AGREEMENT WITH RESPECT TO REDEMPTION OR
REPURCHASE OF SUBORDINATED NOTES
This Agreement is made effective as of October 19, 1996 between Sun
International Hotels Limited, a Bahamian corporation ("SIHL") and Waterford
Gaming, L.L.C., a Delaware limited liability company ("Waterford").
PRELIMINARY STATEMENT
The following is a recital of certain facts upon which this Agreement
is based:
The Mohegan Tribal Gaming Authority ("MTGA") has issued, on behalf
of the Mohegan Tribe of Indians of Connecticut (the "Tribe"), subordinated
debt which is described in a certain Completion Guarantee and Investment
Banking and Financing Arrangement Fee Agreement dated as of September 29, 1995
(the "Completion Agreement"). Capitalized terms used herein shall be
understood to have the meanings ascribed to them in the Completion Agreement.
Each of the parties hereto own certain of the Subordinated Notes and
either own or may acquire Completion Guarantee Subordinated Notes
(collectively, the "Junior Notes"). As such, the parties wish to set forth
their agreement with respect to the events which will occur if MTGA offers
to purchase or redeem any of the Junior Notes.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein, SIHL and Waterford hereby agree as follows:
1. Redemption or Repurchase of Subordinated Notes. If MTGA shall offer
to purchase or redeem any of the Junior Notes, other than a Change of Control
Offer (as defined in the Senior Note Indenture), then SIHL shall notify
Waterford, no later than 10 business days prior to the expiration of such
offer, of its irrevocable decision with respect to the principal amount that
it or any of its Affiliates has determined to tender in such offer to purchase
or redeem of each of the Junior Notes, if any. Waterford agrees to tender that
principal amount of the Junior Notes that it owns equal to the product of the
aggregate principal amount of the Junior Notes to be tendered by SIHL and its
Affiliates times a fraction, the numerator of which is the aggregate principal
amount of Junior Notes then owned by Waterford and the denominator of which is
the aggregate principal amount of Junior Notes then owned by SIHL and its
Affiliates, rounded to the nearest multiple of $1,000. SIHL agrees to tender,
and to cause its Affiliates to tender, all such Junior Notes as it indicated in
its notice to Waterford. In the event that the total amount available for an
offer (other than a Change of Control Offer) is less than the total amount
needed to purchase the Junior Notes to be tendered by Waterford and SIHL and
its Affiliates pursuant to the above formula, Waterford, on the one hand, and
SIHL and its Affiliates, on the other hand, shall reduce their amount of
Junior Notes to be tendered pro rata, based on the ratio of Junior Notes
originally tendered by each of them, rounded to the nearest multiple of $1,000,
such that the total amount of the Junior Notes to be tendered can be purchased
in such offer. SIHL agrees that if it, or any of its Affiliates, transfers
any of the Junior Notes to anyone other than SIHL, an Affiliate of SIHL or
MTGA, that it will cause such transferee to be bound by a similar agreement
to notify Waterford of its irrevocable decision to tender in any such offer
to purchase, and Waterford will agree to be similarly bound to tender a pro
rata portion of its Junior Notes.
As used in this Agreement, the term "Affiliate" shall have the meaning
set forth in the Note Purchase Agreement under which the Junior Notes were
originally issued, and the phrase "principal amount" shall mean the original
principal amount of any Junior Note, excluding any increased in such original
principal amount by virtue of the nonpayment of interest.
2. Notices. All notices hereunder shall be deemed properly given upon
(i) receipt by the addressee by personal delivery or facsimile transmission,
(ii) two (2) business days after delivery by an overnight express delivery
service for the next business day delivery, or (iii) if mailed, upon the
first to occur of receipt or the expiration of five (5) business days after
deposit in United States Postal Service certified mail, postage prepaid,
addressed to the parties at the addresses appearing below. Such addresses may
be changed by notice given in the same manner.
If to TCA: Xxx Xxxxxx
c/o LMW Investments, Inc.
000 Xxxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Telecopy: 000-000-0000
With Copy to: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
2290 First National Building
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: 000-000-0000
If to Sun: Xxxxxx ("Xxxxx") Xxxxxxx
Sun International Hotels Limited
Executive Offices, Coral Towers
Paradise Island, The Bahamas
Telecopy: 000-000-0000
3. Amendments. This Agreement may be amended or modified only by
written instrument executed by all of the parties hereto.
4. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with the laws of the State of New York.
5. Severability. If any provision hereof shall be judicially determined
to be illegal, or if the application thereof to any party or in any
circumstance shall, to any extent, be judicially determined to be invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision to parties or in circumstances other than those to which it has
been judicially determined to be invalid or unenforceable, shall not be
affected thereby, and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
6. Counterparts. This Agreement may be executed by facsimile and in any
number of counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same Agreement.
7. Further Assurances. The parties will execute and deliver such further
instruments and undertake such further actions as may be required to carry out
the intent and purposes of this Agreement.
8. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective as of the date first set forth above.
SUN INTERNATIONAL HOTELS LIMITED
By: /s/Xxxxxxx Xxxxx
Its: _______________________
WATERFORD GAMING, L.L.C.
By: /s/Xxx Xxxxxx
Its: _______________________
