Senior
Date of Exchange this Global Senior Note this Global Senior Note (or increase) Note Custodian
---------------- ----------------------- ----------------------- ---------------------- ---------------------
