**Exhibit 4.16**

 

**SUPPLEMENTAL INDENTURE**

**TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS**

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of January 27, 2003, among the Mohegan Basketball Club, LLC (the “Subsidiary Guarantor”), a subsidiary of the Mohegan Tribal GamingAuthority (or its permitted successor), (the “Authority”), the Authority, the other Subsidiary Guarantors (as defined in the Indenture referred to herein) and State Street Bank and Trust Company, as trustee under the Indenture referred tobelow (the “Trustee”). 

 

W I T N E S S E T H:

 

WHEREAS the Authority has heretofore executed and delivered tothe Trustee an indenture (the “Indenture”), dated as of February 20, 2002 providing for the issuance of an aggregate principal amount of up to $250,000,000 of 8% Senior Subordinated Notes due 2012 (the “Notes”); 

 

WHEREAS, the Indenture provides that under certain circumstances theSubsidiary Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Subsidiary Guarantor shall unconditionally guarantee all of the Authority’s Obligations under the Notes and the Indenture on the termsand conditions set forth herein (the “Subsidiary Guarantee”); and 

 

WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture. 

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, theSubsidiary Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows: 

 

1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. 

 

2. INDENTURE PROVISION PURSUANT TO WHICH GUARANTEE IS GIVEN. ThisSupplemental Indenture is being executed and delivered pursuant to Section 4.20 of the Indenture. 

 

3. AGREEMENT TO GUARANTEE. The Subsidiary Guarantor hereby agrees as follows: 

 

(a) The Subsidiary Guarantor, jointly and severally with all other Subsidiary Guarantors, if any,unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, the Notes or the 

obligations of the Authority hereunder or thereunder, that: 

 

(i) the principal of and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption orotherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Authority to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all inaccordance with the terms hereof and thereof; and 

 

(ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether atstated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately.

 

Notwithstanding the foregoing, in the event that thisSubsidiary Guarantee would constitute or result in a violation of any applicable fraudulent conveyance or similar law of any relevant jurisdiction, the liability of the Subsidiary Guarantor under this Supplemental Indenture and its SubsidiaryGuarantee shall be limited to such amount as will not, after giving effect thereto, and to all other liabilities of the Subsidiary Guarantor, result in such amount constituting a fraudulent transfer or conveyance. 

 

4. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES. 

 

(a) To evidence its Subsidiary Guarantee set forth in thisSupplemental Indenture, the Subsidiary Guarantor hereby agrees that a notation of such Subsidiary Guarantee shall be endorsed by an officer of such Subsidiary Guarantor on each Note authenticated and delivered by the Trustee after the date hereof.

 

(b) Notwithstanding the foregoing, theSubsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth herein shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Subsidiary Guarantee. 

 

(c) If an officer whose signature is on this SupplementalIndenture or on the Subsidiary Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless. 

 

(d) The delivery of the Note by the Trustee, after theauthentication thereof under the Indenture, shall constitute due delivery of the Subsidiary Guarantee set forth in this Supplemental Indenture on behalf of the Subsidiary Guarantor. 

 

(e) The Subsidiary Guarantor hereby agrees that its obligations hereunder shall be unconditional, regardlessof the validity, regularity or enforceability of the 

 

2 

Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereofor thereof, the recovery of any judgment against the Authority, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. 

 

(f) The Subsidiary Guarantor hereby waives diligence,presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Authority, any right to require a proceeding first against the Authority, protest, notice and all demands whatsoever and covenants that itsSubsidiary Guarantee made pursuant to this Supplemental Indenture will not be discharged except by complete performance of the obligations contained in the Notes and the Indenture or pursuant to Section 5(b) of this Supplemental Indenture.

 

(g) If the Trustee or any Holder hasinstituted any proceeding to enforce any right or remedy under this Supplemental Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then, and in everysuch case, subject to any determination in such proceeding, the Subsidiary Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of theSubsidiary Guarantor, the Trustee and the Holders shall continue as though no such proceeding had been instituted. 

 

(h) The Subsidiary Guarantor hereby waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights ofreimbursement, indemnity or subrogation or any other rights against the Authority or any other Subsidiary Guarantor as a result of any payment by such Subsidiary Guarantor under its Subsidiary Guarantee. The Subsidiary Guarantor further agrees that,as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand: 

 

(i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of theSubsidiary Guarantee made pursuant to this Supplemental Indenture, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby; and 

 

(ii) in the event of any declaration of acceleration of suchobligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantor for the purpose of the Subsidiary Guarantee made pursuant to this Supplemental Indenture.

 

(i) The Subsidiary Guarantor shall have theright to seek contribution from any other nonpaying Subsidiary Guarantor, if any, so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee made pursuant to this Supplemental Indenture.

 

3 

(j) The Subsidiary Guarantor covenants (to the extent that it may lawfully do so) that itwill not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or theperformance of the Indenture or this Subsidiary Guarantee; and the Subsidiary Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay orimpede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. 

 

5. SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. 

 

(a) Nothing contained in the Indenture, this SupplementalIndenture or in the Notes shall prevent any consolidation or merger of the Subsidiary Guarantor with or into the Authority or any other Subsidiary Guarantor or shall prevent any transfer, sale or conveyance of the property of the SubsidiaryGuarantor as an entirety or substantially as an entirety, to the Authority or any other Subsidiary Guarantor. 

 

(b) Except as set forth in Article 5 of the Indenture, upon the sale or disposition of all of the Capital Stock of the SubsidiaryGuarantor by the Authority or a Subsidiary of the Authority, or upon the consolidation or merger of the Subsidiary Guarantor with or into any Person, or if a Subsidiary Guarantor is designated as an Unrestricted Subsidiary, or the sale of all orsubstantially all of the assets of the Subsidiary Guarantor (in each case, other than with or to an Affiliate of the Authority), or upon a legal defeasance or covenant defeasance of the Notes, such Subsidiary Guarantor shall be deemed automaticallyand unconditionally released and discharged from all obligations under this Subsidiary Guarantee without any further action required on the part of the Trustee or any Holder if no Default shall have occurred and be continuing; provided that in theevent of an Asset Sale, the Net Cash Proceeds therefrom are treated in accordance with Section 4.10 of the Indenture and provided further that in the event of a redesignation of a Subsidiary, the transaction is in compliance with Section 4.07 of theIndenture. Except with respect to transactions set forth in the preceding sentence, the Authority and the Subsidiary Guarantor covenant and agree that upon any such consolidation, merger or transfer of assets, the performance of all covenants andconditions of this Supplemental Indenture to be performed by such Subsidiary Guarantor shall be expressly assumed by supplemental indenture satisfactory in form to the Trustee, by the corporation formed by such consolidation, or into which theSubsidiary Guarantor shall have merged, or by the corporation which shall have acquired such property. Upon receipt of an Officers’ Certificate of the Authority or the Subsidiary Guarantor, as the case may be, to the effect that the Authorityor such Subsidiary Guarantor has complied with the first sentence of this Section 5(b), the Trustee shall execute any documents reasonably requested by the Authority or the Subsidiary Guarantor, at the cost of the Authority or such SubsidiaryGuarantor, as the case may be, in order to evidence the release of such Subsidiary Guarantor from its obligations under its Senior Subsidiary Guarantee endorsed on the Notes and under the Indenture and this Supplemental Indenture. 

 

6. NEW YORK LAW TO GOVERN. The internal law of the State of New 

 

4 

York shall govern and be used to construe this Supplemental Indenture. 

 

7. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be anoriginal, but all of them together represent the same agreement. 

 

8. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not effect the construction hereof. 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

 

Dated: January 27, 2003 

 
MOHEGAN BASKETBALL CLUB, LLC
By:
 
/s/    JEFFREY E.HARTMANN        

Name:

Title:
 
Jeffrey E. Hartmann

Manager and VicePresident

 

 
MOHEGAN TRIBAL GAMING AUTHORITY
By:
 
/s/    MARK F.BROWN        

Name:

Title:
 
Mark F. Brown

Chairman, ManagementBoard

 
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:
 
/s/    MARK FORGETTA

Authorized Signatory

VicePresident

 

5 

**NOTATION OF SUBSIDIARY GUARANTEE ON SENIOR SUBORDINATED NOTE**

 

Each Subsidiary Guarantor (as defined in the Indenture) has jointly andseverally unconditionally guaranteed (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, whether at maturity or an Interest Payment Date, by acceleration, call for redemption or otherwise, (b) the dueand punctual payment of interest on the overdue principal and premium of, and interest, to the extent lawful, on the Notes and (c) that in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the samewill be promptly paid in full when due in accordance with the terms of the extension of renewal, whether at stated maturity, by acceleration or otherwise. 

 

Notwithstanding the foregoing, in the event that the Subsidiary Guarantee would constitute or result in a violation of any applicable fraudulentconveyance or similar law of any relevant jurisdiction, the liability of the Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to such amount as will not, after giving effect thereto, and to all other liabilities of the SubsidiaryGuarantor, result in such amount constituting a fraudulent transfer or conveyance. 

 

The Subsidiary Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Note upon which the Subsidiary Guarantee is noted shall have been executed by the Trustee underthe Indenture by the manual or facsimile signature of one of its authorized officers. 

 

Dated: January 27, 2003 

 
MOHEGAN BASKETBALL CLUB, LLC
By:
 
/s/    JEFFREY E.HARTMANN        

Name:

Title:
 
Jeffrey E. Hartmann

Manager and VicePresident

 

6