Exhibit 4.14
REGISTRATION RIGHTS AGREEMENT
Dated as of February 20, 2002
among
MOHEGAN TRIBAL GAMING AUTHORITY
and
BANC OF AMERICA SECURITIES LLC
SALOMON SMITH BARNEY INC.
FLEET SECURITIES, INC.
SG COWEN SECURITIES CORPORATION
COMMERZBANK SECURITIES
MCDONALD INVESTMENTS INC.
WELLS FARGO BROKERAGE SERVICES, LLC
and
CREDIT LYONNAIS SECURITIES
This Registration Rights Agreement (this "Agreement") is made and entered into
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as of February 20, 2002, by and among the Mohegan Tribal Gaming Authority (the
"Authority"), an instrumentality of the Mohegan Tribe of Indians of Connecticut
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(the "Tribe"), and Banc of America Securities LLC, Salomon Smith Barney Inc.
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Fleet Securities, Inc., SG Cowen Securities Corporation, Commerzbank Securities,
McDonald Investments Inc., Wells Fargo Brokerage Services, LLC and Credit
Lyonnais Securities (each an "Initial Purchaser" and, collectively the "Initial
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Purchasers"), each of whom has agreed to purchase the Authority's 8% Initial
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Notes due 2012 (the "Initial Notes") pursuant to the Purchase Agreement (as
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defined below).
This Agreement is made pursuant to the Purchase Agreement, dated February
20, 2002 (the "Purchase Agreement"), by and among the Authority, the Tribe and
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the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Initial Notes, the Authority has agreed to provide the registration rights
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 6 of
the Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture, dated February 20,
2002, by and among the Authority, the Tribe and State Street Bank and Trust
Company, as Trustee, relating to the Initial Notes and the Exchange Notes (the
"Indenture").
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The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings.
Act: The Securities Act of 1933, as amended.
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Affiliate: As defined in Rule 144 of the Act.
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Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Business Day: Any day except a Saturday, Sunday or other day in the City of
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New York, or in the city of the corporate trust office of the Trustee, on which
banks are authorized to not open for business.
Certificated Securities: Definitive Notes, as defined in the Indenture.
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Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed "Consummated" for purposes of
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this Agreement upon the occurrence of (a) the filing and effectiveness under the
Act of the Exchange Offer Registration Statement relating to the Exchange Notes
to be issued in the Exchange Offer, (b) the maintenance of such Exchange Offer
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the period required pursuant to Section
3(b) hereof and (c) the delivery by the Authority to the Registrar under the
Indenture of Exchange Notes in the
same aggregate principal amount as the aggregate principal amount of Initial
Notes tendered by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
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Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Notes: The Authority's 8% Exchange Notes due 2012 to be issued
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pursuant to the Indenture: (i) in the Exchange Offer or (ii) as contemplated by
Section 4 hereof.
Exchange Offer: The exchange and issuance by the Authority of a principal
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amount of Exchange Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Initial Notes that are tendered by such Holders in connection with such exchange
and issuance.
Exchange Offer Registration Statement: The Registration Statement relating
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to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose to
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sell the Initial Notes to certain "qualified institutional buyers," as such term
is defined in Rule 144A under the Act, and pursuant to Regulation S under the
Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
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Holders: As defined in Section 2 hereof.
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Prospectus: The prospectus included in a Registration Statement at the time
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such Registration Statement is declared effective, as amended or supplemented by
any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
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Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Authority
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relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) that is filed pursuant to
the provisions of this Agreement and (ii) including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Regulation S: Regulation S promulgated under the Act.
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Rule 144: Rule 144 promulgated under the Act.
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Shelf Registration Statement: As defined in Section 4 hereof.
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Suspension Notice: As defined in Section 6(d) hereof.
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TIA: The Trust Indenture Act of 1939, as amended.
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Transfer Restricted Securities: Each (A) Initial Note, until the earliest
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to occur of (i) the date on which such Initial Note is exchanged in the Exchange
Offer for an Exchange Note that is entitled to be resold to the public by the
Holder thereof without complying with the prospectus delivery requirements of
the Act, (ii) the date on which such Initial Note has been disposed of in
accordance with a Shelf Registration Statement (and the purchasers thereof have
been issued Exchange Notes), and (iii) the date on which such Initial Note is
distributed to the public pursuant to Rule 144 under the Act and each (B)
Exchange Note held by a Broker-Dealer until the date on which such Exchange Note
is disposed of by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including the
delivery of the Prospectus contained therein).
Tribe: The Mohegan Tribe of Indians of Connecticut, a sovereign tribe
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recognized by the United States of America pursuant to 25 C.F.R. Section 83.
SECTION 2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such person owns Transfer Restricted Securities.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Authority shall (i) cause the Exchange Offer Registration Statement
to be filed with the Commission as soon as practicable after the Closing Date,
but in no event later than 90 days after the Closing Date (such 90th day being
the "Filing Deadline"), (ii) use its commercially reasonable best efforts to
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cause such Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 150 days after the Closing
Date (such 150th day being the "Effectiveness Deadline"), (iii) in connection
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with the foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to become
effective, (B) file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting (i) registration of the Exchange Notes to be offered
in exchange for the Initial Notes that are Transfer Restricted Securities and
(ii) resales of Exchange Notes by Broker-Dealers that tendered into the Exchange
Offer Initial Notes that such Broker-Dealer acquired for its own account as a
result of market-making activities or other trading activities (other than
Initial Notes acquired directly from the Authority or any of its Affiliates) as
contemplated by Section 3(c) below.
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(b) The Authority shall use its commercially reasonable best efforts to
cause the Exchange Offer Registration Statement to be effective continuously,
and shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 20 Business Days. The Authority shall cause the Exchange Offer to
comply with all applicable federal and state securities laws. No securities
other than the Exchange Notes shall be included in the Exchange Offer
Registration Statement. The Authority shall use its commercially reasonable best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 Business Days thereafter (such 30th day
being the "Consummation Deadline").
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(c) The Authority shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Initial Notes acquired
directly from the Authority or any Affiliate of the Authority) may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement.
Because such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the Authority shall
permit the use of the Prospectus contained in the Exchange Offer Registration
Statement by such Broker-Dealer to satisfy such prospectus delivery requirement.
To the extent necessary to ensure that the prospectus contained in the Exchange
Offer Registration Statement is available for sales of Exchange Notes by
Broker-Dealers, the Authority agrees to use its commercially reasonable best
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented, amended and current as required by and subject to the
provisions of Section 6(a) and (c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of one year from
the Consummation Deadline or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been
sold pursuant thereto. The Authority shall provide sufficient copies of the
latest version of such Prospectus to such Broker-Dealers, promptly upon request,
and in no event later than one day after such request, at any time during such
period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
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applicable law (after the Authority has complied with the procedures set forth
in Section 6(a)(i) below) or (ii) if any Holder of Transfer Restricted
Securities shall notify the Authority within 20 Business Days following the
Consummation Deadline that (A) such Holder was prohibited by law or Commission
policy from participating in the Exchange Offer or (B) such Holder may not
resell the Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and the Prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for such resales by
such Holder
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or (C) such Holder is a Broker-Dealer and holds Initial Notes acquired directly
from the Authority or any of its Affiliates, then the Authority shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i)
the date on which the Authority determines that the Exchange Offer
Registration Statement cannot be filed as a result of clause (a)(i) above
and (ii) the date on which the Authority receives the notice specified in
clause (a)(ii) above (such earlier date, the "Filing Deadline"), a shelf
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registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the "Shelf
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Registration Statement")), relating to all Transfer Restricted Securities,
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and
(y) use its commercially reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after the
Filing Deadline for the Shelf Registration Statement (such 90th day the
"Effectiveness Deadline").
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If, after the Authority has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Authority is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e., clause
(a)(i) above), then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Authority shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Authority
shall use its best efforts to keep any Shelf Registration Statement required by
this Section 4(a) continuously effective, supplemented, amended and current as
required by and subject to the provisions of Sections 6(b) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i)) following
the Closing Date or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been
sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Authority in writing, within 20 days after receipt of a request therefor,
the information specified in Item 507 or 508 of Regulation S-K, as applicable,
of the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to additional interest pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to furnish promptly additional
information required to be disclosed in order to make the information previously
furnished to the Authority by such Holder not materially misleading.
SECTION 5. ADDITIONAL INTEREST
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been
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declared effective by the Commission on or prior to the applicable Effectiveness
Deadline, (iii) the Exchange Offer has not been Consummated on or prior to the
Consummation Deadline or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
within 2 days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective within 5 days of filing
such post-effective amendment to such Registration Statement (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then the
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Authority hereby agrees to pay to each Holder of Transfer Restricted Securities
affected thereby additional interest in an amount equal to 25 basis points per
90-day period of the principal amount of Transfer Restricted Securities held by
such Holder for the 90-day period or portion thereof that the Registration
Default continues for the first 90-day period immediately following the
occurrence of such Registration Default. The amount of the additional interest
shall increase by an additional 25 basis points with respect to each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum
amount of additional interest of 1% per annum of the principal amount of
Transfer Restricted Securities; provided that the Authority shall in no event be
required to pay additional interest for more than one Registration Default at
any given time. Notwithstanding anything to the contrary set forth herein, (1)
upon filing of the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the additional
interest payable with respect to the Transfer Restricted Securities as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued additional interest shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture and
the Initial Notes, on each Interest Payment Date, as more fully set forth in the
Indenture and the Initial Notes. Notwithstanding the fact that any securities
for which additional interest is due cease to be Transfer Restricted Securities,
all obligations of the Authority to pay additional interest with respect to
securities shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
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Offer, the Authority shall (x) comply with all applicable provisions of Section
6(c) below, (y) use its commercially reasonable best efforts to effect such
exchange and to permit the resale of Exchange Notes by Broker-Dealers that
tendered in the Exchange Offer Initial Notes that such Broker-Dealer acquired
for its own account as a result of its market-making activities or other trading
activities (other than Initial Notes acquired directly from the Authority or any
of its Affiliates) being sold in accordance with the intended method or methods
of distribution thereof, and (z) comply with all of the following provisions:
(i) If, following the date hereof, there has been announced a change
in Commission policy with respect to exchange offers such as the Exchange
Offer that in the reasonable opinion of counsel to the Authority raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Authority hereby agrees to seek a no-action
letter or other favorable decision from the Commission staff allowing the
Authority to
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Consummate an Exchange Offer for such Transfer Restricted Securities. In
connection with the foregoing, the Authority hereby agrees to take all
actions as may be required in connection with the issuance of such
decision, including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the Commission staff an
analysis prepared by counsel to the Authority setting forth the legal
bases, if any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursuing a resolution (which
need not be favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker-Dealer) shall furnish, upon the request of the
Authority, prior to the Consummation of the Exchange Offer, a written
representation to the Authority (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an Affiliate of the Authority, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring
the Exchange Notes in its ordinary course of business. As a condition to
its participation in the Exchange Offer, each Holder using the Exchange
Offer to participate in a distribution of the Exchange Notes shall
acknowledge and agree that, if the resales are of Exchange Notes obtained
by such Holder in exchange for Initial Notes acquired directly from the
Authority or an Affiliate thereof, it (1) could not, under Commission
policy as in effect on the date of this Agreement, rely on the position of
the Commission enunciated in Exxon Capital Holdings Corporation (available
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May 13, 1988) and Morgan Stanley and Co., Inc. (available June 5, 1991), as
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interpreted in the Commission's letter to Shearman & Sterling dated July 2,
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1993, and similar no-action letters (including, if applicable, any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of the
Act in connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective registration
statement containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Authority shall provide a supplemental letter to the
Commission (A) stating that the Authority is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
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Holdings Corporation (available May 13, 1988) and Morgan Stanley and Co.,
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Inc. (available June 5, 1991) as interpreted in the Commission's letter to
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Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action
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letter obtained pursuant to clause (i) above, (B) including a
representation that the Authority has not entered into any arrangement or
understanding with any person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of the Authority's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any person to participate in the
distribution of the Exchange Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above, if
applicable.
(b) Shelf Registration Statement. In connection with the Shelf Registration
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Statement, the Authority shall:
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(i) comply with all the provisions of Section 6(c) below and use its
commercially reasonable best efforts to effect such registration to permit
the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof (as indicated
in the information furnished to the Authority pursuant to Section 4(b)
hereof), and pursuant thereto the Authority will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale
of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Initial
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Exchange Notes having an aggregate principal amount equal to the
aggregate principal amount of Initial Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Authority for cancellation.
The Authority shall register Exchange Notes on the Shelf Registration
Statement for this purpose and issue the Exchange Notes to the purchaser(s)
of securities subject to the Shelf Registration Statement in the names as
such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement and
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any related Prospectus required by this Agreement, the Authority shall:
(i) use its commercially reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would cause
any such Registration Statement or the Prospectus contained therein (A) to
contain an untrue statement of material fact or omit to state any material
fact necessary to make the statements therein not misleading or (B) not to
be effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Authority shall file promptly an
appropriate amendment to such Registration Statement curing such defect,
and, if Commission review is required, use its commercially reasonable best
efforts to cause such amendment to be declared effective as soon as
practicable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be,
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in such Registration Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if requested by such Holder,
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supple-
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ments to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make
the statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Authority shall use its commercially reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) (A) in the case of a Shelf Registration Statement, upon request of
any Holder, furnish to each Holder in connection with such exchange or
sale, if any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Holders in connection with such sale, if any, for a period
of at least five Business Days, and the Authority will not file any such
Registration statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such Holders shall reasonably object
within five Business Days after the receipt thereof. A Holder shall be
deemed to have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed
to be filed, contains an untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein not
misleading or fails to comply with the applicable requirements of the Act;
or (B) in the case of an Exchange Offer Registration Statement, upon
request of any Initial Purchaser, furnish to each such Initial Purchaser in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement
or Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Initial Purchaser in connection
with such sale, if any, for a period of at least five Business Days, and
the Authority will not file any such Registration Statement or
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Prospectus (including all such documents incorporated by reference) to
which such Initial Purchaser shall reasonably object within five Business
Days after the receipt thereof. An Initial Purchaser shall be deemed to
have reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omits to state
any material fact necessary to make the statements therein not misleading
or fails to comply with the applicable requirements of the Act;
(vi) in the case of a Shelf Registration Statement, promptly prior to
the filing of any document that is to be incorporated by reference into a
Registration Statement or Prospectus, provide copies of such document to
each Holder who requests such copies in connection with such exchange or
sale, if any, make the Authority's representatives available for discussion
of such document and other customary due diligence matters, and include
such information in such document prior to the filing thereof as such
Holders may reasonably request;
(vii) in the case of a Shelf Registration Statement, upon request from
any Holder, make available, at reasonable times, for inspection by such
Holder and any attorney or accountant retained by such Holders, all
financial and other records, pertinent corporate documents of the Authority
and cause the Authority's officers, board members and employees to supply
all information reasonably requested by any such Holder, attorney or
accountant in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior
to its effectiveness;
(viii) if requested by any Holders in connection with such exchange or
sale, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities, and make all
required filings of such Prospectus supplement or post-effective amendment
as soon as practicable after the Authority is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(ix) if requested by a Holder, furnish to such Holder in connection
with such exchange or sale, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each Holder without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Authority
hereby consents to the use (in accordance with law) of the Prospectus and
any amendment or supplement thereto by each selling Holder in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(xi) upon the request of any Holder holding a majority of the
outstanding principal amount of Initial Notes, enter into such agreements
(including underwriting agreements) and make such representations and
warranties and take all such other actions in connection therewith in order
to expedite or facilitate the disposition of the Transfer Restricted
Securities
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pursuant to any applicable Registration Statement contemplated by this
Agreement as may be reasonably requested by any Holder in connection with
any sale or resale pursuant to any applicable Registration Statement. In
such connection, the Authority shall:
(A) upon request of any Holder, furnish (or in the case of
paragraphs (2) and (3), use its best efforts to cause to be furnished)
to each Holder, upon Consummation of the Exchange Offer or upon the
effectiveness of the Shelf Registration Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf of the
Authority by the Chairman of the Management Board confirming, as
of the date thereof, the matters set forth in Section 6(d) of the
Purchase Agreement and such other similar matters as such Holders
may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Authority covering such matters as such Holder may reasonably
request and are customarily given in similar offerings; and
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the case
may be, from the Authority's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 6(e) of the
Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance
with the matters covered in clause (A) above and with any customary
conditions contained in any agreement entered into by the Authority
pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under
the securities or Blue Sky laws of such jurisdictions as the selling
Holders may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that the Authority shall not be required to register or
qualify as a foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to register such
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Transfer Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such sale
of Transfer Restricted Securities;
(xiv) use its commercially reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xv) provide a CUSIP number for all Transfer Restricted Securities not
later than the effective date of a Registration Statement covering such
Transfer Restricted Securities and provide the Trustee under the Indenture
with printed certificates for the Transfer Restricted Securities which are
in a form eligible for deposit with the Depository Trust Company;
(xvi) otherwise use its commercially reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earning
statement meeting the requirements of Rule 158 (which need not be audited)
covering a 12-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the TIA;
and execute and use its best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other forms
and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xviii) provide promptly to each Holder, upon request, each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
-----------------------
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Authority of the existence of any
fact of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"Suspension Notice"), such Holder will forthwith discontinue disposition of
-----------------
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Authority that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus (in each case, the
"Recommencement Date"). Each Holder receiving a Suspension Notice hereby agrees
-------------------
that it will either (i) destroy any Prospectuses, other than permanent file
copies, then in such Holder's possession which have been replaced by the
Authority with more recently dated Prospectuses or (ii) deliver to the Authority
(at the Authority's expense) all copies, other than permanent file copies, then
in such Holder's possession of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of the Suspension Notice. The
time period regarding the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be
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extended by a number of days equal to the number of days in the period from and
including the date of delivery of the Suspension Notice to the date of delivery
of the Recommencement Date.
(e) Underwritten Offerings. No Holder may participate in any underwritten
----------------------
Shelf Registration Statement hereunder unless such Holder (i) agrees to sell
such Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements entered into in connection therewith and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Authority's performance of or compliance
with this Agreement will be borne by the Authority, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Exchange Notes
to be issued in the Exchange Offer and printing of prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Authority and the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing the Exchange Notes on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Authority (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Authority will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any person, including special experts, retained by the
Authority.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Authority will reimburse
the Holders of Transfer Restricted Securities who are tendering Initial Notes
into the Exchange Offer and/or selling or reselling Initial Notes or Exchange
Notes pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or the Shelf Registration Statement, as applicable, for
the reasonable fees and disbursements of not more than one counsel, as may be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
The Holders of any Initial Notes or Exchange Notes being registered on the
Shelf Registration Statement shall pay all agency or brokerage fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Initial Notes or Exchange Notes and the fees and disbursements of any
counsel retained by such Holders.
SECTION 8. INDEMNIFICATION
(a) The Authority agrees to indemnify and hold harmless each Holder, its
directors, officers and each person, if any, who controls such Holder (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all losses, claims, damages, liabilities, judgments
(including without limitation, any legal or other expenses incurred in
connection with in-
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vestigating or defending any matter, including any action that could give rise
to any such losses, claims, damages, liabilities or judgments) caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Authority to any Holder or any
prospective purchaser of Exchange Notes or registered Initial Notes, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon information relating to any of the Holders furnished
in writing to the Authority by any of the Holders.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Authority and its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Authority to the same
extent as the foregoing indemnity from the Authority set forth in section (a)
above, but only with reference to information relating to such Holder furnished
in writing to the Authority by such Holder expressly for use in any Registration
Statement. In no event shall any Holder, its directors, officers or any person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
-----------------
against whom such indemnity may be sought (the "indemnifying person") in writing
-------------------
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 8(a), and by
the Authority, in the
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case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than 20
Business Days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, capability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments in such proportion as is appropriate
to reflect the relative fault of the Authority, on the one hand, and of the
Holder, on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative fault of the
Authority, on the one hand, and of the Holder, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Authority, on the one
hand, or by the Holder, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and judgments referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Authority and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any matter, including any action
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has otherwise been required to pay by
reason of
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such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Transfer Restricted Securities held by each
Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Authority agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Authority (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. CONSENT TO SUIT
The Authority waives its sovereign immunity from unconsented suit, whether
such suit be brought in law or in equity, or in administrative proceedings or
proceedings in arbitration, to permit the commencement, maintenance, and
enforcement of any action, by any person with standing to maintain an action, to
interpret or enforce the terms of this Agreement, and to enforce and execute any
judgment resulting therefrom against the Authority or the assets of the
Authority. Notwithstanding any other provision of law or canon of construction,
the Authority intends this waiver to be interpreted liberally to permit the full
litigation of disputes arising under or out of this Agreement. Without limiting
the generality of the foregoing, the Authority waives its immunity from
unconsented suit to permit the maintenance of the following actions:
(i) Courts. The Authority waives its immunity from unconsented suit to
------
permit any court of competent jurisdiction to: (i) enforce and interpret
the terms of this Agreement, and award and enforce the award of damages
owing as a consequence of a breach thereof, whether such award is the
product of litigation, administrative proceedings or arbitration; (ii)
determine whether any consent or approval of the Authority has been
improperly granted or unreasonably withheld; (iii) enforce any judgment
prohibiting the Authority from taking any action, or mandating or
obligating the Authority to take any action, including a judgment
compelling the Authority to submit to binding arbitration; and (iv)
adjudicate any claim under the Indian Civil Rights Act of 1968, 25 U.S.C.
Section. 1302 (or any successor statute).
(ii) Arbitration. The Authority waives its immunity from unconsented
-----------
suit to permit arbitrators, appointed and acting under the commercial
arbitration rules of the American Arbitration Association, whenever and to
the extent any agreement to submit a matter to arbitration is made by the
Authority, to: (i) enforce and interpret the terms of this Agreement and to
award and enforce the award of any damages owing as a consequence thereof,
(ii) determine whether any consent or approval of the Authority has been
unreasonably withheld; and (iii) enforce any judgment prohibiting the
Authority from taking any action, or mandating
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or obligating the Authority to take any action, including a judgment
compelling the Authority to submit to binding arbitration.
SECTION 11. MISCELLANEOUS
(a) Remedies. The Authority acknowledges and agrees that any failure by the
--------
Authority to comply with its obligations under Sections 3 and 4 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Authority's obligations under Sections 3
and 4 hereof. The Authority further agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Authority will not, on or after the
--------------------------
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Authority's securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 11(c)(i), the Authority has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Authority has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Authority or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party beneficiaries
-----------------------
to the agreements made hereunder between the Authority, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent they may deem such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
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(ii) if to the Authority:
Mohegan Tribal Gaming Authority
One Mohegan Sun Boulevard
Uncasville, CT 06382
Telecopier No.: (860) 204-6153
Attention: Mark F. Brown
With a copy to:
Hogan & Hartson L.L.P.
555 Thirteenth Street, NW
Washington, DC 20004
Telecopier No.: (202) 637-5910
Attention: Carl Weld King, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW).
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(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
----------------
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
MOHEGAN TRIBAL GAMING AUTHORITY
By:/s/ Mark F. Brown
----------------------------
Name: Mark F. Brown
Title: Chairman, Management Board
BANC OF AMERICA SECURITIES LLC
on behalf of itself and the other several Initial Purchasers
By:/s/ Bruce R. Thompson
----------------------------------
Name: Bruce R. Thompson
Title: Managing Director
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