Exhibit 1.1
MOHEGAN TRIBAL GAMING AUTHORITY
$150,000,000
8.375% Senior Subordinated Notes Due 2011
Purchase Agreement
New York, New York
July 19, 2001
Salomon Smith Barney Inc.
Banc of America Securities LLC
Fleet Securities, Inc.
SG Cowen Securities Corporation
Commerzbank Capital Markets Corp.
McDonald Investments Inc.
Wells Fargo Brokerage Services, LLC
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Mohegan Tribal Gaming Authority (the "Authority'), an
instrumentality of the Mohegan Tribe of Indians of Connecticut (the "Tribe"),
proposes to issue and sell to Salomon Smith Barney Inc. ("Salomon") and the
several parties named in Schedule I hereto (the "Initial Purchasers"),
$150,000,000 principal amount of its 8.375% Senior Subordinated Notes due 2011
(the "Securities"). The Securities are to be issued under an indenture (the
"Indenture") to be dated as of July 26, 2001 among the Authority, the Tribe and
State Street Bank and Trust Company, as trustee (the "Trustee"). The Securities
have the benefit of a Registration Rights Agreement (the "Registration Rights
Agreement"), to be dated as of July 26, 2001, by and among the Authority and the
Initial Purchasers, pursuant to which the Authority has agreed to register under
the Act another series of debt securities of the Authority, each with terms
substantially identical to the Securities (collectively, the "Exchange
Securities") to be offered in exchange for the Securities (the "Exchange
Offer"), subject to the terms and condi-
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tions therein specified. The use of the neuter in this Purchase Agreement shall
include the feminine and masculine wherever appropriate. Certain terms used
herein are defined in Section 19 hereof.
The sale of the Securities to the Initial Purchasers will be
made without registration of the Securities under the Act in reliance upon
exemptions from the registration requirements of the Act.
In connection with the sale of the Securities, the Authority
has prepared a final offering memorandum, dated July 19, 2001 (as amended or
supplemented at the Execution Time, including any and all exhibits and
appendixes thereto, the "Final Memorandum"). The Final Memorandum sets forth
certain information concerning the Authority and the Securities. The Authority
hereby confirms that it has authorized the use of the Final Memorandum, and any
amendment or supplement thereto, in connection with the offering and resale by
the Initial Purchasers of the Securities.
1. Representations and Warranties. The Authority
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represents and warrants to each Initial Purchaser, as set forth below in this
Section 1, and the Tribe represents and warrants to each Initial Purchaser with
respect to paragraphs 1(k), (n), (o) and (r), as set forth below:
(a) At the Execution Time, on the Closing Date or on any
settlement date, as the case may be, the Final Memorandum did not, and
will not (and any amendment or supplement thereto, at the date thereof,
at the Closing Date and on any settlement date, will not), contain any
untrue statement of a material fact or omit to state or incorporate by
reference any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Authority makes no
representation or warranty as to the information contained in or
omitted from the Final Memorandum, or any amendment or supplement
thereto, in reliance upon and in conformity with information furnished
in writing to the Authority by or on behalf of any Initial Purchaser
specifically for inclusion therein.
(b) Neither the Authority nor any of its Affiliates, nor
any person acting on its behalf (provided that no representation is
made as to the Initial Purchasers or any person acting on their
behalf), has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under circumstances
that would require the registration of the Securities under the Act.
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(c) Neither the Authority nor any of its Affiliates, nor
any person acting on its behalf (provided that no representation is
made as to the Initial Purchasers or any person acting on their
behalf), has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any
offer or sale of the Securities in the United States.
(d) The Securities satisfy the eligibility requirements
of Rule 144A(d)(3) under the Act.
(e) Neither the Authority nor any of its Affiliates, nor
any person acting on its behalf (provided that no representation is
made as to the Initial Purchasers or any person acting on their
behalf), has engaged in any directed selling efforts with respect to
the Securities, and each of them has complied with the offering
restrictions requirement of Regulation S under the Act. Terms used in
this paragraph have the meanings given to them by Regulation S.
(f) The Authority is not, and after giving effect to the
offering and sale of the Securities and the application of the net
proceeds thereof as described in the Final Memorandum will not be, an
"investment company" within the meaning of the Investment Company Act,
without taking account of any exemption arising out of the number of
holders of the Authority's securities.
(g) The Authority is in compliance with the reporting
requirements of Section 13 or 15(d) of the Exchange Act. The documents
incorporated by reference in the Final Memorandum, at the time they
were filed (or, if an amendment with respect to any such document was
filed, when such amendment was filed) with the Commission, complied in
all material respects with the requirements of the Exchange Act, and do
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(h) The Authority has not paid or agreed to pay to any
person any compensation for soliciting another to purchase the
Securities (except as contemplated by this Purchase Agreement).
(i) The Authority has not taken, directly or indirectly,
any action prohibited by Regulation M under the Exchange Act in
connection with the offering of the Securities.
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(j) The information provided by the Authority pursuant to
Section 5(h) hereof will not, at the date thereof, contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) The Tribe is a federally recognized Indian Tribe,
with authority to enter into and perform its obligations under the
Agreements. The Constitution of the Tribe, amended and restated in its
entirety and approved on April 12, 1996 (the "Constitution"), was
validly adopted by the Tribe, is effective according to its terms and
is the law of the Tribe.
(l) The Authority (A) has been duly established, is
validly existing under the Constitution, (B) has all requisite power
and authority to carry on its business as it is currently being
conducted and as described in the Final Memorandum and to own, lease
and operate its properties and (C) is duly qualified and authorized to
do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification
except, with respect to this clause (C), where the failure to be so
qualified or in good standing does not and could not reasonably be
expected to (x) individually or in the aggregate result in a material
adverse effect on the properties, business, results of operations,
condition (financial or otherwise), affairs or prospects of the
Authority (a "Material Adverse Effect"), (y) interfere with or
adversely affect the issuance or marketability of the Securities
pursuant hereto or (z) in any manner draw into question the validity of
this Purchase Agreement or any agreements or the transactions described
in the Final Memorandum under the caption "Use of Proceeds." The
Authority will have no direct or indirect subsidiaries as of the
Closing Date.
(m) The statements in or incorporated by reference in the
Final Memorandum under the headings "Federal Income Tax Consequences,"
"Description of Notes," "Business--Competition from Other Gaming
Operations," and "Business--Material Agreements" fairly summarize the
matters therein described.
(n) This Purchase Agreement has been duly authorized,
executed and delivered by the Authority and the Tribe; the Indenture
has been duly authorized and, assuming due authorization, execution and
delivery thereof by the Trustee, when executed and delivered by the
Authority and the Tribe, will constitute a legal, valid and binding
instrument enforceable against the Authority and the Tribe in
accordance with its terms (subject, as to the enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally
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from time to time in effect and to general principles of equity and
public policy; provided, however, that the Authority makes no
representation as to the choice of laws); the Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Initial Purchasers, will have been duly executed and delivered by the
Authority and will constitute legal, valid and binding obligations of
the Authority entitled to the benefits of the Indenture (subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity and public policy; provided, however, that the Authority makes
no representation as to the choice of laws); and the Registration
Rights Agreement has been duly authorized and, when executed and
delivered by the Authority, will constitute a legal, valid, binding and
enforceable instrument of the Authority (subject, as to the enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity and public
policy; provided, however, that the Authority makes no representation
as to the choice of laws).
(o) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required to be
obtained or made by the Authority or the Tribe in connection with the
transactions contemplated herein or in the Indenture or the
Registration Rights Agreement except such as will be obtained under the
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Initial Purchasers in the manner contemplated herein
and in the Final Memorandum and the Registration Rights Agreement.
(p) None of the execution and delivery of the Indenture,
this Purchase Agreement or the Registration Rights Agreement, the issue
and sale of the Securities or the consummation of any other of the
transactions herein or therein contemplated, or the fulfillment of the
terms hereof or thereof, will conflict with or result in a (A)
violation of any of the organizational, statutory or legal documents of
the Authority or the Tribe, (B) default in the performance of any bond,
debenture, note, indenture, mortgage, deed of trust note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Authority or the Tribe is bound or any of their
respective properties is subject, or (C) violation of any local,
tribal, state or federal law, statute, ordinance, rule, regulation,
requirement, judgment or court decree (including, without limitation,
any requirement, regulation or decree under the Indian Gaming
Regulatory Act of 1988 (collectively, "Gaming Regulations") applicable
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to the Authority or any of its assets or properties (whether owned or
leased)), other than, in the case of clauses (B) and (C), any default
or violation that could not reasonably be expected to have a Material
Adverse Effect. To the best knowledge of the Authority, there exists no
condition that, with notice, the passage of time or otherwise, would
constitute a default under any such document or instrument other than a
default that could not reasonably be expected to have a Material
Adverse Effect.
(q) The historical financial statements and schedules of
the Authority included or incorporated by reference in the Final
Memorandum present fairly in all material respects the financial
condition, results of operations and cash flows of the Authority as of
the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise
noted therein); the "As adjusted" financial information included in the
Final Memorandum includes assumptions that provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions and events described therein, the related "As adjusted"
adjustments give appropriate effect to those assumptions, and the "As
adjusted" adjustments reflect the proper application of those
adjustments to the historical financial statement amounts in the "As
adjusted" financial information included in the Final Memorandum; the
"As adjusted" financial information included in the Final Memorandum
complies as to form in all material respects with the applicable
accounting requirements of Regulation S-X under the Act; and the "As
adjusted" adjustments have been properly applied to the historical
amounts in the compilation of that information.
(r) There is no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Authority, the Tribe or their respective property pending
or, to the best knowledge of the Authority or the Tribe, threatened
that (i) could reasonably be expected to have a Material Adverse Effect
on the performance of this Purchase Agreement, the Indenture, the
Registration Rights Agreement or the consummation of any of the
transactions contemplated hereby or thereby; or (ii) could reasonably
be expected to have a Material Adverse Effect, except as set forth,
incorporated by reference or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto entered into after
the Closing Date).
(s) The Authority owns or leases all such properties as
are necessary to the conduct of its operations as presently conducted
except, in each case, for such excep-
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tions as are set forth or incorporated by reference in the Final
Memorandum or that could not reasonably be expected to have a Material
Adverse Effect.
(t) The Authority is not (A) in violation of any of the
organizational, statutory or legal documents of the Authority or the
Tribe, (B) in default in the performance of any bond, debenture, note,
indenture, mortgage, deed of trust note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which
the Authority or the Tribe is bound or any of their respective
properties is subject, or (C) in violation of any local, tribal, state
or federal law, statute, ordinance, rule, regulation, requirement,
judgment or court decree (including, without limitation, any Gaming
Regulations applicable to the Authority or any of its assets or
properties (whether owned or leased)), other than, in the case of
clauses (B) and (C), any default or violation that could not reasonably
be expected to have a Material Adverse Effect. To the best knowledge of
the Authority, there exists no condition that, with notice, the passage
of time or otherwise, would constitute a default under any such
document or instrument other than a default that could not reasonably
be expected to have a Material Adverse Effect.
(u) Arthur Andersen LLP, who have certified certain
financial statements of the Authority incorporated by reference in the
Final Memorandum and delivered their report with respect to the audited
financial statements incorporated by reference in the Final Memorandum,
are independent public accountants with respect to the Authority within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(v) No action or proceeding with respect to any labor
dispute with employees of the Authority exists or, to the Authority's
knowledge, is threatened or imminent.
(w) The Authority is insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which it is
engaged; all policies of insurance and fidelity or surety bonds
insuring the Authority or its business, assets, employees, officers and
Management Board Members are in full force and effect, except where the
failure to be in Full force and effect could reasonably be expected to
have a Material Adverse Effect; the Authority is in compliance with the
terms of such policies and instruments in all material respects; there
are no claims by the Authority under any such policy or instrument as
to which any insurance company is denying liability or defending under
a reservation of rights clause except those that could not reasonably
be expected to have a Material Adverse Effect; and the Authority has no
reason to believe that it will not be able
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to renew its existing insurance coverage as and when the coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that could not have a
Material Adverse Effect whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Memorandum (exclusive of any amendment or supplement
thereto).
(x) The Authority possesses all licenses, certificates,
permits and other authorizations issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct its
business, and the Authority has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated
in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(y) The Authority maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for its assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(z) The Authority (i) is in compliance with any and all
applicable tribal, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"); (ii) has received and is in compliance with all
permits, licenses or other approvals required of it under applicable
Environmental Laws to conduct its businesses; and (iii) has not
received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants; except where
such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect or
except as set forth, incorporated by reference or contemplated in the
Final Memorandum (exclusive of any amendment or supplement thereto).
Except as set forth or incorporated by reference in the Final
Memorandum, the Authority
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has not been named as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended.
(aa) In the ordinary course of its business, the Authority
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Authority, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws,
or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties).
On the basis of such review, the Authority has reasonably concluded
that such associated costs and liabilities would not, individually or
in the aggregate, have a Material Adverse Effect except as set forth,
incorporated by reference or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto).
(bb) The Authority owns, possesses, licenses or has or can
acquire other rights to use or can acquire on reasonable terms, all
material patents, patent applications, trade and service marks, trade
and service mark registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual
property necessary for the conduct of its business as now conducted or
as proposed in the Final Memorandum to be conducted (collectively, the
"Intellectual Property"). Except as set forth, incorporated by
reference or contemplated in the Final Memorandum, (a) there are no
rights of third parties to any such Intellectual Property that could
reasonably be expected to have in a Material Adverse Effect; (b) to the
Authority's knowledge there is no material infringement by third
parties of any such Intellectual Property that could reasonably be
expected to have in a Material Adverse Effect; (c) there is no pending
or, to the Authority's knowledge, threatened action, suit, proceeding
or claim by others challenging the Authority's rights in or to any such
Intellectual Property, and the Authority is unaware of any facts which
would form a reasonable basis for any such claim. that individually or
in the aggregate, could reasonably be expected to have in a Material
Adverse Effect; (d) there is no pending or, to the Authority's
knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property,
and the Authority is unaware of any facts which would form a reasonable
basis for any such claim, that individually or in the aggregate, could
reasonably be expected to have in a Material Adverse Effect; (e) there
is no pending or, the Authority's knowledge, threatened action, suit,
proceeding or claim by others that the Authority infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Authority is unaware of any other
fact which would form a reasonable basis for any such claim,
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which individually or in the aggregate, that could reasonably be
expected to have in a Material Adverse Effect; (f) to the Authority's
knowledge, there is no U.S. patent or published U.S. patent application
which contains claims that dominate or may dominate any Intellectual
Property described in the Final Memorandum as being owned by or
licensed to the Authority or that interferes with the issued or pending
claims of any such Intellectual Property that could reasonably be
expected to have in a Material Adverse Effect; and (g) there is no
prior act of which the Authority is aware that may render any U.S.
patent held by the Authority invalid or any U.S. patent application
held by the Authority unpatentable which has not been disclosed to the
U.S. Patent and Trademark Office that could reasonably be expected to
have in a Material Adverse Effect.
(cc) The statistical and market-related data included in
the Final Memorandum are based on or derived from sources which the
Authority believes to be reliable and accurate in all material
respects.
(dd) None of the Agreements is subject to or governed by
25 U.S.C.ss.81.
Any certificate signed by any officer of the Authority and
delivered to the Initial Purchasers or counsel for the Initial Purchasers in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Authority (and not individually by such officer), as to
matters covered thereby, to each Initial Purchaser.
2. Purchase and Sale. Subject to the terms and
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conditions and in reliance upon the representations and warranties herein set
forth, the Authority agrees to sell to each Initial Purchaser, and each Initial
Purchaser agrees, severally and not jointly, to purchase from the Authority, at
a purchase price of 98.125% of the principal amount thereof with respect to the
Securities, the principal amount of such Securities set forth opposite such
Initial Purchaser's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
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Securities shall be made at 9:00 A.M., New York City time, on July 26, 2001, or
at such time on such later date as may be mutually agreed upon, which date and
time may be postponed by agreement between the Initial Purchasers and the
Authority or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Initial Purchasers for the respective
accounts of the several Initial Purchasers against payment by the several
Initial Purchasers through the Initial Purchasers of the purchase price thereof
to or upon the order of the Authority by wire transfer payable in same-day funds
to the account specified by the Author-
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ity. Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Initial Purchasers shall otherwise instruct.
4. Offering by Initial Purchasers. Each Initial
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Purchaser, severally and not jointly, represents and warrants to and agrees with
the Authority that:
(a) It has not offered or sold, and will not offer or
sell, any Securities except (i) to those it reasonably believes after
due inquiry to be qualified institutional buyers (as defined in Rule
144A under the Act) and that, in connection with each such sale, it has
taken or will take reasonable steps to ensure that the purchaser of
such Securities is aware that such sale is being made in reliance on
Rule 144A or (ii) in accordance with the restrictions set forth in
Exhibit A hereto.
(b) Neither it nor any of its Affiliates nor any person
acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities in the United
States.
(c) Neither it nor any of its Affiliates nor any person
acting on its or their behalf has, directly or indirectly, made offers
or sales of any security, or solicited offers to buy any security,
under circumstances that would require the registration of the
Securities under the Act.
5. Agreements. The Authority agrees with each Initial
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Purchaser that:
(a) The Authority will furnish to each Initial Purchaser
and to counsel for the Initial Purchasers, without charge, during the
period referred to in paragraph (c) below, as many copies of the Final
Memorandum and any amendments and supplements thereto as it may
reasonably request.
(b) The Authority will not amend or supplement the Final
Memorandum without the prior written consent of the Initial Purchasers
which consent shall not be unreasonably withheld.
(c) If at any time prior to the completion of the sale of
the Securities by the Initial Purchasers (as determined by Salomon),
any event occurs as a result of which in the reasonable judgment of the
Authority or in the opinion of counsel for the Initial Purchasers, the
Final Memorandum, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were
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made, not misleading, or if it should be necessary to amend or
supplement the Final Memorandum to comply with applicable law, the
Authority promptly (i) will notify Salomon of any such event; (ii)
subject to the requirements of paragraph (b) of this Section 5, will
prepare an amendment or supplement that will correct such statement or
omission or effect such compliance; and (iii) will supply any
supplemented or amended Final Memorandum to the each Initial Purchasers
and counsel for without charge in such quantities as Salomon may
reasonably request.
(d) The Authority will arrange, if necessary, for the
qualification of the Securities for sale by the Initial Purchasers
under the laws of such jurisdictions as the Initial Purchasers may
designate and will maintain such qualifications in effect so long as
required for the sale of the Securities; provided that in no event
shall the Authority be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject. The Authority will
promptly advise the Initial Purchasers of the receipt by the Authority
of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) The Authority will not, and will not permit any of
its Affiliates to, resell any Securities that have been acquired by any
of them.
(f) Neither the Authority nor any of its Affiliates, nor
any person acting on its behalf will, directly or indirectly, make
offers or sales of any Security, or solicit offers to buy any Security,
under circumstances that would require the registration of the
Securities under the Act.
(g) Neither the Authority, nor any of its Affiliates, nor
any person acting on its behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities in the United
States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, the
Authority will, during any period in which they are not subject to and
in compliance with Section 13 or 15(d) of the Exchange Act or they are
not exempt from such reporting requirements pursuant to and in
compliance with Rule 12g3-2(b) under the Exchange Act, provide to each
holder of such restricted securities and to each prospective purchaser
(as designated by such holder) of such restricted securities, upon the
request of such holder or prospective
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purchaser, any information required to be provided by Rule 144A(d)(4)
under the Act. This covenant is intended to be for the benefit of the
holders, and the prospective purchasers designated by such holders,
from time to time of such restricted securities.
(i) So long as any of the Securities are outstanding, the
Authority will furnish to the Initial Purchasers (i) as soon as
available, a copy of each report of the Authority mailed to
securityholders generally or filed with any stock exchange or
regulatory body and (ii) from time to time such other information
concerning the Authority as the Initial Purchasers may reasonably
request.
(j) Neither the Authority nor any of its Affiliates, nor
any person acting on its behalf will engage in any directed selling
efforts with respect to the Securities, and each of them will comply
with the offering restrictions requirement of Regulation S. Terms used
in this paragraph have the meanings given to them by Regulation S.
(k) The Authority will cooperate with the Initial
Purchasers and use its best efforts to permit the Securities to be
eligible for clearance and settlement through The Depository Trust
Company.
(l) The Authority will not for a period of 180 days
following the Execution Time, without the prior written consent of
Salomon Smith Barney Inc., which consent shall not be unreasonably
withheld, offer, sell or contract to sell, or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise)
by the Authority or any Affiliate of the Authority or any person in
privity with the Authority or any Affiliate of the Authority), directly
or indirectly, or announce the offering of, any debt securities issued
or guaranteed by the Authority (other than (1) the Securities; (2) bank
loans or lines of credit; (3) commercial paper issued in the ordinary
course of business or (4) any tax-exempt financing of the Tribe).
(m) The Authority will not take, directly or indirectly,
any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
Security of the Authority to facilitate the sale or resale of the
Securities.
(n) The Authority agrees to pay the costs and expenses
relating to the following matters: (i) the preparation of the Indenture
and the Registration Rights Agreement (but not, however, legal fees and
expenses of Initial Purchasers' counsel incurred in connection
therewith, except as provided in Section 7 below), the issuance
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of the Securities and the fees of the Trustee; (ii) the preparation,
printing or reproduction of the Final Memorandum and each amendment or
supplement to it; (iii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and
packaging) of such copies of the Final Memorandum, and all amendments
or supplements to it, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Securities; (iv)
the preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes
in connection with the original issuance and sale of the Securities;
(v) the printing (or reproduction) and delivery of this Purchase
Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (vi) any registration or qualification of
the Securities for offer and sale under the securities or blue sky laws
of the several states (including filing fees and the reasonable fees
and expenses of counsel for the Initial Purchasers relating to such
registration and qualification); (vii) admitting the Securities for
trading in the PORTAL Market; (viii) the fees and expenses of the
Authority's accountants and the fees and expenses of counsel (including
local and special counsel) for the Authority; and (ix) all other costs
and expenses incident to the performance by the Authority of its
obligations hereunder.
(o) The Authority shall use the net proceeds received by
it from the sale of the Securities pursuant to this Purchase Agreement
in the manner specified in the Final Memorandum under the caption "Use
of Proceeds."
6. Conditions to the Obligations of the Initial
--------------------------------------------
Purchasers. The obligations of the Initial Purchasers to purchase the Securities
----------
shall be subject to the accuracy of the representations and warranties on the
part of the Authority contained herein at the Execution Time and the Closing
Date to the accuracy of the statements of the Authority made in any certificates
pursuant to the provisions hereof, to the performance by the Authority of its
obligations hereunder and to the following additional conditions:
(a) (i) The Authority shall have requested and caused
Hogan & Hartson L.L.P., counsel for the Authority, to furnish to the
Initial Purchasers its opinion, dated the Closing Date and addressed to
the Initial Purchasers, in substantially the form attached hereto as
Exhibit B.
Such counsel shall also indicate that while they have not
undertaken to determine independently and do not assume any
responsibility for, the accuracy, completeness, or fairness of the
statements in the Final Memorandum, that no facts have come to their
attention which cause them to believe that (i) the Final Memorandum, as
of its
-15-
date and as of the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (ii)
there are any legal or governmental proceedings pending or threatened
against the Tribe and the Authority that are required to be disclosed
in the Final Memorandum, other than those disclosed therein, or (iii)
there are any contracts or documents of a character required to be
described in the Final Memorandum that are not described or referred to
therein; provided that in making the foregoing statements (which shall
not constitute an opinion), such counsel need not express any views as
to the financial statements and supporting schedules and other
financial and statistical information and data included in or omitted
from the Final Memorandum.
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of the Authority and the Tribe. References to the Final
Memorandum in this Section 6(a) include any amendment or supplement
thereto at the Closing Date.
(ii) The Authority shall have requested and caused
Rome McGuigan Sabanosh, P.C., counsel for the Tribe, to
furnish to the Initial Purchasers its opinion, dated the
Closing Date and addressed to the Initial Purchasers, in
substantially the form attached hereto as Exhibit C.
(b) The Initial Purchasers shall have received from
Cahill Gordon & Reindel, counsel for the Initial Purchasers, such
opinion or opinions, dated the Closing Date and addressed to the
Initial Purchasers, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Rights Agreement, the Final
Memorandum (as amended or supplemented at the Closing Date) and other
related matters as the Initial Purchasers may reasonably require, and
the Authority shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such
matters.
(c) The Authority shall have furnished to the Initial
Purchasers a certificate of the Authority, signed by the Chairman of
the Management Board dated the Closing Date to the effect that he has
carefully examined the Final Memorandum, any amendment or supplement to
the Final Memorandum and this Purchase Agreement and that:
(i) the representations and warranties contained
in Section 1 of this Purchase Agreement are true and correct
in all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date, and the
Authority has complied with all the agreements and satisfied
all the conditions
-16-
on their its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(ii) since the date of the most recent financial
statements included in the Final Memorandum (exclusive of any
amendment or supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Authority,
whether or not arising from transactions in the ordinary
course of business except as set forth in or contemplated by
the Final Memorandum (exclusive of any amendment or supplement
thereto); and
(iii) to the best knowledge of the Authority, no
action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the
issuance of Securities. No action, suit or proceeding had been
commenced and is pending against or affecting or, to the best
knowledge of the Authority, threatened against the Authority
before any court or arbitrator or any governmental body,
agency or official that, if adversely determined, could
reasonably be expected to result in a material adverse effect
on the Authority.
(d) At the Execution Time, the Initial Purchasers shall
have received from Arthur Andersen LLP a letter, dated as of the
Execution Time, in form and substance satisfactory to the Initial
Purchasers, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the applicable rules and
regulations thereunder, containing statements and information of the
type ordinarily included in an accountant's "comfort letters" to
Initial Purchasers, delivered according to Statement of Auditing
Standards Nos. 72 and 76 (or any successor bulletins), with respect to
the audited and unaudited financial statements and certain financial
information contained in the Final Memorandum.
(e) At the Closing Date, the Initial Purchasers shall
have received from Arthur Andersen LLP a "bring down comfort letter,"
dated as of the Closing Date.
References to the Final Memorandum in Sections 6(e) - 6(f)
include any amendment or supplement thereto at the date of the
applicable letter.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Final Memorandum
(exclusive of any amendment or supplement thereto), there shall not
have been (i) any change or decrease specified in the letter or letters
referred to in paragraphs (e) and (f) of this Section 6; or (ii) any
change,
-17-
or any development involving a prospective change, in or affecting the
condition (financial or otherwise), prospects, earnings, business or
properties of the Authority, except as set forth in or contemplated in
the Final Memorandum (exclusive of any amendment or supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Initial Purchasers, so material
and adverse as to make it impractical or inadvisable to market the
Securities as contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(g) The Securities shall have been designated as
PORTAL-eligible securities in accordance with the rules and regulations
of the NASD, and the Securities shall be eligible for clearance and
settlement through The Depository Trust Company.
(h) Prior to the Closing Date, the Authority shall have
furnished to the Initial Purchasers such further information,
certificates and documents as the Initial Purchasers may reasonably
request.
(i) The Authority shall have entered into the
Registration Rights Agreement; the Indenture; and the Initial
Purchasers shall have received executed counterparts thereof.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Purchase Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Purchase Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Initial Purchasers and
counsel for the Initial Purchasers, this Purchase Agreement and all obligations
of the Initial Purchasers hereunder may be canceled at, or at any time prior to,
the Closing Date by the Initial Purchasers. Notice of such cancellation shall be
given to the Authority in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 will
be delivered at the office of counsel for the Initial Purchasers, at 80 Pine
Street, New York, New York 10005 on the Closing Date.
7. Reimbursement of Expenses. If the sale of the
-------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Initial Purchasers set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Authority to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Initial Purchasers, the
Authority will reimburse the Initial Purchasers severally through Salomon Smith
Barney Inc. on demand for
-18-
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
--------------------------------
(a) The Authority agrees to indemnify and hold harmless
each Initial Purchaser, the directors, officers, employees and agents of each
Initial Purchaser and each person who controls any Initial Purchaser within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Final Memorandum (or in any supplement or amendment
thereto) or any information provided by the Authority to any holder or
prospective purchaser of Securities pursuant to Section 5(h), or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Authority will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made in the Final Memorandum, or in any amendment thereof or supplement thereto,
in reliance upon and in conformity with written information relating to an
Initial Purchaser furnished to the Authority by or on behalf of any Initial
Purchaser through Salomon specifically for inclusion therein; and provided,
further, that the foregoing indemnity agreement with respect to the Final
Memorandum shall not inure to the benefit of the Purchasers from whom the person
asserting or causing any such losses, claims, damages or liabilities purchased
Securities (or to the benefit of any person controlling any Initial Purchaser or
any directors, officers, employees and agents of any Initial Purchaser), if a
copy of the Final Memorandum (or the Final Memorandum as amended or
supplemented) (if the Authority shall have timely furnished the Initial
Purchasers with sufficient copies thereof) was not sent or given by or on behalf
of the Initial Purchasers to such person at or prior to the written confirmation
of the sale of the Securities to such person and if the Final Memorandum (or the
Final Memorandum as amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability. This indemnity agreement will be
in addition to any liability which the Authority may otherwise have.
-19-
(b) Each Initial Purchaser severally and not jointly
agrees to indemnify and hold harmless the Authority, its directors, officers and
each controlling person within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Authority to each
Initial Purchaser, but only with reference to written information relating to
such Initial Purchaser furnished to the Authority by or on behalf of such
Initial Purchaser through Salomon specifically for inclusion in the Final
Memorandum (or in any amendment or supplement thereto). This indemnity agreement
will be in addition to any liability which any Initial Purchaser may otherwise
have. The Authority acknowledges that (i) the statements set forth in the last
paragraph of the cover page regarding the delivery of the Securities, (ii) the
legend on page (iii) concerning stabilization, syndicate covering transactions
and penalty bids and the related disclosure under the heading "Plan of
Distribution," and (iii) the sentences related to concessions and reallowances
in the Final Memorandum, constitute the only information furnished in writing by
or on behalf of the Initial Purchasers for inclusion in the Final Memorandum (or
in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel, which counsel shall be
reasonably satisfactory to the indemnified party, and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, in
which case the indemnifying party may select another counsel subject to this
clause (i); (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those
-20-
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying party
shall not be liable under this Section 8 to any indemnified party regarding any
settlement or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent is consented to by such
indemnifying party, which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Authority and the Initial Purchasers
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Authority
and one or more of the Initial Purchasers may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Authority on the
one hand and by the Initial Purchasers on the other from the offering of the
Securities; provided, however, that in no case shall any Initial Purchaser
(except as may be provided in any agreement among the Initial Purchasers
relating to the offering of the Securities) be responsible for any amount in
excess of the purchase discount or commission applicable to the Securities
purchased by such Initial Purchaser hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Authority and
the Initial Purchasers shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Authority on the one hand and of the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Authority shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by them, and benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions in each case set forth on the cover of the Final
Memorandum. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged
-21-
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information provided by the Authority on the one hand
or the Initial Purchasers on the other, the intent of the parties and their
relative knowledge, information and opportunity to correct or prevent such
untrue statement or omission. The Authority and the Initial Purchasers agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Initial Purchaser within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Initial Purchaser shall have the same rights to
contribution as such Initial Purchaser, and each person who controls the
Authority within the meaning of either the Act or the Exchange Act and each
officer and director of the Authority shall have the same rights to contribution
as the Authority subject in each case to the applicable terms and conditions of
this paragraph (d).
9. Default by an Initial Purchaser. If any one or more
-------------------------------
Initial Purchasers shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Initial Purchaser hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Purchase Agreement, the remaining Initial Purchasers
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their names in
Schedule I hereto bears to the aggregate amount of Securities set forth opposite
the names of all the remaining Initial Purchasers) the Securities which the
defaulting Initial Purchaser or Initial Purchasers agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Initial Purchaser or Initial Purchasers agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Securities, and if such nondefaulting Initial Purchasers do not purchase all
the Securities, this Purchase Agreement will terminate without liability to any
nondefaulting Initial Purchaser or the Authority. In the event of a default by
any Initial Purchaser as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the Initial
Purchasers shall determine in order that the required changes in the Final
Memorandum or in any other documents or arrangements may be effected. Nothing
contained in this Purchase Agreement shall relieve any defaulting Initial
Purchaser of its liability, if any, to the Authority or any nondefaulting
Initial Purchaser for damages occasioned by its default hereunder.
-22-
10. Termination. This Purchase Agreement shall be subject
-----------
to termination in the absolute discretion of the Initial Purchasers, by notice
given to the Authority prior to delivery of and payment for the Securities, if
at any time prior to such time (i) trading in securities generally on the New
York Stock Exchange shall have been suspended or limited or minimum prices shall
have been established on such Exchange; (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities; or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Initial Purchasers, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The
------------------------------------------
respective agreements, representations, warranties, indemnities and other
statements of the Authority or its officers and of the Initial Purchasers set
forth in or made pursuant to this Purchase Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of the Initial
Purchasers or the Authority or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Purchase Agreement.
12. Notices. All communications hereunder will be in
-------
writing and effective only on receipt and, if sent to the Initial Purchasers,
will be mailed, delivered or telefaxed to the Salomon Smith Barney Inc. General
Counsel (fax no. (212) 816-7912) and confirmed to the General Counsel, Salomon
Smith Barney Inc., at 388 Greenwich Street, New York, New York 10013, Attention:
General Counsel; or, if sent to the Authority, will be mailed, delivered or
telefaxed to the Mohegan Tribal Gaming Authority (fax no. (860) 862-7167), 1
Mohegan Sun Boulevard, Uncasville, CT 06382, Attn: Mark Brown.
13. No Personal Liability. Neither the Tribe nor any
---------------------
director, officer, office holder, employee or agent, representative or member of
the Authority or the Tribe or holder of an ownership interest of the Authority
or the Tribe, as such in their individual capacities, shall have any liability
for any obligations of the Authority or the Tribe under this Purchase Agreement.
-23-
14. Consent to Suit. The Tribe does not consent to the
---------------
enforcement, levy, or other execution of any judgment for money or other damages
against any assets, real or personal, of the Tribe, except that the Tribe and
the Authority consent to the enforcement and execution of any judgment, whether
obtained as a result of judicial, administrative, or arbitrational proceeding,
against any assets of the Authority. Subject to the foregoing, the Tribe and
Authority waive their respective sovereign immunity from unconsented suit,
whether such suit be brought in law or in equity, or in administrative
proceedings or proceedings in arbitration, to permit the commencement,
maintenance, and enforcement of any action, by any person with standing to
maintain an action, to interpret or enforce the terms of this Purchase Agreement
and to enforce and execute any judgment resulting therefrom against the
Authority or the assets of the Authority. Notwithstanding any provisions of law
or canon of construction, the Tribe and the Authority each intends this waiver
to be interpreted liberally to permit the full litigation of disputes arising
under or out of this Purchase Agreement. Without limiting the generality of the
foregoing, the Tribe and the Authority waive their immunity from unconsented
suit to permit the maintenance of the following actions:
(a) Courts. The Tribe and the Authority each waive their
immunity from unconsented suit to permit any court of competent
jurisdiction to (i) enforce and interpret the terms of this Purchase
Agreement and award and enforce the award of damages against the
Authority owing as a consequence of a breach thereof, whether such
award is the product of litigation, administrative proceedings or
arbitration, (ii) determine whether any consent or approval of the
Tribe or the Authority has been improperly granted or unreasonably
withheld; (iii) enforce any judgment prohibiting the Tribe or the
Authority from taking any action, or mandating or obligating the Tribe
or the Authority to take any action, including a judgment compelling
the Tribe or the Authority to submit to binding arbitration; and (iv)
adjudicate any claim under the Indian Civil Rights Act of 1968, 25
U.S.C.ss. 1302 (or any successor statute).
(b) Arbitration. The Tribe and the Authority each waive
their immunity from unconsented suit to permit arbitrators, appointed
and acting under the commercial arbitration rule of the American
Arbitration Association, whenever and to the extent any agreement to
submit a matter to arbitration is made by the Tribe or by the
Authority, to (i) enforce and interpret the terms of this Purchase
Agreement and to award and enforce the award of any damages against the
Authority owing as a consequence thereof; (ii) determine whether any
consent or approval of the Tribe or the Authority has been unreasonably
withheld; and (iii) enforce any judgment prohibiting the Tribe or the
Authority from taking any action, or mandating or obligating the Tribe
or the Authority to take any action, including a judgment compelling
the Tribe or the Authority to submit to binding arbitration.
-24-
15. Successors. This Purchase Agreement will inure to the
----------
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and, except as expressly set forth in Section 5(h) hereof, no
other person will have any right or obligation hereunder.
16. Applicable Law. This Purchase Agreement will be
--------------
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
17. Counterparts. This Purchase Agreement may be
------------
executed in one or more counterparts, each of which shall constitute an original
and all of which together shall constitute one and the same instrument.
18. Headings. The section headings used herein are for
--------
convenience only and shall not affect the construction hereof.
19. Definitions. The terms which follow, when used in
-----------
this Purchase Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Agreements" shall mean the Purchase Agreement, the Indenture
and the Registration Rights Agreement.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in The City of New York.
"Closing Date" shall mean July 26, 2001.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Purchase Agreement is executed and delivered by the parties hereto.
-25-
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission promulgated
thereunder.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Purchase Agreement and your acceptance shall represent a binding
agreement between the Authority and the several Initial Purchasers.
[Purchase Agreement Signature Pages Follow]
Very truly yours,
Mohegan Tribal Gaming Authority
By: /s/ Mark F. Brown
-----------------------------
Name: Mark F. Brown
Title: Chairman, Management Board
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Smith Barney Inc.
By: Salomon Smith Barney Inc.
By: /s/ Evan Ladouceur
-----------------------
Name: Evan Ladouceur
Title: Director
For themselves and the other several Initial
Purchasers named in Schedule I to
the foregoing Agreement.
Accepted and Agreed to as of the date above written
MOHEGAN TRIBE OF INDIANS OF CONNECTICUT
By: /s/ Mark F. Brown
------------------------------
Mark F. Brown
Tribal Council Chairman
SCHEDULE I
Principal Amount of
Initial Purchasers Senior Subordinated
------------------ Securities to be Purchased
--------------------------
Salomon Smith Barney Inc............................. $75,000,000
Banc of America Securities LLC....................... 45,000,000
Fleet Securities, Inc. 10,500,000
SG Cowen Securities Corporation 10,500,000
Commerzbank Capital Markets Corp. 3,000,000
McDonald Investments Inc. 3,000,000
Wells Fargo Brokerage Services, LLC 3,000,000
Total................................... $150,000,000
EXHIBIT A
Selling Restrictions for Offers and
-----------------------------------
Sales outside the United States
-------------------------------
(1) (a) The Securities have not been and will not be
registered under the Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Act or pursuant to an exemption from the registration
requirements of the Act. Each Initial Purchaser represents and agrees that,
except as otherwise permitted by Section 4(a)(i) of the Agreement to which this
is an exhibit, it has offered and sold the Securities, and will offer and sell
the Securities, (i) as part of their distribution at any time; and (ii)
otherwise until 40 days after the later of the commencement of the offering and
the Closing Date, only in accordance with Rule 903 of` Regulation S under the
Act. Accordingly, each Initial Purchaser represents and agrees that neither it,
nor any of its Affiliates nor any person acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to the
Securities, and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees that, at
or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(a)(i) of the Agreement to which this is an
exhibit), it shall have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Act") and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and
September _, 2001, except in either case in accordance with Regulation
S or Rule 144A under the Act. Terms used above have the meanings given
to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees
that it has not entered and will not enter into any contractual arrangement with
any distributor with respect to the distribution of the Securities, except with
its Affiliates or with the prior written consent of the Authority.
-2-
(c) Terms used in this section have the meanings given to
them by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i)
it has not offered or sold, and, prior to the expiration of six months from the
Closing Date, will not offer or sell, to persons in the United Kingdom, by means
of any document, any Securities other than to persons whose ordinary business it
is to buy or sell shares or debentures, whether as principal or as agent (except
in circumstances which do not constitute an offer to the public within the
meaning of the Public Offers of Securities Regulation 1995); (ii) it has
complied and will comply with all applicable provisions of the Financial
Services Act of 1986 of the United Kingdom with respect to anything done by it
in relation to the Securities in, from or otherwise involving the United
Kingdom; and (iii) it has only issued or passed on and will only issue or pass
on in the United Kingdom any document created or received by it in connection
with the issue of the Securities to a person who is of a kind described in
Article 11(3) of the Financial Services Act of 1986 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom the document may otherwise
lawfully be issued or passed on.