Exhibit 1.1
MOHEGAN TRIBAL GAMING AUTHORITY
$250,000,000
8% Senior Subordinated Notes Due 2012
Purchase Agreement
New York, New York
February 12, 2002
Banc of America Securities LLC
Salomon Smith Barney Inc.
Fleet Securities, Inc.
SG Cowen Securities Corporation
Commerzbank Capital Markets Corp.
McDonald Investments Inc.
Wells Fargo Brokerage Services, LLC
Credit Lyonnais Securities (USA) Inc.
c/o Banc of America Securities LLC
9 West 57th Street, 31st Floor
New York, New York 10019
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 Banc of America Securities LLC and the several parties named in
Schedule I hereto (the "Initial Purchasers"), $250,000,000 principal amount of
its 8% Senior Subordinated Notes due 2012 (the "Securities"). The Securities are
to be issued under an indenture (the "Indenture") to be dated as of February 20,
2002 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", together with the
Purchase Agreement and the Indenture, collectively referred to as the
"Agreements"), to be dated as of February 20, 2002, 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
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be offered in exchange for the Securities (the "Exchange Offer"), subject to the
terms and conditions 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 February 12, 2002 (as amended or
supplemented at the Execution Time, including any and all exhibits and
appendixes thereto, as well as the documents incorporated therein by reference,
together, 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 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 and on the Closing Date, the Final
Memorandum did not, and will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Authority makes no
representation or warranty as to the information contained in or omitted
from the Final Memorandum, 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 and 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 would 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 the Final Memorandum under the headings "Federal
Income Tax Consequences," "Description of Notes," and "Description of Other
Indebtedness" 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
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Gaming Regulatory Act of 1988 (collectively, "Gaming Regulations")
applicable to the Authority or any of its assets or properties (whether
owned or leased)), other than, in the case of clauses (B) and (C), any
default or violation that would 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 would not reasonably be expected to have a Material Adverse
Effect.
(q) The historical financial statements and schedules of the Authority
included in the Final Memorandum present fairly in all material respects
the financial condition, results of operations and cash flows of the
Authority as of the dates and for the periods indicated, comply as to form
with the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); the "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) would
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) would reasonably be expected to have a Material
Adverse Effect, except as set forth, 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 in the Final Memorandum or that would 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 would 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 would not reasonably be
expected to have a Material Adverse Effect.
(u) Arthur Andersen LLP, who have certified certain financial
statements of the Authority in the Final Memorandum and delivered their
report with respect to the audited financial statements 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 would 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 would 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 would 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, or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto). Except as
set forth in the Final Memorandum, the Authority has not been named as a
"potentially responsible party" under
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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, 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, or contemplated in the Final Memorandum, (a) there are
no rights of third parties to any such Intellectual Property that would
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 would 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, would
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, would 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, which
individually or in
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the aggregate, that would 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 would
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 would 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. Section 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 conditions and in
-----------------
reliance upon the representations and warranties herein set forth, (i) 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 98.375% of the principal amount thereof, the principal amount of such
Securities set forth opposite such Initial Purchaser's name in Schedule I
hereto, and (ii) the Authority agrees to sell to each of Banc of America
Securities LLC and Salomon Smith Barney Inc., and each of Banc of America
Securities LLC and Salomon Smith Barney Inc. agrees, severally and not jointly,
to purchase from the Authority, at a purchase price of 98.375% of the principal
amount thereof, the Securities set forth opposite their respective names in
Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
--------------------
shall be made at 9:00 A.M., New York City time, on February 20, 2002, 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
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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 Authority. 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 Purchaser, severally
------------------------------
and not jointly, represents and warrants to and agrees with the Authority that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes after due inquiry to
be qualified institutional buyers (as defined in Rule 144A under the Act)
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is aware
that such sale is being made in reliance on Rule 144A or (ii) in accordance
with the restrictions set forth in Exhibit A hereto.
(b) Neither it nor any of its Affiliates nor any person acting on its
or their behalf has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any
offer or sale of the Securities in the United States.
(c) Neither it nor any of its Affiliates nor any person acting on its
or their behalf has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under circumstances that
would require the registration of the Securities under the Act.
5. Agreements. The Authority agrees with each Initial Purchaser that:
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(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 Banc of America
Securities LLC), any event oc-
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curs 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
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 Banc of America Securities LLC 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 Banc of America Securities LLC 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.
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(g) Neither the Authority, nor any of its Affiliates, nor any person
acting on its behalf will engage in any form of general solicitation or
general advertising (within the meaning of Regulation D) in connection with
any offer or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, the Authority will,
during any period in which they are not subject to and in compliance with
Section 13 or 15(d) of the Exchange Act or they are not exempt from such
reporting requirements pursuant to and in compliance with Rule 12g3-2(b)
under the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder)
of such restricted securities, upon the request of such holder or
prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Act. This covenant is intended to be for the benefit
of the holders, and the prospective purchasers designated by such holders,
from time to time of such restricted securities.
(i) So long as any of the Securities are outstanding, the Authority
will furnish to Banc of America Securities LLC and Salomon Smith Barney
Inc. on behalf of the Initial Purchasers (i) as soon as practicable, 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 Banc of America
Securities LLC and Salomon Smith Barney Inc. on behalf of 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 90 days following the
Execution Time, without the prior written consent of Banc of America
Securities LLC, 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 Affili-
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ate 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; (4) any
tax-exempt financing of the Tribe; (5) capital or operating leases; or (6)
interest rate swap agreements and other similar arrangements).
(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 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."
-15-
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 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.
-16-
(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 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, would reasonably be expected to result
in a material adverse effect on the Authority.
-17-
(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(d) - 6(e) 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
(d) and (e) of this Section 6; or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), prospects, earnings, business or properties of the Authority,
except as set forth in or contemplated in the Final Memorandum (exclusive
of any amendment or supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
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 and the Indenture and the Initial Purchasers shall have received
executed counterparts thereof.
-18-
(j) The Securities shall be rated at least Ba3 by Moody's Investors
Service Inc. and BB- by Standard and Poor's Corporation; and since the date
of this Agreement, (i) there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Company's other debt
securities by any nationally recognized securities rating agency and (ii)
no such securities rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of the Securities or any of the Company's other debt securities.
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 Banc of America Securities LLC on demand
for 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
-19-
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 Banc of America
Securities LLC 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 Initial Purchasers from whom the person asserting or
causing any such losses, claims, damages or liabilities purchased Securities (or
to the benefit of any person controlling any Initial Purchaser or any directors,
officers, employees and agents of any Initial Purchaser), if a copy of the Final
Memorandum (or the Final Memorandum as amended or supplemented) (if the
Authority shall have timely furnished the Initial Purchasers with sufficient
copies thereof) was not sent or given by or on behalf of the Initial Purchasers
to such person at or prior to the written confirmation of the sale of the
Securities to such person and if the Final Memorandum (or the Final Memorandum
as amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability. This indemnity agreement will be in addition
to any liability which the Authority may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Authority, its directors, officers and each
controlling person within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Authority to each Initial
Purchaser, but only with reference to written information relating to such
Initial Purchaser furnished to the Authority by or on behalf of such Initial
Purchaser through Banc of America Securities LLC 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
-20-
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 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
-21-
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 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
-22-
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.
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
-23-
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 Banc of America Securities LLC at 9 West
57th Street, 31st Floor, New York, New York 10019, Attention: High Yield Capital
Markets; or, if sent to the Authority, will be mailed, delivered or telefaxed to
the Mohegan Tribal Gaming Authority (fax no. (860) 862-5995), 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.
-24-
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. Section 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
-25-
Authority from taking any action, or mandating or obligating the Tribe or
the Authority to take any action, including a judgment compelling the Tribe
or the Authority to submit to binding arbitration.
15. Successors. This Purchase Agreement will inure to the benefit of
----------
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and, except as expressly set forth in Section 5(h) hereof, no other person will
have any right or obligation hereunder.
16. Applicable Law. This Purchase Agreement will be governed by and
--------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
17. Counterparts. This Purchase Agreement may be executed in one or
------------
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
18. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
19. Definitions. The terms which follow, when used in this Purchase
-----------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Agreements" shall mean the 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 February 20, 2002.
"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.
-26-
"Execution Time" shall mean the date and time that this Purchase
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Purchase Agreement and your acceptance shall represent a binding agreement
between the Authority and the several Initial Purchasers.
[Purchase Agreement Signature Pages Follow]
Very truly yours,
Mohegan Tribal Gaming Authority
By: /s/ Jeffrey E. Hartmann
---------------------------------------
Name: Jeffrey E. Hartmann
Title: Executive Vice President of
Finance and Chief Financial
Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Banc of America Securities LLC
By: Banc of America Securities LLC
By: /s/ Bruce R. Thompson
----------------------------------------
Name: Bruce R. Thompson
Title: Managing Director
For themselves and the other several Initial
Purchasers named in Schedule I and Schedule II
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
----------------------------------------
Name: Mark F. Brown
Title: Chairman
SCHEDULE I
Principal Amount of
Senior Subordinated
Initial Purchasers Securities to be Purchased
- ------------------ --------------------------
Banc of America Securities LLC .................... $ 60,000,000
Salomon Smith Barney Inc. ......................... 60,000,000
Fleet Securities, Inc. ............................ 30,000,000
SG Cowen Securities Corporation ................... 14,000,000
Wells Fargo Brokerage Services, LLC ............... 14,000,000
Credit Lyonnais Securities (USA) Inc. ............. 10,000,000
McDonald Investments Inc. ......................... 6,000,000
Commerzbank Capital Markets Corp. ................. 6,000,000
...................................................
Total ................................ $200,000,000/1/
SCHEDULE II
Principal Amount of
Senior Subordinated
Initial Purchasers Securities to be Purchased
- ------------------ --------------------------
Banc of America Securities LLC..................... $25,000,000
Salomon Smith Barney Inc........................... 25,000,000
...................................................
Total................................. $50,000,000
- ----------
/1 Out-of-pocket and stabilization expenses of the Initial Purchasers will be
paid out of the fees earned on the Securities purchased pursuant to
Schedule I./
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.