Exhibit 10.10
EXECUTION
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LOAN AGREEMENT
Dated as of March 3, 1999
among
THE MOHEGAN TRIBAL GAMING AUTHORITY
(as the "Borrower"),
THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT,
(the "Tribe" as an additional obligor with respect to certain
representations, warranties and covenants)
the Lenders, Syndication Agent and Documentation Agent herein named
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as Administrative Agent
NATIONSBANC XXXXXXXXXX SECURITIES, LLC,
as Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS........................................................ 1
1.1 Defined Terms........................................................................... 1
1.2 Use of Defined Terms.................................................................... 28
1.3 Accounting Terms........................................................................ 28
1.4 Rounding................................................................................ 28
1.5 Exhibits and Schedules.................................................................. 29
1.6 Miscellaneous Terms..................................................................... 29
ARTICLE 2. LOANS AND LETTERS OF CREDIT............................................................. 30
2.1 Loans-General........................................................................... 30
2.2 Base Rate Loans......................................................................... 31
2.3 LIBOR Loans............................................................................. 31
2.4 Letters of Credit....................................................................... 32
2.5 Automatic Reduction of Commitment....................................................... 35
2.6 Voluntary Reduction of Commitment....................................................... 36
2.7 Optional Increases to the Commitment.................................................... 36
2.8 Administrative Agent's Right to Assume Funds Available for Advances..................... 37
2.9 Collateral.............................................................................. 38
ARTICLE 3. PAYMENTS AND FEES....................................................................... 39
3.1 Principal and Interest.................................................................. 39
3.2 Arrangement Fees........................................................................ 40
3.3 Annual Agency Fees...................................................................... 40
3.4 Facility Fees........................................................................... 40
3.5 Commitment Fees......................................................................... 40
3.6 Letter of Credit Fees................................................................... 41
3.7 Increased Commitment Costs.............................................................. 41
3.8 LIBOR Fees and Costs.................................................................... 41
3.9 Default Rate............................................................................ 44
3.10 Computation of Interest and Fees........................................................ 44
3.11 Non-Business Days....................................................................... 44
3.12 Manner and Treatment of Payments........................................................ 45
3.13 Funding Sources......................................................................... 45
3.14 Failure to Charge Not Subsequent Waiver................................................. 45
3.15 Administrative Agent's Right to Assume Payments Will be
Made by Borrower ....................................................................... 45
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3.16 Authority to Charge Account............................................................. 46
3.17 Fee Determination Detail................................................................ 46
3.18 Survivability........................................................................... 46
3.19 Withholding Gross-Up.................................................................... 46
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE TRIBE............................................. 48
4.1 Existence and Qualification; Power; Compliance With Laws................................ 48
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations.. 48
4.3 No Governmental Approvals Required...................................................... 49
4.4 The Nature of Borrower.................................................................. 49
4.5 No Management Contract.................................................................. 50
4.6 Title to and Location of Property....................................................... 50
4.7 Real Property........................................................................... 50
4.8 Governmental Regulation................................................................. 50
4.9 Binding Obligations..................................................................... 50
4.10 No Default.............................................................................. 50
4.11 Disclosure.............................................................................. 51
4.12 Gaming Laws............................................................................. 51
4.13 Security Interests...................................................................... 51
4.14 Arbitration............................................................................. 51
4.15 Recourse Obligations.................................................................... 51
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.......................................... 52
5.1 Existence and Qualification; Power; Compliance With Laws................................ 52
5.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations.. 52
5.3 No Governmental Approvals Required...................................................... 53
5.4 The Nature of Borrower.................................................................. 53
5.5 No Management Contract.................................................................. 54
5.6 Financial Statements.................................................................... 54
5.7 Financial Statements of Borrower........................................................ 54
5.8 No Other Liabilities; No Material Adverse Effect........................................ 54
5.9 Title to and Location of Property....................................................... 54
5.10 Real Property........................................................................... 54
5.11 Intangible Assets....................................................................... 55
5.12 Governmental Regulation................................................................. 55
5.13 Litigation.............................................................................. 55
5.14 Binding Obligations..................................................................... 55
5.15 No Default.............................................................................. 56
5.16 ERISA................................................................................... 56
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5.17 Regulations T, U and X; Investment Company Act.......................................... 56
5.18 Disclosure.............................................................................. 56
5.19 Tax Liability........................................................................... 56
5.20 Projections............................................................................. 56
5.21 Employee Matters........................................................................ 57
5.22 Gaming Laws............................................................................. 57
5.23 Security Interests...................................................................... 57
5.24 Hazardous Materials..................................................................... 57
5.25 Arbitration............................................................................. 57
5.26 Deposit Accounts........................................................................ 57
ARTICLE 6. AFFIRMATIVE COVENANTS OF BORROWER (OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)... 58
6.1 Payment of Taxes and Other Potential Liens.............................................. 58
6.2 Maintenance of Properties............................................................... 58
6.3 Maintenance of Insurance................................................................ 58
6.4 Compliance With Laws.................................................................... 59
6.5 Preservation of Licenses and Permits.................................................... 59
6.6 Inspection Rights....................................................................... 59
6.7 Keeping of Records and Books of Account................................................. 60
6.8 Compliance With Agreements.............................................................. 60
6.9 Use of Proceeds......................................................................... 60
6.10 Hazardous Materials Laws................................................................ 60
6.11 Deposit and Brokerage Accounts.......................................................... 61
6.12 Proposed Expansion...................................................................... 61
6.13 Year 2000 Compliance.................................................................... 61
ARTICLE 7. NEGATIVE COVENANTS OF BORROWER (OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)...... 62
7.1 Payment of Subordinated Obligations..................................................... 62
7.2 Disposition of Property................................................................. 62
7.3 Investments and Acquisitions............................................................ 62
7.4 Hostile Tender Offers................................................................... 63
7.5 Distributions........................................................................... 63
7.6 ERISA................................................................................... 64
7.7 Business of Borrower.................................................................... 64
7.8 Liens; Negative Pledges; Sales and Leasebacks........................................... 64
7.9 Indebtedness and Contingent Obligations................................................. 65
7.10 Transactions with Affiliates............................................................ 65
7.11 Authority Expenditures.................................................................. 66
7.12 Total Leverage Ratio.................................................................... 66
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7.13 Senior Leverage Ratio................................................................... 66
7.14 Fixed Charge Coverage Ratio............................................................. 67
7.15 Capital Expenditures.................................................................... 67
7.16 Deposit Accounts........................................................................ 68
ARTICLE 8. INFORMATION AND REPORTING REQUIREMENTS.................................................. 69
8.1 Financial and Business Information...................................................... 69
8.2 Compliance Certificates................................................................. 71
ARTICLE 9. COVENANTS OF THE TRIBE.................................................................. 72
9.1 Continual Operation of Mohegan Sun...................................................... 72
9.2 Remittance of Available Cash Flow....................................................... 72
9.3 Sovereign Immunity; Jurisdiction and Venue.............................................. 72
9.4 The Landlord Consent.................................................................... 72
9.5 Preservation of Existence; Operation.................................................... 72
9.6 Ownership of Mohegan Sun; Management.................................................... 73
9.7 Prohibited Transactions................................................................. 73
9.8 Amendments to Certain Documents......................................................... 73
9.9 Impairment of Contracts; Imposition of Governmental Charges............................. 74
9.10 Segregation of Authority Assets......................................................... 74
9.11 Trust Property.......................................................................... 74
9.12 Liens on Authority Property............................................................. 74
9.13 Bankruptcy Matters; Etc................................................................. 75
9.14 Impairment of Contracts................................................................. 75
ARTICLE 10. CONDITIONS.............................................................................. 76
10.1 Closing................................................................................. 76
10.2 Initial Advances........................................................................ 78
10.3 Any Increasing Advance.................................................................. 79
ARTICLE 11. EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT.................................... 81
11.1 Events of Default....................................................................... 81
11.2 Remedies Upon Event of Default.......................................................... 84
ARTICLE 12. THE ADMINISTRATIVE AGENT................................................................ 87
12.1 Appointment and Authorization........................................................... 87
12.2 Business Activities with the Tribe and Borrower......................................... 87
12.3 Proportionate Interest of the Lenders in any Collateral................................. 87
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12.4 Lenders' Credit Decisions............................................................... 88
12.5 Action by Administrative Agent.......................................................... 88
12.6 Liability of Administrative Agent....................................................... 89
12.7 Indemnification......................................................................... 90
12.8 Successor Administrative Agent.......................................................... 90
12.9 Performance of Conditions............................................................... 91
12.10 Collateral Matters...................................................................... 91
12.11 No Obligations of Borrower or the Tribe................................................. 92
ARTICLE 13. MISCELLANEOUS........................................................................... 93
13.1 Cumulative Remedies; No Waiver.......................................................... 93
13.2 Amendments; Consents.................................................................... 93
13.3 Costs, Expenses and Taxes............................................................... 94
13.4 Nature of the Lenders' Obligations...................................................... 94
13.5 Survival of Representations and Warranties.............................................. 95
13.6 Notices................................................................................. 95
13.7 Execution of Loan Documents............................................................. 95
13.8 Binding Effect; Assignment.............................................................. 95
13.9 Lien on Deposits and Property in Possession of any Lender............................... 98
13.10 Sharing of Setoffs...................................................................... 98
13.11 Indemnity by Borrower................................................................... 99
13.12 Nonliability of the Lenders............................................................. 100
13.13 No Third Parties Benefited.............................................................. 101
13.14 Confidentiality......................................................................... 101
13.15 Hazardous Materials Indemnity........................................................... 101
13.16 Further Assurances...................................................................... 102
13.17 Integration............................................................................. 102
13.18 Governing Law........................................................................... 102
13.19 Severability of Provisions.............................................................. 103
13.20 Independent Covenants................................................................... 103
13.21 Headings................................................................................ 103
13.22 Time of the Essence..................................................................... 103
13.23 Tax Withholding Exemption Certificates.................................................. 103
13.24 Arbitration Reference................................................................... 103
13.25 PURPORTED ORAL AMENDMENTS............................................................... 104
13.26 WAIVER OF RIGHT TO TRIAL BY JURY........................................................ 104
13.27 WAIVER OF SOVEREIGN IMMUNITY; CONSENT TO JURISDICTION .................................. 105
13.28 Lender Covenant......................................................................... 106
13.29 PREJUDGMENT REMEDY WAIVER............................................................... 107
13.30 Designated Senior Secured Indebtedness.................................................. 107
13.31 Compliance with 25 U.S.C.(S).81......................................................... 107
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EXHIBITS
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A - Assignment Agreement
B - Compliance Certificate
C - Deposit Account Letter
D - Note
E - Opinion - Tribal Counsel
F - Opinions - Xxxxx & Xxxxxxx and Rome XxXxxxxx Xxxxxxxx
G - Request for Letter of Credit
H - Request for Loan
SCHEDULES
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1.1 Pro Rata Shares of the Commitment
4.7 Mohegan Sun Real Property
5.13 Litigation
5.20 Projections
5.24 Hazardous Materials
5.26 Deposit and Brokerage Accounts
6.4 Real Property Insurance
7.8 Existing Liens and Rights of Others
7.9 Existing Indebtedness and Contingent Obligations
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LOAN AGREEMENT
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Dated as of March 3, 1999
This LOAN AGREEMENT ("Agreement") is entered into by and among The
Mohegan Tribe of Indians of Connecticut, a federally recognized Indian Tribe and
Native American sovereign nation (the "Tribe"), The Mohegan Tribal Gaming
Authority, a governmental instrumentality of the Tribe (the "Borrower"), Bank of
America National Trust and Savings Association ("Bank of America"), and each
other lender whose name is set forth on the signature pages hereof or which may
hereafter execute and deliver an Assignment Agreement with respect to this
Agreement pursuant to Section 13.8 (collectively, the "Lenders" and
individually, a "Lender"), Xxxxxxx Xxxxx Barney, Inc., as Syndication Agent,
Societe Generale, as Documentation Agent and Bank of America, as Administrative
Agent. NationsBanc Xxxxxxxxxx Securities, LLC, is Lead Arranger and Sole Book
Manager for the credit facilities described herein, but is not a party to this
Agreement
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE 2.
DEFINITIONS AND ACCOUNTING TERMS
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2.1 Defined Terms. As used in this Agreement, the following terms
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shall have the meanings set forth below:
"Acquisition" means any transaction, or any series of related
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transactions, by which Borrower directly or indirectly (i) acquires any
going business or all or substantially all of the assets of any firm,
partnership, joint venture, corporation or division thereof, or any other
business entity, whether through purchase of assets, merger or otherwise,
or (ii) acquires (in one transaction or as the most recent transaction in a
series of transactions) control of at least a majority in ordinary voting
power of the securities of a corporation which have ordinary voting power
for the election of directors, or (iii) acquires (in one transaction or as
the most recent transaction in a series of transactions) control of a 50%
or more ownership interest in any partnership, joint venture or other
business entity.
"Adjusted EBITDA" means, for any period, (a) which does not
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include any full Fiscal Quarters beginning following the Completion Date,
EBITDA for that period, and (b) which includes (i) only one full Fiscal
Quarter beginning following the Completion Date, EBITDA for that Fiscal
Quarter times four, (ii) two full Fiscal Quarters following the Completion
Date, EBITDA for those two Fiscal Quarters times two, (iii) three full
Fiscal Quarters following the Completion Date, EBITDA for those
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three Fiscal Quarters times one and one third, and (iv) which includes four
Fiscal Quarters following the Completion Date, EBITDA for the four most
recent Fiscal Quarters.
"Advance" means any Advance made or to be made by any Lender to
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Borrower as provided in Article 2.
"Administrative Agent" means Bank of America, when acting in its
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capacity as the Administrative Agent under any of the Loan Documents, and
any successor Administrative Agent appointed pursuant to Section 12.8.
"Administrative Agent's Office" means the Administrative Agent's
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address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Lenders.
"Affiliate" means, as to any Person, any other Person which
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directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (and the
correlative terms, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). Each enrolled member of the Tribe and their immediate family
members shall be deemed to be Affiliates of Borrower.
"Agreement" means this Loan Agreement, either as originally
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executed or as it may from time to time be supplemented, modified, amended,
restated or extended.
"Applicable Percentage" means, during each Pricing Period, (a) in
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the case of interest calculable with respect to each Base Rate Loan, the
percentage set forth below in the column headed "Base Rate", (b) in the
case of interest calculable with respect to each LIBOR Loan, the percentage
set forth in the column headed "LIBOR", and (c) in the case of Commitment
Fees, the percentage set forth in the column headed "Commitment Fees,"
provided that during the Pricing Period immediately following the last day
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of each Low Usage Quarter, the Commitment Fees set forth in the matrix
below shall be increased by 0.125% per annum:
Total Leverage Base Commitment
Ratio Rate LIBOR Fees
----- ---- ----- ----
Less than 0.000% 1.125% 0.300%
2.00:1.00
Greater than or 0.125% 1.375% 0.350%
equal to 2.00:1.00
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but less than 2.50:1.00
Greater than or 0.375% 1.625% 0.400%
equal to 2.50:1.00
but less than 3.00:1.00
Greater than or 0.625% 1.875% 0.500%
equal to 3.00:1.00
but less than 3.50:1.00
Greater than or 0.875% 2.125% 0.500%
equal to 3.50:1.00
but less than 4.00:1.00
Greater than or 1.125% 2.375% 0.500%
equal to 4.00:1.00
but less than 4.50:1.00
Greater than or 1.375% 2.625% 0.500%
equal to 4.50:1.00
The Applicable Percentage shall change as of the first day of the calendar month
following the receipt of a Compliance Certificate indicating a change in the
Total Leverage Ratio. Notwithstanding the provisions of this definition, in the
event that Borrower fails to deliver any Compliance Certificate on a timely
basis, the Applicable Percentage shall increase to the highest level set forth
above until such time as Borrower delivers a Compliance Certificate.
"Approved Swap Agreements" means one or more Swap Agreements with
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respect to the Indebtedness evidenced by this Agreement between Borrower and one
or more of the Lenders, on terms mutually acceptable to Borrower and that Lender
or Lenders. Each Approved Swap Agreement shall be a Loan Document and shall be
secured by the Liens created by the Collateral Documents to the extent set forth
in Section 2.9.
"Assignment Agreement" means an Assignment Agreement substantially in
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the form of Exhibit A.
"Authority Property" means any and all now owned or hereafter acquired
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real, mixed and personal Property of the Borrower (whether or not otherwise
designated as property of the Borrower) which is reflected on the balance sheet
described in Section 5.6(a) or any subsequent balance sheet hereafter delivered
by Borrower to the Administrative Agent or the Lenders in connection herewith.
"Authority Property" in any event includes without limitation (i) the Mohegan
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Sun, all gaming revenues of Borrower, the revenues of Borrower, and (ii) all
tangible Property located within the area described on Schedule 4.7.
"Available Cash Flow" means, for any calendar month (a) EBITDA for
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that month, minus (b) the amount of Maintenance Capital Expenditures made during
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that month, minus (c) any principal repayments with respect to Indebtedness and
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Capital Leases constituting Recourse Obligations required to be made during that
period in cash, and minus (d) the amount of cash Interest Charges during that
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month.
"Base Rate" means, as of any date of determination, the greater of (a)
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the Reference Rate or (b) the Federal Funds Rate plus .50%.
----
"Base Rate Advance" means an Advance made hereunder as a part of a
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Base Rate Loan made in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and designated as a Base
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Rate Loan in accordance with Article 2.
"Borrower" means The Mohegan Tribal Gaming Authority.
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"Bureau of Indian Affairs" means the United States Department of the
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Interior, Bureau of Indian Affairs, and each successor agency.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or
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Friday, other than a day on which banks are authorized or required to be closed
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in California, Connecticut or New York.
"Capital Expenditure" means any expenditure that is considered a
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capital expenditure under Generally Accepted Accounting Principles, consistently
applied, including any amount that is required to be treated as an asset subject
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to a Capital Lease.
"Capital Lease" means, as to any Person, a lease of any Property by
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that Person as lessee that is, or should be in accordance with Financial
Accounting Standards Board Statement No. 13, as amended from time to time, or if
such Statement is not then in effect, such other statement of Generally Accepted
Accounting Principles as may be applicable, recorded as a "capital lease" on the
balance sheet of that Person prepared in accordance with Generally Accepted
Accounting Principles.
"Cash" means, when used in connection with any Person, all monetary
----
and non-monetary items owned by that Person that are treated as cash in
accordance with Generally Accepted Accounting Principles.
"Cash Equivalents" means, when used in connection with any Person,
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that Person's Investments in:
(a) Government Securities due within one year after the date of the making
of the Investment;
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(b) readily marketable direct obligations of any State of the United
States of America or any political subdivision of any such State given
on the date of such investment a credit rating of at least Aa by
Xxxxx'x Investors Service, Inc. or AA by Standard & Poor's Ratings
Group, in each case due within one year after the date of the making
of the Investment;
(c) certificates of deposit issued by, bank deposits in, eurodollar
deposits through, bankers' acceptances of, and reverse repurchase
agreements covering Government Securities executed by, any Lender or
any other bank, savings and loan or savings bank doing business in and
incorporated under the Laws of the United States of America or any
State thereof and having on the date of such Investment combined
capital, surplus and undivided profits of at least $250,000,000, in
each case due within one year after the date of the making of the
Investment;
(d) certificates of deposit issued by, bank deposits in, eurodollar
deposits through, bankers' acceptances of, and reverse repurchase
agreements covering Government Securities executed by, any branch or
office located in the United States of America of a bank incorporated
under the Laws of any jurisdiction outside the United States of
America having on the date of such Investment combined capital,
surplus and undivided profits of at least $500,000,000, in each case
due within one year after the date of the making of the Investment;
and
(e) readily marketable commercial paper of corporations doing business in
and incorporated under the Laws of the United States of America or any
State thereof given on the date of such Investment the highest credit
rating by Xxxxx'x Investors Service, Inc. and Standard & Poor's
Corporation, in each case due within 270 days after the date of the
making of the Investment.
"Change in Control" means the occurrence of any one or more of the
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following:
(a) Borrower ceases to be a wholly-owned unit, instrumentality or
subdivision of the government of the Tribe;
(b) Borrower ceases to have the exclusive legal right to operate the
gaming operations of the Tribe; or
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(c) Borrower sells, assigns, transfers, leases or otherwise disposes
of all or substantially all of its assets to, any Person (except for any
sale, assignment, transfer, lease or other disposition to a Subsidiary of
Borrower permitted hereby and by the Senior Note Indenture).
"Closing Date" means the time and Business Day on which the
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consummation of all of the transactions contemplated in Section 10.1 occurs.
"Code" means the Internal Revenue Code of 1986, as amended or replaced
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and as in effect from time to time.
"Collateral" means, collectively, all of the collateral subject to the
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Liens, or intended to be subject to the Liens, created by the Collateral
Documents.
"Collateral Documents" means, collectively, the Security Agreement,
--------------------
each Deposit Account Agreement, any Leasehold Mortgage and any other pledge
agreement, hypothecation agreement, security agreement, assignment, deed of
trust, mortgage or similar instrument executed by Borrower in favor of the
Administrative Agent or any Creditor to secure the Obligations.
"Commission" means the National Indian Gaming Commission.
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"Commitment" means $425,000,000, or such lesser amount to which the
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lending commitment of the Lenders may be reduced in accordance with Sections 2.5
and 2.6. The respective Pro Rata Shares of each Lender with respect to the
Commitment as of the Closing Date are set forth in Schedule 1.1.
"Commitment Fees" means the fees referred to in Section 3.5.
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"Compact" means the tribal-state Compact entered into between the
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Tribe and the State of Connecticut pursuant to IGRA, dated April 25, 1994, as
amended.
"Completion Date" means the first date upon which hotel guests utilize
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the lodging services contemplated to be provided by the hotel tower described as
part of the Proposed Expansion.
"Compliance Certificate" means a certificate substantially in the form
----------------------
of Exhibit B, properly completed and signed by a Senior Officer of the Borrower.
"Constitution" means the Constitution of the Tribe adopted by the
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Tribe and ratified by the Tribe's members by Tribal Referendum dated April 12,
1996, as it may be amended from time to time.
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"Consumer Price Index" means the Consumer Price Index for All Urban
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Consumers (CPI-U) for the U.S. City Average for All Items, 1982-1984=100, as
compiled and released by the Bureau of Labor Statistics.
"Contingent Obligation" means, as to any Person, any (a) direct or
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indirect guarantee of Indebtedness of, or other obligation performable by, any
other Person, including any endorsement (other than for collection or deposit in
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the ordinary course of business), co-making or sale with recourse of the
obligations of any other Person or (b) contractual assurance (not arising solely
by operation of Law) given to an obligee with respect to the performance of an
obligation by, or the financial condition of, any other Person, whether direct,
indirect or contingent, including any purchase or repurchase agreement covering
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such obligation or any collateral security therefor, any agreement to provide
funds (by means of loans, capital contributions or otherwise) to such other
Person, any agreement to support the solvency or level of any balance sheet item
to such other Person, or any other arrangement of whatever nature having the
effect of assuring or holding harmless any obligee against loss with respect to
any obligation of such other Person including without limitation any "keep-
well", "take-or-pay" or "through put" agreement or arrangement. As of each date
of determination, the amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the related primary
obligation (unless the Contingent Obligation is limited by its terms to a lesser
amount, in which case to the extent of such amount) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the Person in good faith.
"Construction Consultant" means a construction consultant designated
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by the Administrative Agent and approved by Borrower, with such consent not to
be unreasonably withheld or delayed.
"Construction Progress Report" means a report prepared by the
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Construction Consultant in a form which is reasonably acceptable to the
Administrative Agent describing the progress of construction of the Proposed
Expansion.
"Construction Reserve Disbursement Agreement" means the Construction
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Reserve Disbursement Agreement dated March 3, 1999 between the Tribe and Fleet
National Bank, as Escrow Agent, for the benefit of Borrower.
"Contractual Obligation" means, as to any Person, any provision of any
----------------------
outstanding Securities issued by that Person or of any material agreement,
instrument or undertaking to which that Person is a party or by which it or any
of its Property is bound.
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"Creditors" means, collectively, the Administrative Agent, the Issuing
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Lender, the Lenders, and the Lead Arranger, and their respective successors in
interest.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
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America, as amended from time to time, and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws from time to time in
effect affecting the rights of creditors generally.
"Default" means any event that, with the giving of any applicable
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notice or passage of time, or both, would be an Event of Default.
"Default Rate" means the interest rate set forth in Section 3.9.
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"Defeasance Deposit" means the irrevocable trust deposit made by
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Borrower on the Closing Date with First Union National Bank pursuant to the
Escrow Deposit Agreement dated March 3, 1999 between Borrower and First Union
National Bank in the principal amount of $140,300,000 for the purpose of
providing for the covenant defeasance of the TCA Subordinated Notes, initially
consisting of United States Treasury Bills maturing December 12, 1999.
Notwithstanding any provision of the Loan Documents to the contrary the
Administrative Agent and the Lenders shall not claim any Lien in the Defeasance
Deposit.
"Deposit Account Agreement" means a letter agreement among Borrower,
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the Administrative Agent and the depositary for each Operating Account,
substantially in the form of Exhibit C.
"Designated Deposit Account" means a deposit account to be maintained
--------------------------
by Borrower with the Administrative Agent, as from time to time designated by
Borrower by written notification to the Administrative Agent.
"Designated Market" means, for any LIBOR Loan, the London Eurodollar
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Market, provided that if the Administrative Agent determines that the London
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Eurodollar Market is unavailable or reasonably inconvenient, "Designated Market"
means such other offshore market for deposits in dollars as the Administrative
Agent may reasonably designate.
"Development Services Agreement" means the Development Services
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Agreement dated February 7, 1998 between Borrower and Trading Cove Associates.
"Disposition" means the sale, transfer or other disposition of
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Authority Property in any single transaction or series of related transactions
of any individual
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asset, or group of related assets, that has or have at the date of the
Disposition a book value or fair market value (which shall be deemed to be equal
to the sales price for such asset or assets upon a sale to a Person that is not
an Affiliate of the Tribe) of $10,000,000 or more, other than (i) the sale or
----- ----
other disposition of inventory in the ordinary course of business, (ii) the sale
or other disposition of equipment or other personal property that is replaced by
equipment or personal property, as the case may be, performing substantially the
same function not later than ninety (90) days after such sale or disposition and
(iii) the sale or other disposition of obsolete equipment.
"Distribution" means (a) any transfer of Cash or other Property from
------------
Borrower or any account of Borrower to the Tribe or any of its members or
Affiliates or to their respective accounts, (b) any retirement, redemption,
prepayment of principal, purchase or other acquisition for value by Borrower of
any Securities or other obligations of the Tribe or any of its Affiliates (or of
any other Person to the extent that such Securities or other obligations are
guaranteed by the Tribe or any of its Affiliates), (c) the declaration or
payment by Borrower of any dividend or distribution to the Tribe or any of its
members or any of its Affiliates in Cash or in Property (but not the making of
arm's length payments for goods and services provided by the Tribe or any of its
Affiliates to the Borrower in the manner contemplated by Section 7.10), (d) any
Investment (whether by means of loans, advances or otherwise) by Borrower in
Securities or other obligations of the Tribe or any of its Affiliates, or (e)
any other payment, assignment or transfer, whether in Cash or other Property,
from Borrower to the Tribe or any of its members or Affiliates, including the
payment of any tax, fee, charge or assessment imposed by the Tribe on Borrower,
its revenues or Properties, provided that, both (A) the making of payments by
-------- ----
Borrower to the Tribe or any of its Affiliates in consideration of goods and
services provided to Borrower by the Tribe or its Affiliates in the ordinary
course of business and in accordance with past practices, and (B) assessment by
the Tribe against Borrower of the regulatory costs and expenses of the Tribe
associated with Borrower in accordance with past practices, shall not be
considered a Distribution.
"Documentation Agent" means Societe Generale. The capacity of the
-------------------
Documentation Agent is solely titular in nature, and except to the extent
expressly set forth herein, the Documentation Agent shall not have any rights or
obligations under the Loan Documents by reason of such capacity.
"dollars" or "$" means United States dollars.
------- -
"EBITDA" means, for any period, (a) Net Income of Borrower for that
------
period, plus (b) Interest Charges of Borrower for that period, plus (c) (without
---- ----
duplication) the aggregate amount, if any, of federal and state taxes on or
measured by income of Borrower for that period (whether or not payable during
that period, and excluding any amount payable to the State of Connecticut under
the Compact), plus
----
-9-
(d) depreciation and amortization of Borrower for that period, and minus (e)
-----
payments under the Relinquishment Agreement, in each case paid during that
period in cash, in each case as determined in accordance with Generally Accepted
Accounting Principles.
"Eligible Assignee" means (a) with respect to any Lender, another
-----------------
Lender (b) with respect to any Lender, any Affiliate of that Lender, (c) any
commercial bank having a combined capital and surplus of $100,000,000 or more,
(d) any (i) savings bank, savings and loan association or similar financial
institution or (ii) insurance company engaged in the business of writing
insurance which, in either case (A) has a net worth of $200,000,000 or more, (B)
is engaged in the business of lending money and extending credit under credit
facilities substantially similar to those extended under this Agreement and (C)
is operationally and procedurally able to meet the obligations of a Lender
hereunder to the same degree as a commercial bank and (e) any other financial
institution (including a mutual fund or other fund) having total assets of
---------
$250,000,000 or more which meets the requirements set forth in subclauses (B)
and (C) of clause (d) above; provided that each Eligible Assignee must either
--------
(a) be organized under the Laws of the United States of America, any State
thereof or the District of Columbia or (b) be organized under the Laws of the
Cayman Islands or any country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of such a country, and
(i) act hereunder through a branch, agency or funding office located in the
United States of America and (ii) be exempt from withholding of tax on interest
and deliver the documents related thereto pursuant to Section 13.23.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
-----
any regulations issued pursuant thereto, as amended or replaced and as in effect
from time to time.
"ERISA Affiliate" means, with respect to any Person, any Person (or
---------------
any trade or business, whether or not incorporated) that is under common control
with that Person within the meaning of Section 414 of the Internal Revenue Code,
Title 26, U.S.C.
"Eurodollar Obligations" means eurocurrency liabilities, as defined in
----------------------
Regulation D.
"Event of Default" shall have the meaning provided in Section 11.1.
----------------
"Existing Senior Secured Notes" means Borrower's existing $175,000,000
-----------------------------
principal amount 13.50% Senior Secured Notes issued pursuant to the Indenture
dated as of September 29, 1995 among Borrower and First Fidelity Bank, as
Trustee, as amended.
-10-
"Federal Funds Rate" means, as of any date of determination, a
------------------
fluctuating interest rate per annum equal to the federal funds effective rate
for the previous Business Day as quoted by the Federal Reserve Bank of New York
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"Fiscal Quarter" means the fiscal quarter of Borrower consisting of a
--------------
three month fiscal period ending on each March 31, June 30, September 30 and
December 31.
"Fiscal Year" means the fiscal year of Borrower consisting of a twelve
-----------
month fiscal period ending on each September 30.
"Fixed Charge Coverage Ratio" means, as of each date of determination,
---------------------------
the ratio of (a) Adjusted EBITDA plus management fees paid in cash, in each case
----
for the four Fiscal Quarter period then ending, to (b) the sum of (i) Interest
---
Charges with respect to Recourse Obligations to the extent payable in cash
during that period, plus (ii) any principal repayments with respect to
----
Indebtedness and Capital Leases constituting Recourse Obligations required to be
made during that period in cash, plus (iii) Maintenance Capital Expenditures for
----
that period, plus (iv) Distributions made during that period to the Tribe in
----
accordance with Section 7.5 plus (v) payments under the Relinquishment Agreement
----
and management fees, in each case made in cash during that period (without any
annualization thereof).
"Gaming Authority Ordinance" means Ordinance No. 95-2 of the Tribe, as
--------------------------
enacted on July 15, 1995.
"Gaming Board" means, collectively, (a) The Mohegan Tribal Gaming
------------
Commission, (b) the Connecticut Division of Special Revenue, (c) the Commission,
and (d) any other Governmental Agency that holds licensing or permit authority
over gambling, gaming or casino activities conducted by the Borrower or the
Tribe within its jurisdiction.
"Gaming Laws" means IGRA, the Gaming Ordinance, the Gaming Authority
-----------
Ordinance and all other Laws pursuant to which any Gaming Board possesses
licensing or permit authority over gambling, gaming, or casino activities
conducted by the Borrower or the Tribe within its jurisdiction.
"Gaming Ordinance" means Ordinance 94-1 of the Tribe, as enacted on,
----------------
July 28, 1994.
-11-
"Generally Accepted Accounting Principles" means, as of any date of
----------------------------------------
determination, accounting principles set forth as generally accepted in the
effective Statements of the Auditing Standards Board of the American Institute
of Certified Public Accountants as of the date of this Agreement, or if such
statements are not then in effect, accounting principles that are then approved
by a significant segment of the accounting profession in the United States of
America. The term "consistently applied," as used in connection therewith,
--------------------
means that the accounting principles applied are consistent in all material
respects to those applied at prior dates or for prior periods.
"Government Securities" means readily marketable direct full faith and
---------------------
credit obligations of the United States of America or obligations
unconditionally guaranteed by the full faith and credit of the United States of
America.
"Governmental Agency" means (a) any international, foreign, federal,
-------------------
tribal, state, county or municipal government, or political subdivision thereof,
(b) any governmental or quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body, (c) any court,
administrative tribunal or public utility, or (d) any arbitration tribunal or
other non-governmental authority to whose jurisdiction a Person has consented.
"Hazardous Materials" means substances defined as hazardous substances
-------------------
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 USC (S)9601, et seq., or as hazardous, toxic or pollutant
-------
pursuant to the Hazardous Materials Transportation Act, 49 USC (S)1801, et seq.,
-------
the Resource Conservation and Recovery Act, 42 USC (S)6901, et seq., or in any
-------
other applicable Hazardous Materials Law, in each case as such laws are amended
from time to time.
"Hazardous Materials Claims" means the matters described in clauses
--------------------------
(a) and (b) of Section 6.10.
"Hazardous Materials Laws" means all federal, tribal, Connecticut
------------------------
state or local laws, ordinances, rules or regulations governing the disposal of
Hazardous Materials, to the extent applicable.
"IGRA" means the federal Indian Gaming Regulatory Act of 1988, as
----
amended, codified at 25 U.S.C. (S)2701, et seq.
-- ---
"Indebtedness" means, as to any Person, without duplication, (a) all
------------
indebtedness of such Person for borrowed money, (b) that portion of the
obligations of such Person under Capital Leases which should properly be
recorded as a liability on a balance sheet of that Person prepared in accordance
with Generally Accepted
-12-
Accounting Principles, (c) any obligation of such Person that is evidenced by a
promissory note or other instrument representing an extension of credit to such
Person, whether or not for borrowed money, (d) any obligation of such Person for
the deferred purchase price of Property or services (other than trade or other
----- ----
accounts payable in the ordinary course of business in accordance with customary
terms), (e) any obligation of such Person that is secured by a Lien on assets of
such Person, whether or not that Person has assumed such obligation or whether
or not such obligation is non-recourse to the credit of such Person, but only to
the extent of the lesser of (i) the outstanding principal amount of the
obligation (or, with respect to any letter of credit, the amount available for
drawing thereunder), and (ii) the fair market value of the assets so subject to
the Lien, (f) obligations of such Person arising under acceptance facilities or
under facilities for the discount of accounts receivable of such Person, (g)
obligations of such Person for unreimbursed draws under letters of credit issued
for the account of such Person and (h) any obligations of such Person under a
Swap Agreement, provided that (y) the obligations of Borrower under the
--------
Relinquishment Agreement shall not be treated as Indebtedness except to the
extent that the same are not paid when due, and (z) the obligations of Borrower
with respect to the TCA Subordinated Notes shall not be treated as Indebtedness
during any period with respect to which the Defeasance Deposit exists.
"Intangible Assets" means assets that are considered intangible assets
-----------------
under Generally Accepted Accounting Principles, including customer lists,
---------
goodwill, computer software and capitalized research and development costs.
"Interest Charges" means, with respect to any fiscal period, the sum
---------------- ---
of (a) all interest, fees, charges and related expenses payable with respect to
--
that fiscal period to a lender in connection with borrowed money or the deferred
purchase price of assets that is treated as interest in accordance with
Generally Accepted Accounting Principles (other than any such interest, charges
and related expenses accruing with respect to the TCA Subordinated Notes
following the Closing Date to the extent provided for by the Defeasance
Deposit), plus (b) the portion of rent payable with respect to that fiscal
----
period under Capital Leases that should be treated as interest in accordance
with Generally Accepted Accounting Principles.
"Interest Differential" means, with respect to any prepayment of a
---------------------
LIBOR Loan on a day other than the last day of the applicable Interest Period
and with respect to the failure to borrow a LIBOR Loan on the date or in the
amount specified in a Request for Loan, (a) the per annum interest rate payable
pursuant to Section 3.1(c) with respect to that LIBOR Loan as of the date of the
prepayment or failure to borrow, minus (b) the LIBOR on or as near as
-----
practicable to the date of the prepayment or failure to borrow for a LIBOR Loan
commencing on such date and ending on the last day of the applicable Interest
Period; provided that if the LIBOR so prescribed is equal to or within 1/8% less
--------
than the LIBOR for the LIBOR Loan that
-13-
was prepaid or not borrowed, then 1/8 of 1% shall be subtracted from the LIBOR
so prescribed. The determination of the Interest Differential by the
Administrative Agent shall be conclusive in the absence of manifest error.
"Interest Period" means, as to each LIBOR Loan, the period commencing
---------------
on the date specified by Borrower pursuant to Section 2.1(b) and ending 1, 2, 3
or 6 months thereafter, as specified by Borrower in the applicable Request for
Loan; provided that:
--------
(a) The first day of any Interest Period shall be a LIBOR Business Day;
(b) Any Interest Period that would otherwise end on a day that is not a
LIBOR Business Day shall be extended to the next succeeding LIBOR
Business Day unless such LIBOR Business Day falls in another calendar
month, in which case such Interest Period shall end on the next
preceding LIBOR Business Day; and
(c) No Interest Period shall extend beyond the Maturity Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, Title
---------------------
26, U.S.C., as amended or replaced and as in effect from time to time.
"Investment" means, when used in connection with any Person, any
----------
investment by or of that Person, whether by means of purchase or other
acquisition of capital stock or other Securities of any other Person or by means
of loan, advance, capital contribution, guaranty or other debt or equity
participation or interest, or otherwise, in any other Person, including any
---------
partnership and joint venture interests of such Person in any other Person. The
amount of any Investment shall be the amount actually invested, without
adjustment for increases or decreases in the value of such Investment.
"Issuing Lender" means Bank of America.
--------------
"Landlord Consent" means the consent, waiver and estoppel executed by
----------------
the Tribe on the Closing Date in favor of the Administrative Agent, either as
originally executed or as it may from time to time be supplemented, modified,
amended, restated or extended.
"Laws" means, collectively, all international, foreign, federal,
----
tribal, state and local constitutions, statutes, treaties, rules, regulations,
ordinances, codes and administrative or judicial precedents.
-14-
"Lead Arranger" means NationsBanc Xxxxxxxxxx Securities, LLC and its
-------------
successors and assigns.
"Lease" means the Lease dated September 29, 1995 between the Tribe and
-----
Borrower, as amended by an amendment also dated September 29, 1995, with respect
to the real property underlying the Mohegan Sun and the improvements thereon.
"Leasehold Mortgage" means, collectively, the Leasehold Mortgage
------------------
executed by Borrower in favor of the Administrative Agent covering the leasehold
interest of Borrower under the Lease to the reservation real property described
on Schedule 4.7, the related improvements and fixtures used in connection with
Mohegan Sun, either as originally executed or as the same may from time to time
be supplemented, modified, amended, renewed, extended or supplanted.
"Lender" means each of the lenders party to this Agreement on the
------
Closing Date and each other lender which hereafter becomes a party hereto in
accordance with Section 13.8, provided that, for the purpose of the term
--------
"Approved Swap Agreement" the term "Lender" shall also include any Affiliate of
a Lender which enters into a Swap Agreement which expressly relates to the
Indebtedness evidenced by this Agreement and the Loan Documents.
"Letters of Credit" means any of the letters of credit issued by the
-----------------
Issuing Lender under the Commitment pursuant to Section 2.4, either as
originally issued or as the same may be supplemented, modified, amended,
renewed, extended or supplemented.
"LIBOR" means, with respect to any LIBOR Loan, the interest rate
-----
(rounded upward to the next 1/100 of 1%) determined to be equal to the LIBOR
Base Rate divided by the remainder of (a) 1 minus (b) the Reserve Percentage.
------- -- -----
"LIBOR Advance" means an Advance made hereunder as a part of a LIBOR
-------------
Loan made in accordance with Article 2.
"LIBOR Base Rate" means, with respect to any LIBOR Loan, the interest
---------------
rate per annum (determined solely by the Administrative Agent) at which deposits
in dollars are offered by Bank of America to prime banks in the Designated
Market at or about 11:00 a.m. local time in the Designated Market, two LIBOR
Business Days before the first day of the applicable Interest Period in an
aggregate amount approximately equal to the amount of such LIBOR Loan and for a
period of time comparable to the number of days in the applicable Interest
Period. The determination of the LIBOR Base Rate by the Administrative Agent
shall be conclusive in the absence of manifest error.
-15-
"LIBOR Business Day" means any Business Day on which dealings in
------------------
dollar deposits are conducted by and among banks in the Designated Market.
"LIBOR Lending Office" means, as to each Lender, its office or branch
--------------------
so designated by written notice to Borrower and the Administrative Agent as its
LIBOR Lending Office. If no LIBOR Lending Office is designated by a Lender, its
LIBOR Lending Office shall be its office at its address for purposes of notices
hereunder.
"LIBOR Loan" means a Loan made hereunder and designated as a LIBOR
----------
Loan in accordance with Article 2.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment for security, security interest, encumbrance, lien or charge of any
kind, whether voluntarily incurred or arising by operation of Law or otherwise,
affecting any Property, including any agreement to grant any of the foregoing,
---------
any conditional sale or other title retention agreement, any lease in the nature
of a security interest, and/or the filing of or agreement to give any financing
statement under the Uniform Commercial Code or comparable Law of any
jurisdiction with respect to any Property.
"Loan" means the group of Advances made at any one time by the Lenders
----
in accordance with the Commitment pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement, any Notes, each
--------------
Letter of Credit, the Collateral Documents, the Landlord Consent, any Request
for Loan, any Request for Letter of Credit and any other agreements of any type
or nature heretofore or hereafter executed and delivered by the Borrower, the
Tribe or any of its Affiliates to the Administrative Agent or to any Lender in
any way relating to or in furtherance of this Agreement, including any Approved
---------
Swap Agreement, in each case either as originally executed or as the same may
from time to time be supplemented, modified, amended, restated, extended or
supplanted.
"Low Usage Quarter" means each Fiscal Quarter ending prior to the
-----------------
Completion Date during which (a) the average daily amount of the Unused
Commitment is equal to or greater than (b) two thirds of the average Commitment
during that Fiscal Quarter.
"Maintenance Capital Expenditure" means a Capital Expenditure for the
-------------------------------
maintenance, repair, restoration or refurbishment of those portions of Mohegan
Sun which are open for business on the Closing Date (or, as of the date of the
Capital Expenditure have been open for business for a period in excess of one
year), but excluding any Capital Expenditure which adds to or further improves
---------
Mohegan Sun.
-16-
"Management Board" means the Management Board of Borrower, as
----------------
established pursuant to the Gaming Authority Ordinance.
"Material Adverse Effect" means any set of circumstances or events
-----------------------
which (a) may reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of any Loan Document, (b) may
reasonably be expected to be material and adverse to the condition (financial or
otherwise) or business operations or Properties or to the prospects of
Borrower, (c) materially impairs or may reasonably be expected to materially
impair the ability of Borrower to perform its Obligations or (d) materially
impairs or could reasonably be expected to materially impair the ability of the
Lenders or the Administrative Agent to enforce the principal benefits intended
to be created and conveyed by the Loan Documents, including without limitation
the Liens created by the Collateral Documents.
"Material Documents" means, collectively, the Lease, the Construction
------------------
Reserve Disbursement Agreement, the Senior Unsecured Notes, the Senior Unsecured
Note Indenture, the Relinquishment Agreement, the New Subordinated Notes and the
New Subordinated Notes Indenture, the Constitution, the Compact, the Gaming
Ordinance, the Gaming Authority Ordinance, the Development Services Agreement,
the Town Agreement and the UCC Ordinance.
"Maturity Date" means March 3, 2004.
-------------
"Mohegan Sun" means the high stakes bingo and casino property and
-----------
related transportation, retail, dining and entertainment facilities and proposed
hotel described in the Gaming Ordinance and commonly known as "Mohegan Sun
Resort Casino" owned by the Borrower and located in Uncasville, Connecticut
(including any future expansions thereof), which facilities are located upon the
real property described on Schedule 4.7.
"Multiemployer Plan" means any employee benefit plan of the type
------------------
described in Section 4001(a)(3) of ERISA.
"Negative Pledge" means any covenant binding on the Tribe or Borrower
---------------
that prohibits the creation of Liens on any Authority Property, except a
------
covenant contained in an instrument creating a Permitted Encumbrance or
Permitted Right of Others on Authority Property that prohibits the creation of
other Liens on that Authority Property and no other Authority Property.
"Net Income" means, with respect to any fiscal period, the net income
----------
from continuing operations before extraordinary or non-recurring items of
Borrower for that period, determined in accordance with Generally Accepted
Accounting Principles, consistently applied.
-17-
"New Subordinated Notes" means (a) Borrower's 8 3/4% Senior
----------------------
Subordinated Notes due 2009 issued on or about March 3, 1999 in the aggregate
principal amount of $300,000,000 pursuant to the New Subordinated Note
Indenture, and (b) any Senior Subordinated Exchange Notes issued pursuant to the
New Subordinated Note Indenture.
"New Subordinated Note Indenture" means the Indenture dated as of
-------------------------------
March 3, 1999 between Borrower and State Street Bank and Trust Company, as
Trustee, relating to the New Subordinated Notes.
"Non-Authority Property" means Property of the Tribe which is not
----------------------
Authority Property.
"Note" means any promissory note made by Borrower to a Lender
----
evidencing Advances under that Lender's Pro Rata Share of the Commitment,
substantially in the form of Exhibit D, either as originally executed or as the
same may from time to time be supplemented, modified, amended, renewed, extended
or supplanted.
"Obligations" means all present and future obligations of every kind
-----------
or nature of the Tribe, Borrower or any Party at any time and from time to time
owed to the Creditors or any one or more of them under any one or more of the
Loan Documents, whether due or to become due, matured or unmatured, liquidated
or unliquidated, or contingent or noncontingent, including obligations of
--------
performance as well as obligations of payment, and including interest that
---------
accrues after the commencement of any proceeding under any Debtor Relief Law by
or against the Tribe, Borrower or any such Party.
"Operating Accounts" means the deposit accounts of Borrower described
------------------
on Schedule 5.26, and each other deposit, savings, brokerage or similar account
hereafter established by Borrower.
"Party" means any Person other than the Creditors which now or
-----
hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
----
thereof established under ERISA.
"Pension Plan" means any "employee pension benefit plan" that is
------------
subject to Title IV of ERISA and which is maintained for employees of Borrower
or any of its ERISA Affiliates, other than a Multiemployer Plan.
----- ----
-18-
"Permitted Dispositions" means Dispositions made during the term of
----------------------
this Agreement of Authority Property which has, as of each date of
determination, an aggregate book value not in excess of 5% of the aggregate
value of the assets of Borrower determined, as of each such date, with reference
to the then most recent audited financial statements of Borrower, provided that
--------
no Disposition of Authority Property which is an operationally integral part of
Mohegan Sun shall be a treated as a Permitted Disposition without the prior
written consent of the Requisite Lenders.
"Permitted Encumbrances" means:
----------------------
(a) inchoate Liens incident to construction or maintenance of real
property, or Liens incident to construction or maintenance of real
property, now or hereafter filed of record for which adequate
accounting reserves have been set aside and which are being contested
in good faith by appropriate proceedings and have not proceeded to
judgment, provided that, by reason of nonpayment of the obligations
--------
secured by such Liens, no such real property is subject to a material
risk of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not yet past
due, or Liens for taxes and assessments on Property for which adequate
reserves have been set aside and are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, provided
--------
that, by reason of nonpayment of the obligations secured by such
Liens, no such Property is subject to a material risk of loss or
forfeiture;
(c) minor defects and irregularities in title to any real property which
in the aggregate do not materially impair the fair market value or use
of the real property for the purposes for which it is or may
reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements granted or
entered into after the date hereof for the purpose of pipelines,
conduits, cables, wire communication lines, power lines and
substations, streets, trails, walkways, drainage, irrigation, water,
and sewerage purposes, dikes, canals, ditches, the removal of oil,
gas, coal, or other minerals, and other like purposes affecting real
property which in the aggregate do not materially burden or impair the
fair market value or use of such real property for the purposes for
which it is or may reasonably be expected to be held;
(e) rights reserved to or vested in any Governmental Agency by Law to
control or regulate, or obligations or duties under Law to any
Governmental Agency with respect to, the use of any real property;
-19-
(f) rights reserved to or vested in any Governmental Agency by Law to
control or regulate, or obligations or duties under Law to any
Governmental Agency with respect to, any right, power, franchise,
grant, license, or permit;
(g) present or future zoning laws and ordinances or other laws and
ordinances restricting the occupancy, use, or enjoyment of real
property;
(h) statutory Liens, other than those described in clauses (a) or (b)
above, arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in good
faith by appropriate proceedings, provided that, if delinquent,
--------
adequate reserves have been set aside with respect thereto and, by
reason of nonpayment, no Property is subject to a material risk of
loss or forfeiture;
(i) Liens consisting of pledges or deposits made in connection with
obligations under workers' compensation laws, unemployment insurance
or similar legislation, including Liens of judgments thereunder which
are not currently dischargeable;
(j) Liens consisting of pledges or deposits of Property to secure
performance in connection with operating leases made in the ordinary
course of business to which Borrower is a party as lessee, provided
--------
the aggregate value of all such pledges and deposits in connection
with any such lease does not at any time exceed 10% of the annual
fixed rentals payable under such lease;
(k) Liens consisting of deposits of Property to secure statutory
obligations of Borrower in the ordinary course of its business;
(l) Liens consisting of deposits of Property to secure (or in lieu of)
surety, appeal or customs bonds in proceedings to which Borrower is a
party in the ordinary course of its business; and
(m) Liens created by or resulting from any litigation or legal proceeding
involving Borrower in the ordinary course of its business which is
currently being contested in good faith by appropriate proceedings,
provided that adequate reserves have been set aside with respect
--------
thereto, and such Liens are discharged or stayed within 60 days of
creation and no Property is subject to a material risk of loss or
forfeiture.
-20-
"Permitted Right of Others" means a Right of Others consisting of (a)
-------------------------
an interest (other than a legal or equitable co-ownership interest, an option or
right to acquire a legal or equitable co-ownership interest and any interest of
a ground lessor under a ground lease) that does not materially impair the value
or use of property for the purposes for which it is or may reasonably be
expected to be held, (b) an option or right to acquire a Lien that would be a
Permitted Encumbrance, and (c) the reversionary interest of a landlord under a
lease of Property.
"Person" means any entity, whether an individual, trustee,
------
corporation, general partnership, limited partnership, limited liability
company, limited liability partnership, joint stock company, trust, estate,
unincorporated organization, business association, tribe, firm, joint venture,
Governmental Agency, or otherwise.
"Plans and Budget" means the plans, specifications, construction
----------------
budget, construction plan and timetable prepared by or for Borrower, as the same
may be amended or supplemented from time to time, all of which plans and
specifications describe and show the construction of the Proposed Expansion and
the labor and materials necessary for the construction thereof.
"Pricing Period" means the period of three months which commences on
--------------
the first day of each March, June, September and December, and ends on the last
day of the succeeding May, August, November and February.
"Priority Distributions" means Distributions made by Borrower to the
----------------------
Tribe in the aggregate amount of which do not exceed $14,000,000 in any calendar
year, plus for 2000 and each subsequent year, an annual adjustment in a
----
percentage equal to the Consumer Price Index adjustment published for that year.
"Projections" means the financial projections dated as of the Closing
-----------
Date heretofore furnished by the Borrower to the Lenders, true and correct
copies of which are attached hereto as Schedule 5.20.
"Property" means any interest in any kind of property or asset,
--------
whether real, personal or mixed, or tangible or intangible.
"Proposed Expansion" means the proposed expansion of the Mohegan Sun
------------------
generally consisting of a hotel with approximately 1500 hotel rooms,
approximately 9 new restaurants and lounges, approximately 100,000 square feet
of additional gaming space, approximately 100,000 square feet of convention
space, and an entertainment event center with seating for approximately 10,000,
and approximately 300,000 square feet of additional retail space, in a manner
consistent with the Plan and Budget.
-21-
"Pro Rata Share" means the percentage of the Commitment held by each
--------------
Lender on that date or, if the Commitment has been terminated, the percentage of
the Obligations held by that Lender, including in each case any holdings through
an SPC. As of the Closing Date, each Lender holds the percentage of the
Commitment set forth opposite the name of that Lender on Schedule 1.1. Such
Schedule shall be deemed to be automatically amended to reflect any assignments
of the Commitment made in accordance with Section 13.8.
"Quarterly Payment Date" means each March 31, June 30, September 30,
----------------------
and December 31, commencing with the first such date to occur subsequent to the
Closing Date.
"Real Property" means, collectively, the real property and
-------------
improvements underlying Mohegan Sun described on Schedule 4.7.
"Recourse Obligations" means, as of each date of determination, and
--------------------
without duplication, (a) all Indebtedness and Contingent Obligations as to which
Borrower has any direct or indirect liability or obligation (whether as the
primary obligor or as a surety, and whether or not Borrower is the nominal
obligor with respect thereto), including without limitation indebtedness for
borrowed money, obligations with respect to Capital Leases, amounts available
for drawing under letters of credit and other similar instruments, and the
aggregate amount drawn under letters of credit and other similar instruments not
then reimbursed, (b) all Indebtedness, Contingent Obligations and other
obligations secured by any Lien upon any Authority Property, and (c) all
Indebtedness, Contingent Obligations and other obligations held by any Person
who may take recourse to any Authority Property, the revenues of Borrower, or
any other Property of Borrower for the satisfaction of such Indebtedness and
other obligations. Without limitation on this definition, the Obligations, the
Senior Unsecured Notes and the New Subordinated Notes each constitute Recourse
Obligations.
"Reduction Amount" means the amount which is equal to 10% of the
----------------
principal amount of the Commitment (as in effect as of the first Reduction Date
to occur), provided that if the Commitment is thereafter increased in accordance
--------
with Section 2.7, then the Reduction Amount for each subsequent Reduction Date
shall be ratably increased.
"Reduction Date" means each Quarterly Payment Date beginning with the
--------------
earlier of (a) March 31, 2002 or (b) the last day of the first full Fiscal
Quarter following the Completion Date.
-22-
"Reference Rate" means the rate of interest publicly announced from
--------------
time to time by Bank of America in San Francisco, California, as its "Reference
Rate." The Reference Rate is a rate set by Bank of America based upon various
factors, including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans. Bank of America may price loans at, above or below the Reference Rate.
Any change in the Reference Rate shall take effect on the day specified in the
public announcement of such change.
"Regulations D, T, U and X" means Regulations D, T, U and X,
-------------------------
respectively, as at any time amended, of the Board of Governors of the Federal
Reserve System, or any other regulations in substance substituted therefor.
"Related Businesses" means (a) Class II and Class III Casino gaming
------------------
(as defined in IGRA), and (b) any resort business, any activity or business
incidental, directly related or similar thereto, or any business or activity
that is a reasonable extension, development or expansion thereof, including any
hotel, entertainment, recreation or other activity or business, in each case
designed to promote, market, support, develop, construct or enhance the casino
gaming and resort business operated by Borrower at Mohegan Sun.
"Relinquishment Agreement" means the Relinquishment Agreement dated as
------------------------
of February 7, 1998, among Borrower, the Tribe and TCA, as amended as of the
Closing Date.
"Request for Letter of Credit" means a written request for letter of
----------------------------
credit substantially in the form of Exhibit G, together with the standard form
of application for standby letters of credit, as applicable, used by the Issuing
Lender, signed by a Senior Officer of the Borrower and properly completed to
provide all information required to be included therein.
"Request for Loan" means a written request for a Loan substantially in
----------------
the form of Exhibit H, signed by a Senior Officer of the Borrower and properly
completed to provide all information required to be included therein.
"Requirement of Law" means, as to any Person, the constitution, the
------------------
articles or certificate of incorporation and bylaws, the partnership agreement
and any related certificate of partnership, or other organizational or governing
documents of such Person, and any Law, or judgment, order, award, decree, writ
or determination of a Governmental Agency, in each case applicable to or binding
upon such Person or any of its Property or to which such Person or any of its
Property is subject.
-23-
"Requisite Lenders" means, as of any date of determination (a) Lenders
-----------------
whose aggregate Pro Rata Share is at least 51% of the then outstanding Loans and
Letters of Credit, or (b) if no Loans or Letters of Credit are outstanding,
Lenders whose aggregate Pro Rata Share is at least 51% of the Commitment, or (c)
if the Commitment has been terminated and no Loans or Letters of Credit or other
Obligations (other than under Approved Swap Agreements) are then outstanding,
Lenders then owed Specified Swap Amounts which are at least 51% of the aggregate
Specified Swap Amount owed to all Lenders.
"Reserve Percentage" means, with respect to any LIBOR Loan, the
------------------
percentage applicable as of the date of determination of the LIBOR Base Rate
representing the aggregate reserve requirements of the Administrative Agent
(disregarding any offsetting amounts that may be available to the Administrative
Agent to decrease such requirements to the extent that such offsetting amounts
arose out of transactions other than those contemplated by this Agreement) under
Regulation D and any other applicable Laws with respect to Eurodollar
Obligations in an aggregate amount equal to the amount of such LIBOR Loan and
for a time period comparable to the number of months in the applicable Interest
Period. The determination by the Administrative Agent of any applicable Reserve
Percentage shall be presumed correct in the absence of manifest error.
"Responsible Official" means, when used with reference to any Person,
--------------------
any Senior Officer and, in the case of Borrower, includes any member of the
Management Board. Any document or certificate hereunder that is signed or
executed by a Responsible Official of another Person shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such other Person.
"Right of Others" means, as to any Property in which a Person has an
---------------
interest, (a) any legal or equitable right, title or other interest (other than
----- ----
a Lien) held by any other Person in or with respect to that Property, and (b)
any option or right held by any other Person to acquire any right, title or
other interest in or with respect to that Property, including any option or
---------
right to acquire a Lien.
"Securities" means any capital stock, share, voting trust certificate,
----------
bonds, debentures, notes or other evidences of indebtedness, limited partnership
interests, or any warrant, option or other right to purchase or acquire any of
the foregoing.
"Security Agreement" means the Security Agreement of even date
------------------
herewith executed by Borrower in favor of the Administrative Agent for the
ratable benefit of the Lenders, either as originally executed or as it may from
time to time be supplemented, modified, amended, restated or extended.
-24-
"Senior Leverage Ratio" means, as of each date of determination, the
---------------------
ratio of (a) Total Debt as of that date minus Subordinated Obligations as of
-----
that date, to (b) Adjusted EBITDA for the four Fiscal Quarter period ending on
that date.
"Senior Officer" means (a) as to the Tribe, the Chairman and Vice-
--------------
Chairman of the Tribal Council of the Tribe, the Chief of Staff of the Tribe,
the Chief Financial Officer of the Tribe and the General Counsel of the Tribe,
and (b) as to Borrower, the Chief Executive Officer and the Senior Vice
President of Finance of Borrower. Each Senior Officer (whether denominated as
an officer of the Tribe or of Borrower) shall be conclusively presumed to be
authorized to act on behalf of the Borrower with respect to the transactions
contemplated by the Loan Documents.
"Senior Unsecured Notes" means (a) Borrowers 8 1/8% Senior Notes due
----------------------
2006 issued pursuant to the Senior Note Indenture in the aggregate principal
amount of $200,000,000, and (b) any Senior Exchange Notes issued pursuant to the
Senior Unsecured Note Indenture.
"Senior Unsecured Note Indenture" means the Indenture dated as of
-------------------------------
March 3, 1999 between Borrower and First Union National Bank, as Trustee,
relating to the Senior Unsecured Notes.
"SPC" has the meaning set forth in Section 13.8.
---
"Special Circumstance" means (a) the adoption of any Law by any
--------------------
Governmental Agency, central branch or comparable authority with respect to
activities in the Designated Market, or (b) any change in the interpretation or
administration of any existing Law by any Governmental Agency, central bank or
comparable authority charged with the interpretation or administration thereof,
or (c) compliance by any Lender or its LIBOR Lending Office with any request or
directive (whether or not having the force of Law) of any such Governmental
Agency, central bank or comparable authority, or (d) the existence or occurrence
of circumstances affecting the Designated Market generally that are beyond the
reasonable control of the Lenders.
"Specified Swap Amount" means, at any time, in respect of Swap
---------------------
Agreements to which any Lender is party, the Swap Termination Value relating
thereto; provided that for purposes of this definition, any Swap Termination
--------
Value that is negative as to (i.e., owing by) any Lender shall be deemed equal
to zero.
"Subordinated Obligations" means, collectively the New Subordinated
------------------------
Notes and each other Indebtedness of Borrower that is subordinated to the
Obligations, all of the provisions of which (including amount, maturity,
amortization, interest rate,
-25-
covenants, defaults, remedies and subordination), have been approved in writing
as to form and substance by the Administrative Agent and designated in writing
as "Subordinated Obligations" by the Administrative Agent with the written
consent of the Requisite Lenders. The Senior Unsecured Notes are not
Subordinated Obligations.
"Subsidiary" means, as of any date of determination and with respect
----------
to any Person, any other corporation, partnership or other business entity
(whether or not, in either case, characterized as such or as a "joint venture"),
whether now existing or hereafter organized or acquired: (a) in the case of a
corporation, of which a majority of the securities having ordinary voting power
for the election of directors or other governing body (other than securities
having such power only by reason of the happening of a contingency) are at the
time beneficially owned by such Person and/or one or more Subsidiaries of such
Person, or (b) in the case of a partnership or other business entity, of which a
majority of the partnership or other ownership interests are at the time
beneficially owned by such Person and/or one or more of its Subsidiaries.
"Swap Agreements" means one or more written agreements between
---------------
Borrower and one or more financial institutions providing for "swap," "cap,"
"collar" or other interest rate protection with respect to any Indebtedness.
"Swap Termination Value" means, in respect of any one or more Swap
----------------------
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Agreements, (a) for any date on or after
the date such Swap Agreements have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
xxxx-to-market value(s) for such Swap Agreements, as determined by the
Administrative Agent based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Agreements
which may include any Lender.
"Syndication Agent" means Xxxxxxx Xxxxx Barney, Inc. The capacity of
-----------------
the Syndication Agent is solely titular in nature, and except to the extent
expressly set forth herein, the Syndication Agent shall not have any rights or
obligations under the Loan Documents by reason of such capacity.
"TCA" means Trading Cove Associates, a Connecticut general
---
partnership, its successors and assigns.
"TCA Subordinated Notes" means subordinated notes issued in the
----------------------
aggregate principal amount of $90,000,000 pursuant to the Note Purchase
Agreement dated as of September 29, 1995, between Borrower and Sun International
Hotels Limited.
-26-
"Termination Event" means (a) a "reportable event" as defined in
-----------------
Section 4043 of ERISA (other than a reportable event that is not subject to the
----- ----
provision for 30 day notice to the PBGC), (b) the withdrawal of Borrower or any
of its ERISA Affiliates from a Pension Plan during any plan year in which it was
a "substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) the
filing of a notice of intent to terminate a Pension Plan or the treatment of an
amendment to a Pension Plan as a termination thereof pursuant to Section 4041 of
ERISA, (d) the institution of proceedings to terminate a Pension Plan by the
PBGC or (e) any other event or condition which might reasonably be expected to
constitute grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan.
"Title Company" means Chicago Title Insurance Company or such other
-------------
title insurance company as may be reasonably satisfactory to Administrative
Agent.
"to the best knowledge of" means, when modifying a representation,
------------------------
warranty or other statement of any Person, that the fact or situation described
therein is known by the Person (or, in the case of a Person other than a natural
Person, known by a Responsible Official of that Person) making the
representation, warranty or other statement, or with the exercise of reasonable
due diligence under the circumstances (in accordance with the standard of what a
reasonable Person in similar circumstances would have done) should have been
known by the Person (or, in the case of a Person other than a natural Person,
should have been known by a Responsible Official of that Person). In the case
of the Borrower and the Tribe, knowledge of any Responsible Official of the
Borrower shall be attributed to the Tribe, and knowledge of any Responsible
Official of the Tribe shall be imputed to the Tribe.
"Total Debt" means, as of each date of determination, all Recourse
----------
Obligations other than Borrower's liability for payments under the
----------
Relinquishment Agreement.
"Total Leverage Ratio" means, as of each date of determination, the
--------------------
ratio of (a) Total Debt as of that date, to (b) Adjusted EBITDA for the four
Fiscal Quarter period ending on that date.
"Town Agreement" means the Agreement dated as of June 16, 1994 between
--------------
the Tribe and the Town of Montville, Connecticut, as amended as of the Closing
Date.
"Tribal Council" means the Tribal Council of the Tribe elected in
--------------
accordance with the Constitution.
-27-
"Tribe" means The Mohegan Tribe of Indians of Connecticut, a federally
-----
recognized Indian Tribe.
"type", when used with respect to any Loan or Advance, means the
----
designation of whether such Loan or Advance is a Base Rate Loan or Advance
or a LIBOR Loan or Advance.
"UCC Ordinance" means the Tribe's Ordinance Number 98-7.
-------------
"Unused Commitment" means, as of each date of determination, the
-----------------
difference between (a) the aggregate Commitment on that date and (b) the
sum of (i) the outstanding principal amount of the Loans, (ii) the amount
---
available for drawing under outstanding Letters of Credit, and (iii) the
aggregate amount of all unreimbursed draws with respect to Letters of
Credit.
"Working Capital" means, as of each date of determination, the current
---------------
assets of Borrower other than Cash and Cash Equivalents minus the current
----- ---- -----
liabilities of Borrower, in each case determined in accordance with
Generally Accepted Accounting Principles, consistently applied.
2.2 Use of Defined Terms. Any defined term used in the plural shall refer
--------------------
to all members of the relevant class, and any defined term used in the singular
shall refer to any one or more of the members of the relevant class.
2.3 Accounting Terms. All accounting terms not specifically defined in
----------------
this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
Generally Accepted Accounting Principles applied on a consistent basis, except
------
as otherwise specifically prescribed herein. In the event that Generally
Accepted Accounting Principles change during the term of this Agreement such
that the financial covenants contained in Sections 7.12 through 7.15, inclusive,
would then be calculated in a different manner or with different components, (a)
Borrower, the Tribe and the Lenders agree to amend this Agreement in such
respects as are necessary to conform those covenants as criteria for evaluating
Borrower's financial condition to substantially the same criteria as were
effective prior to such change in Generally Accepted Accounting Principles and
(b) Borrower shall be deemed to be in compliance with the financial covenants
contained in such Sections during the 60 day period following any such change in
Generally Accepted Accounting Principles if and to the extent that Borrower
would have been in compliance therewith under Generally Accepted Accounting
Principles as in effect immediately prior to such change.
2.4 Rounding. Any financial ratios required to be maintained by Borrower
--------
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which
-28-
such ratio is expressed in this Agreement and rounding the result up or down to
the nearest number (with a round-up if there is no nearest number) to the number
of places by which such ratio is expressed in this Agreement.
2.5 Exhibits and Schedules. All Exhibits and Schedules to this Agreement,
----------------------
either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
2.6 Miscellaneous Terms. The term "or" is disjunctive; the term "and" is
-------------------
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
-29-
ARTICLE 3.
LOANS AND LETTERS OF CREDIT
---------------------------
3.1 Loans-General.
-------------
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through the Maturity
Date, each Lender shall, pro rata according to its Pro Rata Share of the then
applicable Commitment, make revolving Advances to Borrower under the Commitment
in such amounts as Borrower may request that do not exceed in the aggregate at
any one time outstanding the amount of that Lender's Pro Rata Share of the then
applicable Commitment; provided that, giving effect to the Loan of which such
--------
Advance is a part, the sum of (i) the aggregate principal amount of the
---
outstanding Loans plus (ii) the aggregate amount available for drawing under the
----
outstanding Letters of Credit plus (iii) the aggregate amount of all
----
unreimbursed draws with respect to all Letters of Credit, shall not exceed the
then applicable Commitment. Subject to the limitations set forth herein,
Borrower may borrow, repay and reborrow under this Agreement without premium or
penalty.
(b) Each Loan shall be made pursuant to a Request for Loan which shall
specify the requested (i) date of such Loan, which shall be a Business Day in
the case of a Base Rate Loan and a LIBOR Business Day in the case of a LIBOR
Loan, (ii) amount of such Loan, (iii) type of such Loan, and (iv) in the case of
LIBOR Loans, the Interest Period for such Loan. Unless the Administrative Agent
has notified, in its sole and absolute discretion, Borrower to the contrary, a
Loan may be requested by telephone by a Senior Officer of Borrower. Borrower
shall immediately confirm each requested Loan by submitting a Request for Loan
conforming with the requirements of the preceding sentence to the Administrative
Agent by telecopier, with the original thereof to follow by mail. In the case
of the initial Loans to be made on the Closing Date, the Request for Loan to be
delivered by the Borrower shall be delivered to the Administrative Agent no
later than 12:00 noon, California time, one day before the Closing Date and such
Loans shall be Base Rate Loans only.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone, telecopier or telex
of the date of the Loan and that Lender's Pro Rata Share of the Loan. Not later
than 12:00 noon, California time, in the case where a Base Rate Loan is
requested, and 10:00 a.m. California time, in the case where a LIBOR Loan is
requested, on the date specified for any Loan, each Lender shall make its Pro
Rata Share of the Loan in immediately available funds available to the
Administrative Agent at the Administrative Agent's Office. Upon fulfillment of
the applicable conditions set forth in Article 10, all Advances shall be
credited in immediately available funds to the Designated Deposit Account.
-30-
(d) Unless the Requisite Lenders otherwise consent, each Loan under
the Commitment shall be in an integral multiple of $1,000,000 which is
equal to or greater than $5,000,000.
(e) Unless the Administrative Agent otherwise consents, no Request for
Loan may be revoked by Borrower after its submission to the Lenders by the
Administrative Agent. In the event that the Administrative Agent consents
to the revocation of any Request for Loan submitted by the Borrower,
Borrower agrees that it shall reimburse the Administrative Agent and each
Lender for any loss, cost, damage or expense associated with any
redeployment of funds caused by such revocation.
(f) If, as of the end of the Interest Period with respect to any LIBOR
Loan, Borrower has not submitted a Request for Loan or orally requested a
Base Rate Loan in accordance with Section 2.1(b), or if any Request for
Loan submitted by Borrower for a LIBOR Loan fails to satisfy the notice
periods specified in Section 2.3, then, in the absence of notice from
Borrower to the contrary, Borrower shall be deemed to have requested a Base
Rate Loan in an amount equal to the maturing LIBOR Loan, and the Lenders
shall make the Advances necessary to make such Loan notwithstanding
Sections 2.1(b) and 2.2.
(g) The Loans and Advances made by the Lenders pursuant to this
Agreement shall be evidenced hereby, without the requirement for the
issuance of any Note or promissory note to any Lender, provided however
-------- -------
that upon request from any Lender to Borrower submitted through the
Administrative Agent from time to time, Borrower shall issue a Note to such
Lender in the amount of that Lender's Pro Rata Share, which Note will
thereafter serve as evidence of that Lender's Advances.
3.2 Base Rate Loans. Each request by Borrower for a Base Rate Loan shall
---------------
be made pursuant to a Request for Loan or an oral request for loan submitted in
accordance with Section 2.1(b), in each case received at the Administrative
Agent's Office not later than 10:00 a.m. California time, on the Business Day
immediately preceding the Business Day upon which the requested Loan is to be
made.
3.3 LIBOR Loans.
-----------
(a) Each request by Borrower for a LIBOR Loan shall be made pursuant
to a Request for Loan or an oral request submitted in accordance with
Section 2.1(b), in each case received at the Administrative Agent's Office
not later than 9:00 a.m., California time, at least three LIBOR Business
Days before the first day of the applicable Interest Period.
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(b) Two LIBOR Business Days prior to the first day of the applicable
Interest Period, the Administrative Agent shall determine the applicable LIBOR
(which determination shall be conclusive in the absence of manifest error) and
promptly shall give notice of the same to Borrower and the Lenders by telephone,
telecopier or telex.
(c) Unless all of the Lenders otherwise consent in writing, no LIBOR
Loan may be requested during the continuance of a Default or Event of Default.
(d) Nothing contained herein shall require any Lender to actually
obtain the funds needed to make any LIBOR Advance in the Designated Market.
(e) Unless the Administrative Agent otherwise consents, no more than
five LIBOR Loans shall be outstanding at any one time.
(f) No LIBOR Loan shall be made which would cause the aggregate
amount of all LIBOR Loans having Interest Periods ending after any Reduction
Date plus the aggregate face amount of all Letters of Credit having expiry dates
----
(including any mandatory extensions thereof) after that Reduction Date to be in
excess of the amount of the Commitment, as scheduled to be reduced pursuant to
Section 2.5 on that Reduction Date.
3.4 Letters of Credit.
-----------------
(a) Subject to the terms and conditions hereof, at any time and from
time to time from the Closing Date through the Maturity Date, the Issuing Lender
shall issue such Letters of Credit under the Commitment as Borrower may request
by a Request for Letter of Credit which do not result in the aggregate effective
face amount of all outstanding Letters of Credit being in excess of $25,000,000;
provided that after giving effect to all such Letters of Credit, the sum of (i)
-------- ---
the aggregate principal amount of the outstanding Loans plus (ii) the aggregate
----
amount available for drawing under the outstanding Letters of Credit plus (iii)
----
the aggregate amount of all unreimbursed draws with respect to all Letters of
Credit, shall not exceed the then applicable Commitment. No Letter of Credit
shall be issued which would cause the aggregate amount of all LIBOR Loans having
Interest Periods ending after any Reduction Date plus the aggregate face amount
----
of all Letters of Credit having expiry dates (including any mandatory extensions
thereof) after that Reduction Date to be in excess of the amount of the
Commitment, as scheduled to be reduced pursuant to Section 2.5 on that Reduction
Date. Each Letter of Credit shall be in a form reasonably acceptable to the
Issuing Lender. Unless all the Lenders otherwise consent in a writing delivered
to the Administrative Agent, the terms of the Letters of Credit shall not exceed
12 months from the date of issuance thereof (or, in the case of any
-32-
renewal, 12 months from the date of such renewal) and no Letter of Credit or
renewal thereof shall have a term which exceeds the Maturity Date. Borrower will
not request any Letter of Credit which is not reasonably necessary in the
ordinary course of business of Borrower.
(b) Each Request for Letter of Credit shall be submitted to the
Issuing Lender, with a copy to the Administrative Agent, at least three Business
Days prior to the date upon which the related Letter of Credit is proposed to be
issued. The Administrative Agent shall promptly notify the Issuing Lender
whether such Request for Letter of Credit, and the issuance of a Letter of
Credit pursuant thereto, conforms to the requirements of this Agreement. Upon
issuance of a Letter of Credit, the Issuing Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify the
Lenders, of the amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each Lender shall be
deemed to have purchased a pro rata participation from the Issuing Lender, in an
amount equal to that Lender's Pro Rata Share, of such Letter of Credit. Without
limiting the scope and nature of each Lender's participation in any Letter of
Credit, to the extent that the Issuing Lender has not been reimbursed by
Borrower for any payment required to be made by the Issuing Lender under any
Letter of Credit, each Lender shall, pro rata according to its Pro Rata Share,
reimburse the Issuing Lender promptly upon demand for the amount of such payment
through the Administrative Agent. The obligation of each Lender to so reimburse
the Issuing Lender shall be absolute and unconditional and shall not be affected
by the occurrence of an Event of Default or any other occurrence or event. Any
such reimbursement shall not relieve or otherwise impair the obligation of
Borrower to reimburse the Issuing Lender for the amount of any payment made by
the Issuing Lender under any Letter of Credit together with interest as
hereinafter provided.
(d) Borrower agrees to pay to the Issuing Lender through the
Administrative Agent an amount equal to any payment made by the Issuing Lender
with respect to each Letter of Credit upon the date of each drawing thereunder,
together with interest on such amount from the date of any payment made by the
Issuing Lender at the Default Rate (provided that, subject to the terms and
-------- ----
conditions hereof, Borrower may request a Base Rate Loan in accordance with this
Agreement to finance such amounts at the rate ordinarily applicable to Base Rate
Loans). The principal amount of any such payment shall be used to reimburse the
Issuing Lender for the payment made by it under the Letter of Credit. Each
Lender that has reimbursed the Issuing Lender pursuant to Section 2.4(c) for its
Pro-Rata Share of any payment made by the Issuing Lender under a Letter of
Credit shall thereupon acquire a pro-rata participation, to the extent of such
reimbursement, in the claim of the Issuing Lender against Borrower under this
Section 2.4(d) and shall share, in accordance with that pro-rata participation,
in any payment (including any payment of interest with respect
-33-
thereto) made by Borrower with respect to such claim, and the Administrative
Agent shall remit to each such Lender its Pro Rata Share thereof in immediately
available funds.
(e) If Borrower fails to make the payment required by Section 2.4(d)
upon demand, in lieu of the reimbursement to the Issuing Lender under Section
2.4(c) the Issuing Lender may (but is not required to) without notice to or the
consent of Borrower, instruct the Administrative Agent to cause Advances to be
made by the Lenders under the Commitment in accordance with their Pro Rata
Shares in an aggregate amount equal to the amount paid by the Issuing Lender
with respect to that Letter of Credit and, for this purpose, the conditions
precedent set forth in Article 10 shall not apply. The proceeds of such
Advances shall be paid to the Issuing Lender to reimburse it for the payment
made by it under the Letter of Credit. Such Advances shall be payable upon
demand and shall bear interest at the Default Rate.
(f) The issuance of any supplement, modification, amendment, renewal,
or extension to or of any Letter of Credit shall be treated in all respects the
same as the issuance of a new Letter of Credit.
(g) The obligation of Borrower to pay to the Issuing Lender the
amount of any payment made by the Issuing Lender under any Letter of Credit
shall be absolute, unconditional, and irrevocable, subject only to performance
by the Issuing Lender of its obligations to Borrower under Connecticut Uniform
Commercial Code Section 42a-5-109. Without limiting the foregoing, Borrower's
obligations shall not be affected by any of the following circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure
from the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which Borrower may have at any time against the Issuing Lender, the
Administrative Agent or any Lender, any beneficiary of the Letter of Credit
or any other Person, whether in connection with the Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto, or
any unrelated transactions;
(iv) any demand, statement, or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid, or
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insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(v) payment by the Issuing Lender in good faith under the
Letter of Credit against presentation of a draft or any accompanying
document which does not strictly comply with the terms of the Letter of
Credit;
(vi) the existence, character, quality, quantity, condition,
packing, value or delivery of any property purported to be represented by
documents presented in connection with any Letter of Credit or for any
difference between any such property and the character, quality, quantity,
condition, or value of such property as described in such documents;
(vii) the time, place, manner, order or contents of shipments or
deliveries of property as described in documents presented in connection
with any Letter of Credit or the existence, nature and extent of any
insurance relative thereto;
(viii) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments or arrival of
any property;
(x) any error in the transmission of any message relating to a
Letter of Credit not caused by the Issuing Lender, or any delay or
interruption in any such message;
(xi) any error, neglect or default of any correspondent of the
Issuing Lender in connection with a Letter of Credit;
(xii) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of the Issuing Lender;
(xiii) so long as the Issuing Lender in good faith determines
that the contract or document appears to comply with the terms of the
Letter of Credit, the form, accuracy, genuineness or legal effect of any
contract or document referred to in any document submitted to the Issuing
Lender in connection with a Letter of Credit; and
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(xiv) where the Issuing Lender has acted in good faith and
observed general banking usage, customs or practices, any other
circumstances whatsoever.
(h) The Issuing Lender shall be entitled to the protection accorded
to the Administrative Agent pursuant to Section 12.6, mutatis mutandis.
------- --------
3.5 Automatic Reduction of Commitment. The Commitment shall
---------------------------------
automatically reduce by the Reduction Amount on each Reduction Date.
3.6 Voluntary Reduction of Commitment. Borrower shall have the
---------------------------------
right, at any time and from time to time, without penalty or charge, upon at
least five Business Days prior written notice to the Administrative Agent,
voluntarily to permanently and irrevocably reduce, in aggregate principal
amounts which are not less than $5,000,000 and in an integral multiple of
$1,000,000, or to terminate, the then undisbursed portion of the Commitment,
provided that (i) any such reduction or termination shall be accompanied by all
--------
accrued and unpaid commitment fees with respect to any portion of the Commitment
being reduced or terminated, and (ii) no such reduction or termination shall
affect the further scheduled reductions of Commitment in accordance with Section
2.5.
3.7 Optional Increases to the Commitment.
------------------------------------
(a) Provided that no Default or Event of Default then exists,
--------
Borrower may, at any time prior to the date which is the second
anniversary of the Closing Date, request in writing that the then
effective Commitment be increased to an amount which is not greater than
-----
$500,000,000 minus the amount of any reductions to the Commitment which
have then occurred pursuant to Sections 2.5 or 2.6, in accordance with the
provisions of this Section. Any request under this Section shall be
submitted by Borrower to the Lenders through the Administrative Agent not
less than thirty days prior to the proposed increase, specify the proposed
effective date and amount of such increase and be accompanied by a
Certificate signed by a Senior Officer of Borrower (and consented to by the
Tribe acting through a Senior Officer), stating that no Default or Event of
Default exists as of the date of the request or will result from the
requested increase. Borrower may also specify any fees offered to those
Lenders which agree to an increase in the amount of their Pro Rata Share of
the Commitment (which fees may be variable based upon the amount which any
such Lender is willing to assume as an increase to the amount of its Pro
Rata Share of the increased Commitment). The consent of the Lenders, as
such, shall not be required for an increase in the amount of the Commitment
pursuant to this Section.
(b) Each Lender may approve or reject a request for an increase in
the amount of the Commitment in its sole and absolute discretion and, absent an
affirmative written response within thirty days after receipt of such request,
shall be
-36-
deemed to have rejected the request. The rejection of such a request by any
number of Lenders shall not affect Borrower's right to increase the Commitment
pursuant to this Section.
(c) In responding to a request under this Section, each Lender which is
willing to increase the amount of its Pro Rata Share of the increased Commitment
shall specify the amount of the proposed increase which it is willing to assume.
Each consenting Lender shall be entitled to participate ratably (based on its
Pro Rata Share of the Commitment before such increase) in any resulting increase
in the Commitment, subject to the right of the Administrative Agent to adjust
allocations of the increased Commitment so as to result in the amounts of the
Pro Rata Shares of the Lenders being in integral multiples of $100,000.
(d) If the aggregate principal amount offered to be assumed by the
consenting Lenders is less than the amount requested, Borrower may (i) reject
the proposed increase in its entirety, (ii) accept the offered amounts or (iii)
designate new lenders who qualify as Eligible Assignees and which are reasonably
acceptable to the Administrative Agent as additional Lenders hereunder in
accordance with clause (e) of this Section (each, a "New Lender"), which New
Lenders may assume the amount of the increase in the Commitment that has not
been assumed by the consenting Lenders.
(e) Each New Lender designated by Borrower and reasonably acceptable to
the Administrative Agent shall become an additional party hereto as a New Lender
concurrently with the effectiveness of the proposed increase in the Commitment
upon its execution of an instrument of joinder to this Agreement which is in
form and substance reasonably acceptable to the Administrative Agent and which,
in any event, contains the representations, warranties, indemnities and other
protections afforded to the Administrative Agent and the other Lenders which
would be granted or made by an Eligible Assignee by means of the execution of an
Assignment Agreement.
(f) Subject to the foregoing, any increase to the Commitment requested
under this Section shall be effective as of the date proposed by Borrower and
shall be in the principal amount equal to (i) the amount which consenting
Lenders are willing to assume as increases to the amount of their Pro Rata Share
plus (ii) the amount offered by any New Lenders. Upon the effectiveness of any
----
such increase, Borrower shall issue (x) replacement Notes to each affected
Lender and new Notes to each New Lender, and the percentage Pro Rata Shares of
each Lender will be adjusted to give effect to the increase in the Commitment
and set forth in a new Schedule 1.1 issued by the Administrative Agent, (y)
execute and deliver to the Administrative Agent such amendments to the Loan
Documents as the Administrative Agent may reasonably request relating to such
increase, including without limitation an amendment to the Leasehold Mortgage
executed by Borrower and the Tribe reflecting the increase of the amounts
secured thereby, and (z) Borrower shall provide to the Administrative Agent
-37-
an endorsement to its ALTA lenders policy of title insurance, in form and
substance reasonably acceptable to the Administrative Agent, insuring the
continued priority and perfection of the Leasehold Mortgage.
3.8 Administrative Agent's Right to Assume Funds Available for Advances.
-------------------------------------------------------------------
Unless the Administrative Agent shall have been notified by any Lender prior to
the funding by the Administrative Agent of any Loan that such Lender does not
intend to make available to the Administrative Agent such Lender's Pro Rata
Share of the total amount of such Loan, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on the
date of the Loan and the Administrative Agent may, in reliance upon such
assumption, make available to Borrower a corresponding amount. If the
Administrative Agent has made funds available to Borrower based on such
assumption and such corresponding amount is not in fact made available to the
Administrative Agent by such Lender, the Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender, which demand
shall be made in a reasonably prompt manner. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent promptly shall notify Borrower and Borrower shall pay
such corresponding amount to the Administrative Agent. The Administrative Agent
also shall be entitled to recover from such Lender interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to Borrower to the date
such corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to the Federal Funds Rate. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Pro Rata Share or to
prejudice any rights which the Administrative Agent or Borrower may have against
any Lender as a result of any default by such Lender hereunder.
3.9 Collateral. The Loans, together with all other Obligations, shall be
----------
secured by the Liens created by the Collateral Documents. Each Approved Swap
Agreement shall be secured by the Lien of the Collateral Documents (a) on a pari
----
passu basis to the extent of the associated Swap Termination Value, and (b) to
-----
the extent of any excess, on a basis which is in all respects subordinated to
all other Obligations.
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ARTICLE 4.
PAYMENTS AND FEES
-----------------
4.1 Principal and Interest.
----------------------
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Loan from the date thereof until payment in full is
made and shall accrue and be payable at the rates set forth herein before and
after default, before and after maturity, before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief Law. At
the option of the Requisite Lenders, interest on overdue interest shall itself
bear interest at the Default Rate, and shall be compounded with the principal
Obligations quarterly, to the fullest extent permitted by applicable Laws.
(b) Interest accrued with respect to Base Rate Loans shall be payable
quarterly in arrears on each Quarterly Payment Date. Except as otherwise
provided in Section 3.9, the unpaid principal amount of each Base Rate Loan
shall bear interest at a fluctuating rate per annum equal to the Base Rate plus
----
the Applicable Percentage for Base Rate Loans. Each change in the interest rate
hereunder shall take effect simultaneously with the corresponding change in the
Base Rate or the Applicable Percentage.
(c) Interest on each LIBOR Loan which is for a term of three months
or less shall be due and payable on the last day of the related Interest Period.
Interest accrued on each other LIBOR Loan shall be due and payable on the date
which is three months after the date such LIBOR Loan was made, every three
months thereafter and, in any event, on the last day of the related Interest
Period. Except as otherwise provided in Section 3.9, the unpaid principal
amount of any LIBOR Loan shall bear interest at a rate per annum equal to the
LIBOR for that LIBOR Loan plus the Applicable Percentage for LIBOR Loans. While
----
the LIBOR for each LIBOR Loan shall remain fixed for the entire related Interest
Period, the Applicable Percentage for each LIBOR Loan shall change
simultaneously with the corresponding change in Applicable Percentages
generally.
(d) If not sooner paid, the principal Indebtedness evidenced by the
Loan Documents shall be payable as follows:
(i) the principal amount of each LIBOR Loan shall be payable
on the last day of the Interest Period for such Loan;
(ii) the amount, if any, by which the aggregate principal
amount of the Loans plus the aggregate amount available for drawing under
----
outstanding Letters of Credit plus the aggregate amount of all
----
-39-
unreimbursed draws with respect to Letters of Credit at any time exceeds
the Commitment shall be payable immediately; and
(iii) the principal Indebtedness evidenced by the Loan Documents
shall in any event be payable on the Maturity Date.
(e) Subject to Section 3.8, the Loans may, at any time and from time
to time, voluntarily be paid or prepaid in whole or in part without premium or
penalty, provided that with respect to any voluntary prepayment of the Loans
--------
under this Section 3.1(e), (i) any partial prepayment shall be in an integral
multiple of $1,000,000 which is not less than $5,000,000, and (ii) the
Administrative Agent shall have received written notice of any prepayment prior
to 9:00 a.m. California time one Business Day (or, in the case of any prepayment
of any LIBOR Loan, three LIBOR Business Days) before the date of prepayment,
which notice shall identify the date and amount of the prepayment.
4.2 Arrangement Fees. On the Closing Date, Borrower shall pay to the
----------------
Administrative Agent for the account of the Lead Arranger a fee in the amount
set forth in a letter agreement dated March 3, 1999 between the Lead Arranger,
the Administrative Agent and Borrower. This fee is fully earned as of the
Closing Date, is solely for the account of Lead Arranger and is non-refundable.
4.3 Annual Agency Fees. On the Closing Date and on each anniversary
------------------
thereof, Borrower shall pay to the Administrative Agent agency fees in the
amounts set forth in a letter agreement dated March 3, 1999 between the Lead
Arranger, Administrative Agent and Borrower. These agency fees are fully earned
as of the date when due, are solely for the account of Administrative Agent and
are non-refundable.
4.4 Facility Fees. On the Closing Date, Borrower shall pay to the
-------------
Administrative Agent, for the account of each Lender, a non-refundable facility
fee in amount equal to (a) the amount of that Lender's Pro Rata Share, times (b)
-----
a percentage based on the principal amount of the Commitment which such Lender
extended a written offer to Borrower to assume (without regard to the Pro Rata
Share actually allocated to such Lender), as set forth in a letter agreement
dated March 3, 1999 among the Lead Arranger, the Administrative Agent and
Borrower.
4.5 Commitment Fees. From the Closing Date, the Borrower shall pay to the
---------------
Administrative Agent, for the account of the Lenders according to their Pro Rata
Shares, commitment fees equal to the product of (a) the Applicable Percentage
for Commitment Fees times (b) the average daily Unused Commitment for that
-----
calendar quarter. The commitment fees shall be payable quarterly in arrears on
each Quarterly Payment Date and upon any termination of the Commitment.
-40-
4.6 Letter of Credit Fees. Concurrently with the issuance of each
---------------------
Letter of Credit, Borrower shall pay letter of credit fees (a) to the Issuing
Lender, for the sole account of the Issuing Lender, in an amount set forth in a
letter agreement dated March 3, 1999 between the Issuing Lender, Lead Arranger
and Borrower, and (b) to the Administrative Agent, for the ratable account of
the Lenders in accordance with their Pro Rata Shares of the Commitment, in an
amount equal to the Applicable Percentage for LIBOR Loans times the maximum
-----
amount available for drawing under such Letter of Credit, in each case for the
tenor of such Letter of Credit. The Administrative Agent shall promptly make
available to the Lenders in immediately available funds, pro-rata according to
their Pro Rata Share, the standby letter of credit fees which are for the
account of the Lenders. Borrower shall also pay transfer, issuance, check fees
and such other fees as the Issuing Lender normally charges (not to include
origination fees) in connection with standby letters of credit and activity
pursuant thereto, which fees shall be solely for the account of the Issuing
Lender.
4.7 Increased Commitment Costs. If any Lender shall have determined
--------------------------
that the introduction after the date hereof of any applicable law, rule,
regulation or guideline regarding capital adequacy, or any change therein or any
change in the interpretation or administration thereof by any central bank or
other Governmental Agency charged with the interpretation or administration
thereof, or compliance by that Lender (or its LIBOR Lending Office) or any
corporation controlling that Lender, with any request, guidelines or directive
regarding capital adequacy (whether or not having the force of law) of any such
central bank or other authority, affects or would affect the amount of capital
required or expected to be maintained by that Lender or any corporation
controlling that Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its obligations under this Agreement, then, upon
demand of such Lender, Borrower shall immediately pay to that Lender, from time
to time as specified by that Lender, additional amounts sufficient to compensate
that Lender for such increase.
4.8 LIBOR Fees and Costs.
--------------------
(a) If, after the date hereof, the existence or occurrence
of any Special Circumstance:
(i) shall subject any Lender or its LIBOR Lending
Office to any tax, duty or other charge or cost with respect to any
LIBOR Advance, any Note or its obligation to make LIBOR Advances, or
shall change the basis of taxation of payments to any Lender of the
principal of or interest on any LIBOR Advance or any other amounts due
under this Agreement in respect of any LIBOR Advance, any Note or its
obligation to make LIBOR Advances (except for changes in any tax on
------
the overall net income, gross income or gross receipts of such Lender
or its LIBOR Lending Office);
-41-
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed by the
---------
Board of Governors of the Federal Reserve System), special deposit or
similar requirements against assets of, deposits with or for the
account of, or credit extended by, any Lender or its LIBOR Lending
Office; or
(iii) shall impose on any Lender or its LIBOR Lending
Office or the Designated Market any other condition affecting any
LIBOR Advance, any Note, its obligation to make LIBOR Advances or this
Agreement, or shall otherwise affect any of the same;
and the result of any of the foregoing, as determined by such Lender,
increases the cost to such Lender or its LIBOR Lending Office of making or
maintaining any LIBOR Advance or in respect of any LIBOR Advance, any Note
or its obligation to make LIBOR Advances or reduces the amount of any sum
received or receivable by such Lender or its LIBOR Lending Office with
respect to any LIBOR Advance, any Note or its obligation to make LIBOR
Advances (assuming such Lender's LIBOR Lending Office had funded 100% of
its LIBOR Advance in the Designated Market), then, upon demand by such
Lender (with a copy to the Administrative Agent), Borrower shall pay to
such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction (determined as though such
Lender's LIBOR Lending Office had funded 100% of its LIBOR Advance in the
Designated Market). A statement of any Lender claiming compensation under
this subsection, providing supporting calculation, and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive
in the absence of manifest error. Each Lender agrees to endeavor promptly
to notify Borrower of any event of which it has actual knowledge occurring
after the Closing Date, which will entitle such Lender to compensation
pursuant to this Section, and agrees to designate a different LIBOR Lending
Office promptly if such designation will avoid the need for or reduce the
amount of such compensation and will not, in the judgment of such Lender,
otherwise be disadvantageous to such Lender. If any Lender claims
compensation under this Section, Borrower may at any time, upon at least
four LIBOR Business Days' prior notice to the Administrative Agent and such
Lender and upon payment in full of the amounts provided for in this Section
through the date of such payment plus any prepayment fee required by
----
Section 3.8(d), pay in full the affected LIBOR Advances of such Lender or
request that such LIBOR Advances be converted to Base Rate Advances.
(b) If, after the date hereof, the existence or occurrence of
any Special Circumstance shall, in the opinion of any Lender, make it
unlawful, impossible or impracticable for such Lender or its LIBOR Lending
Office to make, maintain or fund its portion of any LIBOR Loan, or
materially restrict the ability of such Lender to purchase or sell, or to
take deposits of, dollars in the Designated Market, or to
-42-
determine or charge interest rates based upon the LIBOR, and such Lender
shall so notify the Administrative Agent, then such Lender's obligation to
make LIBOR Advances shall be suspended for the duration of such illegality,
impossibility or impracticability and the Administrative Agent forthwith
shall give notice thereof to the other Lenders and Borrower. Upon receipt
of such notice, the outstanding principal amount of such Lender's LIBOR
Advances, together with accrued interest thereon, automatically shall be
converted to Base Rate Advances on either (1) the last day of the Interest
Period(s) applicable to such LIBOR Advances if such Lender may lawfully
continue to maintain and fund such LIBOR Advances to such day(s) or (2)
immediately if such Lender may not lawfully continue to fund and maintain
such LIBOR Advances to such day(s), provided that in such event the
--------
conversion shall not be subject to payment of a prepayment fee under
Section 3.8(d). In the event that any Lender is unable, for the reasons set
forth above, to make, maintain or fund its portion of any LIBOR Loan, such
Lender shall fund such amount as a Base Rate Advance for the same period of
time, and such amount shall be treated in all respects as a Base Rate
Advance.
(c) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Market generally that
are beyond the reasonable control of the Lenders, deposits in dollars
(in the applicable amounts) are not being offered to each of the
Lenders in the Designated Market for the applicable Interest Period;
or
(ii) the Requisite Lenders advise the Administrative Agent
that the LIBOR as determined by the Administrative Agent (A) does not
represent the effective pricing to such Lenders for deposits in
dollars in the Designated Market in the relevant amount for the
applicable Interest Period, or (B) will not adequately and fairly
reflect the cost to such Lenders of making the applicable LIBOR
Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Lenders, whereupon until the Administrative Agent notifies
Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of the Lenders to make any future LIBOR Advances
shall be suspended. If at the time of such notice there is then pending a
Request for Loan that specifies a LIBOR Loan, such Request for Loan shall
be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any LIBOR Advance (other than
as the result of a conversion required under Section 3.8(b)), on a day
other than the last day in the applicable Interest Period (whether
voluntarily, involuntarily, by reason of acceleration, or otherwise), or
upon the failure of Borrower to borrow on the
-43-
date or in the amount specified for a LIBOR Loan in any Request for Loan,
Borrower shall pay to the appropriate Lender a prepayment fee or failure to
borrow fee, as the case may be, calculated as follows (and determined as
though 100% of the LIBOR Advance had been funded in the Designated Market):
(i) principal amount of the LIBOR Advance, times the
-----
number of days between the date of prepayment or failure to borrow and
the last day in the applicable Interest Period, divided by 360, times
---------- -----
the applicable Interest Differential; plus
----
(ii) all actual out-of-pocket expenses (other than those
taken into account in the calculation of the Interest Differential)
incurred by the Lender (excluding allocations of any expense internal
---------
to that Lender) and reasonably attributable to such payment,
prepayment or failure to borrow;
provided that no prepayment fee or failure to borrow fee shall be payable
--------
(and no credit or rebate shall be required) if the product of the foregoing
formula is not a positive number. Each Lender's determination of the amount
of any prepayment fee or failure to borrow fee payable under this Section
3.8(d) shall be based upon the Administrative Agent's determination of the
applicable Interest Differential but shall otherwise be conclusive in the
absence of manifest error.
4.9 Default Rate. Upon the occurrence and during the continuation of
------------
any Default, the outstanding principal amount of the Loans shall, at the option
of the Requisite Lenders, thereafter bear interest at a rate per annum which is
2% per annum in excess of the otherwise applicable rate, to the fullest extent
permitted by applicable Laws. Upon the occurrence and during the continuation of
any Default or Event of Default, accrued and unpaid interest on past due amounts
(including, without limitation, interest on past due interest) shall be payable
---------
upon demand and shall be compounded quarterly, on the last day of each calendar
quarter, to the fullest extent permitted by applicable Laws.
4.10 Computation of Interest and Fees. Computation of interest on Base
--------------------------------
Rate Loans shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed. Computation of interest on
LIBOR Loans and on fees payable under this Agreement shall be calculated on the
basis of a year of 360 days and the actual number of days elapsed. Borrower
acknowledges that such latter calculation method will result in a higher yield
to the Lenders than a method based on a year of 365 or 366 days. Any Loan that
is repaid on the same day on which it is made shall bear interest for one day.
4.11 Non-Business Days. If any payment to be made by Borrower or any
-----------------
other Party under any Loan Document shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day and the extension of time shall be reflected in computing interest.
-44-
4.12 Manner and Treatment of Payments.
--------------------------------
(a) Each payment hereunder (except payments pursuant to Sections
------
3.7, 3.8, 13.11 and 13.15) or on the Notes or under any other Loan Document
shall be made, without setoff, counterclaim or deduction of any kind, to
the Administrative Agent, at the Administrative Agent's Office, for the
account of each of the Lenders or the Administrative Agent, as the case may
be, in immediately available funds not later than 11:00 a.m., California
local time, on the day of payment (which must be a Business Day). All later
payments shall be deemed received on the next succeeding Business Day. The
amount of all payments received by the Administrative Agent for the account
of each Lender shall be paid by the Administrative Agent to the applicable
Lender in immediately available funds and, if such payment was received by
the Administrative Agent by 11:00 a.m., California local time, on a
Business Day and not so made available to the account of a Lender on that
Business Day, the Administrative Agent shall reimburse that Lender for the
cost to such Lender of funding the amount of such payment at the Federal
Funds Rate. All payments shall be made in lawful money of the United States
of America.
(b) Each payment or prepayment on account of any Loan shall be made
and applied pro rata according to the outstanding Advances made by each
Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record of
Advances made by it and payments received by it with respect to its Note
and such record shall be presumptive evidence of the amounts owing.
Notwithstanding the foregoing sentence, no Lender shall be liable to any
Party for any failure to keep such a record, and no such failure shall
affect the amount of the Obligations hereunder.
4.13 Funding Sources. Nothing in this Agreement shall be deemed to
---------------
obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
4.14 Failure to Charge Not Subsequent Waiver. Any decision by the
---------------------------------------
Administrative Agent or any Lender not to require payment of any interest
(including interest at the Default Rate), fee, cost or other amount payable
----------
under any Loan Document, or to calculate any amount payable by a particular
method, on any occasion shall in no way limit or be deemed a waiver of the
Administrative Agent's or such Lender's right to require full payment of any
interest (including interest at the Default Rate), fee, cost or other amount
---------
payable under any Loan Document, or to calculate an amount payable by another
method, on any other or subsequent occasion.
-45-
4.15 Administrative Agent's Right to Assume Payments Will be Made by
---------------------------------------------------------------
Borrower. Unless the Administrative Agent shall have been notified by Borrower
--------
prior to the date on which any payment to be made by Borrower hereunder is due
that Borrower does not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that Borrower has remitted such payment when so
due and the Administrative Agent may, in its discretion and in reliance upon
such assumption, make available to each Lender on such payment date an amount
equal to such Lender's share of such assumed payment. If Borrower has not in
fact remitted such payment to the Administrative Agent, each Lender shall
forthwith on demand repay to the Administrative Agent the amount of such assumed
payment made available to such Lender, together with interest thereon in respect
of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
4.16 Authority to Charge Account. Borrower hereby authorizes the
---------------------------
Administrative Agent to charge the Designated Deposit Account or any other
demand deposit account maintained by Borrower with the Administrative Agent, in
such amounts as may from time to time be necessary to cause timely payment of
principal, interest, fees and other charges payable by Borrower under the Loan
Documents, but only to the extent that any such payment is not otherwise made
when due. Nothing herein shall obligate the Administrative Agent to charge any
such account in this manner or to charge any account at a time when there are
not sufficient good funds in such account.
4.17 Fee Determination Detail. The Administrative Agent, and any
------------------------
Lender, shall provide reasonable detail to Borrower regarding the manner in
which the amount of any payment to the Lenders, or that Lender, under Article 3
has been determined.
4.18 Survivability. All of Borrower's obligations under Sections 3.7
-------------
and 3.8 shall survive for one year following the date on which all Loans
hereunder are fully paid; provided, however, that such obligations shall not,
--------
from and after the date on which all Loans hereunder are fully paid, be deemed
secured Obligations for any purpose under the Loan Documents.
4.19 Withholding Gross-Up. Each payment of any amount payable by
--------------------
Borrower or any other Party under this Agreement or any other Loan Document
shall be made free and clear of, and without reduction by reason of, any taxes,
assessments or other charges imposed by any Governmental Agency, central bank or
comparable authority, excluding (i) taxes imposed on or measured in whole or in
---------
part by overall net income, gross income or gross receipts, (ii) franchise taxes
imposed on any Lender by (A) any jurisdiction (or political subdivision thereof)
in which it is organized or maintains its principal office or LIBOR Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which it is
"doing business", (iii) any withholding
-46-
taxes or other taxes based on gross income imposed by the United States of
America that are not attributable to any change in any Law or the interpretation
or administration of any Law by any Governmental Agency and (iv) any withholding
tax or other taxes based on gross income imposed by the United States of America
for any period with respect to which it has failed to provide Borrower with the
appropriate form or forms required by Section 13.23, to the extent such forms
are then available under applicable Laws (all such non-excluded taxes,
assessments or other charges being hereinafter referred to as "Taxes"). To the
extent that Borrower or any other Party is obligated by applicable Laws to make
any deduction or withholding on account of Taxes from any amount payable to any
Lender under this Agreement, they shall (i) make such deduction or withholding
and pay the same to the relevant Governmental Agency and (ii) pay such
additional amount to that Lender as is necessary to result in that Lender's
receiving a net after-Tax amount equal to the amount to which that Lender would
have been entitled under this Agreement absent such deduction or withholding. If
and when receipt of such payment results in an excess payment or credit to that
Lender on account of such Taxes, that Lender shall promptly refund such excess
to Borrower or the relevant Party.
-47-
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF THE TRIBE
-------------------------------------------
In order to induce the Creditors to enter into this Agreement and the other
Loan Documents to be executed as of the Closing Date, the Tribe represents and
warrants to the Creditors that, as of the Closing Date (but not as of any date
subsequent thereto).
5.1 Existence and Qualification; Power; Compliance With Laws. The
--------------------------------------------------------
Tribe is federally recognized as a Indian Tribe pursuant to a determination of
the Assistant Secretary - Indian Affairs, dated March 7, 1994, published in the
Federal Register on March 15, 1994, as amended by a correction dated July 1,
1994, published in the Federal Register on July 20, 1994, and as an Indian
Tribal government pursuant to Sections 7701(a)(40)(A) and 7871(a) of the
Internal Revenue Code, Title 26 U.S.C. Borrower is a governmental
instrumentality of the Tribe. As of the Closing Date, each of the Tribe and
Borrower is a non-taxable entity for purposes of federal income taxation under
the Internal Revenue Code, Title 26 U.S.C., and the gaming and other revenues of
Borrower are exempt from federal income taxation. To the extent required by Law,
Borrower and the Tribe are qualified to do business and are in good standing
under the laws of each jurisdiction in which they are required to be qualified
by reason of the location or the conduct of their business. The Tribe and the
Borrower each have all requisite power and authority to execute and deliver each
Loan Document to which they are a Party and to perform their respective
Obligations. The Tribe and Borrower are in material compliance with the terms of
the Compact, the Gaming Authority Ordinance, the Gaming Ordinance and with all
Laws and other legal requirements applicable to their existence and business
(including without limitation, IGRA and all Gaming Laws), have obtained all
authorizations, consents, approvals, orders, licenses and permits from, and have
accomplished all filings, registrations and qualifications with, or obtained
exemptions from any of the foregoing from, any Governmental Agency that are
necessary for the transaction of their business, except where the failure so to
------
file, register, qualify or obtain exemptions does not constitute a Material
Adverse Effect.
5.2 Authority; Compliance With Other Agreements and Instruments and
---------------------------------------------------------------
Government Regulations. The execution, delivery and performance by the Tribe
----------------------
and by Borrower of the Loan Documents have been duly authorized by all necessary
Tribal Council , Management Board and other action, and do not:
(a) require any consent or approval not heretofore obtained
of any enrolled tribal member, Tribal Council member, Management Board
Member, security holder or creditor;
(b) violate or conflict with any provision of the
Constitution, charter, bylaws or other governing documents of the Tribe or
of Borrower;
-48-
(c) result in or require the creation or imposition of any
Lien or Right of Others (other than pursuant to the Collateral Documents)
upon or with respect to any Authority Property now owned or leased or
hereafter acquired;
(d) violate any Law or Requirement of Law, including any
Gaming Law, applicable to the Tribe or Borrower;
(e) constitute a "transfer of an interest" or an
"obligation incurred" that is avoidable by a trustee under Section 548 of
the Bankruptcy Code of 1978, as amended, or constitute a "fraudulent
conveyance," "fraudulent obligation" or "fraudulent transfer" within the
meanings of the Uniform Fraudulent Conveyances Act or Uniform Fraudulent
Transfer Act, as enacted in any applicable jurisdiction;
(f) result in a material breach of or default under, or
would, with the giving of notice or the lapse of time or both, constitute a
material breach of or default under, or cause or permit the acceleration of
any obligation owed under, any mortgage, indenture or loan or credit
agreement or any other Contractual Obligation to which the Tribe or
Borrower is a party or by which the Tribe, Borrower or any of their
Property is bound or affected; or
(g) require any consent or approval of any Governmental
Agency, or any notice to, registration or qualification with any
Governmental Agency, not heretofore obtained or obtained concurrently with
the Closing Date;
and the Tribe and Borrower are not in violation of, or default under, any
Requirement of Law or Contractual Obligation, or any indenture, loan or credit
agreement described in Section 4.2(f), in any respect that constitutes a
Material Adverse Effect.
5.3 No Governmental Approvals Required. Except for the consent of the
---------------------------------- ------
Bureau of Indian Affairs pursuant to 25 U.S.C (S)81 (which consent is being
obtained concurrently with the execution and delivery of this Agreement), no
authorization, consent, approval, order, license or permit from, or filing,
registration or qualification with, any Governmental Agency is required to
authorize or permit under applicable Laws the execution, delivery and
performance by the Tribe and the Borrower of the Loan Documents to which they
are parties.
5.4 The Nature of Borrower. The Tribe has no Subsidiaries and no
----------------------
Affiliates which are included in or controlled by or through Borrower. All
activities of the Tribe constituting or relating to the ownership and operation
of gaming facilities (including all Class II and Class III gaming activities
within the meaning of IGRA) and all activities of the Tribe constituting or
relating to the ownership of hotel, restaurant, entertainment and resort
facilities are conducted on behalf of the Tribe by Borrower pursuant to the
authority granted to Borrower in the Gaming Authority Ordinance.
-49-
5.5 No Management Contract. Neither this Agreement nor the other Loan
----------------------
Documents, taken individually or as a whole, constitute "management contracts"
or "management agreements" within the meaning of Section 12 of IGRA, or deprive
Borrower of the sole proprietary interest and responsibility of the conduct of
gaming activity at Mohegan Sun.
5.6 Title to and Location of Property. As of the Closing Date,
---------------------------------
Borrower has good and valid title to all the Property reflected in the financial
statements described in Section 5.6 other than immaterial items of Property
----- ----
subsequently sold or disposed of in the ordinary course of business, free and
clear of all Liens and Rights of Others, other than as set forth in Schedule
7.8, provided that the leasehold estate which is the subject of the Leasehold
Mortgage covers real property the title to which is held by the United States in
trust on behalf of the Tribe.
5.7 Real Property. Schedule 4.7 sets forth a summary description of
-------------
all real property owned by the Tribe which is Authority Property, including the
Real Property, and of all real property leasehold estates held by Borrower from
the Tribe, which summary is accurate and complete in all material respects.
Except as set forth in Schedule 4.7, the leases creating such real property
leasehold estates are in full force and effect and create a valid leasehold
estate on the terms of such lease, and neither Borrower nor the Tribe is in
default or breach of any thereof . The copies of such real property leases
heretofore furnished to the Administrative Agent are true copies and there are
no amendments thereto copies of which have not been furnished to the
Administrative Agent. Under 25 U.S.C. (S)177 such real property may not be
encumbered by the Tribe or Borrower without the consent of the United States of
America, however each required consent has been obtained concurrently with the
execution and delivery of this Agreement. The Authority Property includes all
real, mixed and personal property which is operationally integral to the on-
reservation gaming activities of the Tribe.
5.8 Governmental Regulation. Except for consents of the Bureau of
-----------------------
Indian Affairs being obtained concurrently with the execution of this Agreement,
Borrower is not subject to regulation under any Law limiting or regulating its
ability to incur Indebtedness for money borrowed, to grant Liens to secure its
obligations with respect to such Indebtedness or to otherwise perform the
Obligations.
5.9 Binding Obligations. The Loan Documents contemplated by Section
-------------------
10.1 and Section 10.2 have been executed and delivered by the Tribe and
Borrower, as applicable, and constitute the legal, valid and binding obligations
of the Tribe and Borrower enforceable in accordance with their terms. The
provisions of Section 13.24 are specifically enforceable against the Tribe and
Borrower.
5.10 No Default. No event has occurred and is continuing that is a
----------
Default or an Event of Default.
-50-
5.11 Disclosure. No written statement made by or on behalf of the
----------
Tribe or Borrower to the Administrative Agent or any Lender in connection with
this Agreement, or in connection with any Loan or Letter of Credit, contains any
untrue statement of a material fact or omits a material fact necessary in order
to make the statement made not misleading in light of all the circumstances
existing at the date the statement was made. There is no fact known to the Tribe
or Borrower (other than matters of a general economic nature or matters
generally applicable to businesses of the types engaged in by Borrower) which
would constitute a Material Adverse Effect that has not been disclosed in
writing to the Administrative Agent and the Lenders.
5.12 Gaming Laws. Borrower and the Tribe are in material compliance
-----------
with all applicable Gaming Laws.
5.13 Security Interests. The Liens created by the Security Agreement
------------------
are perfected and of first priority to the fullest extent that the same may be
perfected by the filing of financing statements under the Connecticut Uniform
Commercial Code (as adopted by the Borrower pursuant to the UCC Ordinance). The
Leasehold Mortgage creates a valid and perfected Lien in the Collateral
described therein securing the Obligations. The Deposit Account Agreements
create a valid and perfected Lien in the Collateral described therein (including
without limitation the Operating Accounts) securing the Obligations. Each of the
Liens described in this Section are of first priority, subject only to Permitted
Encumbrances, Permitted Rights of Others and matters described in Schedule 7.8.
5.14 Arbitration. Pursuant to the Constitution, to the extent that any
-----------
dispute among the parties to the Loan Documents is initiated in or referred to
the Tribal Court, (i) such court lacks discretion to refuse to compel
arbitration among the parties to the dispute, and (ii) such court is obligated
to honor and enforce any award by the arbitrator, without review of any nature
by such court.
5.15 Recourse Obligations. Under current Law, no obligation of the
--------------------
Tribe of any type or nature may constitute a Recourse Obligation unless and to
the extent that Borrower has become an express obligor with respect thereto, and
the Tribe has no authority, independent of Borrower, to incur any obligation on
behalf of Borrower, to bind any Authority Property, or to grant Liens upon any
Authority Property.
-51-
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
----------------------------------------------
In order to induce the Creditors to enter into this Agreement and the other
Loan Documents, to make Loans and to issue and participate in Letters of Credit
hereunder, Borrower represents and warrants to the Creditors that:
6.1 Existence and Qualification; Power; Compliance With Laws. The
--------------------------------------------------------
Tribe is federally recognized as a Indian Tribe pursuant to a determination of
the Assistant Secretary - Indian Affairs, dated March 7, 1994, published in the
Federal Register on March 15, 1994, as amended by a correction dated July 1,
1994, published in the Federal Register on July 20, 1994, and as an Indian
Tribal government pursuant to Sections 7701(a)(40)(A) and 7871(a) of the
Internal Revenue Code, Title 26 U.S.C. Borrower is a governmental
instrumentality of the Tribe. As of the Closing Date, each of the Tribe and
Borrower is a non-taxable entity for purposes of federal income taxation under
the Internal Revenue Code, Title 26 U.S.C., and the gaming and other revenues of
Borrower are exempt from federal income taxation. To the extent required by Law,
Borrower and the Tribe are qualified to do business and is in good standing
under the laws of each jurisdiction in which they are required to be qualified
by reason of the location or the conduct of their business. The Tribe and the
Borrower each have all requisite power and authority to conduct their respective
business, to own and lease their respective Properties, to execute and deliver
each Loan Document to which they are a Party and to perform their respective
Obligations. As of the Closing Date, the chief executive offices of Borrower are
located in Uncasville, Connecticut at the address for notices set forth on the
signature pages hereto. The Tribe and Borrower are in material compliance with
the terms of the Compact, the Gaming Ordinance, the Gaming Authority Ordinance
and with all Laws and other legal requirements applicable to their existence and
business (including without limitation, IGRA and all Gaming Laws), have obtained
all authorizations, consents, approvals, orders, licenses and permits from, and
have accomplished all filings, registrations and qualifications with, or
obtained exemptions from any of the foregoing from, any Governmental Agency that
are necessary for the transaction of their business, except where the failure so
------
to file, register, qualify or obtain exemptions does not constitute a Material
Adverse Effect.
6.2 Authority; Compliance With Other Agreements and Instruments and
---------------------------------------------------------------
Government Regulations. The execution, delivery and performance by the Tribe
----------------------
and by Borrower of the Loan Documents have been duly authorized by all necessary
Tribal Council, Management Board and other action, and do not:
(a) require any consent or approval not heretofore obtained
of any enrolled tribal member or Tribal Council member, Management Board
member, security holder or creditor;
-52-
(b) violate or conflict with any provision of the
Constitution, charter, bylaws or other governing documents of the Tribe or
of Borrower;
(c) result in or require the creation or imposition of any
Lien or Right of Others (other than pursuant to the Collateral Documents)
upon or with respect to any Authority Property now owned or leased or
hereafter acquired;
(d) violate any Law or Requirement of Law, including any
Gaming Law, applicable to the Tribe or Borrower;
(e) constitute a "transfer of an interest" or an
"obligation incurred" that is avoidable by a trustee under Section 548 of
the Bankruptcy Code of 1978, as amended, or constitute a "fraudulent
conveyance," "fraudulent obligation" or "fraudulent transfer" within the
meanings of the Uniform Fraudulent Conveyances Act or Uniform Fraudulent
Transfer Act, as enacted in any applicable jurisdiction;
(f) result in a material breach of or default under, or
would, with the giving of notice or the lapse of time or both, constitute a
material breach of or default under, or cause or permit the acceleration of
any obligation owed under, any mortgage, indenture or loan or credit
agreement or any other Contractual Obligation to which the Tribe or
Borrower is a party or by which the Tribe, Borrower or any of their
Property is bound or affected; or
(g) require any consent or approval of any Governmental
Agency, or any notice to, registration or qualification with any
Governmental Agency, not heretofore obtained or obtained concurrently with
the Closing Date;
and the Tribe and Borrower are not in violation of, or default under, any
Requirement of Law or Contractual Obligation, or any indenture, loan or credit
agreement described in Section 5.2(f), in any respect that constitutes a
Material Adverse Effect.
6.3 No Governmental Approvals Required. Except for the consent of the
---------------------------------- ------
Bureau of Indian Affairs pursuant to 25 U.S.C (S)81 (which consent is being
obtained concurrently with the execution and delivery of this Agreement), no
authorization, consent, approval, order, license or permit from, or filing,
registration or qualification with, any Governmental Agency is required to
authorize or permit under applicable Laws the execution, delivery and
performance by the Tribe and the Borrower of the Loan Documents to which they
are parties.
6.4 The Nature of Borrower. The Tribe has no Subsidiaries and no
----------------------
Affiliates which are included in or controlled by or through Borrower. All
activities of the Tribe constituting or relating to the ownership and operation
of gaming facilities (including all Class II and Class III gaming activities
within the meaning of IGRA) and all activities of the Tribe
-53-
constituting or relating to the ownership of hotel, restaurant, entertainment
and resort facilities are conducted on behalf of the Tribe by Borrower pursuant
to the authority granted to Borrower in the Gaming Authority Ordinance.
6.5 No Management Contract. Neither this Agreement nor the other Loan
----------------------
Documents, taken individually or as a whole, constitute "management contracts"
or "management agreements" within the meaning of Section 12 of IGRA, or deprive
Borrower of the sole proprietary interest and responsibility of the conduct of
gaming activity at Mohegan Sun.
6.6 Financial Statements. Borrower has furnished to the Lenders (a)
--------------------
the audited financial statements of Borrower as at September 30, 1998 and for
the fiscal year then ended, and (b) the unaudited financial statements of
Borrower as at December 31, 1998 and for the three month fiscal period then
ended. The financial statements described above fairly present the financial
condition and the results of operations of Borrower as at such dates and for
such periods in accordance with Generally Accepted Accounting Principles
consistently applied, except in the case of the financial statements described
------
in clause (b) above, for any requirement for footnote disclosures.
6.7 Financial Statements of Borrower. The financial statements of
--------------------------------
Borrower referred to in Section 5.6 includes as liabilities of the Borrower, all
Recourse Obligations existing as of the date hereof, whether or not Borrower is
described as the borrower or obligor with respect thereto. Each financial
statement of Borrower which is hereafter delivered in accordance with Section
8.1 includes as liabilities of the Borrower, all then existing Recourse
Obligations, whether or not Borrower is described as the borrower or obligor
with respect thereto. No Non-Authority Property is described as an asset of
Borrower on any balance sheet or other financial statement of Borrower provided
to the Administrative Agent or the Lenders.
6.8 No Other Liabilities; No Material Adverse Effect. As of the
------------------------------------------------
Closing Date, Borrower does not have any material liability or material
contingent liability not reflected or disclosed in the financial statements
described in Section 5.6(b) or the notes to the financial statements described
in Section 5.6(a). No event or circumstance that constitutes a Material Adverse
Effect has occurred since September 30, 1998. As of the date of each Advance
made and each Letter of Credit issued subsequent to the Closing Date, no event
or circumstance has occurred since the Closing Date that constitutes a Material
Adverse Effect.
6.9 Title to and Location of Property. As of the Closing Date,
---------------------------------
Borrower has good and valid title to all the Property reflected in the financial
statements described in Section 5.6 other than immaterial items of Property
----- ----
subsequently sold or disposed of in the ordinary course of business, free and
clear of all Liens and Rights of Others, other than as set forth in Schedule
7.8, provided that the leasehold estate which is the subject of the Leasehold
Mortgage covers real property the title to which is held by the United States in
trust on behalf of the Tribe.
-54-
6.10 Real Property. Schedule 4.7 sets forth a summary description of
-------------
all real property owned by the Tribe which is Authority Property, including the
Real Property, and of all real property leasehold estates held by Borrower from
the Tribe, which summary is accurate and complete in all material respects.
Except as set forth in Schedule 4.7, the leases creating such real property
leasehold estates are in full force and effect and create a valid leasehold
estate on the terms of such lease, and neither Borrower nor the Tribe is in
default or breach of any thereof . The copies of such real property leases
heretofore furnished to the Administrative Agent are true copies and there are
no amendments thereto copies of which have not been furnished to the
Administrative Agent. Under 25 U.S.C. (S)177 such real property may not be
encumbered by the Tribe or Borrower without the consent of the United States of
America, however each required consent has been obtained concurrently with the
execution and delivery of this Agreement. The Authority Property includes all
real, mixed and personal property which is operationally integral to the on-
reservation gaming activities of the Tribe.
6.11 Intangible Assets. Borrower owns, or possesses the right to use
-----------------
to the extent necessary in the business of Borrower, all trademarks, trade
names, copyrights, patents, patent rights, computer software, licenses and other
Intangible Assets that are used in the conduct of the business of Borrower as
now operated and which are material to the condition (financial or otherwise),
business or operations of Borrower, and no such Intangible Asset conflicts with
the valid trademark, trade name, copyright, patent, patent right or Intangible
Asset of any other Person to the extent that such conflict constitutes a
Material Adverse Effect.
6.12 Governmental Regulation. Except for consents of the Bureau of
-----------------------
Indian Affairs being obtained concurrently with the execution of this Agreement,
Borrower is not subject to regulation under any Law limiting or regulating its
ability to incur Indebtedness for money borrowed, to grant Liens to secure its
obligations with respect to such Indebtedness or to otherwise perform the
Obligations.
6.13 Litigation. Except for (a) any matter fully covered (subject to
---------- ------
applicable deductibles and retentions) by insurance and with respect to which
the insurance carrier has not denied coverage, nor issued any denial of claim,
nor any other statement that the claim is in excess of coverage, (b) any matter,
or series of related matters, not fully covered by insurance (subject to
applicable deductibles and retentions) involving a claim against Borrower which
is, in the reasonable opinion of Borrower's independent legal counsel, in an
amount less than $1,000,000, and (c) matters set forth in Schedule 5.13, there
are no actions, suits, proceedings or investigations pending as to which
Borrower has been served or have received notice or, to the best knowledge of
Borrower, threatened against or affecting Borrower or any of its Property before
any Governmental Agency. There is no reasonable basis to believe that any of
the matters described on Schedule 5.13 may result in or constitute a Material
Adverse Effect.
-55-
6.14 Binding Obligations. The Loan Documents to which the Tribe or
-------------------
Borrower is a party have been executed and delivered by the Tribe and Borrower
and constitute the legal, valid and binding obligations of the Tribe and
Borrower enforceable in accordance with their terms, and each Loan Document
hereafter executed will, when executed and delivered by the Parties thereto,
constitute the legal, valid and binding obligation of the Borrower and the Tribe
as applicable, enforceable against the Borrower and the Tribe as applicable in
accordance with its terms.
6.15 No Default. No event has occurred and is continuing that is a
----------
Default or an Event of Default.
6.16 ERISA. As of the Closing Date neither Borrower nor any ERISA
-----
Affiliate maintains, contributes to or is required to contribute to any
"employee pension benefit plan" that is subject to Title IV of ERISA.
6.17 Regulations T, U and X; Investment Company Act. No part of the
----------------------------------------------
proceeds of any Loan or other extension of credit hereunder will be used to
purchase or carry, or to extend credit to others for the purpose of purchasing
or carrying, any "margin stock" (as such term is defined in Regulations T, U and
X) in violation of Regulations T, U and X. Borrower is not engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any such "margin stock." Borrower is not
required to be registered as an "investment company" under the Investment
Company Act of 1940.
6.18 Disclosure. No written statement made by or on behalf of the
----------
Tribe or Borrower to the Administrative Agent or any Lender in connection with
this Agreement, or in connection with any Loan or Letter of Credit, contains any
untrue statement of a material fact or omits a material fact necessary in order
to make the statement made not misleading in light of all the circumstances
existing at the date the statement was made. There is no fact known to the Tribe
or Borrower (other than matters of a general economic nature or matters
generally applicable to businesses of the types engaged in by Borrower) which
would constitute a Material Adverse Effect that has not been disclosed in
writing to the Administrative Agent and the Lenders.
6.19 Tax Liability. Borrower has filed all tax returns which are
-------------
required to be filed, and has paid, or made provision for the payment of, all
taxes with respect to the periods, Property or transactions covered by said
returns, or pursuant to any assessment received by Borrower, except such taxes,
------
if any, as are being contested in good faith by appropriate proceedings and as
to which adequate reserves have been established and maintained.
6.20 Projections. As of the Closing Date, to the best knowledge of
-----------
Borrower, the assumptions set forth in the Projections are reasonable and
consistent with each other and
-56-
with all facts known to the Tribe or Borrower and no material assumption is
omitted as a basis for the Projections, and the Projections are reasonably based
on such assumptions. Nothing in this Section shall be construed as a
representation, warranty or covenant that the Projections in fact will be
achieved.
6.21 Employee Matters. There is no strike or work stoppage in
----------------
existence or, to Borrower's knowledge, threatened involving Borrower that would
constitute a Material Adverse Effect.
6.22 Gaming Laws. Borrower is in material compliance with all
-----------
applicable Gaming Laws.
6.23 Security Interests. The Liens created by the Security Agreement
------------------
are perfected and of first priority to the fullest extent that the same may be
perfected by the filing of financing statements under the Connecticut Uniform
Commercial Code (as adopted by the Borrower pursuant to the UCC Ordinance). The
Leasehold Mortgage creates a valid and perfected Lien in the Collateral
described therein securing the Obligations. The Deposit Account Agreements
create a valid and perfected Lien in the Collateral described therein (including
without limitation the Operating Accounts) securing the Obligations. Each of the
Liens described in this Section are of first priority, subject only to Permitted
Encumbrances, Permitted Rights of Others and matters described in Schedule 7.8.
6.24 Hazardous Materials. Except as specifically described in
-------------------
Schedule 5.24, neither Borrower nor to the best knowledge of each Senior Officer
of the Borrower any predecessor in title or any third person at any time
occupying or present on the Real Property at any time, has disposed of,
discharged, released or threatened the release of any material amount of
Hazardous Materials on, from or under such real property in any manner that
violates any Hazardous Materials Law. Except as specifically described in
Schedule 5.24, no condition exists that violates any Hazardous Material Law
affecting the Real Property except for such violations that would not
individually or in the aggregate have a Material Adverse Effect. Except as
specifically described in Schedule 5.24, the Real Property and each portion
thereof is not and has not been utilized by Borrower as a site for the
manufacture of any Hazardous Materials and is in compliance in all material
respects with all Hazardous Materials Laws. To the extent that any Hazardous
Materials have been, or are, used, generated or stored by Borrower on any Real
Property, or transported to or from such Real Property by Borrower, such use,
generation, storage and transportation have been and are, in compliance in all
material respects with all Hazardous Materials Laws.
6.25 Arbitration. To the extent that any dispute among the parties to
-----------
the Loan Documents is initiated in or referred to the Tribal Court, (i) such
court lacks discretion to refuse to compel arbitration among the parties to the
dispute, and (ii) such court is obligated to honor and enforce any award by the
arbitrator, without review of any nature by such court.
-57-
6.26 Deposit Accounts. Borrower does not maintain any deposit,
----------------
checking, brokerage or other similar account with any bank, savings association,
financial institution or similar financial intermediary in which Cash or Cash
Equivalents having an aggregate value in excess of $100,000 for all such
accounts are deposited which is not listed on Schedule 5.26 or the existence of
which has not been disclosed to the Administrative Agent and the Lenders in
writing.
-58-
ARTICLE 7.
AFFIRMATIVE COVENANTS OF BORROWER
---------------------------------
(OTHER THAN INFORMATION AND
--------------------------
REPORTING REQUIREMENTS)
----------------------
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed (other than the obligations referenced in Section 3.18),
or any portion of the Commitment remains in force, Borrower shall, unless the
Administrative Agent (with the approval of the Requisite Lenders) otherwise
consents:
7.1 Payment of Taxes and Other Potential Liens. Pay and discharge
------------------------------------------
promptly all taxes, assessments and governmental charges or levies imposed upon
Borrower or its Property or any part thereof, upon its income or profits or any
part thereof or (to the extent that the same arise after the Closing Date) any
tax assessment, governmental changes or levies imposed upon any right or
interest of the Administrative Agent or any Lender under any Loan Document,
except that Borrower shall not be required to pay or cause to be paid (a) any
------
income or gross receipts tax or any other tax on or measured by income generally
applicable to banks, (b) any tax, assessment, charge or levy that is not yet
delinquent, or is being contested in good faith by appropriate proceedings, so
long as Borrower has established and maintained adequate reserves for the
payment of the same and by reason of such nonpayment and contest no material
item or portion of Authority Property is in jeopardy of being seized, levied
upon or forfeited, and (c) taxes, assessments, charges and levies of amounts not
in excess of $100,000 which Borrower in good faith inadvertently fails to pay.
7.2 Maintenance of Properties. Maintain, preserve and protect all of
-------------------------
the depreciable Properties of Borrower in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
such Properties, except that the failure to maintain, preserve and protect a
------
particular item of depreciable Property that is not of significant value, either
intrinsically or to the operations of Borrower shall not constitute a violation
of this covenant, and maintain its ownership of all intellectual property and
licenses thereof necessary for the operation of Mohegan Sun.
7.3 Maintenance of Insurance. Cause Borrower to maintain liability,
------------------------
casualty and other insurance with respect to itself and all Authority Property
(subject to customary deductibles and retention) with responsible insurance
companies in such amounts and against such risks as is carried by responsible
companies engaged in similar businesses and owning similar assets in the general
areas in which Borrower operates and, in any event, (a) workers' compensation
insurance, to the extent required to comply with all applicable state,
territorial and United States laws and regulations, (b) comprehensive general
liability insurance with minimum limits of $2,000,000, (c) umbrella liability
insurance providing excess liability coverages over and above the foregoing
underlying insurance policies up to a minimum limit of $100,000,000, (d)
property insurance protecting the Mohegan Sun for possible damage by fire,
lightening, wind-storm other damage, vandalism, riot, earthquake,
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civil commotion, malicious mischief, hurricane and such other risks and hazards
as are from time to time covered by an "all risk" policy or a property policy
covering "special" causes of loss. Such insurance shall provide coverage of not
less than 100% of actual replacement value (as determined at each policy renewal
based on the X.X. Xxxxx Building Index or some other recognized means) of any
improvements with a deductible no greater than $500,000 (other than earthquake
insurance for which the deductible may be up to 10% of such replacement value),
and (e) such insurance with respect to the Real Property as is maintained as of
the Closing Date as described in Schedule 6.4.
7.4 Compliance With Laws. Comply with all Requirements of Laws
--------------------
noncompliance with which would constitute a Material Adverse Effect, except that
------
Borrower need not comply with a Requirement of Law then being contested by it in
good faith by appropriate proceedings.
7.5 Preservation of Licenses and Permits. Preserve and maintain all
------------------------------------
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of the business of Mohegan Sun, and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of its business or the ownership or leasing
of its Properties except where the failure to preserve and maintain any such
------
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits or registrations or to so qualify or remain qualified would
not constitute a Material Adverse Effect.
7.6 Inspection Rights. Upon reasonable notice, at any time during
-----------------
regular business hours and as often as requested (but not so as to unreasonably
interfere with the business of Borrower), permit the Administrative Agent or any
Lender, or any authorized employee, agent or representative thereof, to examine,
audit and make copies and abstracts from the records and books of account of,
and to visit and inspect Mohegan Sun, and to discuss the affairs, finances and
accounts of Borrower with any of its officers, key employees, and accountants,
and, upon request, furnish promptly to the Administrative Agent or any Lender
true copies of all financial information made available to the senior management
of Borrower. Without limitation on the foregoing, Borrower shall:
(a) provide the Construction Consultant any and all
requested access to the Proposed Expansion site;
(b) provide any and all information which is reasonably
required for the preparation of a monthly Construction Progress Report;
(c) cooperate in the preparation of each Construction
Progress Report and, if requested by the Administrative Agent, cause the
Proposed Expansion's
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architect and general contractor to certify that the improvements
constructed as of the date of any Construction Progress Report conform to
the Plans in all material respects;
(d) maintain a full set of working drawings at the construction
office for the Proposed Expansion for review by the Construction
Consultant; and
(e) within 15 days following any request by the Administrative
Agent, deliver (i) then current construction plans for the Proposed
Expansion certified as true and correct by the architect and the project
engineer for the Proposed Expansion, (ii) a then current list of the names,
addresses and telephone numbers of each contractor, subcontractor and
material supplier with respect to the Proposed Expansion and the dollar
value and amounts paid with respect to the related contracts, and (iii)
then current versions of the construction schedule for all uncompleted work
on the Proposed Expansion and all executed contracts and subcontracts for
such work.
7.7 Keeping of Records and Books of Account. Keep adequate records
---------------------------------------
and books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles and in material conformity with all
applicable requirements of any Governmental Agency having regulatory
jurisdiction over Borrower.
7.8 Compliance With Agreements. Promptly and fully comply with all
--------------------------
Contractual Obligations under all material agreements, indentures, leases and
instruments to which it is a party, whether such material agreements,
indentures, leases or instruments are with a Lender or another Person, provided
--------
that the good faith failure of Borrower to comply with Contractual Obligations
involving an amount of money which is less than $1,000,000 or Property having a
value of less than $1,000,000 shall not constitute a breach of this covenant for
so long as Borrower is attempting, through the exercise of diligent efforts, to
comply therewith.
7.9 Use of Proceeds. Use the proceeds of the Loans and Letters of
---------------
Credit (a) on the Closing Date, to repay the Existing Senior Secured Notes in
their entirety (in the aggregate amount, with accrued interest and premium of
approximately $175,000,000), (b) to finance the Proposed Expansion and other
Capital Expenditures associated with Authority Property, and (c) for other
working capital, casino and general purposes of Borrower, provided that all
--------
proceeds of the Loans and all Letters of Credit shall be used exclusively by the
Borrower to finance facilities and operations constituting "Gaming" within the
meaning of Article XIII, Section 1 of the Constitution.
7.10 Hazardous Materials Laws. Keep and maintain the Real Property and
------------------------
each portion thereof in compliance in all material respects with all Hazardous
Materials Laws and promptly advise Administrative Agent in writing of (a) any
and all enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened in writing pursuant to any
applicable Hazardous Materials Laws, (b) any and all claims made or threatened
in writing, and received by Borrower, by any third party against Borrower or the
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Real Property relating to damage, contribution, cost recovery, compensation,
loss or injury resulting from any Hazardous Materials and (c) discovery by any
Senior Officer of the Borrower and the Tribe of any occurrence or condition on
any real property adjoining or in the vicinity of the Real Property that could
reasonably be expected to cause the Real Property or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or use
of the Real Property under any Hazardous Materials Laws, provided that the good
--------
faith failure of Borrower to comply with Hazardous Materials Laws shall not
constitute a breach of this covenant if (a) Borrower is diligently attempting to
comply therewith, and (b) no Authority Property having a value in excess of
$1,000,000 is affected by such non-compliance or is in jeopardy of seizure or
closure as a result of such non-compliance.
7.11 Deposit and Brokerage Accounts. Promptly and in any event within
------------------------------
ten days enter into a Deposit Account Agreement with respect to each Operating
Account hereafter established.
7.12 Proposed Expansion. Prior to commencement of construction of the
------------------
Proposed Expansion, deliver to the Lenders the proposed Plans and Budget, the
form, substance and scope of which shall be reasonably acceptable to, and
approved in writing by, the Requisite Lenders. Upon receipt of the complete
Plans and Budget, the Administrative Agent shall submit the same to the Lenders.
The Lenders shall consider the Plans and Budget promptly (and in any event
within 30 days following their receipt of the Plans and Budget), and shall
approve or disapprove of the proposed Plans and Budget within that period.
7.13 Year 2000 Compliance. Borrower represents that it has made
--------------------
appropriate inquiry regarding the ability of its computer systems and those of
its principal customers and vendors to operate correctly in a date-sensitive
manner following January 1, 2000. Borrower has implemented a Year 2000 program
to provide an independent analysis of Borrower's Year 2000 preparedness and the
adequacy of Borrower's Year 2000 plans. It is anticipated that all remediation
and verification necessary for Borrower to become Year 2000 compliant will not
exceed $1,000,000 and will not have a Material Adverse Effect.
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ARTICLE 8.
NEGATIVE COVENANTS OF BORROWER
------------------------------
(OTHER THAN INFORMATION AND
--------------------------
REPORTING REQUIREMENTS)
----------------------
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed (other than the obligations referenced in Section 3.18),
or any portion of the Commitment remains in force, Borrower shall not, unless
the Administrative Agent (with the approval of the Requisite Lenders) otherwise
consents:
8.1 Payment of Subordinated Obligations. Prepay any principal
-----------------------------------
(including sinking fund payments), interest or any other amount with respect to
---------
any Subordinated Obligations, or purchase or redeem (or offer to purchase or
redeem) any Subordinated Obligations, or deposit any monies, securities or other
Property with any trustee or other Person to provide assurance that the
principal or any portion thereof of any Subordinated Obligations will be paid
when due or otherwise provide for the defeasance of any Subordinated Obligations
except (a) scheduled payments of interest made when no Default or Event of
------
Default exists or would result therefrom, (b) refinancings of New Subordinated
Notes through their exchange for the Exchange Notes contemplated by the New
Subordinated Notes Indenture, and (c) repayments of the TCA Subordinated Notes
using the proceeds of the Defeasance Deposit.
8.2 Disposition of Property. Make any Disposition of Authority
-----------------------
Property, whether now owned or hereafter acquired, except for (a) Permitted
------
Dispositions made when no Default or Event of Default exists or would result
therefrom, or (b) Dispositions of Property specifically contemplated by Sections
7.5 or 7.10.
8.3 Investments and Acquisitions. Make any Acquisition using
----------------------------
Authority Property, or enter into any agreement to make any Acquisition using
Authority Property, or make or suffer to exist any Investment made using
Authority Property, except:
------
(a) Investments in Cash Equivalents;
(b) Investments in Subsidiaries to the extent in compliance
with Section 9.6;
(c) Investments consisting of Property received in
connection with any Permitted Disposition;
(d) Investments consisting of payroll advances to employees
of Borrower and its Subsidiaries for travel, entertainment and relocation
expenses in the ordinary course of business in an aggregate amount not to
exceed $250,000 at any one time outstanding;
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(e) Investments in accounts and notes receivable if created
or acquired in the ordinary course of business and which are payable or
dischargeable in accordance with customary trade terms;
(f) Investments in Persons owning Related Businesses in an
aggregate amount not to exceed, when aggregated with the Capital
Expenditures made under Section 7.15(c), $25,000,000; and
(g) Investments in Approved Swap Agreements.
8.4 Hostile Tender Offers. Use the proceeds of the Commitment or any
---------------------
funds of Borrower to directly or indirectly finance any offer to purchase or
acquire, or to consummate a purchase or acquisition of, 5% or more of the
capital stock of any corporation or other business entity if the board of
directors or management of such corporation or business entity has notified
Borrower that it opposes such offer or purchase.
8.5 Distributions. Make any Distribution, whether from capital,
-------------
income or otherwise, and whether in Cash or other Property, except:
------
(a) Priority Distributions;
(b) Distributions consisting of payments to the Tribe for
governmental services (including charges for utilities, police and fire
department services, health and emergency medical services, the pro rata
portion of Tribal Council costs and salaries attributable to the operations
of Borrower, and similar pro rata costs of other tribal departments, in
each case, to the extent that the costs of such departments are
attributable to the operations of Borrower), supplied by the Tribe in
accordance with past practices to the Borrower by the Tribe or any of its
representatives, political subunits, councils, agencies or
instrumentalities.
(c) prior to the Completion Date, other Distributions to the Tribe
in an amount not to exceed $3,000,000 made during any calendar month out of
Available Cash Flow for the immediately preceding calendar month when no
Default or Event of Default exists or would result therefrom;
(d) Distributions to the Tribe constituting payment of amounts
permitted by Section 9.9(b);
(e) following the Completion Date, other Distributions to the Tribe
made when no Default or Event of Default exists (and which do not result in
any Event of Default), made out of Available Cash Flow; and
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(f) Distributions consisting of any payment or transfer
specifically permitted by Section 7.10.
8.6 ERISA.
-----
(a) At any time, permit any Pension Plan which is maintained
by Borrower or to which Borrower is obligated to contribute on behalf of
its employees, in such case if to do so would constitute a Material Adverse
Effect, to:
(i) engage in any non-exempt "prohibited
transaction," as such term is defined in Section 4975 of the Internal
Revenue Code, Title 26, U.S.C.;
(ii) incur any material "accumulated funding
deficiency," as that term is defined in Section 302 of ERISA; or
(iii) suffer a Termination Event to occur which may
reasonably be expected to result in liability of Borrower or any ERISA
Affiliate thereof to the Pension Plan or to the PBGC or the imposition
of a Lien on the Property of Borrower or any ERISA Affiliate thereof
pursuant to Section 4068 of ERISA.
(b) At any time, permit any Pension Plan which is maintained
by Borrower or to which Borrower is obligated to contribute on behalf of
its employees to fail to comply with ERISA or other applicable Laws in any
respect that would result in a Material Adverse Effect.
8.7 Business of Borrower. Engage in any material business which is
--------------------
not fundamentally related to the operation of Mohegan Sun, use any material
Authority Property for a purpose which is unrelated to the business of Borrower,
or make any fundamental change to the nature of the business operations of
Borrower.
8.8 Liens; Negative Pledges; Sales and Leasebacks. Create, incur,
---------------------------------------------
assume or suffer to exist any Lien or Right of Others of any nature upon or with
respect to Authority Property; or suffer to exist any Negative Pledge with
respect to any Authority Property; or engage in any sale and leaseback
transaction with respect to any Authority Property; except:
------
(a) Permitted Encumbrances and Permitted Rights of Others;
(b) Liens and Negative Pledges in favor of the Administrative
Agent or the Lenders under the Loan Documents;
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(c) Existing Liens disclosed in Schedule 7.8; provided that
--------
(i) the obligations secured thereby are not increased, and (ii) the Liens
and related Negative Pledges in favor of First Fidelity Bank and Fleet
National Bank disclosed on Schedule 7.8 as file numbers 0001709240 and
0001723520 shall be terminated in accordance with Section 10.2 prior to the
making of the Initial Advances and the issuance of the initial Letters of
Credit hereunder;
(d) Existing Rights of Others and Negative Pledges disclosed
in Schedule 7.8; and
(e) Purchase money Liens and associated Negative Pledges
incurred with respect to Property acquired using the proceeds of
Indebtedness and Capital Leases permitted under Section 7.9(h).
8.9 Indebtedness and Contingent Obligations. Create, incur, assume or
---------------------------------------
suffer to exist any Indebtedness or Contingent Obligation, except:
------
(a) Indebtedness and Contingent Obligations in favor of the
Lenders or the Administrative Agent under the Loan Documents;
(b) Indebtedness and Contingent Obligations consisting of
Approved Swap Agreements;
(c) Indebtedness evidenced by the Senior Unsecured Notes in an
aggregate principal amount not to exceed $200,000,000;
(d) defeased Indebtedness under the TCA Subordinated Notes;
(e) other existing Indebtedness and Contingent Obligations
disclosed on Schedule 7.9 and the renewal or refinancing, but not the
increase, thereof;
(f) the New Subordinated Notes in an aggregate outstanding
principal amount not to exceed $300,000,000;
(g) other Subordinated Obligations the incurrence of which is
approved by the Requisite Lenders;
(h) purchase money Indebtedness and Capital Lease Obligations
in an aggregate principal amount not to exceed $25,000,000; and
(i) unsecured Recourse Obligations in an aggregate principal
amount not to exceed $25,000,000.
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8.10 Transactions with Affiliates. Enter into any transaction of any
----------------------------
kind with any Affiliate of Borrower other than (a) employment of enrolled tribal
----------
members, and the immediate family members of tribal members, on terms consistent
with the past practices of Borrower (including the payment of employment bonuses
in accordance with past practices), (b) transactions involving Property having
an aggregate value of not more than $2,000,000 for all such transactions, (c)
transactions which are on commercially reasonable terms entered into with Native
American suppliers and vendors in accordance with the affirmative action
provisions of the Tribe's Employment Rights Ordinance and the Development
Services Agreement (in the case of any such transactions or series of related
transactions involving more than $2,000,000, on terms disclosed to the Lenders),
(d) other transactions on terms at least as favorable to Borrower as would be
the case in an arm's-length transaction between unrelated parties of equal
bargaining power, the terms of which are disclosed to the Lenders in writing,
and (e) transactions pursuant to the Development Services Agreement and
Relinquishment Agreement.
8.11 Authority Expenditures. Use any Authority Property for a purpose
----------------------
which is not related to the business of Borrower or specifically contemplated
hereby, expend any Authority funds for any purpose which does not directly or
indirectly benefit Borrower, or make any Capital Expenditure using funds of
Borrower or other Authority Property except to add to, further improve,
maintain, repair, restore or refurbish Mohegan Sun and Related Businesses.
8.12 Total Leverage Ratio. Permit the Total Leverage Ratio, as of the
--------------------
last day of any Fiscal Quarter described in the matrix below, to exceed the
ratio set forth opposite that Fiscal Quarter:
Fiscal Quarters Ending Maximum Ratio
---------------------- -------------
Closing Date through
December 31, 2000 3.50:1.00
March 31, 2001 4.00:1.00
June 30, 2001 through
December 31, 2001 5.00:1.00
March 31, 2002 4.00:1.00
June 30, 2002 and thereafter 3.50:1.00.
8.13 Senior Leverage Ratio. Permit the Senior Leverage Ratio, as of
---------------------
the last day of any Fiscal Quarter described in the matrix below, to exceed the
ratio set forth opposite that Fiscal Quarter:
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Fiscal Quarters Ending Maximum Ratio
---------------------- -------------
Closing Date through
December 31, 2000 2.00:1.00
March 31, 2001 2.50:1.00
June 30, 2001 3.00:1.00
September 30, 2001 3.25:1.00
December 31, 2001 3.00:1.00
March 31, 2002 2.50:1.00
June 30, 2002 and thereafter 2.00:1.00.
8.14 Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage
---------------------------
Ratio, as of that last day of any Fiscal Quarter described in the matrix below,
to be less than the ratio set forth opposite that Fiscal Quarter:
Fiscal Quarters Ending Minimum Ratio
---------------------- -------------
March 31, 1999 1.10:1.00
June 30, 1999 through
June 30, 2001 1.20:1.00
September 30, 2001 1.15:1.00
December 31, 2001 and
thereafter 1.50:1.00.
8.15 Capital Expenditures. Make, or become legally obligated to make,
--------------------
any Capital Expenditure other than:
----- ----
(a) Capital Expenditures made in accordance with the Plans and
Budget (and only following their approval in accordance with Section 6.12)
for the construction of the Proposed Expansion in an aggregate amount not
to exceed $800,000,000;
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(b) Maintenance Capital Expenditures in an aggregate amount
not to exceed $25,000,000 in any Fiscal Year;
(c) Capital Expenditures for Related Businesses which, when
aggregated with the Investments made pursuant to Section 7.3(g), do not
exceed $25,000,000; and
(d) Following the Completion Date, other Capital Expenditures
in an aggregate amount which does not exceed $40,000,000, in any Fiscal
Year.
8.16 Deposit Accounts. Fail, within ten days following the
----------------
opening of each such account, to execute and deliver to the Administrative Agent
Deposit Account Agreements granting Liens in each deposit, checking, brokerage
or other similar account of the Borrower which is opened following the Closing
Date with any bank, savings association, financial institution or similar
financial intermediary in which Cash or Cash Equivalents will be deposited.
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ARTICLE 9.
INFORMATION AND REPORTING REQUIREMENTS
--------------------------------------
9.1 Financial and Business Information. So long as any Advance
----------------------------------
remains unpaid, or any other Obligation remains unpaid or unperformed (other
than the obligations referenced in Section 3.18), or any portion of the
Commitment remains in force, Borrower shall, unless the Administrative Agent
(with the approval of the Requisite Lenders) otherwise consents, deliver to the
Administrative Agent and the Lenders, at Borrower's sole expense:
(a) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter, (i) the balance sheets of Borrower as
at the end of such Fiscal Quarter, (ii) statements of income and retained
earnings and of cash flow of Borrower as at the end of such Fiscal Quarter
and for the portion of the Fiscal Year ended with such Fiscal Quarter, and
(iii) the statements of cash flow of Borrower for such Fiscal Quarter and
for the portion of the Fiscal Year ended with such Fiscal Quarter, all in
reasonable detail. Such financial statements shall be certified by a Senior
Officer of Borrower as fairly presenting the financial condition, results
of operations and changes in financial position or cash flows of Borrower
in accordance with Generally Accepted Accounting Principles (other than any
requirement for footnote disclosures) consistently applied, as at such date
and for such periods, subject only to normal year-end accruals and audit
adjustments and shall be accompanied by a management narrative description
of results of operations;
(b) As soon as practicable, and in any event within 90 days
after the end of each Fiscal Year, (i) the balance sheets of Borrower as at
the end of such Fiscal Year, (ii) statements of income and retained
earnings and of cash flows of Borrower for such Fiscal Year, and (iii)
statements of cash flow of Borrower for such Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in accordance with
Generally Accepted Accounting Principles, consistently applied, and such
balance sheet and statements shall be accompanied by a report and opinion
of independent public accountants of recognized standing selected by
Borrower and reasonably satisfactory to the Requisite Lenders, which report
shall be based on an audit conducted in accordance with generally accepted
auditing standards as at such date, and which opinion shall be an
unqualified opinion without additional explanatory or non-standard wording
which the Requisite Lenders determine is unacceptable and with no
limitation as to the scope of their audit;
(c) Concurrently with the delivery of the financial
statements referred to in Sections 8.1(a) and 8.1(b), a written discussion
and analysis of the financial condition and results of operations of
Borrower in reasonable detail, including in the case of any such report
---------
delivered in connection with the financial statements referred to in
Section 8.1(b), an explanation of any material variance from operational
results or balance sheet items contained in projections previously
delivered to the Lenders;
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(d) As soon as practicable, and in any event within 20 days
after the end of each calendar month, a monthly revenue report showing
revenues for the prior calendar month associated with each gaming category,
occupancy percentage, and average hotel room rental rates experienced by
the Mohegan Sun during such monthly period;
(e) As soon as practicable, and in any event within 90 days
after the commencement of each Fiscal Year, projected financial statements
by Fiscal Year for each of the three Fiscal Years immediately subsequent to
that Fiscal Year, including, in each case, projected balance sheets,
---------
statements of income and retained earnings and statements of cash flow of
Borrower, all in reasonable detail and in any event to include (i)
projected Distributions to be made to the Tribe by Borrower and (ii)
projected Capital Expenditures;
(f) Promptly following receipt by Borrower, copies of any
detailed audit reports or recommendations submitted to Borrower or the
Tribe by independent accountants in connection with the accounts or books
of Borrower or any audit of Borrower;
(g) Promptly following a filing, copies of any specific
report or other document filed by Borrower (or by the Tribe in respect of
its gaming operations or any Authority Property) with any Governmental
Agency, including without limitation all reports which Borrower is required
to file with the National Indian Gaming Commission under 25 C.F.R. Part
514;
(h) Promptly after the same are available, a copy of the
Form 5500 series report of each Pension Plan maintained by Borrower as
filed with the Internal Revenue Service for each Fiscal Year;
(i) Promptly upon a Senior Officer of the Borrower or the
Tribe becoming aware, and in any event within thirty Business Days after
becoming aware, of the occurrence of any (i) "reportable event" (as such
term is defined in Section 4043 of ERISA) or (ii) "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the
Internal Revenue Code, Title 26, U.S.C.) in connection with any Pension
Plan or any trust created thereunder, written notice specifying the nature
thereof and specifying what action Borrower is taking or proposes to take
with respect thereto, and, when known, any action taken by the Internal
Revenue Service with respect thereto;
(j) As soon as practicable, and in any event not less than
10 days (or, if acceptable to the Administrative Agent, a shorter period)
prior to the proposed effective date thereof, written notice of any
proposed amendment, modification or
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waiver of the terms and provisions of any of the Material Documents or the
Plans and Budget.
(k) As soon as practicable, and in any event within five
Business Days after a Senior Officer of the Borrower or the Tribe becomes
aware of the existence of any condition or event which constitutes a
Default or Event of Default, written notice specifying the nature and
period of existence thereof and specifying what action Borrower and the
Tribe are taking or propose to take with respect thereto;
(l) Promptly upon a Senior Officer of the Borrower or the
Tribe becoming aware that (i) any Person has commenced a legal proceeding
with respect to a claim against Borrower or the Tribe that is, in the
reasonable opinion of their independent legal counsel, $5,000,000 or more
in excess of the amount thereof that is fully covered by insurance (subject
to applicable deductibles and retentions), (ii) any creditor or lessor
under a written credit agreement with respect to Indebtedness in excess of
$5,000,000 or lease involving unpaid rent in excess of $5,000,000 has
asserted a default thereunder on the part of Borrower or the Tribe, (iii)
any Person commenced a legal proceeding with respect to a claim against
Borrower or the Tribe under a contract that is not a credit agreement or
lease in excess of $5,000,000, (iv) any labor union has notified Borrower
or the Tribe of its intent to strike Borrower or the Tribe on a date
certain, which strike could reasonably be expected to have a Material
Adverse Effect, or (v) any other event or circumstance occurs or exists
that would constitute a Material Adverse Effect, in each case a written
notice describing the pertinent facts relating thereto and what action
Borrower and the Tribe are taking or propose to take with respect thereto;
(m) Not later than the fifteenth day of each calendar
month, such information as may be required for the completion of the
monthly Construction Progress Report; and
(n) Such other data and information regarding the Borrower
and the business of Mohegan Sun as from time to time may be reasonably
requested by the Administrative Agent or the Requisite Lenders.
9.2 Compliance Certificates. So long as any Advance remains unpaid,
-----------------------
or any other Obligation remains unpaid or unperformed (other than the
obligations referenced in Section 3.18), or any portion of the Commitment
remains outstanding, Borrower shall, unless the Requisite Lenders otherwise
consent, deliver to the Administrative Agent, at Borrower's sole expense,
concurrently with the financial statements required pursuant to Sections 8.1(a),
and 8.1(b), a Compliance Certificate signed by the chief financial officer or
chief executive officer of Borrower, together with a narrative description of
the results of the operations of Borrower.
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ARTICLE 10.
COVENANTS OF THE TRIBE
----------------------
So long as any Advance remains unpaid, or any other Obligation
remains unpaid or unperformed (other than the obligations referenced in Section
3.18), or any portion of the Commitment remains in force, the Tribe shall, and
shall cause the Borrower to, unless the Administrative Agent (with the approval
of the Requisite Lenders) otherwise consents:
10.1 Continual Operation of Mohegan Sun. Cause Borrower to
----------------------------------
continuously operate the Mohegan Sun and each principal amenity now or hereafter
associated therewith in the manner operated as of the Closing Date (or as
contemplated on the Closing Date to be operated) and in any event in compliance
with the Gaming Ordinance, the Gaming Authority Ordinance all applicable Laws
and the Compact, and refrain from conducting any gaming activities (including
without limitation all Class II and Class III gaming activities (as defined in
IGRA)) through any Person, agency or instrumentality other than Borrower or at
any location other than Mohegan Sun.
10.2 Remittance of Available Cash Flow. Cause Borrower, to the
---------------------------------
extent that Available Cash Flow exists, promptly and in any event within two
Business Days following demand by the Administrative Agent (with such demand to
be made only following the date upon which any such payment is due hereunder and
has not been made by Borrower), to remit to the Administrative Agent from
Available Cash Flow all payments of principal, interest, fees and other amounts
payable to the Creditors under the Loan Documents.
10.3 Sovereign Immunity; Jurisdiction and Venue. Refrain from
------------------------------------------
asserting that the provisions of this Article and Sections 13.18, 13.24, 13.26
and 13.27 are not valid, binding and legally enforceable against the Tribe and
Borrower, and reaffirm in writing upon request the valid, binding and
enforceable nature of the provisions of this Article and Sections 13.18, 13.24,
13.26 and 13.27.
10.4 The Landlord Consent. Continuously abide by the terms of
--------------------
the Landlord Consent.
10.5 Preservation of Existence; Operation.
------------------------------------
(a) Do all things necessary to maintain the existence of
the Tribe as a federally recognized Indian Tribe under 25 C.F.R. Part 83
and as an Indian Tribal government pursuant to Sections 7701(a)(40)(A) and
7871(a) of the Internal Revenue Code, Title 26 U.S.C.; and
(b) Continuously maintain the existence of Borrower as a
governmental instrumentality of Borrower.
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10.6 Ownership of Mohegan Sun; Management. Not form or acquire
------------------------------------
any corporation or other business entity for the purpose of directly or
indirectly owning Mohegan Sun or any interest therein, or engage any manager for
Mohegan Sun, provided that Borrower shall be entitled to form one or more
--------
wholly-owned Subsidiaries for the purpose of owning or operating the assets of
the Borrower provided that concurrently with their formation such Subsidiaries
execute a guarantee of the Obligations and Collateral Documents which are in
form and substance acceptable to the Administrative Agent and any and all other
documents reasonably required by the Administrative Agent in connection with the
Loan Documents.
10.7 Prohibited Transactions. Not accept any Distribution or
-----------------------
other payment from Borrower the making of which is prohibited hereunder (the
Tribe hereby agreeing that any such payment or Distribution so made will be held
by the Tribe in trust for the benefit of, and shall be paid forthwith over and
delivered, upon the request of the Administrative Agent or the Borrower, to
Borrower), or enter into any transaction with Borrower which is prohibited by
Section 7.10.
10.8 Amendments to Certain Documents.
-------------------------------
(a) Not amend, modify or waive any term or provision of
any Material Document, or waive any rights thereunder in any respect which
is adverse to the interests of the Administrative Agent or the Lenders,
provided that:
--------
(i) The terms of the Senior Unsecured Notes and
the Senior Unsecured Note Indenture may be amended, modified or
waived in any manner permitted thereunder;
(ii) The terms of the New Subordinated Notes and
the New Subordinated Notes Indenture may be amended, modified or
waived in any manner permitted thereunder which is not materially
adverse to the interests of the Lenders and which does not
shorten their maturity or the time for the making of any payment
thereunder, increase the rate of interest or affect in any manner
the subordination provisions thereof; and
(iii) The UCC Ordinance provides and shall provide
that any amendment to the Uniform Commercial Code as enacted from
time to time by Connecticut shall be automatically incorporated
in the Tribe's Uniform Commercial Code.
(b) In any event, not consent to any amendment,
modification, or waiver of any term or provision of any Material Document
in any manner without thirty days prior written notice to the Lenders.
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10.9 Impairment of Contracts; Imposition of Governmental Charges. The
-----------------------------------------------------------
Tribe shall not:
(a) Adopt, enact, promulgate or otherwise place into effect
any tribal Law which impairs or interferes, or could impair or interfere,
in any manner, with any right or remedy of the Creditors, the Obligations
of the Tribe or Borrower under this Agreement or the other Loan Documents
(it being understood and agreed that any such tribal Law which is adopted,
enacted, promulgated or otherwise placed into effect without the consent of
all of the Lenders shall, with respect to the Loan Documents, the rights
and remedies of the Creditors thereunder, and the Obligations, be void and
of no effect); or
(b) Demand, impose or receive any tax, charge, assessment, fee
or other imposition (except as specifically contemplated by Sections 7.2,
7.5 or 7.10) or impose any regulatory or licensing requirement, except as
------
provided in the Gaming Ordinance, against Borrower, its customers or
guests, its operations or Property (including without limitation Mohegan
Sun), the Creditors, the employees, officers, directors, patrons or vendors
of Borrower, other than (i) charges upon Borrower to pay the actual and
----- ----
reasonable regulatory expenditures of the Mohegan Tribal Gaming Commission
under the Gaming Ordinance, (ii) sales, use, room occupancy and related
excise taxes, including admissions and cabaret taxes and any other taxes
(other than income taxes) imposed by the Tribe on the Borrower, its
patrons, or operations, provided that the rate and scope of such taxes
shall not be more onerous than those which may be imposed by the State of
Connecticut, (iii) fees imposed on Borrower by the Commission under IGRA,
and (iv) the actual costs to the Tribe of services provided to Borrower
under the Town Agreement.
10.10 Segregation of Authority Assets. The Tribe shall not:
-------------------------------
(a) Fail to segregate all Authority Property, including all
funds and bank accounts, from the Property of the Tribe; or
(b) Commingle any Property of Borrower (including any funds or
bank accounts) with any Non-Authority Property or with any Property of its
Affiliates.
10.11 Trust Property. The Tribe shall not convey into trust with the
--------------
federal government of the United States of America, to be held for the benefit
of the Tribe or any of its Affiliates, any Property of the Tribe other than
----- ----
interests in real property.
10.12 Liens on Authority Property. The Tribe shall not create, incur,
---------------------------
assume or suffer to exist any Lien or other encumbrance upon Authority Property
which is not permitted by Section 7.8.
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10.13 Bankruptcy Matters; Etc.
-----------------------
(a) The Tribe will not enact any bankruptcy or similar law for the
relief of debtors that would impair, limit, restrict, delay or otherwise
adversely affect any of the rights and remedies of the Creditors provided
for in the Loan Documents;
(b) The Tribe will not, or permit Borrower or any of the Tribe's
representatives, political subunits, agencies, instrumentalities or
councils to, exercise any power of eminent domain over the Mohegan Sun.
Except as required by state or federal Law, the Tribe will not enact any
statute, law, ordinance or rule that would have a material adverse affect
upon the rights of the Creditors under the Loan Documents; and
(c) The Tribe agrees that upon any payment or distribution of
assets upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any
bankruptcy, insolvency or similar proceedings of or with respect to
Borrower, the Creditors shall be entitled to receive payment in full of all
Obligations before any payment or distribution is made to the Tribe.
10.14 Impairment of Contracts. The Tribe agrees that any action taken
-----------------------
in violation of Sections 9.8, 9.9 or 9.13 shall be deemed in contravention of
Article XIV (entitled "Non-Impairment of Contracts") of the Constitution.
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ARTICLE 11.
CONDITIONS
----------
11.1 Closing. The Closing Date is subject to the following conditions
-------
precedent, each of which shall be satisfied unless the Lenders, in their sole
and absolute discretion, shall agree otherwise:
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by each party thereto, each dated as of the Closing
Date and each in form and substance satisfactory to the Administrative
Agent and its legal counsel (unless otherwise specified or, in the case of
the date of any of the following, unless the Administrative Agent otherwise
agrees or directs):
(i) executed counterparts of this Agreement,
sufficient in number for distribution to the Administrative Agent, the
Lenders, the Tribe and Borrower;
(ii) Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Pro Rata
Share;
(iii) Such documentation as the Administrative Agent
may reasonably require to establish the due organization, valid
existence and good standing of the Tribe as a federally recognized
Indian Tribe, the formation, valid existence and good standing of the
Tribe and Borrower, their authority to execute, deliver and perform
any Loan Documents, and the identity, authority and capacity of each
Senior Officer authorized to act on their behalf, including, without
---------
limitation, certified copies of the Constitution, the Tribe's and
Borrower's charter and bylaws, and amendments thereto, resolutions,
incumbency certificates, Certificates of Senior Officers, and the
like;
(iv) the Security Agreement executed by Borrower,
together with sufficient copies of financing statements on Form UCC-1
(including such fixture filings as may be appropriate) for filing in
every jurisdiction in which Borrower owns Property;
(v) Deposit Account Agreements in favor of the
Administrative Agent executed by Borrower and the holder of each
deposit, brokerage or other similar account maintained by Borrower
with respect to each Operating Account executed by each party thereto;
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(vi) The Leasehold Mortgage executed by Borrower and
the Bureau of Indian Affairs and the Landlord Consent executed by the
Tribe;
(vii) the favorable written legal opinion of internal
counsel to Borrower, substantially in the form of Exhibit E, opining to the
absence of conflicts with the Constitution, tribal Law, and the matters
described in Section 4.2, together with copies of all factual certificates
and legal opinions upon which such counsel have relied;
(viii) the favorable written legal opinions of Xxxxx &
Xxxxxxx L.L.P., special counsel to Borrower, and Rome, XxXxxxxx, Xxxxxxxx
special Connecticut counsel to Borrower, substantially in the forms of
Exhibits F-1 and F-2 together with copies of all factual certificates and
legal opinions upon which such counsel have relied;
(ix) an advice letter of Xxxxxx & Whitney LLP,
special Indian law counsel to the Administrative Agent;
(x) a Certificate signed by a Senior Officer of the
Borrower and the Tribe certifying that the conditions specified in Sections
10.1(b), 10.1(d) and 10.1(e) have been satisfied and setting forth the
Total Leverage Ratio as of the Closing Date;
(xi) evidence that insurance, of the types and in the
amounts specified in the Loan Documents, is maintained in force by
Borrower, together with an executed form 438 BFU with respect thereto;
(xii) a Certificate signed by a Senior Officer of the
Borrower and the Tribe attaching true, correct and complete copies of each
of the Material Documents (including, in each case, any amendments or
modifications of the terms thereof entered into as of the Closing Date).
(xiii) The Tribe and First Union National Bank, as
Escrow Agent, shall have entered into the Construction Reserve Disbursement
Agreement, and the Administrative Agent shall have received evidence
satisfactory to it that the deposits referred to therein shall have been
made with First Union National Bank.
(xiv) evidence acceptable to the Administrative Agent
that the Defeasance Deposit has been established.
(xv) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably may require.
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(b) the Existing Senior Secured Notes shall have been or shall
concurrently be terminated and all such Indebtedness shall have been or
shall concurrently be repaid and retired, all Liens securing such
Indebtedness shall have been or shall concurrently be released and the
Lenders shall have received or shall concurrently receive all termination
statements, re-assignments, reconveyances and other assurances in
connection therewith as Administrative Agent shall require in its sole
discretion.
(c) The fees payable as of the Closing Date pursuant to Sections
3.2, 3.3 and 3.4 shall be paid concurrently.
(d) The representations and warranties of the Tribe and Borrower
contained in Articles 4 and 5, respectively, shall be true and correct.
(e) Borrower and any other Parties shall be in compliance with all
the terms and provisions of the Loan Documents, and no Default or Event of
Default shall have occurred and be continuing.
(f) The Bureau of Indian Affairs shall have given its written
approval of the transactions contemplated by this Agreement and the other
Loan Documents pursuant to 25 U.S.C (S)81 in a writing acceptable to the
Administrative Agent, and shall have delivered a letter acceptable to the
Administrative Agent stating that it is the finding of the Bureau of Indian
Affairs that the approval of the Loan Documents by the Bureau of Indian
Affairs is not a major federal action significantly affecting the human
environment.
11.2 Initial Advances. The obligation of each Lender to make the initial
----------------
Advance to be made by it, and the obligation of the Issuing Lender to issue the
initial Letter of Credit, is subject to the following conditions precedent, each
of which shall be satisfied prior to the making of the initial Advances (unless
the Lenders, in their sole and absolute discretion, shall agree otherwise):
(a) the Title Company shall have committed in writing to issue to the
Administrative Agent and the Lenders its ALTA policy of title insurance
with respect to the Leasehold Mortgage (contemplating an LP-10 pricing
package and based upon a completed Title Status Report issued by the Bureau
of Indian Affairs), with coverage in an amount not less than $425,000,000
and endorsements to and exceptions from coverage acceptable to the
Administrative Agent, together with reinsurance (allowing for direct
access) from reinsurers and in amounts acceptable to the Administrative
Agent.
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(b) the Leasehold Mortgage shall have been recorded with the Bureau
of Indian Affairs, with the Town of Montville, Connecticut, and with the
appropriate officials of the Tribe, and the Administrative Agent shall have
received evidence satisfactory to the Administrative Agent that all actions
necessary or, in the opinion of the Administrative Agent or the Lenders,
desirable to perfect and protect the Liens of the Collateral Documents have
been taken.
(c) the Administrative Agent shall have received a Request for Loan
or a Request for Letter of Credit, as appropriate.
(d) Borrower's letter of credit facility with Fleet National Bank
shall have been or shall concurrently be terminated and all such
Indebtedness shall have been or shall concurrently be repaid and retired,
all Liens securing such Indebtedness shall have been or shall concurrently
be released and the Lenders shall have received or shall concurrently
receive all termination statements, re-assignments, reconveyances and other
assurances in connection therewith as Administrative Agent shall require in
its sole discretion.
11.3 Any Increasing Advance. In addition to any applicable conditions
----------------------
precedent set forth elsewhere in this Article 10, and after giving effect to the
requested Advances, the obligation of each Lender to make any Advance which
would increase the principal amount outstanding under the Loan Documents, and
the obligation of the Issuing Lender to issue each Letter of Credit, is subject
to the following conditions precedent (unless the Requisite Lenders, in their
sole and absolute discretion, agree otherwise):
(a) except as disclosed by Borrower and approved in writing by the
Requisite Lenders, the representations and warranties contained in Article
5 (other than Sections 5.7 (first sentence) and 5.13) shall be true and
-----
correct on and as of the date of the Advance as though made on that date;
(b) other than matters described in Schedule 5.13 or not required as
of the Closing Date to be therein described, there shall not be then
pending or threatened any action, suit, proceeding or investigation against
or affecting Borrower or any of its Property before any Governmental Agency
that constitutes a Material Adverse Effect;
(c) no Default or Event of Default shall then exist;
(d) the Administrative Agent shall have timely received a Request for
Loan in compliance with Article 2 (or telephonic or other request for loan
referred to in the second sentence of Section 2.1(b), if applicable) in
compliance with Article 2, or the Issuing Lender and the Administrative
Agent shall have timely received a Request for Letter of Credit in
compliance with Article 2, as applicable; and
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(e) the Administrative Agent shall have received, in form and
substance reasonably satisfactory to the Administrative Agent, such other
assurances, certificates, documents or consents related to the foregoing as the
Administrative Agent reasonably may require.
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ARTICLE 12.
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
----------------------------------------------------
12.1 Events of Default. The existence or occurrence of any one or more of
-----------------
the following events, whatever the reason therefor and under any circumstances
whatsoever, shall constitute an Event of Default:
(a) Borrower fails to pay any principal on any of the Loans, or any
portion thereof, when due, or fails or to make full reimbursement with respect
to any Letter of Credit when due; or
(b) Borrower fails to pay any interest or any of the fees payable
under Article 3, or any portion thereof, within two Business Days after demand
therefor; or
(c) Borrower fails to pay any other fees or amounts payable to the
Lenders under any Loan Document, or any portion thereof, within three Business
Days after demand therefor; or
(d) Any failure to comply with Section 8.1(l) that is materially
adverse to the interests of the Administrative Agent or the Lenders; or
(e) The Tribe fails to perform or observe any of the covenants
contained in Article 9 or the Borrower fails to perform or observe any of the
covenants contained in Articles 7 or 8 (other than the covenant set forth in
Section 8.1(d)); or
(f) Borrower, the Tribe or any other Party fails to perform or
observe any other covenant or agreement contained in any Loan Document on its
part to be performed or observed within thirty Business Days after the giving of
notice by the Administrative Agent at the request of the Requisite Lenders of
such Default; or
(g) Any representation or warranty made in any Loan Document, or in
any certificate delivered pursuant to any Loan Document, proves to have been
incorrect when made or reaffirmed in any respect that is materially adverse to
the interests of the Administrative Agent or the Lenders; or
(h) At any time (i) Borrower fails to pay the principal, or any
principal installment, of any present or future indebtedness for borrowed money
of $10,000,000 or more, or any guaranty of present or future indebtedness for
borrowed money of $10,000,000 or more, on its part to be paid, when due (or
within any stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii) Borrower
fails to perform or observe any other term, covenant or agreement on its part to
be performed or observed, or suffers any event to
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occur, in connection with any present or future indebtedness for borrowed money
of $10,000,000 or more, or of any guaranty of present or future indebtedness for
borrowed money of $10,000,000 or more, if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee on its or their
behalf) has the right to declare such indebtedness due before the date on which
it otherwise would become due; or
(i) At any time (i) the Tribe fails to pay the principal, or any
principal installment, of any present or future indebtedness for borrowed money
of $10,000,000 or more, or any guaranty of present or future indebtedness for
borrowed money of $10,000,000 or more, on its part to be paid, when due (or
within any stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii) the Tribe
fails to perform or observe any other term, covenant or agreement on its part to
be performed or observed, or suffers any event to occur, in connection with any
present or future indebtedness for borrowed money of $10,000,000 or more, or of
any guaranty of present or future indebtedness for borrowed money of $10,000,000
or more, if as a result of such failure or sufferance any holder or holders
thereof (or an agent or trustee on its or their behalf) has the right to declare
such indebtedness due before the date on which it otherwise would become due; or
(j) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement of the Lenders or satisfaction in
full of all the Obligations, ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect which, in any such event in the reasonable opinion
of the Requisite Lenders, is materially adverse to the interests of the Lenders;
or Borrower or the Tribe denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
the same or any provision thereof; or
(k) Any event occurs which gives the holder or holders of any
Subordinated Obligation (or an agent or trustee on its or their behalf) the
right to declare such Subordinated Obligations due before the date on which it
otherwise would become due, or the right to require the issuer thereof to redeem
or purchase, or offer to redeem or purchase, all or any portion of any
Subordinated Obligations; or the trustee for, or any holder of, Subordinated
Obligations breaches any subordination provision applicable to such Subordinated
Obligations; or
(l) A final judgment is entered by a court or other tribunal which
purports to be of competent jurisdiction that any Subordinated Obligation is not
subordinated in accordance with its terms to the Obligations; or
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(m) A judgment against the Tribe or Borrower is entered for the
payment of money in excess of $10,000,000 and, absent procurement of a stay of
execution, such judgment remains unbonded or unsatisfied for thirty calendar
days after the date of entry of judgment (unless the Tribe or Borrower has
deposited the amount of the monetary award associated with such judgment into a
court escrow pending determination of an appeal), or in any event later than
five days prior to the date of any proposed sale thereunder; or
(n) The Tribe or Borrower institutes or consents to any proceeding
under a Debtor Relief Law relating to it or to all or any part of their
respective Property, or is unable or admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any part of its Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of the Tribe or Borrower and the appointment continues
undischarged or unstayed for sixty calendar days; or any proceeding under a
Debtor Relief Law relating to the Tribe or Borrower or to all or any part of
their Property is instituted without their consent and continues undismissed or
unstayed for sixty calendar days; or any judgment, writ, warrant of attachment
or execution or similar process is issued or levied against all or any material
part of the Authority Property and is not released, vacated or fully bonded
within sixty calendar days after its issue or levy; or
(o) The Tribe at any time ceases to be a federally recognized Indian
Tribe; or
(p) The occurrence of a Termination Event with respect to any
Pension Plan if the aggregate liability of Borrower and its ERISA Affiliates
under ERISA as a result thereof exceeds $5,000,000; or the complete or partial
withdrawal by Borrower or any of its ERISA Affiliates from any Multiemployer
Plan if the aggregate liability of Borrower and its ERISA affiliates as a result
thereof exceeds $5,000,000; or
(q) The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Loan Document) under any other
Loan Document; or
(r) Borrower ceases to be a wholly-owned instrumentality of the
Tribe, managed and controlled by the Tribe; or
(s) The occurrence of any event or circumstance which results in
the failure of Borrower to have any material portion of the Mohegan Sun open to
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conduct Class II or Class III gaming activities for any reason for more than
five consecutive days to the extent that such failure results in a Material
Adverse Effect (nothing in this clause requiring the conduct of gaming
operations at the Proposed Expansion prior to the opening thereof); or
(t) The occurrence of any event or circumstance which results in
the prohibition of the Tribe to conduct Class II or Class III gaming activities
at Mohegan Sun through the Borrower for a period in excess of five consecutive
days (nothing in this clause requiring the conduct of gaming operations at the
Proposed Expansion prior to the opening thereof); or
(u) Any Change in Control occurs.
12.2 Remedies Upon Event of Default. Without limiting any other rights or
------------------------------
remedies of the Administrative Agent or the Lenders provided for elsewhere in
this Agreement, or the Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 11.1(n):
(i) the commitment to make Advances and issue Letters of
Credit and all other obligations of the Administrative Agent, the Issuing
Lender and the Lenders and all rights of Borrower and any other Parties
under the Loan Documents shall be suspended without notice to or demand
upon the Tribe or Borrower, which are expressly waived by the Tribe and
Borrower, except that the Requisite Lenders (or, in the case of any Event
------
of Default which arises under a provision of the Loan Documents the
amendment of which requires the consent of all the Lenders under Section
13.2, all of the Lenders) may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to such Lenders,
to reinstate the Commitment and make further Advances and issue further
Letters of Credit, which waiver or determination shall apply equally to,
and shall be binding upon, all of the Lenders;
(ii) the Issuing Lender may, with the approval of the
Administrative Agent on behalf of the Requisite Lenders, demand immediate
payment by Borrower of an amount equal to the aggregate amount of all
outstanding Letters of Credit; and
(iii) the Requisite Lenders may request the Administrative
Agent to, and the Administrative Agent thereupon shall, terminate the
Commitment and declare all or any part of the unpaid principal of all
Loans, all interest accrued and unpaid thereon and all other amounts
payable under the
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Loan Documents to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower.
(b) Upon the occurrence of any Event of Default described in Section
11.1(n):
(i) the commitment to make Advances and issue Letters of
Credit and all other obligations of the Administrative Agent, the Issuing
Lender and the Lenders and all rights of Borrower and any other Parties
under the Loan Documents shall terminate without notice to or demand upon
Borrower, which are expressly waived by Borrower and the Tribe;
(ii) an amount equal to the aggregate amount available for
drawing under outstanding Letters of Credit shall forthwith become due and
payable to the Issuing Lender without protest, presentment, notice of
dishonor demand or further notice of any kind, all of which are waived by
Borrower and the Tribe to be held by the Issuing Lender as cash collateral
for the Obligations to the Issuing Lender in non-interest bearing accounts
with the Issuing Lender; and;
(iii) the unpaid principal of all Loans, all interest accrued
and unpaid thereon and all other amounts payable under the Loan Documents
shall be forthwith due and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which are expressly
waived by Borrower and the Tribe.
(c) Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent, without notice or demand upon Borrower or the
Tribe, which are expressly waived by Borrower and the Tribe, may proceed in
accordance with applicable Laws (but only with the consent of the Requisite
Lenders) to protect, exercise and enforce their rights and remedies under the
Loan Documents (including the Collateral Documents) against Borrower, the Tribe
and any other Party and such other rights and remedies as are provided by Law or
equity.
(d) The order and manner in which the Lenders' rights and remedies
are to be exercised shall be determined by the Requisite Lenders in their sole
discretion, and all payments received after the occurrence of any Default or
Event of Default by the Administrative Agent and the Lenders, or any of them,
shall be applied first to the costs and expenses (including attorneys' fees and
disbursements payable pursuant to Section 13.3) of the Administrative Agent,
acting as Administrative Agent, and of the Lenders, and thereafter paid pro rata
to the Lenders in the same proportions that the aggregate Obligations owed to
each Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all the Lenders, without priority or preference
among the Lenders. Regardless
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of how each Lender may treat payments for the purpose of its own accounting, for
the purpose of computing the Obligations hereunder and under the other Loan
Documents, payments shall be applied first, to the costs and expenses of the
-----
Administrative Agent, acting as the Administrative Agent, and the Lenders, as
set forth above, second, to the payment of accrued and unpaid interest due under
------
any Loan Documents to and including the date of such application (ratably, and
without duplication, according to the accrued and unpaid interest due under each
of the Loan Documents), and third, to the payment of all other amounts
-----
(including principal and fees) then owing to the Administrative Agent or the
Lenders under the Loan Documents. No application of payments will cure any Event
of Default, or prevent acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the exercise, or continued
exercise, of rights or remedies of the Lenders hereunder or thereunder or at law
or in equity.
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ARTICLE 13.
THE ADMINISTRATIVE AGENT
------------------------
13.1 Appointment and Authorization. Each Lender hereby irrevocably
-----------------------------
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Loan Documents as are delegated
to the Administrative Agent by the terms thereof or are reasonably incidental,
as determined by the Administrative Agent, thereto. This appointment and
authorization is intended solely for the purpose of facilitating the servicing
of the Loans and Letters of Credit and does not constitute appointment of the
Administrative Agent as trustee for any Lender or as representative of any
Lender for any other purpose and, except as specifically set forth in the Loan
------
Documents to the contrary, the Administrative Agent shall take such action and
exercise such powers only in an administrative and ministerial capacity. The
Administrative Agent is the agent of the Lenders only and does not assume any
agency relationship with the Tribe or Borrower, express or implied.
13.2 Business Activities with the Tribe and Borrower. Bank of America
-----------------------------------------------
(and each successor Administrative Agent) has the same rights and powers under
the Loan Documents as any other Lender and may exercise the same as though it
was not the Administrative Agent, and the term "Lender" or "Lenders" includes
Bank of America in its individual capacity. Each Lender (including Bank of
America and each successor Administrative Agent) and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Tribe or Borrower or any of their Affiliates. Bank of
America may engage in these activities in the same manner as the other Lenders
as if it was not the Administrative Agent and without any duty to account
therefor to the Lenders. Bank of America (and each successor Administrative
Agent) need not account to any other Lender for any monies received by it for
reimbursement of its costs and expenses as Administrative Agent hereunder, or
for any monies received by it in its capacity as a Lender hereunder. The
Administrative Agent shall not be deemed to hold a fiduciary, trust or other
special relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
13.3 Proportionate Interest of the Lenders in any Collateral. The
-------------------------------------------------------
Administrative Agent, on behalf of all the Lenders, shall hold in accordance
with the Loan Documents all items of any collateral or interests therein
received or held by the Administrative Agent. Subject to the Administrative
Agent's and the Lenders' rights to reimbursement for their costs and expenses
hereunder (including attorneys' fees and disbursements and other professional
---------
services), each Lender shall have an interest in any collateral or interests
therein in the same proportions that the aggregate Obligations owed such Lender
under the Loan Documents (other than an Approved Swap Agreement) bear to the
aggregate Obligations owed under the Loan Documents to all the Lenders, without
priority or preference among the Lenders. Any obligation owed to a Lender under
an Approved Swap Agreement shall rank pari passu with the Obligations under the
---- -----
Loan Documents up to an amount equal to the Swap Termination Value (as
determined by the
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Administrative Agent) of that Approved Swap Agreement, and shall be subordinate
to the Obligations under other Loan Documents to the extent of any excess over
such amount.
13.4 Lenders' Credit Decisions. Each Lender agrees that it has,
-------------------------
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of the Tribe and Borrower and upon
such other information as it has deemed appropriate, made its own independent
credit analysis and decision to enter into this Agreement. Each Lender also
agrees that it shall, independently and without reliance upon the Administrative
Agent, any other Lender or the directors, officers, agents, employees or
attorneys of the Administrative Agent or of any other Lender, continue to make
its own independent credit analyses and decisions in acting or not acting under
the Loan Documents.
13.5 Action by Administrative Agent.
------------------------------
(a) The Administrative Agent may assume that no Default or Event
of Default has occurred and is continuing, unless the Administrative Agent
has received notice from the Tribe or Borrower stating the nature of the
Default or Event of Default or has received notice from a Lender stating
the nature of the Default or Event of Default and that such Lender
considers the Default or Event of Default to have occurred and to be
continuing.
(b) The Administrative Agent has only those obligations under
the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
------
Documents and as long as the Administrative Agent may assume that no Event
of Default has occurred and is continuing, the Administrative Agent may,
but shall not be required to, exercise its discretion to act or not act,
except that the Administrative Agent shall be required to act or not act
------
upon the instructions of the Requisite Lenders (or of all the Lenders, to
the extent required by Section 13.2) and those instructions shall be
binding upon the Administrative Agent and all the Lenders, provided that
--------
the Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent .
(d) If the Administrative Agent has received a notice specified
in clause (a), the Administrative Agent shall give notice thereof to the
Lenders and shall act or not act upon the instructions of the Requisite
Lenders (or of all the Lenders, to the extent required by Section 13.2),
provided that the Administrative Agent shall not be required to act or not
--------
act if to do so would be contrary to any Loan Document or to applicable Law
or would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent, and except that
------
if the Requisite Lenders (or all the Lenders, if required under Section
13.2) fail, for five Business Days after the receipt of notice from the
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Administrative Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its sole discretion, may act or not act as it
deems advisable for the protection of the interests of the Lenders, until
such time as it receives such a notice from the Requisite Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting as instructed by the Requisite Lenders, or for refraining
from acting, if so instructed by the Requisite Lenders (or, in each case,
all the Lenders, if required under Section 13.2), notwithstanding any other
provision hereof.
13.6 Liability of Administrative Agent. Neither the Administrative
---------------------------------
Agent nor any of its directors, officers, agents, employees or attorneys shall
be liable for any action taken or not taken by them under or in connection with
the Loan Documents, except for their own gross negligence or willful misconduct.
------
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat each Lender identified on Schedule 1.1 as the
owner of its Pro Rata Share until the Administrative Agent receives notice
of the assignment or transfer thereof, in form satisfactory to the
Administrative Agent, signed by the payee, and may treat each Lender as the
owner of that Lender's interest in the Obligations for all purposes of this
Agreement until the Administrative Agent receives notice of the assignment
or transfer thereof, in form satisfactory to the Administrative Agent,
signed by that Lender.
(b) May consult with legal counsel (including in-house legal
---------
counsel), accountants (including in-house accountants) and other
---------
professionals or experts selected by it, or with legal counsel, accountants
or other professionals or experts for the Tribe, Borrower or the Lenders,
and shall not be liable for any action taken or not taken by it in good
faith in accordance with any advice of such legal counsel, accountants or
other professionals or experts.
(c) Shall not be responsible to any Lender for any statement,
warranty or representation made in any of the Loan Documents or in any
notice, certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents.
(d) Except to the extent expressly set forth in the Loan
------
Documents, shall have no duty to ask or inquire as to the performance or
observance by the Tribe, Borrower or any other Party of any of the terms,
conditions or covenants of any of the Loan Documents or to inspect any
collateral or the Property, books or records of the Tribe or Borrower.
(e) Will not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency
or value of any Loan Document, any other instrument or writing furnished
pursuant thereto or in connection therewith, or any collateral.
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(f) Will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, request or
other instrument or writing believed by it to be genuine and signed or sent
by the proper party or parties.
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by the Borrower or any Affiliate thereof
or paid or payable to or received or receivable from any Lender under any
Loan Document, including, without limitation, principal, interest, commitment
---------
fees, Advances and other amounts; provided that, promptly upon discovery of
--------
such an error in computation, the Administrative Agent, the Lenders and (to
the extent applicable) Borrower or its Affiliates shall make such adjustments
as are necessary to correct such error and to restore the parties to the
position that they would have occupied had the error not occurred.
13.7 Indemnification. Each Lender shall, ratably in accordance with
---------------
its Pro Rata Share, indemnify and hold the Administrative Agent and its
directors, officers, agents, employees and attorneys harmless against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(including reasonable attorneys' fees and disbursements) that may be imposed on,
---------
incurred by or asserted against it or them in any way relating to or arising out
of the Loan Documents (other than losses incurred by reason of the failure of
Borrower to pay the indebtedness represented by the Loan Documents) or any
action taken or not taken by it as Administrative Agent thereunder, except such
as result from its own gross negligence or willful misconduct. Without
limitation on the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for that Lender's ratable share of any cost or expense
incurred by the Administrative Agent in connection with the negotiation,
preparation, execution, delivery, amendment, waiver, restructuring,
reorganization (including a bankruptcy reorganization), enforcement or attempted
---------
enforcement of the Loan Documents.
13.8 Successor Administrative Agent. The Administrative Agent may,
------------------------------
and at the request of the Requisite Lenders shall, resign as Administrative
Agent (i) upon 30 days' notice to the Borrower and the Lenders or (ii) if the
Administrative Agent determines that for it to continue as Administrative Agent
would result in a conflict of interest affecting the Administrative Agent, or
would create an unacceptable risk of significant liability of the Administrative
Agent to a third party, or would otherwise be inadvisable under prevailing
standards of banking prudence, at any time, and effective immediately upon
written notice to Borrower and the Lenders. If the Administrative Agent so
resigns, (a) the Requisite Lenders shall appoint a successor Administrative
Agent, who must be from among the Lenders (and reasonably acceptable to Borrower
unless an Event of Default exists), provided that any resigning Administrative
--------
Agent shall be entitled to appoint a successor Administrative Agent from among
the Lenders, subject to acceptance of appointment by that successor
Administrative Agent, if the Requisite Lenders have not appointed a successor
Administrative Agent within 30 days after the date the resigning Administrative
Agent gave notice of resignation; (b) upon a successor's acceptance of
appointment
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as Administrative Agent, the successor will thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning
Administrative Agent or the removed Administrative Agent; and (c) upon the
effectiveness of any resignation, the resigning Administrative Agent thereupon
will be discharged from its duties and obligations thereafter arising under the
Loan Documents other than obligations arising as a result of any action or
inaction of the resigning Administrative Agent prior to the effectiveness of
such resignation. Upon any resignation of Bank of America (or any successor
Administrative Agent) as Administrative Agent, Bank of America (or such
successor) shall be deemed to have concurrently resigned as Issuing Lender with
respect to the issuance of any further Letters of Credit hereunder (including
without limitation the extension of the expiration of any outstanding Letter of
Credit), and the successor Administrative Agent shall (i) be deemed concurrently
appointed as Issuing Lender, and (ii) shall promptly issue Letters of Credit to
replace or support any outstanding Letters of Credit issued by Bank of America.
13.9 Performance of Conditions. For the purpose of determining
-------------------------
fulfillment by the Tribe and Borrower of conditions precedent specified in
Section 10.1 and Section 10.2 only, each Lender shall be deemed to have
consented to, and approved or accepted, or to be satisfied with each document or
other matter sent by the Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required under Article 10 to be
consented to, or approved by or acceptable or satisfactory to, that Lender,
unless an officer of the Administrative Agent who is responsible for the
transactions contemplated by the Loan Documents shall have received written
notice from that Lender prior to the making of the requested Loan or the
issuance of the requested Letter of Credit specifying its objection thereto and
either (i) such objection shall not have been withdrawn by written notice to the
Administrative Agent or (ii) in the case of any condition to the making of a
Loan, that Lender shall not have made available to the Administrative Agent that
Lender's Pro Rata Share of such Loan.
13.10 Collateral Matters.
------------------
(a) The Administrative Agent is authorized by each Lender, without
the necessity of any notice to or further consent from any Lender, and
without the obligation to take any such action, to take any action with
respect to any Collateral or any Collateral Document which may from time to
time be necessary to perfect and maintain perfected the Liens of the
Collateral Documents.
(b) The Lenders irrevocably authorize the Administrative Agent, at
its option and in its discretion, to release any Lien granted to or held by
the Administrative Agent upon any Collateral (i) upon termination of the
Commitment and the payment in full of all Loans and all other Obligations
payable under this Agreement (other than the obligations referenced in
Section 3.18) and under the other Loan Documents; (ii) constituting Property
of Borrower or its Affiliates which is sold, transferred or otherwise
disposed of in connection with any transaction not prohibited by this
Agreement or the Loan Documents; (iii) constituting Property leased to
Borrower under an operating lease which has expired or been
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terminated in a transaction not prohibited by this Agreement or which will
concurrently expire and which has not been and is not intended by the
Borrower to be, renewed or extended; (iv) consisting of an instrument, if
the Indebtedness evidenced thereby has been paid in full; or (v) if approved
or consented to by those of the Lenders required by Section 13.2. Upon
request by the Administrative Agent, the Lenders will confirm in writing the
Administrative Agent's authority to release particular types or items of
Collateral pursuant to this Section.
13.11 No Obligations of Borrower or the Tribe. Nothing contained in
---------------------------------------
this Article 12 shall be deemed to impose upon Borrower or the Tribe any
obligation in respect of the due and punctual performance by the Administrative
Agent of its obligations to the Lenders under any provision of this Agreement,
and the Tribe and Borrower shall have no liability to the Administrative Agent
or any of the Lenders in respect of any failure by the Administrative Agent or
any Lender to perform any of its obligations to the Administrative Agent or the
Lenders under this Agreement.
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ARTICLE 14.
MISCELLANEOUS
-------------
14.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
------------------------------
remedies of the Creditors provided herein and in the other Loan Documents are
cumulative and not exclusive of any right, power, privilege or remedy provided
by Law or equity. No failure or delay on the part of any Creditor in exercising
any right, power, privilege or remedy may be, or may be deemed to be, a waiver
thereof; nor may any single or partial exercise of any right, power, privilege
or remedy preclude any other or further exercise of the same or any other right,
power, privilege or remedy. The terms and conditions of Article 10 hereof are
inserted for the sole benefit of the Creditors and may be waived in whole or in
part, with or without terms or conditions, in respect of any Loan or Letter of
Credit without prejudicing the Creditors' right to assert them in whole or in
part in respect of any other Loan or Letter of Credit.
14.2 Amendments; Consents. No amendment, modification, supplement,
--------------------
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrower or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the approval
in writing of the Requisite Lenders, and then only in the specific instance and
for the specific purpose given; and, without the approval in writing of all the
Lenders, no amendment, modification, supplement, termination, waiver or consent
may be effective:
(a) To (i) amend or modify the principal of, or the amount of
principal, principal repayments on, any Obligation, (ii) increase the amount
of the Commitment except as contemplated by Section 2.7, or (iii) decrease
the rate of interest or any commitment fee payable to any Lender, or any
other fee or amount payable to any Lender under the Loan Documents;
(b) Except as otherwise expressly provided for herein, to postpone
any date fixed for any payment of principal of, prepayment of principal of
or any installment of interest on, any Obligation or any installment of any
commitment fee or other credit fee payable to any Lender, to extend the
Maturity Date or any Reduction Date, or to release any Collateral (except as
specifically provided for in any Loan Document);
(c) To amend, modify or waive the provisions of the definitions of
"Available Cash Flow" or "Requisite Lenders" or amend or modify Article 9,
------------------- -----------------
Sections 11.1(o), 11.1(r), 11.1(t), and 11.1(u) this Section, or Sections
13.18, 13.24, 13.26 or 13.27;
(d) To amend or modify any provision of this Agreement in a manner
which materially and adversely affects the Administrative Agent or the
Issuing Lender without their written consent;
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(e) To amend or modify any provision of this Agreement that
expressly requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 13.2 shall apply equally to, and shall be binding upon, all of
the Creditors.
14.3 Costs, Expenses and Taxes. Borrower shall pay on demand the
-------------------------
reasonable costs and expenses of (a) the Administrative Agent and the Lead
Arranger in connection with the negotiation, preparation, syndication, closing,
execution and delivery of the Loan Documents, including without limitation, the
reasonable attorneys' fees and disbursements of Sheppard, Mullin, Xxxxxxx &
Xxxxxxx LLP and Xxxxxx & Whitney, LLP and the allocated cost of any internal
counsel to the Administrative Agent, (b) the Construction Consultant in
connection with the monitoring services provided by the Construction Consultant
(all as more fully set out in a letter agreement between the Administrative
Agent and the Borrower), (c) the Administrative Agent, in connection with each
amendment executed when no Default or Event of Default exists, and (d) each of
the Creditors in connection with each refinancing, restructuring, reorganization
(including a bankruptcy reorganization) and enforcement or attempted enforcement
---------
of the Loan Documents, and any matter related thereto, in each case including,
---------
filing fees, recording fees, title insurance fees, appraisal fees, search fees
and other out-of-pocket expenses and the reasonable fees and out-of-pocket
expenses of any legal counsel (including the allocated fees and all
disbursements and other expenses of any internal legal counsel), independent
public accountants and other outside experts retained by the Administrative
Agent or any Lender, and including, without limitation, any costs, expenses or
fees incurred or suffered by the Creditors in connection with or during the
course of any bankruptcy or insolvency proceedings of Borrower. Borrower shall
pay any and all documentary and other taxes (other than income or gross receipts
taxes generally applicable to banks) and all costs, expenses, fees and charges
payable or determined to be payable in connection with the filing or recording
of this Agreement, any other Loan Document or any other instrument or writing to
be delivered hereunder or thereunder, or in connection with any transaction
pursuant hereto or thereto, and shall reimburse, hold harmless and indemnify the
Administrative Agent and the Lenders from and against any and all loss,
liability or legal or other expense with respect to or resulting from any delay
in paying or failure to pay any such tax, cost, expense, fee or charge or that
any of them may suffer or incur by reason of the failure of any Party to perform
any of its Obligations. Any amount payable to the Administrative Agent or any
Lender under this Section shall bear interest at the Default Rate.
14.4 Nature of the Lenders' Obligations. The obligations of the Lenders
----------------------------------
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the
Administrative Agent or the Lenders or any of them pursuant hereto or thereto
may, or may be deemed to, make the Lenders a partnership, an association, a
joint venture or other entity, either among themselves or with the Borrower or
any Affiliate of the Borrower. Each Lender's obligation to make any Advance
pursuant hereto is several and not joint or joint and several. A default by any
Lender will not increase the percentage of the Commitment attributable to any
other Lender. Any Lender not in default may, if it desires,
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assume in such proportion as the nondefaulting Lenders agree the obligations of
any Lender in default, but is not obligated to do so.
14.5 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties contained herein or in any other Loan Document, or in any
certificate or other writing delivered by or on behalf of any one or more of the
Parties to any Loan Document, will survive the making of the Loans and the
issuance of Letters of Credit hereunder and the execution and delivery of the
Loan Documents, and have been or will be relied upon by the Administrative Agent
and each Lender, notwithstanding any investigation made by the Administrative
Agent or any Lender or on their behalf.
14.6 Notices. Except as otherwise expressly provided in the Loan
-------
Documents (a) all notices, requests, demands, directions and other
communications provided for hereunder or under any other Loan Document must be
in writing and must be mailed, telegraphed, telecopied, delivered or sent by
recognized overnight courier service, to the appropriate party at the address
set forth on the signature pages of this Agreement or other applicable Loan
Document or, as to any party to any Loan Document, at any other address as may
be designated by it in a written notice sent to all other parties to such Loan
Document in accordance with this Section; and (b) any notice, request, demand,
direction or other communication given by telecopier, must be confirmed within
48 hours by letter mailed or delivered to the appropriate party at its
respective address. Except as otherwise expressly provided in any Loan Document,
if any notice, request, demand, direction or other communication required or
permitted by any Loan Document is given by mail it will be effective on the
earlier of receipt or the third Business Day after deposit in the United States
mail with first class or airmail postage prepaid; if given by telegraph or
cable, when delivered to the telegraph company with charges prepaid; if given by
telex or telecopier, when sent; or if given by personal delivery, when
delivered. Notices given by the Borrower under Articles 2 and 3 shall be deemed
given on actual receipt by the Administrative Agent.
14.7 Execution of Loan Documents. Unless the Administrative Agent
---------------------------
otherwise specifies with respect to any Loan Document, this Agreement and any
other Loan Document may be executed in any number of counterparts and any party
hereto or thereto may execute any counterpart, each of which when executed and
delivered will be deemed to be an original and all of which counterparts of this
Agreement or any other Loan Document, as the case may be, when taken together
will be deemed to be but one and the same instrument. The execution of this
Agreement or any other Loan Document by any party hereto or thereto will not
become effective until counterparts hereof or thereof, as the case may be, have
been executed by all the parties hereto or thereto.
14.8 Binding Effect; Assignment.
--------------------------
(a) This Agreement and the other Loan Documents shall be binding
upon and shall inure to the benefit of the parties hereto and thereto and
their respective successors and assigns, except that Borrower and its
Affiliates may not assign their rights hereunder or
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thereunder or any interest herein or therein without the prior written
consent of all the Lenders. Any assignment by the Borrower or its Affiliates
without the prior written consent of the Lenders shall be void, provided
that no Person other than the Lenders shall have any rights under this
sentence. Each Lender represents that it is not acquiring any Note with a
view to the distribution thereof within the meaning of the Securities Act of
1933, as amended (subject to any requirement that disposition of such Notes
must be within the control of such Lender). Any Lender may at any time
pledge its Note, if any, or any other instrument evidencing its rights as a
Lender under this Agreement to a Federal Reserve Bank, but no such pledge
shall release that Lender from its obligations hereunder or grant to such
Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of
such pledge.
(b) From time to time following the Closing Date, each Lender may
assign to one or more Eligible Assignees all or any portion of its Pro Rata
Share; provided that (i) such Eligible Assignee, if not then a Lender or an
Affiliate of the assigning Lender, shall be approved by each of the
Administrative Agent and Borrower (neither of which approvals shall be
unreasonably withheld or delayed), (ii) such assignment shall be evidenced
by an Assignment Agreement, a copy of which shall be furnished to the
Administrative Agent, (iii) except in the case of an assignment to an
Affiliate of the assigning Lender or to another Lender of the entire
remaining Commitment of the assigning Lender, the assignment shall be of a
Pro Rata Share of not less than $10,000,000, and (iv) the effective date of
any such assignment shall be as specified in the Assignment Agreement, but
not earlier than the date which is five Business Days after the date the
Administrative Agent has received the Assignment Agreement unless the
Administrative Agent otherwise agrees. Upon the effective date of such
Assignment Agreement, the Eligible Assignee named therein shall be a Lender
for all purposes of this Agreement, with the Pro Rata Share set forth
therein and, to the extent of such Pro Rata Share, the assigning Lender
shall be released from its further obligations under this Agreement.
Borrower agrees that it shall execute and deliver (against delivery by the
assigning Lender to Borrower of any Note in its possession) to such assignee
Lender, a Note evidencing that assignee Lender's Pro Rata Share, and to the
assigning Lender, a Note evidencing the remaining balance Pro Rata Share
retained by the assigning Lender (in each case, if Notes are requested by
such Assignee under Section 2.1).
(c) By executing and delivering an Assignment Agreement, the
Eligible Assignee thereunder acknowledges and agrees that: (i) other than
the representation and warranty that it is the legal and beneficial owner of
the Pro Rata Share being assigned thereby free and clear of any adverse
claim, the assigning Lender has made no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or sufficiency of
this Agreement or any other Loan Document; (ii) the assigning Lender has
made no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or the performance by
Borrower of the Obligations; (iii) it has received a copy of this Agreement,
together with copies of the most recent financial statements delivered
pursuant to Section 8.1 and such other
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documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment Agreement; (iv)
it will, independently and without reliance upon the Administrative Agent or
any Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement; (v) it appoints and authorizes
the Administrative Agent to take such action and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by this
Agreement; and (vi) it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent shall maintain at the Administrative
Agent's Office a copy of each Assignment Agreement delivered to it. After
receipt of a completed Assignment Agreement executed by any Lender and an
Eligible Assignee, and receipt of an assignment fee of $3,500 from such
Eligible Assignee, Administrative Agent shall, promptly following the
effective date thereof, provide notice thereof to Borrower and the Lenders.
(e) Each Lender may grant participations from time to time in a
portion of its Pro Rata Share to one or more banks or other financial
institutions (including another Lender); provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
financial institutions shall not be a Lender hereunder for any purpose
except, if the participation agreement so provides, for the purposes of
Sections 3.7, 3.8, 13.11 and 13.15, (iv) Borrower and the other Creditors
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement, (v) the
participation interest shall be expressed as a percentage of the granting
Lender's Pro Rata Share as it then exists and shall not restrict an increase
in the Commitment, or in the granting Lender's Pro Rata Share, so long as
the amount of the participation interest is not affected thereby, and (vi)
the consent of the holder of such participation interest shall not be
required for amendments or waivers of provisions of the Loan Documents other
-----
than those which (A) extend the Maturity Date, any Reduction Date or any
----
date upon which any payment of money is due to the Lenders, (B) reduce the
rate of interest on the Loans, any fee or any other monetary amount payable
to the Lenders, (C) reduce the amount of any installment of principal due
with respect to the Loans, or (D) release any material portion of the
Collateral.
(f) Any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC") of such Granting Lender, identified as such in
writing from time to time by the Granting Lender to the Administrative Agent
and the Borrower, the option to provide all or any part of any Advance that
such Granting Lender would otherwise be obligated to make pursuant to
Article 2, provided that (i) nothing herein shall constitute a commitment to
make any Advance by any SPC, (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Advance, the
Granting Lender shall be obligated to make such Advance pursuant to the
terms hereof, and (iii) the rights of any such SPC shall be derivative of
the rights of the Granting Lender. Each SPC shall be
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conclusively presumed to have made arrangements with its Granting Lender for
the exercise of voting and other rights hereunder in a manner which is
acceptable to the SPC, and the Administrative Agent, the other Creditors and
each other Party shall be entitled to rely upon and deal solely with the
Granting Lender with respect to Advances made by or through its SPC. The
making of an Advance by an SPC hereunder shall utilize the Pro Rata Share of
the Commitment of the Granting Lender to the same extent, and as if, such
Advance were made by the Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the related
Granting Lender). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in
full of all outstanding senior indebtedness of any SPC, it will not
institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or
any State thereof, provided that the Granting Lender for each SPC hereby
-------- ----
agrees to indemnify, save, and hold harmless each other party hereto for any
loss, cost, damage and expense arising out of their inability to institute
any such proceeding against its SPC. In addition, notwithstanding anything
to the contrary contained in this Section, any SPC may (i) with notice to,
but without the prior written consent of, the Borrower or the Administrative
Agent and without paying any processing fee therefor, assign all or a
portion of its interests in any Advance to its Granting Lender or to any
financial institutions providing liquidity and/or credit facilities to or
for the account of such SPC to fund the Advances made by such SPC or to
support the securities (if any) issued by such SPC to fund such Loans (but
nothing contained herein shall be construed in derogation of the obligation
of the Granting Lender to make Advances hereunder), provided that neither
-------- ----
the consent of the SPC or of any such assignee shall be required for
amendments or waivers of provisions of the Loan Documents except for those
amendments or waivers for which the consent of participants is required
under Section 13.8(e)(vi), and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of a surety, guarantee or credit or
liquidity enhancement to such SPC.
14.9 Lien on Deposits and Property in Possession of any Lender. As
---------------------------------------------------------
security for the prompt payment and performance of all Obligations, Borrower
hereby grants to each Creditor, as the representative of all other Creditors, a
security interest in and a right of off-set with respect to, all its right,
title, and interest in and to any and all deposit accounts now or hereafter
maintained with that Creditor in and to any and all of its Property and the
proceeds thereof now or hereafter in the possession of that Creditor. If an
Event of Default has occurred and is continuing, any Lender (but only with the
consent of the Requisite Lenders) may, to the extent permitted by applicable
Laws, exercise its rights under Article 9 of the Uniform Commercial Code and
other applicable Laws (including its right of off-set) and apply any funds in
any deposit account maintained with it by Borrower and any Property of Borrower
in its possession against the Obligations.
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14.10 Sharing of Setoffs. Each Lender severally agrees that if it,
------------------
through the exercise of any right of setoff, banker's lien or counterclaim
against a Party, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then: (a) The Lender exercising
the right of setoff, banker's lien or counterclaim or otherwise receiving such
payment shall notify the Administrative Agent and thereafter shall purchase, and
shall be deemed to have simultaneously purchased, from the other Lender a
participation in the Obligations held by the other Lender and shall pay to the
other Lender a purchase price in an amount so that the share of the Obligations
held by each Lender after the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment shall be in the same proportion that existed
prior to the exercise of the right of setoff, banker's lien or counterclaim or
receipt of payment; and (b) such other adjustments and purchases of
participations shall be made from time to time as shall be equitable to ensure
that all of the Lenders share any payment obtained in respect of the Obligations
ratably in accordance with each Lender's share of the Obligations immediately
prior to, and without taking into account, the payment; provided that, if all or
--------
any portion of a disproportionate payment obtained as a result of the exercise
of the right of setoff, banker's lien, counterclaim or otherwise is thereafter
recovered from the purchasing Lender by Borrower or any Person claiming through
or succeeding to the rights of Borrower, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the extent of
the recovery. Each Lender that purchases a participation in the Obligations
pursuant to this Section shall from and after the purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased. Each Party expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation in an Obligation
so purchased may exercise any and all rights of setoff, banker's lien or
counterclaim with respect to the participation as fully as if the Lender were
the original owner of the Obligation purchased; provided, however, that each
--------
Lender agrees that it shall not exercise any right of setoff, banker's lien or
counterclaim with respect to the Obligations without first obtaining the consent
of the Requisite Lenders.
14.11 Indemnity by Borrower. Borrower agrees to indemnify, save and
---------------------
hold harmless each Creditor and their respective Affiliates, directors,
officers, agents, attorneys and employees (collectively the "Indemnitees") from
-----------
and against: (a) any and all claims, demands, actions or causes of action that
are asserted against any Indemnitee by any third party, if the claim, demand,
action or cause of action directly or indirectly relates to a claim, demand,
action or cause of action that such Person asserts or may assert against
Borrower (or, to the extent related to the Loan Documents or the transactions
contemplated thereby, any Affiliate of Borrower or any officer of Borrower); (b)
any and all claims, demands, actions or causes of action by a third party if the
claim, demand, action or cause of action arises out of or relates to the
Commitment, the use or contemplated use of proceeds of any Loan or Letter of
Credit, the relationship of Borrower and the Lenders under this Agreement or any
transaction contemplated by the Loan Documents; (c) any administrative or
investigative proceeding by any Governmental Agency arising out of or related to
a claim, demand, action or cause of action described in clauses (a) or (b)
above; and (d) any and
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all liabilities, losses, costs or expenses (including reasonable attorneys' fees
---------
and disbursements and other professional services) that any Indemnitee suffers
or incurs as a result of the assertion of any foregoing claim, demand, action or
cause of action; provided that no Indemnitee shall be entitled to
--------
indemnification for any loss caused by its own gross negligence or willful
misconduct. If any claim, demand, action or cause of action is asserted against
any Indemnitee, such Indemnitee shall promptly notify Borrower, but the failure
to so promptly notify Borrower shall not affect Borrower's obligations under
this Section unless Borrower is materially prejudiced thereby (and then only to
the extent prejudiced). Each Indemnitee may contest the validity, applicability
and amount of such claim, demand, action or cause of action with counsel
selected by such Indemnitee. Each Indemnitee is authorized to employ counsel in
enforcing its rights hereunder and in defending any claim, demand, action or
cause of action covered by this Section; provided that each Indemnitee shall
endeavor in connection with any matter covered by this Section which also
involves other Indemnitees, to use reasonable efforts to avoid unnecessary
duplication of effort by counsel for all Indemnitees. Any obligation or
liability of Borrower to any Indemnitee under this Section shall survive the
expiration or termination of this Agreement and the repayment of all Loans and
the payment and performance of all other Obligations (other than the Obligations
referenced in Section 3.18) owed to the Lenders; provided, however, that such
--------
obligations or liabilities shall not, from and after the date on which the
Obligations are fully paid and the Commitment terminated, be deemed Obligations
for any purpose under the Loan Documents.
14.12 Nonliability of the Lenders. Each of the Tribe and Borrower
---------------------------
acknowledges and agrees that:
(a) Any inspections of any Property of Borrower made by or through
the Creditors are for purposes of administration of the Loan Documents only
and neither the Tribe nor Borrower is entitled to rely upon the same;
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Creditors pursuant to the Loan
Documents, none of the Creditors shall be deemed to have warranted or
represented the sufficiency, legality, effectiveness or legal effect of the
same, or of any term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to anyone
with respect thereto by any Creditor;
(c) The relationship between the Borrower and the Creditors is, and
shall at all times remain, solely that of a borrowers and lenders; no
Creditor shall under any circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary relationship with the Tribe or with
Borrower or their Affiliates, or to owe any fiduciary duty to the Tribe,
Borrower, or their Affiliates; no Creditor undertakes or assumes any
responsibility or duty to the Tribe, Borrower or their Affiliates to select,
review, inspect, supervise, pass judgment upon or inform the Tribe, Borrower
or their Affiliates of any matter in connection with their Property or the
operations of the Tribe, Borrower or its Affiliates; the Tribe, Borrower and
its Affiliates shall rely entirely upon their own judgment with respect to
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such matters; and any review, inspection, supervision, exercise of judgment
or supply of information undertaken or assumed by the Creditors in
connection with such matters is solely for the protection of the Creditors
and neither the Tribe, Borrower nor any other Person is entitled to rely
thereon; and
(d) The Creditors shall not be responsible or liable to any Person
for any loss, damage, liability or claim of any kind relating to injury or
death to Persons or damage to Property or other loss, damage, liability or
claim caused by the actions, inaction or negligence of the Tribe, Borrower
and its Affiliates and Borrower hereby indemnifies and holds the Creditors
harmless from any such loss, damage, liability or claim.
14.13 No Third Parties Benefited. This Agreement is made for the
--------------------------
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, the Tribe and the Creditors in connection with the Loans and Letters
of Credit, and is made for the sole benefit of the Tribe, Borrower, the
Creditors, and the Creditors' successors and assigns. Except as provided in
------
Sections 3.7, 3.8, 13.8, 13.11, 13.15 and 13.28 no other Person shall have any
rights of any nature hereunder or by reason hereof.
14.14 Confidentiality. Each Creditor agrees to hold any confidential
---------------
information that it may receive from the Tribe or Borrower pursuant to this
Agreement in confidence, except for disclosure (a) to other Lenders, their
------
officers, directors, employees and agents (but, in the case of agents, only
subject to an appropriate confidentiality agreement); (b) to legal counsel,
accountants and other professional advisors to the Tribe or Borrower or any
Lender; (c) to regulatory officials having jurisdiction over that Lender; (d) as
required by Law or legal process or in connection with any legal proceeding to
which that Creditor, the Tribe or Borrower are adverse parties; (e) to another
financial institution in connection with a disposition or proposed disposition
to that financial institution of all or part of that Lender's interests
hereunder or a participation interest in its Pro Rata Share (or to any SPC of
that Lender in accordance with the last sentence of Section 13.8); (f) to
prospective purchasers of any Collateral in connection with any disposition
thereof (but then only subject to an appropriate confidentiality agreement); or
(g) if an Event of Default has occurred and is continuing, to the extent that
any Creditor determines such disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under the Loan
Documents. For purposes of the foregoing, "confidential information" shall mean
all information respecting the Tribe or Borrower delivered to the Lenders marked
"Confidential" or in another conspicuous manner which denotes its
confidentiality, other than (i) information previously filed with any
----------
Governmental Agency and available to the public, (ii) information previously
published in any public medium from a source other than, directly or indirectly,
that Lender, and (iii) information previously disclosed by the Tribe or Borrower
to any Person not associated with the Tribe or Borrower without a written
confidentiality agreement. Nothing in this Section shall be construed to create
or give rise to any fiduciary duty on the part of any Creditor to the Tribe or
to Borrower.
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14.15 Hazardous Materials Indemnity. Borrower hereby agrees to
-----------------------------
indemnify, hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) each of the Creditors and their respective directors,
officers, employees, agents, successors and assigns from and against any and all
claims, losses, damages, liabilities, fines, penalties, charges, administrative
and judicial proceedings and orders, judgments, remedial action requirements,
enforcement actions of any kind, and all costs and expenses incurred in
connection therewith (including but not limited to reasonable attorneys' fees
and expenses), arising directly or indirectly, in whole or in part, out of (i)
the presence on or under the Real Property of any Hazardous Materials, or any
releases or discharges of any Hazardous Materials on, under or from the Real
Property and (ii) any activity carried on or undertaken on or off the Real
Property by Borrower or any of its predecessors in title (including the Tribe),
whether prior to or during the term of this Agreement, and whether by Borrower
or any predecessor in title or any employees, agents, contractors or
subcontractors of Borrower or any predecessor in title, or any third persons at
any time occupying or present on the Real Property, in connection with the
handling, treatment, removal, storage, decontamination, clean-up, transport or
disposal of any Hazardous Materials at any time located or present on or under
the Real Property. The foregoing indemnity shall further apply to any residual
contamination on or under the Real Property, or affecting any natural resources,
and to any contamination of any property or natural resources arising in
connection with the generation, use, handling, storage, transport or disposal of
any such Hazardous Materials, and irrespective of whether any of such activities
were or will be undertaken in accordance with applicable Laws, but the foregoing
indemnity shall not apply to (i) Hazardous Materials on the Real Property, the
presence of which is caused by that Creditor or (ii) activities carried on or
undertaken by the Creditors, in each case subsequent to its or their entry into
the Real Property pursuant to the Leasehold Mortgage (but only to the extent
that the same are not attributable to the Tribe or the Borrower).
14.16 Further Assurances. The Tribe or Borrower shall, at their sole
------------------
expense and without expense to the Creditors do, execute and deliver such
further acts and documents as any Lender or the Administrative Agent from time
to time reasonably requires for the assuring and confirming unto the Creditors
of the rights hereby created or intended now or hereafter so to be, or for
carrying out the intention or facilitating the performance of the terms of any
Loan Document.
14.17 Integration. This Agreement, together with the other Loan
-----------
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof. In the event of any conflict between the provisions
of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
--------
rights or remedies in favor of the Creditors in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted
with the joint participation of the respective parties thereto and shall be
construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
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14.18 Governing Law. Except to the extent otherwise expressly provided
------------- ------
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the Laws of Connecticut, without regard to the conflicts of law
provisions of the Laws of Connecticut, provided however, that if and only to the
-------- -------
extent that any security interest granted to the Administrative Agent for the
benefit of the Lenders pursuant to this Agreement or any other Loan Document
shall be deemed exempt from the provisions of Article 9 of the Uniform
Commercial Code of the State of Connecticut, C.G.S. (S)42a-9-101, et seq., by
-------
virtue of C.G.S. (S)42a-9-104(e), then such security interest shall be governed
by the corresponding provisions of Article 9 of Tribe's Uniform Commercial Code,
as adopted by the UCC Ordinance. Borrower and each other party hereto each
hereby consents to the application of Connecticut civil law to the construction,
interpretation and enforcement of this Agreement and the other Loan Documents,
and to the application of Connecticut civil law to the procedural aspects of any
suit, action or proceeding relating thereto, including but not limited to legal
process, execution of judgments and other legal remedies, except for any
procedural matters governed by or relating to the conduct of arbitration under
Section 13.24.
14.19 Severability of Provisions. Any provision in any Loan Document
--------------------------
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
14.20 Independent Covenants. Each covenant in Articles 6, 7, 8 and 9 is
---------------------
independent of the other covenants in those Articles; the breach of any such
covenant shall not be excused by the fact that the circumstances underlying such
breach would be permitted by another such covenant.
14.21 Headings. Article and Section headings in this Agreement and the
--------
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
14.22 Time of the Essence. Time is of the essence of the Loan
-------------------
Documents.
14.23 Tax Withholding Exemption Certificates. On or before the Closing
--------------------------------------
Date, each Lender which is organized outside the United States of America shall
deliver to Borrower a properly completed and duly executed Internal Revenue
Service Form 4224 or Form 1001 and any other certificate or statement required
by applicable Laws to establish that payments due to such Lender under the Loan
Documents are (a) not subject to withholding under the Code because such
payments are effectively connected with the conduct of a trade or business in
the United States of America or (b) totally exempt from United States tax under
the provisions of an applicable tax treaty.
14.24 Arbitration Reference.
---------------------
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(a) Mandatory Arbitration. At the option of the Administrative
---------------------
Agent (exercised in accordance with consent of the Requisite Lenders),
Borrower or (to the extent it is a party to any such controversy or claim),
the Tribe, any controversy or claim between or among the parties arising out
of or relating to this Agreement or any agreements or instruments relating
hereto or delivered in connection herewith and any claim based on or arising
from an alleged tort, shall be determined by arbitration. The arbitration
shall be conducted in accordance with the United States Arbitration Act
(Title 9, U.S. Code), notwithstanding any choice of law provision in this
Agreement, and under the Commercial Rules of the American Arbitration
Association ("AAA"). The arbitrators shall give effect to statutes of
limitation in determining any claim. Any controversy concerning whether an
issue is arbitrable shall be determined by the arbitrators. Judgment upon
the arbitration award may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the right
of any party, including the plaintiff, to submit the controversy or claim to
arbitration if any other party contests such action for judicial relief.
(b) Provisional Remedies, Self-Help and Foreclosure. No provision
-----------------------------------------------
of this section shall limit the right of any party to this Agreement to
exercise self-help remedies such as setoff, to foreclose against or sell any
real or personal property collateral or security or to obtain provisional or
ancillary remedies from a court of competent jurisdiction before, after, or
during the pendency of any arbitration or other proceeding. The exercise of
a remedy does not waive the right of either party to resort to arbitration
or reference. At the Requisite Lenders' option, foreclosure under a deed of
trust or mortgage may be accomplished either by exercise of power of sale
under the deed of trust or mortgage or by judicial foreclosure.
(c) Limitation. This Section shall not be construed to require
----------
arbitration by the Creditors of any disputes which now exist or hereafter
arise amongst themselves which do not involve the Tribe or Borrower and are
not related to this Agreement and the Loan Documents.
(d) Specific Enforcement Representation. Each party to this
-----------------------------------
Agreement severally represents and warrants to the other parties that this
Section 13.24 is specifically enforceable against such party by the other
parties.
14.25 PURPORTED ORAL AMENDMENTS. THE TRIBE, THE BORROWER AND THE
-------------------------
CREDITORS EXPRESSLY ACKNOWLEDGE THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
MAY ONLY BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR
SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 13.2. EACH
OF THE TRIBE AND BORROWER AGREES THAT IT WILL NOT RELY ON ANY COURSE OF DEALING,
COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF
ANY CREDITOR THAT DOES NOT COMPLY WITH SECTION 13.2 TO
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EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS.
14.26 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
--------------------------------
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
14.27 WAIVER OF SOVEREIGN IMMUNITY; CONSENT TO JURISDICTION.
-----------------------------------------------------
(A) THE TRIBE AND THE BORROWER EACH HEREBY EXPRESSLY AND IRREVOCABLY
WAIVE THE SOVEREIGN IMMUNITY OF THE MOHEGAN TRIBAL GAMING AUTHORITY (AND ANY
DEFENSE BASED THEREON) FROM ANY SUIT, ACTION OR PROCEEDING OR FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION, EXECUTION, EXERCISE OF CONTEMPT POWERS, OR
OTHERWISE) IN ANY FORUM, WITH RESPECT TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, PROVIDED
--------
THAT (1) THE WAIVER CONTAINED IN THIS CLAUSE (A) IS EXPRESSLY LIMITED TO
----
ACTIONS AGAINST THE BORROWER AND (2) ANY RECOVERY UPON ANY JUDGMENT RESULTING
THEREFROM SHALL BE LIMITED TO RECOVERY AGAINST THE ASSETS AND REVENUES OF THE
BORROWER.
(B) THE TRIBE HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ITS OWN SOVEREIGN
IMMUNITY (APPLICABLE TO ITSELF AS AN INDIAN TRIBAL NATION) (AND ANY DEFENSE
BASED THEREON) FROM ANY SUIT, ACTION OR PROCEEDING OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT
IN AID OF EXECUTION, EXECUTION, EXERCISE OF CONTEMPT POWERS, OR OTHERWISE)
WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES OF THE TRIBE SET FORTH IN
ARTICLE 4, THE COVENANTS OF THE TRIBE SET FORTH IN ARTICLE 9, AND EACH
PROVISION OF SECTION 11.1 WHICH RELATES TO AN EVENT OF DEFAULT CAUSED BY THE
TRIBE'S BREACH OF ANY SUCH
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REPRESENTATION, WARRANTY OR COVENANT, IT BEING EXPRESSLY UNDERSTOOD THAT (1)
THE WAIVERS AND CONSENTS CONTAINED IN THIS CLAUSE (B) ARE NOT LIMITED TO
ACTIONS AGAINST THE BORROWER, (2) ANY ACTION DESCRIBED IN THIS CLAUSE (B) MAY
BE BROUGHT AGAINST THE TRIBE, AND (3) ANY RECOVERY UPON ANY JUDGMENT
RESULTING FROM ANY SUCH ACTION MAY BE HAD AGAINST THE ASSETS AND REVENUES OF
THE TRIBE IN A MANNER CONSISTENT WITH SECTION 13.28.
(C) EACH OF THE TRIBE AND BORROWER HEREBY CONSENTS TO THE JURISDICTION
OF THE COURTS OF THE STATE OF CONNECTICUT, THE COURTS OF THE UNITED STATES,
AND THE COURTS OF ANY OTHER STATE WHICH MAY HAVE JURISDICTION OVER THE
SUBJECT MATTER, OVER ANY SUCH ACTION AND OVER BORROWER AND THE TRIBE.
(D) THE WAIVERS AND CONSENTS DESCRIBED IN THIS SECTION SHALL INURE TO
THE BENEFIT OF THE CREDITORS AND EACH OTHER PERSON WHO IS ENTITLED TO THE
BENEFITS OF THE LOAN DOCUMENTS (INCLUDING WITHOUT LIMITATION THE INDEMNIFIED
PERSONS REFERRED TO IN SECTION 13.11). SUBJECT TO SECTION 13.28 THE CREDITORS
AND SUCH OTHER PERSONS SHALL HAVE AND BE ENTITLED TO ALL AVAILABLE LEGAL AND
EQUITABLE REMEDIES, INCLUDING THE RIGHT TO SPECIFIC PERFORMANCE, MONEY
DAMAGES AND INJUNCTIVE OR DECLARATORY RELIEF. THE WAIVERS OF SOVEREIGN
IMMUNITY AND CONSENTS TO JURISDICTION CONTAINED IN THIS SECTION ARE
IRREVOCABLE.
14.28 Lender Covenant. In any action or proceeding against the Borrower
---------------
to enforce the Loan Documents which is not also an action or proceeding against
the Tribe, the Creditors agree that they shall have no recourse to the Tribe or
to Non-Authority Property. In any action or proceeding to enforce the Loan
Documents which includes the Tribe, the Creditors agree that they shall, to the
extent then permitted by applicable Law, take commercially practicable steps to
enforce any claim for damages awarded to the Creditors by any court, tribunal,
arbitrator or other decision maker against the Borrower or the Authority
Property prior to taking general recourse to the Tribe or Non-Authority
Property. The provisions of this Section shall not be construed (a) to create
any recourse on the part of the Creditors against the Tribe, its Properties or
revenues except for any breach of the Tribe's own representations, warranties
and covenants set forth in Articles 4 and 9, or (b) to require exhaustion by the
Creditors of any remedies against Borrower or the Authority Property prior to
having recourse, in the proper case, against the Tribe and Non-Authority
Property.
14.29 PREJUDGMENT REMEDY WAIVER. Each of the Tribe and Borrower
-------------------------
represents, warrants and acknowledges that the transaction of which this
Agreement is a part is a commercial transaction and not a consumer transaction.
Monies now or in the future to be
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advanced to or on behalf of Borrower are not and will not be used for personal,
family or household purposes.
EACH OF THE TRIBE AND BORROWER ACKNOWLEDGES THAT IT HAS THE RIGHT
UNDER SECTION 52-278a, ET SEQ., OF THE CONNECTICUT GENERAL STATUTES, SUBJECT TO
------
CERTAIN LIMITATIONS, TO NOTICE OF AND HEARING ON THE RIGHT OF THE CREDITORS TO
OBTAIN A PREJUDGMENT REMEDY, SUCH AS ATTACHMENT, GARNISHMENT OR REPLEVIN, UPON
COMMENCING ANY LITIGATION AGAINST EITHER THE TRIBE OR BORROWER. NOTWITHSTANDING
SUCH RIGHT, EACH OF THE TRIBE AND BORROWER HEREBY WAIVES ALL RIGHTS TO NOTICE,
JUDICIAL HEARING OR PRIOR COURT ORDER TO WHICH IT MIGHT OTHERWISE HAVE THE RIGHT
UNDER SAID STATUTE OR UNDER ANY OTHER STATE OR FEDERAL STATUTE OR CONSTITUTION
IN CONNECTION WITH THE OBTAINING BY THE CREDITORS OF ANY PREJUDGMENT REMEDY IN
CONNECTION WITH THIS AGREEMENT. EACH OF THE TRIBE AND BORROWER FURTHER CONSENTS
TO THE ISSUANCE OF ANY PREJUDGMENT REMEDIES WITHOUT A BOND AND AGREES NOT TO
REQUEST OR FILE MOTIONS SEEKING TO REQUIRE THE POSTING OF A BOND UNDER PUBLIC
ACT 93-431 IN CONNECTION WITH THE CREDITORS' EXERCISE OF ANY PREJUDGMENT REMEDY.
EACH OF THE TRIBE AND BORROWER ALSO WAIVES ANY AND ALL OBJECTION WHICH IT MIGHT
OTHERWISE ASSERT, NOW OR IN THE FUTURE, TO THE EXERCISE OR USE BY THE CREDITORS
OF ANY RIGHT OF SETOFF, REPOSSESSION OR SELF HELP AS MAY PRESENTLY EXIST UNDER
STATUTE OR COMMON LAW. THIS SECTION SHALL NOT BE CONSTRUED IN DEROGATION OF THE
RIGHTS OF THE TRIBE UNDER SECTION 13.28.
14.30 Designated Senior Secured Indebtedness. Borrower hereby
--------------------------------------
irrevocably designates the Obligations as "Designated Senior Indebtedness" and
"Designated Senior Secured Indebtedness" as such terms are defined in the
Relinquishment Agreement and irrevocably designates the Obligations as
"Designated Senior Indebtedness" as such term is defined in the New Subordinated
Notes Indenture.
14.31 Compliance with 25 U.S.C. (S)81
----------------------------------
(a) In compliance with Section 81 of Title 25 of the United States
Code, the residence and occupation of the parties to this Agreement are as
follows:
Party in interest: Bank of America National Trust and Savings
Association, as Administrative Agent, and the Lenders
named herein
Residence: Bank of America National Trust and Savings
Association, as Administrative Agent
-108-
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Occupation Commercial Lenders
Party in interest: The Mohegan Tribal Gaming Authority
Residence Uncasville, Connecticut
Occupation Tribal Gaming Instrumentality
Party in interest: The Mohegan Tribe of Indians of Connecticut
Residence Uncasville, Connecticut
Occupation A federally recognized Indian Tribe
(b) The Chairman of the Management Board of The Mohegan Tribal
Gaming Authority is authorized to execute this Agreement and the other Loan
Documents by Resolution of the Management Board adopted on February 18, 1999,
which finds this Agreement to be in the long range economic objectives of
Borrower and the Tribe. The members of the Management Board including the
Chairman exercise their authority in this instance because they believe that
this Agreement and the other Loan Documents and the consummation of the
transactions contemplated hereby and thereby are in the best interests of
Borrower and the Tribe.
(c) The Chairman of the Tribal Council of The Mohegan Tribe of
Indians of Connecticut is authorized to execute this Agreement and the other
Loan Documents by Resolution of the Tribal Council adopted on February 18,
1999, which finds this Agreement to be in the long range economic objectives
of Tribe. The members of the Tribal Council including the Chairman exercise
their authority in this instance because they believe that this Agreement and
the other Loan Documents and the consummation of the transactions
contemplated hereby and thereby are in the best interests of Tribe.
(d) This Agreement and the other Loan Documents were executed in
counterpart on or about 12:01 p.m. on the 3rd day of March, 1999 at
Uncasville, Connecticut, for the particular purposes set forth above.
-109-
(e) This Agreement relates to the Obligations having an initial
maturity date of March 3, 2004.
(f) Borrower agrees that this Agreement and the other Loan
Documents are in compliance with 25 U.S.C. (S)81.
-110-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
"Borrower":
THE MOHEGAN TRIBAL GAMING AUTHORITY
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Title: Chairman, Managment Board
Address for Notices:
0 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
"Tribe":
THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT
By: /s/Xxxxxx X. Xxxxxx
-------------------
Tribal Council Chairman
Address for Notices:
X.X. Xxx 000
00 Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxx Xxxxxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Approved pursuant to 25 U.S.C. (S) 81:
United States Department of the Interior
Bureau of Indian Affairs:
By: /s/ Xxxxxxxx Xxxx
-----------------
Area Director of the Eastern Office of the Bureau of Indian Affairs for the
Secretary of the Interior and the Commissioner of Indian Affairs, acting under
delegated authority.
-111-
Approval Dated: March 3, 1999
-112-
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Administrative Agent
By: /s/ Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx, Vice President
Address:
Bank of America National Trust and Savings Association
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a Lender and as the
Issuing Lender
By: /s/ Xxx X. Xxxxxxx
------------------
Xxx X. Xxxxxxx, Managing Director
Address for Notices:
Bank of America National Trust and Savings Association
Credit Products-LA 3283
Entertainment and Media Group
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx X. Xxxxxxx, Managing Director
Telephone: (000) 000 0000
Telecopier: (000) 000 0000
with a copy to:
Bank of America National Trust and Savings Association
Credit Products-LA 3283
Entertainment and Media Group
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Managing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
-113-
SALOMON BROTHERS HOLDING COMPANY INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Managing Director
Address for notices:
Citibank, N.A.
000 Xxxx Xxx., 00xx Xxxxx, Xxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxx, Vice President
Facsimile: (000) 000-0000
Tel: (000) 000-0000
-114-
SOCIETE GENERALE
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Title: Managing Director
Address for notices:
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Vice President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
-115-
BANKBOSTON, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Title: Director
Address for notices:
BankBoston Corporation (Boston HQ)
Mail Code 01-08-08
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Tel: (000)000-0000
-116-
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Title: Senior Vice President
Address for notices:
Fleet National Bank
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, Senior Vice President
Facsimile: (000) 000-0000
Tel: (000) 000-0000
-117-
COMMERZBANK AG, LOS ANGELES BRANCH
By: /s/ Xxxxxx Xxxxxxxxxxx
-----------------------
Title: Vice President
By: /s/ Xxxxx Xxxxx
---------------
Title: Assistant Treasurer
Address for notices:
Commerzbank AG, Los Angeles Branch
000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxxx, Vice President
Facsimile: (000) 000-0000
Tel: (000) 000-0000
-118-
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
-----------------
Title: Assistant Vice President
Address for notices:
KeyBank National Association
Mail Stop WA 31-10-4612
000 0xx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
-119-
PEOPLE'S BANK
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Title: Vice President
Address for notices:
People's Bank
0 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile: 000-000-0000
Tel: 000-000-0000
-120-
CITIZENS BANK OF CONNECTICUT
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------
Title: Vice President
Address for notices:
Citizens Bank
00 Xxxxxx X'Xxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
-121-
FIRST SECURITY BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Vice President
Address for notices:
First Security Bank, Utah
Second Floor
00 Xxxx 000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Tel: 000-000-0000
-122-
Approved pursuant to 25 U.S.C. (S) 81:
United States Department of the Interior
Bureau of Indian Affairs:
By: /s/ Xxxxxxxx Xxxx
-----------------
Area Director of the Eastern Office of the
Bureau of Indian Affairs for the Secretary
of the Interior and the Commissioner of
Indian Affairs, acting under delegated
authority.
Approval Dated: March 3, 1999
-123-
MOHEGAN TRIBAL GAMING AUTHORITY
$425,000,000 REDUCING REVOLVING CREDIT FACILITY
FINAL ALLOCATIONS
============================================================================================
LENDER COMMITMENT FINAL PERCENT OF
AMOUNT ALLOCATION TOTAL
ADMINISTRATIVE AGENT
--------------------
Bank of America $ 75,000,000.00 $ 75,000,000.00 17.647058824%
National Trust and
Savings Association
SYNDICATION AGENT
--------------------
Xxxxxxx Xxxxx Xxxxxx $ 75,000,000.00 $ 75,000,000.00 17.647058824%
DOCUMENTATION AGENT
--------------------
Societe Generale $ 75,000,000.00 $ 75,000,000.00 17.647058824%
SENIOR MANAGING
AGENTS
--------------------
Bank Boston, N.A. $ 50,000,000.00 $ 50,000,000.00 11.764705882%
Fleet Bank $ 50,000,000.00 $ 50,000,000.00 11.764705882%
CO-AGENTS
--------------------
Commerzbank AG $ 25,000,000.00 $ 25,000,000.00 5.882352941%
KeyBank $ 25,000,000.00 $ 25,000,000.00 5.882352941%
People's Bank $ 25,000,000.00 $ 25,000,000.00 5.882352941%
PARTICIPANTS
--------------------
Citizens Bank of $ 15,000,000.00 $ 15,000,000.00 3.529411765%
Connecticut
First Security Bank $ 10,000,000.00 $ 10,000,000.00 2.352941176%
----------------------------------------------------------------------------------------
TOTAL $425,000,000.00 $425,000,000.00 100.00%
========================================================================================
-124-
EXHIBIT A
---------
ASSIGNMENT AGREEMENT
--------------------
THIS ASSIGNMENT AGREEMENT (this "Assignment") is entered into as of
_____________, ____ between _______________________________________ ("Assignor")
and _____________________________________________________ ("Assignee") with
reference to that certain Loan Agreement dated as of March 3, 1999 among The
Mohegan Tribe of Indians of Connecticut, a federally recognized Indian Tribe and
native American sovereign nation (the "Tribe"), The Mohegan Tribal Gaming
Authority, an instrumentality of the Tribe ("Borrower"), the Lenders,
Documentation Agent and Syndication Agent referred to therein and Bank of
America National Trust and Savings Association ("Bank of America"), as
Administrative Agent (as amended from time to time, the "Loan Agreement").
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
RECITALS
--------
A. Assignor holds a Pro Rata Share of the Commitment to make Loans (the
"Commitment") under the Loan Agreement.
B. As of the date hereof, the outstanding principal balance of the
Advances made by Assignor (the "Assignor Advances") is set forth on Annex I
hereto.
C. Assignor desires to assign its rights under the Loan Agreement and the
other Loan Documents with respect to a portion of the Commitment and a portion
of any Assignor Advances to Assignee and Assignee has agreed to assume the
obligations of Assignor under the Loan Documents to the extent of the rights so
assigned.
NOW, THEREFORE, in consideration of the matters recited above, and the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
SECTION 1. Assignment and Assumption.
-------------------------
-1-
(a) Assignor hereby assigns to Assignee, without recourse,
representation or warranty, an undivided fractional interest in Assignor's
rights arising under the Loan Documents relating to the Commitment, and any
Assignor Advances to the extent of the Assigned Pro Rata Share reflected on
Annex I hereto (the "Assigned Pro Rata Share") including, without limitation,
(i) all amounts advanced and to be advanced or participated in by Assignor
pursuant to the Commitment; (ii) all of Assignor's rights and powers contained
in the Loan Documents; (iii) all claims of Assignor against persons who may in
the future become or are now liable for repayment of any Assignor Advances or
reimbursement of expenses incurred by Assignor on account of any Assignor
Advances; and (iv) all amounts received by Assignor on account of any Assignor
Advances, whether from the Borrower or from others who are now or may in the
future become obligated with respect to some or all of the amounts owing on any
Assignor Advances or from any other source, including, without limitation,
recovery from litigation.
(b) Assignee hereby assumes from Assignor, and Assignor is hereby
expressly and absolutely released from, the Assigned Pro Rata Share of all of
Assignor's obligations arising under the Loan Documents relating to the
Commitment including, without limitation, all obligations with respect to any
Assignor Advances. Assignee agrees that it shall fully perform all of the
obligations of Assignor with respect to the interests assigned by this
Assignment.
(c) Assignor and Assignee hereby agree that Annex I attached hereto
sets forth (i) the amount of all Assignor Advances giving effect to the
assignment and assumption described herein, (ii) the amount of the Commitment
and the Pro Rata Share of Assignee after giving effect to the assignment and
assumption described herein, and (iii) accrued but unpaid interest thereon.
(d) Assignor and Assignee hereby agree that, upon giving effect to
the assignment and assumption described herein, Assignee shall have all of the
obligations under the Loan Documents of, and shall be deemed to have made all of
the covenants and agreements contained in the Loan Documents made by, a Lender
having a Pro Rata Share of the Commitment as reflected on Annex I attached
hereto. Assignee hereby acknowledges and agrees that the agreement set forth in
this subsection 1(d) is expressly made for the benefit of the Borrower, the
Administrative Agent, Assignor and the other Lenders and their respective
successors and permitted assigns. From and after the date of this Assignment,
(i) Assignee shall be a party to the Loan Agreement and, to the extent provided
in this Assignment, shall have the rights and obligations of a Lender under the
Loan Agreement and the other Loan Documents and (ii) Assignor shall, to the
extent provided in this Assignment, relinquish its rights and be released from
its obligations under the Loan Agreement and the other Loan Documents.
-2-
(e) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent (i) that this Assignment shall effect the assignment by
Assignor and the assumption by Assignee of the Assigned Pro Rata Share of
Assignor's rights and obligations under the Loan Documents and (ii) that any
other assignments by Assignor of a portion of its rights and obligations under
the Loan Documents shall have no effect on the Commitment and Pro Rata Share of
Assignee set forth on Annex I attached hereto.
(f) Assignee agrees to pay to Assignor, on ________, an amount equal
to $____________, in immediately available funds, representing the purchase
price of the Assigned Pro Rata Share. Assignor and Assignee shall make all
appropriate adjustments for periods prior to the date of this Assignment or with
respect to the making of this Assignment directly between themselves.
(g) Nothing contained in this Assignment shall be construed to amend
or modify the terms of the Loan Documents other than to effectuate the
assignment contemplated herein.
SECTION 2. Representations and Warranties.
------------------------------
(a) Assignee represents and warrants that it is an Eligible Assignee.
(b) Assignee represents and warrants that it has become a party
hereto solely in reliance upon its own independent investigation of the
financial and other circumstances surrounding Borrower, any Assignor Advances
and all aspects of the transactions evidenced by or referenced in the Loan
Documents, or has otherwise satisfied itself thereto, and that it is not relying
upon any representation, warranty or statement (except any such representation,
warranty or statement expressly set forth in this Assignment) of Assignor in
connection with the assignment made hereby. Assignee further acknowledges that
Assignee will, independently and without reliance upon Assignor and based upon
Assignee's review of such documents and information as Assignee deems
appropriate at the time, continue to make its own credit decisions in connection
with the assignment made hereby. Assignor shall have no duty or responsibility
either initially or on a continuing basis to make any such investigation or any
such appraisal on behalf of Assignee or to provide Assignee with any credit or
other information with respect thereto, whether coming into its possession
before the making of the initial extension of credit under the Loan Agreement or
at any time thereafter.
(c) Assignee represents and warrants to Assignor that it has
experience and expertise in the making of loans such as the Advances assigned
hereby and with respect to the other types of credit which may be extended under
the Loan Agreement; that it has acquired its Assigned Pro Rata Share for its own
account and not with any present
-3-
intention of selling all or any portion of such interest; and that it has
received, reviewed and approved copies of all Loan Documents.
(d) Assignor and Assignee represent to one another and to the
Administrative Agent that they have duly authorized, executed and delivered this
Assignment, that they are legally entitled to enter into the assignment and
assumption transactions contemplated herein and that, in the case of Assignor,
that it is the legal and beneficial owner of the Assigned Pro Rata Share, free
of any Liens or adverse claims.
(e) Assignor shall not be responsible to Assignee for the execution,
effectiveness, accuracy, completeness, legal effect, genuineness, validity,
enforceability, collectibility or sufficiency of any of the Loan Documents
(other than its own due execution of the Loan Documents) or for any
representations, warranties, recitals or statements made therein or in any
written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents made or furnished or made available
by Assignor to Assignee (other than written representations, warranties,
recitals or statements made by Assignor therein) or by or on behalf of the
Borrower or the Tribe to Assignor or Assignee in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of the Borrower or any other Person liable for the
payment of any Advance or payment of amounts owed in connection with other
extensions of credit under the Loan Agreement or any other matter. Assignor
shall not be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Loan Documents or as to the use of the proceeds of the
Advances or other extensions of credit under the Loan Agreement or as to the
existence or possible existence of any Default or Event of Default.
(f) Each party to this Assignment represents and warrants to the
other party to this Assignment that it has full power and authority to enter
into this Assignment and to perform its obligations under this Assignment in
accordance with the provisions of this Assignment, that this Assignment has been
duly authorized, executed and delivered by such party and that this Assignment
constitutes a legal, valid and binding obligation of such party, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, moratorium or other similar laws affecting creditors' rights
generally and by general equitable principles.
SECTION 3. Notices.
-------
Any notice or other communication required or permitted to be given
hereunder shall be in writing addressed to the parties at their addresses set
forth below and shall be delivered in the manner set forth for notices in the
Loan Agreement:
-4-
(a) Notices to Assignor:
_________________________________
_________________________________
_________________________________
(b) Notices to Assignee:
_________________________________
_________________________________
_________________________________
SECTION 4. Miscellaneous Provisions.
------------------------
(a) Neither this Assignment nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
(b) Title and headings of sections in this Assignment are for
convenience of reference only and shall not be used to define or limit the
provisions hereof.
(c) This Assignment and the transactions contemplated hereunder shall
be governed by and construed and enforced in accordance with the laws of the
State of Connecticut.
(d) This Assignment embodies the entire agreement between Assignor
and Assignee with respect to the Loan Documents and supersedes all prior
agreements between Assignor and Assignee with respect to the Loan Documents.
(e) This Assignment may be executed in one or more counterparts, each
of which shall constitute an original, but all of which together shall
constitute but one Assignment. The signature pages of all counterparts of this
Assignment may be detached and attached to a single counterpart of this
Assignment so that all signature pages are physically attached to the same
document.
(f) All of the terms, covenants and conditions herein contained shall
inure to the benefit of and be binding upon the parties hereto, and their
respective successors and assigns.
-5-
(g) Every provision of this Assignment is intended to be severable.
If any term or provision thereof is declared by a court of competent
jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever,
such illegality, invalidity or unenforceability shall not affect the balance of
the terms and provisions hereof, which terms and provisions shall remain binding
and enforceable, and to the extent possible all of the other provisions shall
nonetheless remain in full force and effect.
SECTION 5. The Administrative Agent.
------------------------
Assignor and Assignee have examined this Assignment and have exercised
independent credit judgment in determining to enter into this Assignment. Each
of Assignor and Assignee have obtained the advice of their counsel with respect
to this document or waive the opportunity to do so. The Administrative Agent
bears no responsibility for the form, legality or sufficiency of this
Assignment.
-6-
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of
the date first above written.
"ASSIGNOR"
________________________________
By: _____________________________
Name: ______________________
Title: ______________________
"ASSIGNEE"
________________________________
By: _____________________________
Name: ______________________
Title: ______________________
-7-
ANNEX I
I ASSIGNOR'S PRO RATA SHARE OF THE COMMITMENT BEFORE ASSIGNMENT
Commitment $_____________________
Pro Rata Share _____________%
Outstanding Principal $_____________________
Accrued and unpaid Interest $_____________________
II ASSIGNOR'S REMAINING PRO RATA SHARE OF THE COMMITMENT AFTER ASSIGNMENT
Commitment $_____________________
Pro Rata Share _____________%
III ASSIGNEE'S PRO RATA SHARE OF THE COMMITMENT AFTER ASSIGNMENT
Commitment $_____________________
Pro Rata Share ______________%
-8-
ACKNOWLEDGMENT AND CONSENT
OF THE AGENT
Bank of America National Trust and Savings Association, as Administrative
Agent, hereby (i) acknowledges and consents to the assignment to and assumption
by Assignee of Assignor's rights and obligations with respect to a portion of
the Commitment effected pursuant to the foregoing Assignment and (ii) agrees
that, for all purposes of the Loan Documents, Assignee shall be deemed to be a
Lender having a Pro Rata Share of the Commitment as reflected on Annex I
attached to the Assignment.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By ___________________________
Name: _________________________
Title: ________________________
ACKNOWLEDGMENT AND CONSENT
OF THE BORROWER
Borrower hereby (i) acknowledges and consents to the assignment to and
assumption by Assignee of Assignor's rights and obligations with respect to a
portion of the Commitment effected pursuant to the foregoing Assignment and (ii)
agrees that, for all purposes of the Loan Documents, Assignee shall be deemed to
be a Lender having a Pro Rata Share of the Commitment as reflected on Annex I
attached to the Assignment.
"Borrower":
THE MOHEGAN TRIBAL GAMING
AUTHORITY
By:__________________________
Title:_______________________
-9-
EXHIBIT D
---------
NOTE
----
$_______________ March 3, 1999
Uncasville, Connecticut
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
______________________________________________________ (the "Lender"), the
principal amount of ___________________ ($________) or such lesser aggregate
amounts as may be made as Advances under the Commitment pursuant to the Loan
Agreement referred to below, payable as hereinafter set forth. The undersigned
promises to pay interest on the principal amount hereof remaining unpaid from
time to time from the date hereon until the date of payment in full, payable as
hereinafter set forth.
Reference is made to the Loan Agreement of even date herewith, by and
among the undersigned, as Borrower, The Mohegan Tribe of Indians of Connecticut,
a federally recognized Indian Tribe and native American sovereign nation (the
"Tribe"), the Lenders, Syndication Agent and Documentation Agent named therein,
and Bank of America National Trust and Savings Association, as Administrative
Agent (as the same may be further amended, renewed, extended or otherwise
modified from time to time, the "Loan Agreement"). Terms defined in the Loan
Agreement and not otherwise defined herein are used herein with the meanings
given those terms in the Loan Agreement. This is one of the Notes referred to
in the Loan Agreement, and the Lender and any subsequent rightful holder hereof
(collectively "Holder") is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as it
may from time to time be supplemented, modified or amended. The Loan Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events upon the terms and conditions
therein specified.
The principal indebtedness evidenced by this Note shall be payable as
provided in the Loan Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Advance hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
Agreement, both before and after default and before and after maturity and
judgment, with interest on overdue principal and interest to bear interest at
the rate set forth in Section 3.9 of the Loan Agreement, to the fullest extent
permitted by applicable Law.
-1-
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lender in immediately available funds not later than 11:00 a.m. (California
time) on the day of payment (which must be a Business Day). All payments
received after 11:00 a.m. (California time) on any particular Business Day shall
be deemed received on the next succeeding Business Day. All payments shall be
made in lawful money of the United States of America.
The Lender shall use its best efforts to keep a record (which may be
in electronic or other intangible form) of Advances made by it and payments of
principal received by it with respect to this Note, and such record shall be
presumptive evidence of the amounts owing under this Note.
The undersigned hereby promises to pay all costs and expenses of any
rightful Holder hereof incurred in collecting the undersigned's obligations
hereunder or in enforcing or attempting to enforce any of such Holder's rights
hereunder, including reasonable attorneys' fees and disbursements (including
allocated costs of legal counsel employed by the Administrative Agent or the
Holder), whether or not an action is filed in connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THE UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS NOTE OR ANY
OTHER LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT,
OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
THE UNDERSIGNED HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
LENDER OR ANY HOLDER OF THIS NOTE MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE UNDERSIGNED TO THE WAIVER
OF ITS RIGHT TO TRIAL BY JURY.
THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ITS SOVEREIGN
IMMUNITY (AND ANY DEFENSE BASED THEREON) FROM ANY SUIT, ACTION OR PROCEEDING OR
FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION, EXERCISE OF CONTEMPT
POWERS, OR OTHERWISE) IN ANY FORUM, WITH RESPECT TO THIS NOTE AND THE OTHER LOAN
DOCUMENTS
-2-
AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, PROVIDED THAT (1) THE
-------- ----
WAIVER CONTAINED IN THIS PARAGRAPH IS EXPRESSLY LIMITED TO ACTIONS AGAINST THE
UNDERSIGNED (AND NOT AGAINST THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT) AND
(2) ANY RECOVERY UPON ANY JUDGMENT RESULTING THEREFROM SHALL BE LIMITED TO
RECOVERY AGAINST THE ASSETS AND REVENUES OF THE UNDERSIGNED.
THE UNDERSIGNED HEREBY CONSENTS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF CONNECTICUT, THE COURTS OF THE UNITED STATES, AND THE COURTS OF ANY
OTHER STATE WHICH MAY HAVE JURISDICTION OVER THE SUBJECT MATTER, OVER ANY SUCH
ACTION AND OVER THE UNDERSIGNED.
THE WAIVERS AND CONSENTS DESCRIBED IN THIS NOTE SHALL INURE TO THE
BENEFIT OF EACH HOLDER OF THIS NOTE. THE HOLDER SHALL HAVE AND BE ENTITLED TO
ALL AVAILABLE LEGAL AND EQUITABLE REMEDIES, INCLUDING THE RIGHT TO SPECIFIC
PERFORMANCE, MONEY DAMAGES AND INJUNCTIVE OR DECLARATORY RELIEF. THE WAIVERS
OF SOVEREIGN IMMUNITY AND CONSENTS TO JURISDICTION CONTAINED HEREIN ARE
IRREVOCABLE.
The undersigned represents, warrants and acknowledges that the
transaction of which this Note is a part is a commercial transaction and not a
consumer transaction. Monies now or in the future to be advanced to or on
behalf of the undersigned are not and will not be used for personal, family or
household purposes.
THE UNDERSIGNED ACKNOWLEDGES THAT IT HAS THE RIGHT UNDER SECTION 52-
278a, ET SEQ., OF THE CONNECTICUT GENERAL STATUTES, SUBJECT TO CERTAIN
------
LIMITATIONS, TO NOTICE OF AND HEARING ON THE RIGHT OF THE LENDER TO OBTAIN A
PREJUDGMENT REMEDY, SUCH AS ATTACHMENT, GARNISHMENT OR REPLEVIN, UPON COMMENCING
ANY LITIGATION AGAINST THE UNDERSIGNED. NOTWITHSTANDING SUCH RIGHT, THE
UNDERSIGNED HEREBY WAIVES ALL RIGHTS TO NOTICE, JUDICIAL HEARING OR PRIOR COURT
ORDER TO WHICH IT MIGHT OTHERWISE HAVE THE RIGHT UNDER SAID STATUTE OR UNDER ANY
OTHER STATE OR FEDERAL STATUTE OR CONSTITUTION IN CONNECTION WITH THE OBTAINING
BY THE LENDER OF ANY PREJUDGMENT REMEDY IN CONNECTION WITH THIS NOTE. THE
UNDERSIGNED FURTHER CONSENTS TO THE ISSUANCE OF ANY PREJUDGMENT REMEDIES WITHOUT
A BOND AND AGREES NOT TO REQUEST OR FILE MOTIONS SEEKING TO REQUIRE THE POSTING
OF A BOND UNDER PUBLIC ACT 93-431 IN CONNECTION WITH THE LENDER'S EXERCISE OF
ANY PREJUDGMENT REMEDY. THE UNDERSIGNED ALSO WAIVES ANY AND ALL OBJECTION WHICH
IT MIGHT OTHERWISE ASSERT, NOW OR IN THE FUTURE, TO THE EXERCISE OR USE BY THE
LENDER OF ANY RIGHT OF SETOFF, REPOSSESSION OR SELF HELP AS MAY PRESENTLY EXIST
UNDER STATUTE OR COMMON LAW.
-3-
This Note was executed on or about ____ p.m. on the_____ day of
___________, 1999 at Uncasville, Connecticut, for the particular purposes set
forth above.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED BY THE LENDER, OR BY
ADMINISTRATIVE AGENT ON ITS BEHALF, IN CONNECTICUT AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LOCAL LAWS THEREOF.
THE MOHEGAN TRIBAL GAMING AUTHORITY
By: _______________________________
Title:_____________________________
-4-
SCHEDULE OF ADVANCES AND
PAYMENTS OF PRINCIPAL
Date Amount Interest Amount of Unpaid Notation
of Advance Period Principal Principal Made by
Paid Balance
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-5-
EXHIBIT G
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REQUEST FOR LETTER OF CREDIT
----------------------------
1. This REQUEST FOR LETTER OF CREDIT is executed and delivered by a Senior
Officer of The Mohegan Tribal Gaming Authority ("Borrower") to Bank of America
National Trust and Savings Association, as the Issuing Lender, pursuant to
Sections 2.4 of the Loan Agreement ( the "Loan Agreement") dated as of March 3,
1999, among Borrower, The Mohegan Tribe of Indians of Connecticut, a federally
recognized Indian Tribe and native American sovereign nation (the "Tribe"), the
Lenders, Documentation Agent and Syndication Agent referred to therein and Bank
of America National Trust and Savings Association, as Administrative Agent.
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein as defined in the Loan Agreement.
2. Subject to paragraph 4 below, Borrower hereby requests that the Issuing
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Lender issue a Letter of Credit as follows:
(a) Amount of Letter of Credit: $____________.
(b) Date of Issuance: ________________, ____.
(c) Beneficiary under Letter of Credit:
Name: _______________________________
Address: ____________________________
____________________________
____________________________
(d) Expiry Date: __________________, ____.
(e) Purpose of Letter of Credit: ______________
____________________________________________.
(f) Additional Information/Terms: _______________
_____________________________________________.
-2-
3. The requested Letter of Credit is (check one box only):
[_] a new Letter of Credit in addition to Letters of Credit already
outstanding.
[_] a supplement, modification, amendment, renewal, or extension to
or of the following outstanding Letter(s) of Credit: [identify]
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4. In connection with the issuance of the Letter of Credit requested
herein, Borrower represents, warrants and certifies to the Lenders that:
(a) Now and as of the date of the issuance of the requested Letter of
Credit, except (i) for representations and warranties which expressly speak
------
as of a particular date or which are no longer true and correct as a result
of a change permitted by the Loan Agreement or (ii) as disclosed by
Borrower and approved in writing by the Requisite Lenders, each
representation and warranty made by Borrower in Article 5 of the Loan
Agreement (other than Sections 5.7 (first sentence) and 5.13) will be true
----------
and correct, both immediately before such Letter of Credit is issued and
after giving effect to such Letter of Credit, as though such
representations and warranties were made on and as of the date of such
Letter of Credit;
(b) other than matters described in Schedule 5.13 of the Loan
----------
Agreement or not required as of the Closing Date to be therein described,
there is not any action, suit, proceeding or investigation pending or
threatened against or affecting Borrower or any of the Restricted
Subsidiaries or any Property of any of them before any Governmental Agency
that constitutes a Material Adverse Effect;
(c) now and as of the date of the requested Letter of Credit, no
Default or Event of Default presently exists or will have occurred and be
continuing as a result of the issuance of the Letter of Credit; and
(d) following the issuance of the Letter of Credit requested herein,
(i) the aggregate effective amount under all outstanding Letters of Credit
will not exceed $25,000,000, and (ii) the sum of (A) the aggregate
---
principal amount of the outstanding Loans, plus (B) the aggregate amount
----
available for drawing under the outstanding Letters of Credit, plus (C) the
----
aggregate amount of all unreimbursed draws with respect to all Letters of
Credit, shall not exceed the then applicable Commitment..
5. Attached hereto is an Application for Letter of Credit on the form
provided to Borrower by the Issuing Lender.
-3-
6. This Request for Letter of Credit is executed on _____________, _____,
by a Senior Officer of Borrower. The undersigned, in such capacity, hereby
certifies each and every matter contained herein to be true and correct.
THE MOHEGAN TRIBAL GAMING AUTHORITY
By:___________________________
______________________________
[Name & Title]
-4-
EXHIBIT H
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REQUEST FOR LOAN
----------------
2. This Request for Loan is executed and delivered by a Senior
Officer of The Mohegan Tribal Gaming Authority ("Borrower") to Administrative
Agent (as hereinafter defined), pursuant to the Loan Agreement (the "Loan
Agreement") dated as of March 3, 1999, entered into by and among Borrower, The
Mohegan Tribe of Indians of Connecticut, a federally recognized Indian Tribe and
native American sovereign nation, (the "Tribe"), the Lenders, Documentation
Agent and Syndication Agent referred to therein and Bank of America National
Trust and Savings Association, as Administrative Agent ("Administrative Agent").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein as defined in the Loan Agreement.
3. Subject to paragraph 3 below, Borrower hereby requests that Lender
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make a Loan pursuant to the Loan Agreement as follows:
3..1 Amount of Loan: $_________________.
3..2 Date of Loan: __________________, _____.
3..3 Proceeds to be deposited as follows:
___________________________________
(d) Type of Loan:
[_] Base Rate Loan
[_] LIBOR Loan with a ___ month Interest Period.
4. In connection with the Loan requested herein, Borrower hereby
represents, warrants, and certifies to the Administrative Agent that as of the
date of the Loan requested herein:
4.1 except as disclosed by Borrower and approved in writing by
the Administrative Agent and except for representations and warranties
which expressly relate solely to a specified date, the representations and
warranties contained in Article 5 of the
-1-
Loan Agreement (other than Sections 5.7 (first sentence) and 5.13) are true
----- ----
and correct on and as of the date of the Loan as though made on that date;
4.2 other than matters described in Schedule 5.13 of the Loan
----- ----
Agreement, or matters not required as of the Closing Date to be therein
described, or matters disclosed by Borrower and approved in writing by the
Administrative Agent, no action, suit, proceeding or investigation is
pending or threatened against or affecting Borrower or any property of
Borrower before any Governmental Agency that constitutes a Material Adverse
Effect; and
4.3 no Default or Event of Default exists.
5. This Request for Loan is executed on _________, ____, by a Senior
Officer of Borrower. The undersigned, in such capacity, hereby certifies each
and every matter contained herein to be true and correct.
THE MOHEGAN TRIBAL GAMING AUTHORITY
By:___________________________
______________________________
[Name & Title]
-2-
