Execution Copy
RELINQUISHMENT AGREEMENT
THIS RELINQUISHMENT AGREEMENT (as further supplemented or amended from
time to time, the "Relinquishment Agreement") is entered into as of this 7th
day of February, 1998, between the Mohegan Tribal Gaming Authority (as further
defined below, the "Authority"), an instrumentality of The Mohegan Tribe of
Indians of Connecticut, a federally recognized Indian tribe (as further defined
below, the "Tribe"), and Trading Cove Associates, a Connecticut partnership
("TCA").
RECITALS
A. The Authority and TCA are parties to (i) that certain Amended and
Restated Gaming Facility Management Agreement dated August 30, 1995 and
approved by the National Indian Gaming Commission on September 29, 1995 (the
"Gaming Management Agreement"), which grants to TCA the exclusive right and
obligation, for a period of seven (7) years ending on October 11, 2003, to
manage certain gaming operations as described therein, and to train Tribe
members and others in the operation and maintenance of such operations and (ii)
that certain Hotel/Resort Management Agreement dated February 28, 1994 (the
"Hotel Management Agreement"), which grants to TCA the exclusive right and
obligation, for a period of fourteen (14) years, to manage, operate and maintain
certain hotel/resort operations as described therein.
B. The Authority now desires to assume the management, operation and
maintenance of its existing gaming operations, any related hotel/resort
operations and any expansion of the foregoing.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the Authority and
TCA agree as follows:
1. Definitions. Capitalized terms used in this Relinquishment
Agreement shall have the meanings set forth below:
"Affiliate" means, with respect to the Person in question, any Person
controlling, controlled by or under common control with, such Person. For the
purposes hereof, "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of the
Person in question.
"Affiliate Transaction" has the meaning set forth in Section 7.2 below.
"Assignment Offer" has the meaning set forth in Section 16.7(a) below.
"Assignor" has the meaning set forth in Section 16.7(a) below.
"Authority" means the Mohegan Tribal Gaming Authority, acting by the
Management Board, or any other instrumentality of the Tribe with the authority
to exercise the regulatory and proprietary authority of the Tribe over the
Facilities in accordance with the Mohegan Tribal Constitution, the Tribe's
ordinance for gaming, the Tribe's ordinance establishing the Mohegan Tribal
Gaming Authority, the Compact, the IGRA or other applicable law, and any
successor and assignee thereto.
"Average Casino Revenues" means the average monthly Revenues of the Casinos
for the twelve (12) months ending with (and including) the month immediately
prior to the month in which a Casualty Event occurs.
"Bankruptcy Code" means the United States Bankruptcy Code, at 11 U.S.C.
SS101, et. seq., as amended from time to time.
"Bureau of Indian Affairs" is the Bureau of Indian Affairs of the
Department of the Interior of the United States of America.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet prepared in
accordance with GAAP.
"Cash Contingency Reserve Fund" means the account previously established by
TCA in the Authority's name pursuant to the Gaming Management Agreement which
is used to make transfers as necessary to the Disbursement Account and the
cash prize reserve fund.
"Casinos" means, collectively, the Mohegan Sun Casino and the New Casino.
"Casualty Event" means any casualty, event or occurrence that destroys or
damages either or both Casinos.
"Class II Gaming Revenues" means any revenues collected from Class II
Gaming as that term is defined under the IGRA.
"Compact" means the tribal-state Compact entered into between the Tribe and
the State of Connecticut pursuant to the IGRA, as the same may be amended from
time to time, or such other Compact as may be substituted therefor.
"Construction Financing" means the financing to be obtained and/or
committed by the Authority sufficient, as determined by the Authority, for the
purposes of the design, construction, equipping and staffing of the New
Facilities.
"CPI" means the revised Consumer Price Index for All Urban Consumers
(revised CPI-U), All Items, MSA applicable to New London County, CT, Base
1982-84=100, issued by the Bureau of Labor Statistics of the U.S. Department of
Labor. If the CPI is changed so that a base period other than 1982-84 is used,
the CPI shall be converted in accordance with the conversion factor published by
the Bureau of Labor Statistics of the Department of Labor. If the CPI is
discontinued during the Term with no successor or comparable successor CPI,
the Authority shall appoint an independent nationally recognized accounting
firm to select another similar index.
"Depository Account" means the account previously established by TCA in the
Authority's name pursuant to the Gaming Management Agreement into which
account are deposited all gross revenues and other proceeds connected with or
arising from the operation of the current gaming operations, the sale of all
products, food and beverage and all other activities of the current operations.
"Designated Senior Indebtedness" means any Senior Indebtedness the original
principal amount or maximum commitment of which is $50,000,000 or more and
that has been designated at the time of issuance thereof by the Authority as
"Designated Senior Indebtedness."
"Designated Senior Secured Indebtedness" means any Senior Secured
Indebtedness the original principal amount or maximum commitment of which is
$50,000,000 or more and that has been designated at the time of issuance thereof
by the Authority as "Designated Senior Secured Indebtedness."
"Disbursement Account" means the account previously established by TCA in
the Authority's name pursuant to the Gaming Management Agreement which account
TCA uses to make all required payments for operating expenses and certain other
payments relating to the existing gaming and related operations.
"Effective Date" means the later of (a) the date the Authority receives
all Required Approvals, or (b) the date the existing Series B Senior Secured
Notes of the Authority in the original aggregate principal amount of
$175,000,000 are refinanced or repaid.
"Facilities" means collectively the Mohegan Sun Casino and the New
Facilities, as such may be replaced or reconstructed following a casualty loss
(in whole or in part). The Facilities shall not include any other facilities or
improvements hereafter developed (by TCA or others) on lands owned or controlled
by the Authority or the Tribe or any instrumentality thereof.
"Fiscal Year" means the fiscal year of the Authority which currently is
October 1-September 30.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession.
"Gaming" means any and all activities defined as Class III Gaming under the
IGRA or authorized under the Compact, but shall not include Class II Gaming as
defined under the IGRA.
"Gaming Management Agreement" has the meaning set forth in Recital A
hereof.
"Gross Gaming Revenue" shall mean the net win from Gaming activities which
is the difference between Gaming wins and losses before deducting promotional
allowances, costs and expenses, determined in accordance with GAAP consistently
applied.
"Guarantee" means a guaranty, direct or indirect, in any manner, of all or
any part of any indebtedness of another Person.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (a) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (b) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Hotel Management Agreement" has the meaning set forth in Recital A hereof.
"IGRA" means the Indian Gaming Regulatory Act of 1988, 25 U.S.C. S 2701
et seq., as amended from time to time.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable,
if and to the extent any of the foregoing (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP consistently applied, as well as all
Indebtedness of others secured by a lien on any asset of such Person (whether
or not such Indebtedness is assumed by such Person) and, to the extent not
otherwise included, the Guarantee by such Person of any indebtedness of any
other Person. The amount of any Indebtedness outstanding as of any date shall
be (a) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount, and (b) the principal amount thereof, together with
any interest thereon that is more than thirty (30) days past due, in the case
of any other Indebtedness.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of Management Board of the Authority, (i) qualified to
perform the task for which it has been engaged and (ii) disinterested and
independent with respect to the Authority and each Affiliate of the Authority.
"Initial Junior Payment Period" means the period commencing on the
Relinquishment Date and ending on the earlier to occur of June 30 or December
31 following the Relinquishment Date.
"Initial Senior Payment Period" means the period commencing on the
Relinquishment Date and ending on the earlier to occur of March 31, June 30,
September 30 or December 31 following the Relinquishment Date.
"Junior Changeover Date" means the date immediately following the end of
the Initial Junior Payment Period.
"Junior Relinquishment Payment" has the meaning set forth in Section
6.1(b) below.
"MTC Court" means the Gaming Disputes Court of the Tribe.
"Marks" means any and all of the service marks, trademarks, copyrights,
trade names, patents or other similar rights or registrations, now or hereafter
held by the Tribe or the Authority or applied for in connection therewith;
including all marks which are unique to, and developed for, the Facilities.
"Minimum Priority Distribution" means an annual minimum payment to the
Tribe from the operation of the Facilities in the amount of Fourteen Million
Dollars ($14,000,000), which shall be adjusted annually, on each anniversary of
the Relinquishment Date, to reflect the cumulative increase in the CPI since the
Relinquishment Date. One twelfth (1/12th) of the Minimum Priority Distribution
shall be paid to the Tribe within twenty-five (25) days following the end of
each calendar month following the Relinquishment Date. Any underpayment of the
Minimum Priority Distribution in any calendar month shall be added to the
Minimum Priority Distribution due the following calendar month.
"Mohegan Sun Casino" means the existing Mohegan Sun casino and any other
lawful commercial activity operated in such casino, as used for Gaming.
"National Indian Gaming Commission" means the commission established
pursuant to 25 U.S.C. Section 2704.
"New Casino" means the new casino to the extent developed by TCA as part of
the New Facilities and any other lawful commercial activity operated in such
casino, as used for Gaming.
"New Facilities" means a new casino consisting of approximately 100,000
square feet of gaming space and related food and beverage and entertainment
facilities, a luxury hotel containing approximately 1,500 guest rooms and
related food and beverage facilities, a convention/events center with indoor
seating for approximately 10,000 patrons and 100,000 square feet of convention
space, related parking facilities and infrastructure, and including any
modifications of the foregoing elements agreed to by the parties, to the extent
such facilities are developed by TCA.
"NJ Gaming License" means Sun International's qualification as a holding
company pursuant to the New Jersey Casino Control Act.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer's Certificate" means a certificate signed on behalf of the
Authority by two officers of the Authority, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Authority.
"Payment Blockage Notice" has the meaning set forth in Section 6.2(d)(ii)
below.
"Permitted Assignee" means Sun International, any Affiliate of Sun
International, Sun Cove Ltd., Waterford Gaming, L.L.C., LMW Investments, Inc.
and Xxxxxx Suites, Inc.
"Person" means any individual, sole proprietorship, corporation, general
partnership, limited partnership, limited liability company or partnership,
joint venture, association, joint stock company, unincorporated association,
instrumentality or other form of entity.
"Xxxxx Cash Fund" means the account previously established by TCA in the
Authority's name pursuant to the Gaming Management Agreement which is used to
maintain funds for miscellaneous small expenditures relating to the existing
gaming and related operations.
"Principal Business" means the Class II and Class III casino gaming (as
such terms are defined in IGRA) and resort business and any activity or
business incidental, directly related or similar thereto, or any business or
activity that is a reasonable extension, development or expansion thereof or
ancillary thereto, including any hotel, retail, entertainment, recreation or
other activity or business designated to promote, market, support, develop,
construct or enhance the gaming and resort business operated by the Authority.
"Proposed Financing" means the anticipated refinancing of certain of the
Authority's existing indebtedness, together with the Construction Financing.
"Recommencement Month" means, following a Tolling Event, the earlier of
the month in which (i) the monthly Revenues of the Casinos equal or exceed
ninety percent (90%) of the Average Casino Revenues, (ii) the date upon which
the Authority has fully complied with the requirements set forth in Section 7.6
below occurs, or (iii) TCA delivers written notice (which shall be irrevocable
with respect to such Tolling Event) to the Authority stating that the current
month shall be deemed the "Recommencement Month."
"Relinquishment Agreement" has the meaning set forth in the introductory
paragraph hereof.
"Relinquishment Date" means the later of (a) January 1, 2000 or (b) the
Effective Date.
"Relinquishment Payment" has the meaning set forth in Section 6.1 below.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Indebtedness.
"Required Approvals" means the approval of this Relinquishment Agreement by
the Bureau of Indian Affairs, and/or the National Indian Gaming Commission, to
the extent those agencies determine such approval may be required by law, and
the entry of a stipulated declaratory judgment by the MTC Court upholding the
validity and enforceability of this Relinquishment Agreement.
"Revenues" means all revenues of any nature (but excluding any Class II
Gaming Revenues) derived directly or indirectly from the Facilities, including,
without limitation, Gross Gaming Revenue, hotel revenues, room service,
catering, food and beverage sales, parking revenues, ticket revenues or other
fees or receipts from the convention/events center, other rental or other
receipts from leases, subleases, licensees and concessionaires (but not the
gross receipts of such leasees, subleases, licensees or concessionaires) and
proceeds of business interruption insurance, but excluding (i) any gratuities or
service charges added to a customer's xxxx, (ii) any credits or refunds made to
customers, guests or patrons, (iii) any sales, excise, gross receipt,
admission, entertainment, tourist or other taxes or charges (or assessments
equivalent thereto, or payments made in lieu thereof) which are received from
patrons and passed on to governmental or quasi-governmental entities unrelated
to the Tribe, (iv) any federal taxes or impositions that relate to the operation
of the Facilities, which may be implemented from time to time, (v) any fire and
extended coverage insurance proceeds other than for business interruption, (vi)
any condemnation awards other than for temporary condemnation, (vii) any
proceeds of financings or refinancings, and (viii) any interest earned on any
accounts, all as determined in accordance with GAAP consistently applied.
"Senior Changeover Date" means the date immediately following the end of
the Initial Senior Payment Period.
"Senior Indebtedness" means (a) any Indebtedness of the Authority unless
the instrument under which such Indebtedness is incurred expressly provides
that it is on parity with, or subordinated in right of payment to, the Junior
Relinquishment Payment and (b) all Obligations with respect to any of the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Indebtedness shall not include (x) any Indebtedness of the Authority to the
Tribe or any Affiliate or instrumentality thereof other than in respect of the
Minimum Priority Distribution and (y) any Indebtedness incurred for the purchase
of goods or materials or for services obtained in the ordinary course of the
business of the Facilities (other than with the proceeds of revolving credit
borrowings permitted hereby).
"Senior Obligations" means Senior Indebtedness, Senior Relinquishment
Payments and interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable with respect to the Senior Relinquishment
Payments.
"Senior Relinquishment Payment" has the meaning set forth in Section
6.1(a) below.
"Senior Secured Indebtedness" means any Senior Indebtedness secured by a
security interest, mortgage or other arrangement such that the holder of such
Senior Indebtedness would be recognized as a secured creditor under the
Bankruptcy Code if the obligor of such Senior Indebtedness were a debtor under
the Bankruptcy Code.
"Senior Secured Obligations" means any Obligations with respect to Senior
Secured Indebtedness to the extent that such Obligations would be recognized
as a secured claim (assuming no election has been made under §1111 of the
Bankruptcy Code) under the Bankruptcy Code if the obligor were a debtor under
the Bankruptcy Code.
"Sun International" means Sun International Hotels Limited.
"TCA" has the meaning set forth in the introductory paragraph hereof.
"Term" has the meaning set forth in Section 3 below.
"Termination Event" means the irrevocable revocation of the NJ Gaming
License.
"Tolling Event" means, following a Casualty Event, the failure of the
monthly Revenues of the Casinos to equal at least fifty percent (50%) of the
Average Casino Revenues for three (3) consecutive months.
"Tolling Period" has the meaning set forth in Section 16.14 below.
"Tribe" means the Mohegan Tribe of Indians of Connecticut, a federally
recognized Indian tribe and its permitted successors and assigns.
"Unsecured Senior Refinancing Indebtedness" means any Senior Indebtedness
other than Senior Secured Indebtedness that is issued as part of the Proposed
Financing and is underwritten or privately placed by an investment banking
firm.
"Year-End Statement" has the meaning set forth in Section 6.1(c) below.
2. Status of Management Agreements. (a) As of the Relinquishment
Date, the Authority and TCA terminate the Gaming Management Agreement and all
covenants, terms and provisions contained therein pursuant to Section 9.2
thereof, including, without limitation, the retention of TCA as an independent
contractor for the purposes of managing the Authority's gaming operations and
all rights and responsibilities of TCA in connection with such retention under
the Gaming Management Agreement. Notwithstanding the foregoing, following the
Relinquishment Date, to the extent any claims or obligations relating to the
period prior to the Relinquishment Date pursuant to Sections 4.2.3, 4.17 or 5
of the Gaming Management Agreement arise, such of TCA's and the Authority's
obligations under such sections shall survive the termination of the Gaming
Management Agreement.
(b) As of the Effective Date, the Authority and TCA terminate all
rights and responsibilities of the Authority and TCA which may exist under the
Hotel Management Agreement.
3. Term. The "Term" of this Relinquishment Agreement shall commence
on the Effective Date and shall continue until all Relinquishment Payments
have been paid in accordance with Section 6.1 below; provided, however, that
if a Termination Event occurs on or prior to the Relinquishment Date, this
Relinquishment Agreement (and all obligations of the Authority under this
Relinquishment Agreement) shall automatically terminate and be of no further
force and effect; unless the partnership interest in TCA held by Sun Cove Ltd.
is assigned within thirty (30) days following such Termination Event to an
entity which (a) has been approved by the Authority, in the Authority's sole
and absolute discretion, and (b) otherwise satisfies the provisions of the
Gaming Management Agreement.
4. Distributions. Within forty-five (45) days of the Relinquishment
Date, TCA shall prepare and deliver to the Authority a final statement of
accounts covering the period since the most recent operating statement prepared
in accordance with Section 4.29 of the Gaming Management Agreement through the
Relinquishment Date. Based on such final statement and in accordance with
Section 10.2 of the Gaming Management Agreement, no later than fifteen (15)
business days following the release of the accounts to the Authority pursuant
to Section 5 below, the Authority shall pay TCA those amounts to which it is
entitled under the third and fifth clauses of Section 6.4 of the Gaming
Management Agreement that have accrued for the period prior to the
Relinquishment Date but which have not been distributed. In its sole
discretion, within ninety (90) days following receipt of such final statement,
the Authority may obtain an audit of such final statement as well as the other
books and records required to be maintained by TCA pursuant to the Gaming
Management Agreement for the period from the date of the last audited financial
statements delivered thereunder through the Relinquishment Date from a
nationally recognized independent certified public accounting firm with casino
industry experience selected by the Authority.
5. Release of Accounts. On the Relinquishment Date, TCA shall
release to the Authority and relinquish any and all rights it may have under
the Gaming Management Agreement with respect to any and all accounts
maintained by or on behalf of the Tribe or the Authority, including, without
limitation, the Depository Account, the Disbursement Account, the Cash
Contingency Reserve Fund and the Xxxxx Cash Fund, and TCA shall no longer have
authority or the right or obligation to make payments into, disbursements
from, or transfers between or among such accounts. TCA shall execute any and
all instruments or documents necessary to release or transfer to the Authority
full control over all such accounts.
6. Payments.
6.1 Relinquishment Payments. The Authority shall make certain payments
to TCA (the "Relinquishment Payments"), without set-off, deduction or
counterclaim, in connection with the termination of TCA's rights under the
terms of the Gaming Management Agreement and the Hotel Management Agreement.
Subject to Section 6.2 below, the Relinquishment Payments shall be paid and
consist of those amounts computed in accordance with paragraphs (a) and (b) as
set forth below:
(a) Within twenty-five (25) days following the end of the Initial
Senior Payment Period and thereafter within twenty-five (25) days following
the end of each successive three (3) month period, commencing on the Senior
Changeover Date and ending on the day immediately preceding the fifteenth
(15th) annual anniversary of the Relinquishment Date (recognizing that the
last such period may be less than three (3) full months), the Authority shall
pay TCA an amount equal to two and one half percent (2.50%) of Revenues for
the Initial Senior Payment Period and for each successive three (3) month
period thereafter, as applicable (the "Senior Relinquishment Payments").
(b) Within twenty-five (25) days following the end of the Initial
Junior Payment Period and thereafter within twenty-five (25) days following
the end of each successive six (6) month period, commencing on the Junior
Changeover Date and ending on the day immediately preceding the fifteenth
(15th) annual anniversary of the Relinquishment Date (recognizing that the
last such period may be less than six (6) full months), the Authority shall
pay TCA an amount equal to two and one half percent (2.50%) of Revenues for
the Initial Junior Payment Period and for each successive six (6) month period
thereafter, as applicable (the "Junior Relinquishment Payments").
(c) Within ninety (90) days following the end of the Fiscal Year in
which the Relinquishment Date occurs and thereafter following the end of each
Fiscal Year (or portion thereof) during the Term, the Authority shall provide
to TCA operating statements derived from audited financials for the preceding
Fiscal Year which include, without limitation, all Revenues generated by the
Facilities and the amount of the Relinquishment Payments paid or payable to
TCA pursuant to Sections 6.1(a) and (b) (the "Year End Statements"). Such
statements shall be prepared in accordance with GAAP, consistently applied,
and shall be certified as true and complete by nationally recognized independent
auditors selected by the Authority. Upon reasonable notice and at reasonable
times, TCA or its duly authorized representatives shall have on-site access to,
and be entitled to photocopy, the books and records of the Authority relating
to the Facilities for the purpose of verifying the Year End Statements.
(d) To the extent that any Relinquishment Payment (or portion
thereof) is not paid when due, such amounts shall earn interest at a rate of
twelve percent (12%) per annum from the due date thereof until the date
payment is made (or if such rate of interest is not lawful, at the maximum
lawful rate of interest).
6.2 Subordination of Relinquishment Payments. (a) TCA and the
Authority agree that each of the Junior Relinquishment Payments and each of
the Senior Relinquishment Payments are subordinated in right of payment, to
the extent and in the manner provided in this Section 6.2, to the prior payment
of the Minimum Priority Distribution (to the extent then due) and to the prior
payment of all Senior Secured Obligations (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination referred to in this sentence is for the benefit of the Tribe and
the holders of Senior Secured Indebtedness. TCA and the Authority agree that
each of the Junior Relinquishment Payments (but not the Senior Relinquishment
Payments) are subordinated in right of payment, to the extent and in the manner
provided in this Section 6.2, to the prior payment of all Senior Obligations
(whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed), and that the subordination referred to in this sentence is for
the benefit of the holders of Senior Obligations.
(b) Upon any distribution to creditors of the Authority in a
liquidation of the Authority, or of the business conducted in the Facilities,
or dissolution of the Authority, or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Authority or the business
conducted in the Facilities, or in an assignment for the benefit of creditors
or any marshaling of the Authority's assets and liabilities:
(i) (A) the Tribe shall be entitled to receive the Minimum
priority Distributions then due in cash before TCA shall be entitled
to receive any payment with respect to either the Senior
Relinquishment Payments or the Junior Relinquishment Payments then
due, (B) the holders of Senior Secured Indebtedness shall be
entitled to receive payment in full in cash of all Senior Secured
Obligations due in respect of such Senior Secured Indebtedness
(including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Secured Indebtedness)
before TCA shall be entitled to receive any payment with respect to
either the Senior Relinquishment Payments or the Junior
Relinquishment Payments, and (C) the holders of Senior Obligations
shall be entitled to receive payment in full in cash of such Senior
Obligations (including interest after the commencement of any such
proceeding at the rate specified in the document governing the
applicable Senior Obligation) before TCA shall be entitled to
receive any payment with respect to the Junior Relinquishment
Payments; and
(ii) (A) until all Minimum Priority Distributions then due are
paid in full in cash, any payment or distribution in respect of any
Relinquishment Payment to which TCA would be entitled but for the
operation of this Section 6.2 shall be made to the Tribe, (B) if all
Minimum Priority Distributions then due are paid in full in cash and
until all Senior Secured Obligations (as provided in subsection (i)
above) are paid in full in cash, any payment or distribution in
respect of any Relinquishment Payment to which TCA would be entitled
but for the operation of this Section 6.2 shall be made to holders
of Senior Secured Indebtedness, as their interests may appear, and
(C) if all Minimum Priority Distributions then due and Senior
Secured Obligations are paid in full in cash and until all Senior
Obligations (as provided in subsection (i) above) are paid in full
in cash, any payment or distribution in respect of any Junior
Relinquishment Payment to which TCA would be entitled but for the
operation of this Section 6.2 shall be made to holders of Senior
Obligations, as their interests may appear.
(c) The Authority may not make any payment or distribution to TCA in
respect of any Relinquishment Payment and may not acquire from TCA any right
to any Relinquishment Payment or any release, satisfaction, discharge or
relinquishment of any Relinquishment Payment for cash or property until all
Minimum Priority Distributions then due have been paid in full in cash if a
default in the payment of any Minimum Priority Distribution then due has
occurred.
(d) Provided that provisions substantially equivalent to this Section
6.2(d) prevent payments or distributions to or in respect of all Unsecured
Senior Refinancing Indebtedness, the Authority may not make any payment or
distribution to TCA in respect of any Relinquishment Payment and may not acquire
from TCA any right to any Relinquishment Payment or any release, satisfaction,
discharge or relinquishment of any Relinquishment Payment for cash or property
until all Senior Secured Obligations have been paid in full if:
(i) a default in the payment of any principal or other Obligations
with respect to Designated Senior Secured Indebtedness occurs and is
continuing beyond any applicable grace period in the agreement,
indenture or other document governing such Designated Senior
Secured Indebtedness; or
(ii) a default, other than a payment default, on Designated Senior
Secured Indebtedness occurs and is continuing that then permits
holders of the Designated Senior Secured Indebtedness to accelerate
its maturity and TCA receives a notice of the default (a "Payment
Blockage Notice") from a Representative. If TCA receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice shall
be effective for purposes of this Section 6.2(d)(ii), irrespective
of the number of defaults (other than defaults covered by clause
(i) above) with respect to Designated Senior Secured Indebtedness
during such period, unless and until at least three hundred sixty
(360) days shall have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice issued under this Section
6.2(d)(ii).
(e) The Authority may not make any payment or distribution to TCA in
respect of any Junior Relinquishment Payment and may not acquire from TCA any
right to any Junior Relinquishment Payment or any release, satisfaction,
discharge or relinquishment of any Junior Relinquishment Payment for cash or
property until all Senior Obligations have been paid in full if:
(i) a default in the payment of any amounts, principal or other
Obligations with respect to Designated Senior Indebtedness or Senior
Relinquishment Payments occurs and is continuing beyond any
applicable grace period in the agreement, indenture or other
document governing such Designated Senior Indebtedness or Senior
Relinquishment Payments; or
(ii) a default, other than a payment default, on Designated Senior
Indebtedness occurs and is continuing that then permits holders of
the Designated Senior Indebtedness to accelerate its maturity and
TCA receives a Payment Blockage Notice from a Representative. If
TCA receives any such Payment Blockage Notice, no subsequent Payment
Blockage Notice shall be effective for purposes of this Section
6.2(e)(ii), irrespective of the number of defaults (other than
defaults covered by clause (i) above) with respect to Designated
Senior Indebtedness during such period, unless and until at least
three hundred sixty (360) days shall have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice
issued under this Section 6.2(e)(ii).
(f) The Authority may and shall resume payments on, and distributions
in respect of, any Relinquishment Payment (or portion thereof) the payment of
which was not permitted hereby, and the Authority may take actions with respect
thereto that were not permitted hereby, upon the earlier of:
(i) the date upon which all applicable defaults that revent such
payment or distribution are cured or waived; or
(ii) in the case of a default referred to in Section 6.2(d)(ii) or
6.2(e)(ii) hereof, one hundred seventy nine (179) days following
receipt of the applicable Payment Blockage Notice if the maturity
of such Designated Senior Secured Indebtedness or Designated Senior
Indebtedness, as applicable, has not been accelerated, if this
Section otherwise permits the payment or distribution or such
action at the time of such payment or distribution.
(g) In the event that TCA receives any payment with respect to any
Relinquishment Payment at a time when TCA has actual knowledge that such
payment is prohibited by this Section 6.2, such payment shall be held by TCA,
in trust for the benefit of, and shall be paid over forthwith and delivered,
upon written request, to: (i) the Tribe (to the extent that any Minimum Priority
Distribution is then due and not paid), (ii) the holders of Senior Secured
Indebtedness (to the extent that any such payment held by TCA was in respect
of a Relinquishment Payment that was subordinated to such Senior Secured
Indebtedness), as their interests may appear, or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Secured
Indebtedness may have been issued, as their respective interests may appear,
and (iii) the holders of Senior Obligations (to the extent that any such
payment held by TCA was in respect of a Junior Relinquishment Payment that was
subordinated to such Senior Obligations), as their interests may appear, or
their Representative under the indenture or other agreement (if any) pursuant
to which Senior Obligations may have been issued or created, as their respective
interests may appear, for application to the payment, first to all Minimum
Priority Distributions then due and not paid, second, to all Senior Secured
Obligations remaining unpaid and then to all Senior Obligations remaining unpaid
to the extent necessary to pay such Senior Obligations in full in accordance
with their terms, after giving effect to any concurrent payment or distribution
to or for the Tribe, the holders of Senior Secured Indebtedness or the holders
of Senior Obligations or their Representatives, as the case may be.
(h) The Authority shall promptly notify TCA of any facts known to the
Authority that would cause a payment of any portion of the Relinquishment
Payments to violate this Section, but failure to give such notice shall not
affect the subordination of the Relinquishment Payments as provided in this
Section.
(i) After all Minimum Priority Distributions (to the extent then due)
and Senior Secured Obligations have been paid in full and until all Senior
Relinquishment Payments and all other Senior Indebtedness are current, TCA
shall be subrogated with respect to the Senior Relinquishment Payments (equally
and ratably with all other Senior Indebtedness pari passu with the Senior
Relinquishment Payments) to the rights of (i) the Tribe to receive distributions
applicable to Minimum Priority Distributions (to the extent then due) to the
extent that distributions otherwise payable with respect to the Senior
Relinquishment Payments have been applied to the payment of such Minimum
Priority Distributions, and (ii) holders of Senior Secured Indebtedness to
receive distributions applicable to Senior Secured Obligations to the extent
that distributions otherwise payable with respect to the Senior Relinquishment
Payments have been applied to the payment of Senior Secured Obligations. A
distribution made under this Section 6.2(i) to the Tribe or holders of Senior
Secured Indebtedness that otherwise would have been made in respect of Senior
Relinquishment Payments is not, as between the Authority and TCA, a payment by
the Authority in respect of Senior Relinquishment Payments.
(j) After all Minimum Priority Distributions (to the extent then due),
Senior Indebtedness and Senior Relinquishment Payments have been paid in full
and until all Junior Relinquishment Payments are current, TCA shall be
subrogated with respect to the Junior Relinquishment Payments (equally and
ratably with all other Indebtedness pari passu with the Junior Relinquishment
Payments) to the rights of (i) the Tribe to receive distributions applicable
to Minimum Priority Distributions (to the extent then due) to the extent that
distributions otherwise payable with respect to the Junior Relinquishment
Payments have been applied to the payment of such Minimum Priority
Distributions, (ii) holders of Senior Secured Indebtedness to receive
distributions applicable to Senior Secured Indebtedness to the extent that
distributions otherwise payable with respect to the Junior Relinquishment
Payments have been applied to the payment of Senior Secured Indebtedness, and
(iii) holders of any other Senior Indebtedness to receive distributions
applicable to any other Senior Indebtedness to the extent that distributions
otherwise payable with respect to the Junior Relinquishment Payments have been
applied to the payment of such Senior Indebtedness. A distribution made
under this Section 6.2(j) to the Tribe, holders of Senior Secured Indebtedness
or holders of other Senior Indebtedness that otherwise would have been made in
respect of Junior Relinquishment Payments is not, as between the Authority and
TCA, a payment by the Authority in respect of Junior Relinquishment Payments.
(k) This Section 6.2 defines the relative rights of TCA, the Tribe,
holders of Senior Secured Indebtedness and holders of Senior Obligations.
Nothing in this Section 6.2 shall:
(i) affect the relative rights of TCA and creditors of the
Authority other than their rights in relation to holders of Senior
Secured Indebtedness, holders of Senior Obligations and the Tribe
with respect to its rights to Minimum Priority Distributions;
(ii) impair, as between the Authority and TCA, the obligation of
the Authority, which is absolute and unconditional, to pay the
Relinquishment Payments in accordance with the terms hereof; or
(iii) prevent TCA from exercising its available remedies upon a
default under this Relinquishment Agreement, including the right to
obtain a judgment against the Authority for failure to pay any
Relinquishment Payments when due pursuant to the provisions of
Section 11 hereof, subject to the rights of holders of Senior
Secured Indebtedness, holders of Senior Indebtedness and the
Tribe to receive distributions and payments otherwise payable to TCA
as or in respect of Relinquishment Payments.
(l) No right of any holder of Senior Secured Indebtedness, any holder
of Senior Obligations or the Tribe to enforce the subordination provisions of
this Section 6.2 shall be impaired by any act or failure to act by the Authority
or TCA or by the failure of the Authority or TCA to comply with this Section
6.2.
(m) The Authority agrees and covenants that it will not, directly or
indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise, with respect to, or otherwise become responsible
for the payment of (collectively, "incur") any Indebtedness that by its terms
is expressly subordinated in right of payment to any obligation of the Authority
(other than any subordination in right of payment to the Minimum Priority
Distributions or to Senior Secured Indebtedness) unless (i) such Indebtedness
is subordinated at least to the same extent to the right of payment to the
Senior Relinquishment Payments and (ii) such Indebtedness is expressly not
Senior Indebtedness hereunder. The Authority shall not incur any Indebtedness
that by its terms is expressly subordinated in right of payment to any
obligations of the Authority (other than any subordination in right of payment
to the Minimum Priority Distributions or to Senior Secured Indebtedness) and
which subordination terms would permit any payment on the obligations due
thereunder at a time that obligations due with respect to the Junior
Relinquishment Payments would not be payable pursuant to the terms hereof,
unless such payment was pari passu or subordinated with the Junior
Relinquishment Payment (pro rata in accordance with the respective amounts
then due).
(n) For the purposes of this Section 6.2, any Minimum Priority
Distribution shall be deemed paid for all purposes of this Section 6.2 if the
Authority lawfully may pay such Minimum Priority Distribution to the Tribe and
has at any time the funds lawfully available to pay such Minimum Priority
Distribution.
(o) The provisions of this Section 6.2 shall not be amended or modified
to affect adversely (i) the holders of Senior Secured Indebtedness, with respect
to the provisions relating to Senior Secured Obligations, without the prior
written consent of the holders of all Designated Senior Secured Indebtedness;
provided, however, that a provision may be amended or modified with respect to
any class of Senior Secured Obligations to the extent such class has given its
prior written consent to such amendment or modification, (ii) the holders of
Senior Indebtedness, with respect to the provisions relating to Senior
Obligations, without the prior written consent of the holders of all Designated
Senior Indebtedness; provided, however, that a provision may be amended or
modified with respect to any class of Senior Obligations to the extent such
class has given its prior written consent to such amendment or modification,
and (ii) the Tribe, with respect to the provisions relating to the Minimum
Priority Distribution, without the prior written consent of the Tribe.
7. Certain Covenants of the Authority.
7.1 Payments to the Tribe. Except for the payment of (a) the Minimum
Priority Distributions, or (b) reasonable charges for utilities or other
governmental services supplied by the Tribe and used by the Authority (in an
amount not to exceed the reasonable costs of such services plus a reasonable
allowance for administrative costs), the Authority shall not make any payment
or distribution to or for the benefit of the Tribe or any Affiliate of the
Tribe or make any distribution to the members of the Tribe (i) prior to the
payment in full of Relinquishment Payments then due, or (ii) at any time if
any Relinquishment Payments are outstanding.
7.2 Affiliate Transactions. Except for the payment of (a) the
Minimum Priority Distributions, or (b) reasonable charges for utilities or
other governmental services supplied by the Tribe and used by the Authority
(in an amount not to exceed the reasonable costs of such services plus a
reasonable allowance for administrative costs), the Authority shall not sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make any contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, the Tribe, an Affiliate of the Tribe or an Affiliate of the Authority
(each of the foregoing, an "Affiliate Transaction"), unless (i) such Affiliate
Transaction is on terms that are no less favorable to the Authority than those
that would have been obtained in a comparable transaction by the Authority
with an unrelated Person, and (ii) the Authority delivers to TCA (a) with
respect to any Affiliate Transaction involving aggregate payments in excess of
Two Million Dollars ($2,000,000), a resolution adopted by a majority of the
Management Board approving such Affiliate Transaction and set forth in an
Officer's Certificate certifying that such Affiliate Transaction complies with
clause (i) above and (b) with respect to any Affiliate Transaction involving
aggregate payments in excess of Ten Million Dollars ($10,000,000), a written
opinion as to the fairness to the Authority from a financial point of view
issued by an Independent Financial Advisor.
7.3 Subsidiaries. The Authority will not create, acquire or own any
instrumentality, subdivisions or subunits unless the actions and assets of
such instrumentalities, subdivisions or subunits are subject to or bound by
the terms of this Relinquishment Agreement.
7.4 Business Purpose. During the Term, the Authority (or any assignee
of the Authority permitted under this Relinquishment Agreement), directly or
indirectly, shall not engage in any business or activity other than the
Principal Business.
7.5 Operation of Casinos. During the Term, the Authority shall
continue to operate (i) the Mohegan Sun Casino for the primary purpose of
conducting Gaming, substantially in accordance with the standard and character
of the operations being conducted therein on the date hereof, and (ii) the New
Casino for the primary purpose of conducting Gaming, substantially in accordance
with the standard and character of the operations conducted therein one year
after the opening of the New Casino.
7.6 Replacement or Restoration Following Casualty. If all or a portion
of the Facilities are damaged by fire or other casualty, the Authority promptly
shall cause the Facilities to be replaced or restored to substantially the same
condition as immediately prior to the occurrence of such fire or other casualty;
provided, however, that in no event shall the Authority be obligated to
expend for any replacement or restoration an amount in excess of the insurance
proceeds recovered by the Authority and allocable to the damage to the
Facilities after deduction of any amounts required to be paid to any holder of
Indebtedness. If insurance proceeds are not available to the Authority for
such replacement or restoration, the Authority shall use reasonable efforts to
obtain financing on commercially reasonable terms to undertake such replacement
or restoration of the Facilities.
8. Marks. To the extent TCA has any rights to any of the Marks or the
"Mohegan Sun" name, TCA grants to the Authority an exclusive, irrevocable,
perpetual, world-wide, royalty free license to use the Marks and the "Mohegan
Sun" name in connection with the Facilities; provided, however, that the
Authority shall only use the word "Sun" in conjunction with the Facilities and
together with the word or words "Mohegan" or "the Mohegan Tribe" and that the
Authority will not use the word "Sun" separately as a trademark or servicemark
or engage in any activity that suggests it is affiliated with Sun International
or TCA after the Relinquishment Date. TCA acknowledges that all of the Marks
might not be used in connection with the Facilities, and the Authority shall
have sole discretion to determine which Marks shall be so used. Except as may
be required by law or to describe the historical relationship between the
parties, TCA shall not use the Authority's or the Tribe's name, or any
variation thereof, directly or indirectly, in any context without the prior
written approval of the Authority, which may be withheld in its sole and
absolute discretion.
9. Non-Impairment of Agreement. The Tribe, directly or indirectly,
shall not impose any tax, levy or other monetary payment obligation on the
Authority or on any activity at the Facilities, other than (a) Minimum
Priority Distributions and (b) reasonable charges for utilities or other
governmental services supplied by the Tribe and used by the Authority (in an
amount not to exceed the reasonable costs of such services plus a reasonable
allowance for administrative costs). The Tribe shall not, directly or
indirectly, take any action, enter into any agreement, amend its constitution
or enact any ordinance, law, rule or regulation that would prejudice or have a
material adverse affect on the rights of TCA under this Relinquishment
Agreement. Neither the Tribe nor any committee, agency, board or other
official body of the Tribe shall, by exercise of the police power, eminent
domain or otherwise, act to modify, amend or in any manner impair the
obligations of the parties under this Relinquishment Agreement without the
written consent of TCA. Any such action or attempted action shall be void ab
initio. The Tribe acknowledges that the MTC Court has the authority to provide
equitable relief to enforce this provision.
10. Confidential and Proprietary Information. Each party agrees to
treat as confidential all non public information received during the performance
of the Gaming Management Agreement or pursuant to this Relinquishment Agreement
regarding the other party, its organization, financial matters, marketing plans
or other affairs. Except as may be required by law, no such information will be
disclosed to any person, firm or organization without the prior written
approval of the other party. Notwithstanding the provisions of Section 22 of
the Gaming Management Agreement, the Authority may retain the confidential and
proprietary information developed by TCA and relating to the management of the
existing gaming and related operations pursuant to the Gaming Management
Agreement.
11. Authority's Consent to Suit. The Authority expressly waives its
immunity from unconsented suit for the purpose of permitting a suit by TCA in
any court of competent jurisdiction, including, without limitation, the MTC
Court, for any claims by TCA for the purpose of enforcing this Relinquishment
Agreement and any judgment arising out of this Relinquishment Agreement. The
Authority's waiver of immunity from suit is specifically limited to the
following actions and judicial remedies: (a) the enforcement of the Authority's
payment obligations under this Relinquishment Agreement with an award of actual
damages in connection with any breach of the provisions hereof; provided,
however, that the court shall have no authority or jurisdiction to order
execution against any assets or revenues of the Authority except cash of the
Authority (except to the extent the Authority can demonstrate such cash was
derived from a source other than the Facilities) and undistributed and future
Revenues; and (b) an action to prohibit the Authority from taking an action that
would prevent the operation of this Relinquishment Agreement pursuant to its
terms, or that requires the Authority to specifically perform any obligation
under this Relinquishment Agreement. In no instance shall any enforcement of
any kind whatsoever be allowed against any assets of the Authority other than
the limited assets of the Authority specified in the foregoing clause (a).
12. No Liability of the Tribe; Limited Consent To Suit. Neither the
Tribe nor any director, officer or office holder, employee, agent,
representative or member of the Authority or the Tribe, as such, shall have
any liability for any obligations of the Authority under this Relinquishment
Agreement or for any claim based upon, in respect of, or by reason of such
obligations or their creation. The only assets subject to payment or
encumbrances for the payment of obligations hereunder shall be cash of the
Authority (except to the extent the Authority can demonstrate such cash was
derived from a source other than the Facilities) and the undistributed and
future Revenues of the Authority. Notwithstanding the foregoing, the Tribe
expressly waives its immunity from unconsented suit for the limited purpose of
permitting a suit by TCA in any court of competent jurisdiction, including,
without limitation, the MTC Court, for the sole purpose of obtaining equitable
relief to enforce the provisions of Sections 9, 12 and 13 of this Relinquishment
Agreement. The Tribe's waiver of immunity from suit is specifically limited to
equitable relief to enforce the provisions of Sections 9, 12 and 13; provided,
however, that the court shall have no authority or jurisdiction to order
execution against any assets or revenues of the Tribe and in no instance shall
any enforcement of any kind whatsoever be allowed against any assets of the
Tribe.
13. Government Savings Clause. This Relinquishment Agreement shall
be submitted to (a) the Bureau of Indian Affairs, and the National Indian
Gaming Commission, to the extent required by law, for appropriate action, if
any, and (b) the MTC Court for a stipulated declaratory judgment upholding its
validity and enforceability, the form of which will be mutually agreed to by
the Authority and TCA. In addition, each party agrees to pursue such actions
or judgment and execute, deliver and, if necessary, record any and all
instruments, certifications, amendments, modifications and other documents as
may be required by the United States Department of the Interior, Bureau of
Indian Affairs, the office of the Field Solicitor, or any applicable statute,
rule or regulation or otherwise cooperate, as necessary, in order to effectuate,
complete, perfect, continue or preserve the respective rights, obligations and
interests of the parties to the fullest extent permitted by law; provided that
any such instrument, certification, amendment, modification or other document
shall not materially change the respective rights, remedies or obligations of
the parties under this Relinquishment Agreement or related agreements or
documents.
14. Coordination. During the period of time between the Effective
Date and the Relinquishment Date, TCA and the Authority shall cooperate with
each other (at no cost to the other) as necessary to effect an orderly
transition of the operation of the existing gaming operations to the Authority.
15. Employment Solicitation. From and after the date hereof until
five (5) years after the Relinquishment Date, neither TCA nor the Authority
nor any Affiliate of either party shall solicit, attempt to solicit or cause
the solicitation or attempted solicitation of any employee of TCA or the
Authority or any Affiliate of either party with whom TCA or the Authority or
any Affiliate of either party had contact, by virtue of their relationship
regarding the Facilities, to leave his or her employment and accept employment
with TCA or the Authority or any Affiliate of either party, as the case may
be.
16. Miscellaneous Provisions.
16.1 Authorization. The Authority and TCA represent and warrant to
each other that each has full power and authority to execute this Relinquishment
Agreement and to be bound by and perform the terms hereof. Each party shall
furnish evidence of such authority to the other. The Authority and TCA each
represent and warrant to the other that the execution, delivery and performance
of this Relinquishment Agreement shall not conflict with the terms of their
organizational documents, any agreement to which it is a party or by which it is
bound or any law, rule or regulation to which its subject.
16.2 Relationship. From and after the Relinquishment Date, TCA shall
not have any management authority or responsibilities with respect to the
Facilities. TCA and the Authority shall not be construed as joint venturers
or partners of each other by reason of this Relinquishment Agreement, and
neither shall have the power to bind or obligate the other.
16.3 Governing Law. The rights and obligations of the parties and
the interpretation and performance of this Relinquishment Agreement shall be
governed by the law of the Tribe, and, to the extent not addressed by the law
of the Tribe, by applicable federal law, and, to the extent not addressed by
the law of the Tribe or applicable federal law, the law of the State of
Connecticut without regards to its principles regarding conflicts of law.
16.4 Amendment. No modification or amendment to this Relinquishment
Agreement will be effective unless mutually agreed upon by both parties in
writing and unless such modification or amendment has received any required
regulatory approval.
16.5 Notices. All notices, demands, requests or other communications
which may be or are required to be given, served or sent to either party in
connection with the matters which are the subject of this Relinquishment
Agreement shall be in writing and shall be personally delivered to such party
or mailed first class, postage prepaid, or transmitted by a major overnight
commercial courier or by facsimile to the address for such party as set forth
below, or to such other address furnished by such parties for such purpose by
means of notice pursuant to this Section 16.5:
If to the Authority:
Mohegan Tribal Gaming Authority
Xxx Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chairman of the Management Board
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Mohegan Tribal Gaming Authority
Xxx Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to TCA:
Trading Cove Associates
000 Xxxxxxxx Xxxxxxxx
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Attention: Xx. Xxx Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Sun International Hotels Limited
Xxxxx Xxxxxx
X.X. Xxx X-0000
Xxxxxxxx Xxxxxx
Nassau, The Bahamas
Attention: Xx. Xxxxxxx Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Notices delivered by mail shall be deemed given five (5) days after such
mailing. Notices given by hand delivery shall be deemed given on the date of
delivery. Notices given by overnight commercial courier shall be deemed given
on the business day immediately following transmittal, and notices delivered
by facsimile shall be deemed given on the date of transmission if the
transmission is confirmed.
16.6 Third Party Beneficiary. This Relinquishment Agreement is
exclusively for the benefit of the parties hereto and it may not be enforced
by any party other than the parties to this Relinquishment Agreement and shall
not give rise to liability to any third party other than the authorized
successors and assigns of the parties pursuant to Section 16.7.
16.7 Successors and Assigns. (a) The benefits and obligations of
this Relinquishment Agreement shall inure to and be binding upon the parties
hereto and their respective successors and assigns. Neither this Relinquishment
Agreement nor the rights hereunder may be assigned by TCA to any entity prior
to the Relinquishment Date. After the Relinquishment Date, neither this
Relinquishment Agreement nor the rights hereunder may be assigned by TCA to
an entity other than a Permitted Assignee, without the prior written consent
of the Authority (which may be withheld in its sole and absolute discretion)
and any required approvals by the Bureau of Indian Affairs or its authorized
representatives. Notwithstanding the foregoing, after the Relinquishment Date,
TCA or any Permitted Assignee may, without the consent of the Authority, pledge
its right to receive the Relinquishment Payments hereunder (but not this
Relinquishment Agreement itself) in connection with a bona fide commercial
financing from a financial institution, pension fund, insurance company, pooled
equity fund or other similar type of entity. In addition, on or after December
31, 2001, TCA or its Permitted Assignees, if applicable (the "Assignor"), may
assign this Relinquishment Agreement or the rights hereunder without the
Authority's consent upon compliance with the following requirements: (i) the
Assignor shall promptly give the Authority written notice of the terms and
conditions of any proposed assignment (the "Assignment Offer"), together with
information regarding the proposed assignee and such additional information
as the Authority may reasonably request and (ii) the Authority shall have
fifteen (15) days after receipt of the Assignment Offer to elect, by written
notice delivered to Assignor within such fifteen (15) day period to accept such
Assignment Offer. If the Authority timely elects to accept the Assignment
Offer, the Authority shall have a period of sixty (60) days following such
election to close thereunder. If the Authority does not timely elect to
accept the Assignment Offer or thereafter fails to close thereunder, then the
Assignor may assign this Relinquishment Agreement for a period of one hundred
eighty (180) days thereafter to such third party in accordance with the terms of
the Assignment Offer.
(b) The Authority may, without the consent of TCA, but subject to
applicable law, assign this Relinquishment Agreement to the Tribe, another
instrumentality of the Tribe or an entity wholly owned by the Tribe if such
assignee owns or conducts the business of the Facilities and is in compliance
with Section 7.4 on the date of such assignment. In the event of any such
permitted assignment, the assigning party shall be relieved of its obligations
under this Relinquishment Agreement which accrue from and after the date of
the assignment, provided that the assignee shall assume in writing the
obligations of the assignor under this Relinquishment Agreement and agree to
perform and be bound by the terms and provisions hereof effective from and
after the date of such assignment.
16.8 Severability. The invalidity of any one or more provisions hereof
or of any other agreement or instrument given pursuant to or in connection with
this Relinquishment Agreement shall not affect the remaining portions of this
Relinquishment Agreement or any such other agreement or instrument or any part
thereof, all of which are inserted conditionally on their being held valid in
law; and in the event that one or more of the provisions contained herein or
therein should be invalid, or should operate to render this Relinquishment
Agreement or any such other agreement or instrument invalid, this Relinquishment
Agreement and such other agreements and instruments shall be construed as if
such invalid provision had not been inserted. Notwithstanding the foregoing,
the invalidity of any of Sections 2(a), 3 or 6.1 hereof shall render the entire
Relinquishment Agreement invalid.
16.9 Entire Agreement. This Relinquishment Agreement (including any
exhibits referred to herein) represents the entire agreement between the
parties hereto with respect to the subject matter hereof. No other
representations, warranties, promises or agreements, express or implied, shall
exist between the parties unless such representations, warranties, promises or
agreements are in writing and bear a date subsequent to the date of this
Relinquishment Agreement.
16.10 Headings. The headings used in this Relinquishment Agreement are
for the convenience of the parties only and shall not modify nor restrict any
of the terms or provisions hereof.
16.11 Waivers. No failure or delay by TCA or the Authority to insist
upon the strict performance of any covenant, agreement, term or condition of
this Relinquishment Agreement, or to exercise any right or remedy consequent
upon the breach thereof, shall constitute a waiver of any such breach or any
subsequent breach of such covenant, agreement, term or condition. No covenant,
agreement, term or condition of this Relinquishment Agreement and no breach
thereof shall be waived, altered or modified except by written instrument. No
waiver of any breach shall affect or alter this Relinquishment Agreement, but
each and every covenant, agreement, term and condition of this Relinquishment
Agreement shall continue in full force and effect with respect to any other then
existing or subsequent breach thereof.
16.12 Periods of Time. Whenever any determination is to be made or action
is to be taken on a date specified in this Relinquishment Agreement, if such
date shall fall on a Saturday, Sunday or legal holiday under the laws of the
State of Connecticut or the Tribe, then in such event said date shall be
extended to the next day which is not a Saturday, Sunday or legal holiday.
16.13 Consents and Approvals. Where approval or consent or other action
of the Authority, or any agent or political subdivision of the Authority, is
required, such approval shall mean the written approval of the Management Board
evidenced by a duly enacted resolution thereof, or, if not provided by
resolution of the Management Board, the written approval of such other person
or entity designated by resolution of the Management Board.
16.14 Tolling of this Relinquishment Agreement. If any Tolling Event
occurs, the Authority shall give prompt notice thereof to TCA. If, within
thirty (30) days following receipt of such notice, TCA delivers written notice
to the Authority electing to implement this Section 16.14, then the Term shall
be tolled for such number of full calendar months commencing with the month
immediately following such Tolling Event and ending with (and including) the
calendar month immediately prior to the Recommencement Month (the "Tolling
Period"). The expiration of this Relinquishment Agreement (and the obligations
of the Authority to make payments of the Relinquishment Payments hereunder)
shall be extended for such number of full calendar months included in the
Tolling Period. During the Tolling Period, the Authority shall have no
obligation to make payments of any Relinquishment Payments.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Relinquishment
Agreement on and as of the date first written above.
THE AUTHORITY:
MOHEGAN TRIBAL GAMING AUTHORITY
By:___________________________
Name: Xxxxxx Xxxxxx
Its: Chairman of the Management Board
TCA:
TRADING COVE ASSOCIATES, a Connecticut partnership
By: WATERFORD GAMING, L.L.C.
Its: General Partner
By: LMW INVESTMENTS, INC., member
By:_______________________
Name: Xxx Xxxxxx
Its: President
By: XXXXXX SUITES, INC., member
By:_______________________
Name: Xxx Xxxxxx
Its: Vice President
By: SUN COVE LTD.
Its: General Partner
By:________________________
Name: Xxxxxx X. Xxxxxxx
Its: President
JOINDER
The Mohegan Tribe of Indians of Connecticut hereby agrees to comply with
Sections 9, 12 and 13 of this Relinquishment Agreement.
Date: THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT
By:_________________________
Name: Xxxxxx Xxxxxx
Title: Chairman of the Management Board
