NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (the "AGREEMENT") dated October 19, 1996
is among Sun International Hotels Limited, a Bahamian corporation ("SIHL"),
Waterford Gaming, L.L.C., a Delaware limited liability company ("PURCHASER"),
and Trading Cove Associates, a Connecticut general partnership ("TCA").
RECITALS
A. TCA and SIHL are parties to an Omnibus Financing Agreement dated
as of September 21, 1995 (as amended, the "OMNIBUS AGREEMENT"), which remains in
full force and effect.
B. The term "Original Subordinated Notes" as used in the Omnibus
Agreement and in this Agreement means the 15% Subordinated Notes due November
15, 2003 issued by the Mohegan Tribal Gaming Authority in the original aggregate
principal amount of $40,000,000, all of which are Currently outstanding and of
which $38,300,000 principal amount are owned by SIHL or an affiliate of SIHL
(the "SIHL NOTES") and $1,700,000 principal amount are owned by TCA in the form
of a single note certificate registered solely in the name of TCA (the"TCA
NOTE")
C. Section 3 of the Omnibus Agreement provides that the Original
Partners of TCA shall have the right at any time to purchase without premium
from SIHL a participating interest in the Original Subordinated Notes not to
exceed the Original Partners' Percentage Interest in TCA (as such terms are
defined in the Amended and Restated Partnership Agreement of TCA) (the "SECTION
3 RIGHT").
D. In anticipation of and in connection with certain simultaneous
future transactions whereby Purchaser will acquire the, entire Original
Partners' Percentage Interest in TCA, being a 50% Percentage Interest in TCA,
(1) Purchaser wishes to exercise the Section 3 Right to purchase 50% of the
outstanding SIHL Notes from SIHL, and SIHL is willing to sell such portion of
the SIHL Notes to Purchaser, and (J) recognizing that Purchaser (directly) and
SIHL (indirectly) each then will own a 50% Percentage Interest in TCA, the
parties wish to provide for the outstanding principal amount of the TCA Note to
be reregistered half in the name of Purchaser and half in the name of SIHL, all
on the terms and conditions set forth in this Agreement.
AGREEMENTS
In consideration of the above Recitals and the agreements set forth
below, the parties agree as follows:
1. Upon the terms and conditions and upon the basis of the
representations herein set forth, Purchaser hereby agrees to purchase from
SIT-IL or an affiliate of SIHL, and SIHL, or an affiliate of SIHL, hereby agrees
to sell to Purchaser, Nineteen Million One Hundred Fifty Thousand Dollars
($19,150.000) aggregate principal amount of the Original Subordinated Notes,
together with all accrued and unpaid interest thereon to and including the date
of the Closing (as defined below) and any Additional Amounts (as defined in the
Omnibus Agreement) that have accrued and are unpaid thereon (collectively, the
"SUBJECT NOTES") for a purchase price equal to the sum of (a) the aggregate
principal amount thereof ($19,150,000), without any premium or discount, plus
(b) all accrued and unpaid interest thereon to and including the date of the
Closing (as defined below) plus (c) any Additional Amounts (as defined in the
Omnibus Agreement) that have accrued and are unpaid thereon.
2. SIHL shall do all things necessary in accordance with Section 9
of the form of the Original Subordinated Notes to effectuate the assignment, and
the registration of the transfer, of the Subject Notes to Purchaser at the
Closing, including without limitation duly presenting the Subject Notes to the
Registrar (as defined in Section 3 of the form of the Original Subordinated
Notes) for registration of such transfer, with a duly completed and signed
Assignment Form.
3. Subject to the terms and conditions hereof, at such time, date or
location as may be agreed upon in writing by SIHL and Purchaser, SIHL shall
cause the Registrar to deliver the Subject Notes to Purchaser and Purchaser
shall accept delivery of the Subject Notes and pay the purchase price for the
Subject Notes as set forth in Paragraph I above by wire transfer, to SIHL, in
Federal Reserve funds immediately available, for the account of SIHL or as SIHL
shall direct. This delivery and payment is hereby called the "CLOSING."
4. In connection with the above-described transactions, at no cost
to Purchaser or SIHL,, and as a return of capital contributions used by TCA to
purchase the TCA Note, TCA agrees to cause the outstanding TCA Note to be
reregistered half solely in the name of Purchaser and half solely in the name of
SIHL (i.e., dividing the $1,700,000 outstanding principal amount of the TCA Note
equally between Purchaser and SIHL), effective simultaneously with the
consummation of the sale of the Subject Notes to Purchaser. TCA shall do all
things necessary in accordance with Section 9 of the form of the Original
Subordinated Notes to effectuate the assignment, and the registration of the
transfer, of such equal $850,000 portions of the outstanding principal amount of
the TCA Note to Purchaser and SIHL at the Closing, including without limitation
duly presenting the TCA Note to the Registrar, with a duly completed and signed
Assignment Form or Forms, together with directions to the Registrar to cancel
the TCA Note and issue in exchange therefor two Original Subordinated Notes,
each in the principal amount of $850,000, one registered solely in the name of
Purchaser and the other registered solely in the name of SIHL.
5. TCA represents and warrants to Purchaser and SIHL as follows:
(a) TCA has the power and authority to execute, deliver and
perform this Agreement and to consummate the transfers of the TCA Note
contemplated by this Agreement. This Agreement has been duly
authorized by all necessary partnership action on the part of TCA, has
been duly and validly executed and delivered by TCA and constitutes
the valid, binding and enforceable agreement of TCA.
(b) The transfers of the TCA Note pursuant to this Agreement are
not in violation of any agreement or laws to which TCA is subject.
(c) TCA is and at the Closing will be the sole owner of
$1,700,000 aggregate principal amount of Original Subordinated Notes,
free and clear of all liens, encumbrances and claims other than tile
rights of Purchaser and SIHL under this Agreement.
6. SIHL represents and warrants to Purchaser as follows:
(a) SIHL has the power and authority to execute, deliver and
perform this Agreement and to consummate the sale of the Subject Notes
contemplated by this Agreement. This Agreement has been duly
authorized by all necessary corporate action on the part of SIHL, has
been duly and validly executed and delivered by SIHL and
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constitutes the valid, binding and enforceable agreement of SIHL.
(b) The sale of the Subject Notes pursuant to this Agreement is
not in violation of any agreement or corporate or other laws to which
SIHL or any affiliate of SIHL is subject.
(c) Exclusive of the portion of the TCA Note to be transferred
to SIHL pursuant to this Agreement, SIHL or an affiliate of SIHL is
and until the Closing will be the sole owner of $38,300,000 aggregate
principal amount of Original Subordinated Notes, and at Closing such
Original Subordinated Notes will be free and clear of all liens,
encumbrances and claims other than the Section 3 Right,
7. Purchaser represents and warrants to SIHL as follows:
(a) Purchaser has the power and authority to execute. deliver
and perform this Agreement.
(b) This Agreement has been duly authorized by all necessary
partnership action on the part of Purchaser, has been duly and validly
executed and delivered by Purchaser and constitutes the valid, binding
and enforceable agreement of Purchaser.
8. Purchaser has entered into this Agreement in reliance upon the
representations and warranties of SIHL and TCA herein and the performance by
SIHL and TCA of their obligations hereunder, both as of the date hereof and as
of the date of Closing. Purchaser's obligations under this Agreement are and
shall be subject to the conditions that:
(a) the representations and agreements of SIHL and TCA contained
herein shall be true and correct as of the date of Closing, and
certificates, dated the date of Closing, signed by an authorized
officer of SIHL and a Managing Partner of TCA, respectively, in form
and substance satisfactory to Purchaser, shall be delivered to that
effect (each solely with respect to itself);
(b) Purchaser shall have successfully completed a debt offering
to finance transactions referred to in Recital D above; and
(c) as of the Closing, Purchaser will own the entire Original
Partners' Percentage Interest in TCA, being exactly a 50% Percentage
Interest in TCA, and by itself will be the Original Partner within the
meaning of the TCA Partnership Agreement as then amended and in
effect.
9. SIHL's obligations under this Agreement shall be subject to the
conditions that:
(a) the representations and agreements of Purchaser and TCA
contained herein shall be true and correct as of the date of Closing;
(b) as of the Closing, Purchaser will own the entire Original
Partners' Percentage Interest in TCA, being exactly a 50% Percentage
Interest in TCA, and by itself will be the Original Purchaser within
the meaning of the TCA Partnership Agreement as then amended and in
effect; and
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(c) certificates, dated the date of Closing, signed by a Member
of Purchaser and a Managing Partner of TCA, respectively, shall be
delivered to the foregoing effect (each solely with respect to
itself).
10. This Agreement shall be binding upon, and inured to the benefit
of, the parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first set forth above.
SUN INTERNATIONAL HOTELS LIMITED
By:_____________________________
Its:____________________________
TRADING COVE ASSOCIATES
By: Sun Cove, Ltd.
Its Managing Partner
By:___________________________________
Its:_____________________________
and
By: LMW Investments Inc.
Its: Managing Partner
By:___________________________________
Its:_____________________________
WATERFORD GAMING, L.L.C.
By: Xxxxxx Suites, Inc.
Its: Member
By:___________________________________
Its:_____________________________
and
By: LMW Investments Inc.
Its: Managing Partner
By:___________________________________
Its:_____________________________
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first set forth above.
SUN INTERNATIONAL HOTELS LIMITED
By:___________________________________
Its:_____________________________
TRADING COVE ASSOCIATES
By: Sun Cove, Ltd.
Its Managing Partner
By:___________________________________
Its:_____________________________
and
By: LMW Investments Inc.
Its: Managing Partner
By:___________________________________
Its:_____________________________
WATERFORD GAMING, L.L.C.
By: Xxxxxx Suites, Inc.
Its: Member
By:___________________________________
Its:_____________________________
and
By: LMW Investments Inc.
Its: Managing Partner
By:___________________________________
Its:_____________________________
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first set forth above.
SUN INTERNATIONAL HOTELS LIMITED
By:___________________________________
Its:_____________________________
TRADING COVE ASSOCIATES
By: Sun Cove, Ltd.
Its Managing Partner
By:___________________________________
Its:_____________________________
and
By: LMW Investments Inc.
Its: Managing Partner
By:___________________________________
Its:_____________________________
WATERFORD GAMING, L.L.C.
By: Xxxxxx Suites, Inc.
Its: Member
By:___________________________________
Its:_____________________________
and
By: LMW Investments Inc.
Its: Managing Partner
By:___________________________________
Its:_____________________________
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