EXHIBIT 10.14
EXECUTION COPY
RELINQUISHMENT AGREEMENT
THIS RELINQUISHMENT AGREEMENT (as further supplemented or amended from time
to time, the "Relinquishment Agreement") is entered into as of this 7th day of
February, 1998, between the Mohegan Tribal Gaming Authority (as further
defined below, the "Authority"), an instrumentality of The Mohegan Tribe of
Indians of Connecticut, a federally recognized Indian tribe (as further
defined below, the "Tribe"), and Trading Cove Associates, a Connecticut
partnership ("TCA").
RECITALS
A. The Authority and TCA are parties to (i) that certain Amended and
Restated Gaming Facility Management Agreement dated August 30, 1995 and
approved by the National Indian Gaming Commission on September 29, 1995 (the
"Gaming Management Agreement"), which grants to TCA the exclusive right and
obligation, for a period of seven (7) years ending on October 11, 2003, to
manage certain gaming operations as described therein, and to train Tribe
members and others in the operation and maintenance of such operations and
(ii) that certain Hotel/Resort Management Agreement dated February 28, 1994
(the "Hotel Management Agreement"), which grants to TCA the exclusive right
and obligation, for a period of fourteen (14) years, to manage, operate and
maintain certain hotel/resort operations as described therein.
B. The Authority now desires to assume the management, operation and
maintenance of its existing gaming operations, any related hotel/resort
operations and any expansion of the foregoing.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the Authority and
TCA agree as follows:
1. Definitions. Capitalized terms used in this Relinquishment Agreement
shall have the meanings set forth below:
"Affiliate" means, with respect to the Person in question, any Person
controlling, controlled by or under common control with, such Person. For
the purposes hereof, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or policies of the Person in question.
"Affiliate Transaction" has the meaning set forth in Section 7.2 below.
"Assignment Offer" has the meaning set forth in Section 16.7(a) below.
"Assignor" has the meaning set forth in Section 16.7(a) below.
"Authority" means the Mohegan Tribal Gaming Authority, acting by the
Management Board, or any other instrumentality of the Tribe with the
authority to exercise the regulatory and proprietary authority of the Tribe
over the Facilities in accordance with the Mohegan Tribal Constitution, the
Tribe's ordinance for gaming, the Tribe's ordinance establishing the
Mohegan Tribal Gaming Authority, the Compact, the IGRA or other applicable
law, and any successor and assignee thereto.
"Average Casino Revenues" means the average monthly Revenues of the
Casinos for the twelve (12) months ending with (and including) the month
immediately prior to the month in which a Casualty Event occurs.
"Bankruptcy Code" means the United States Bankruptcy Code, at 11 U.S.C.
(S)(S) 101, et. seq., as amended from time to time.
"Bureau of Indian Affairs" is the Bureau of Indian Affairs of the
Department of the Interior of the United States of America.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet
prepared in accordance with GAAP.
"Cash Contingency Reserve Fund" means the account previously established
by TCA in the Authority's name pursuant to the Gaming Management Agreement
which is used to make transfers as necessary to the Disbursement Account
and the cash prize reserve fund.
"Casinos" means, collectively, the Mohegan Sun Casino and the New Casino.
"Casualty Event" means any casualty, event or occurrence that destroys or
damages either or both Casinos.
"Class II Gaming Revenues" means any revenues collected from Class II
Gaming as that term is defined under the IGRA.
"Compact" means the tribal-state Compact entered into between the Tribe
and the State of Connecticut pursuant to the IGRA, as the same may be
amended from time to time, or such other Compact as may be substituted
therefor.
"Construction Financing" means the financing to be obtained and/or
committed by the Authority sufficient, as determined by the Authority, for
the purposes of the design, construction, equipping and staffing of the New
Facilities.
"CPI" means the revised Consumer Price Index for All Urban Consumers
(revised CPI-U), All Items, MSA applicable to New London County, CT, Base
1982-84=100, issued by the Bureau of Labor Statistics of the U.S.
Department of Labor. If the CPI is changed so that a base period other than
1982-84 is used, the CPI shall be converted in accordance with the
conversion factor published by the Bureau of Labor Statistics of the
Department of Labor. If the CPI is discontinued during the Term with no
successor or comparable successor CPI, the Authority shall appoint an
independent nationally recognized accounting firm to select another similar
index.
"Depository Account" means the account previously established by TCA in
the Authority's name pursuant to the Gaming Management Agreement into which
account are deposited all gross revenues and other proceeds connected with
or arising from the operation of the current gaming operations, the sale of
all products, food and beverage and all other activities of the current
operations.
"Designated Senior Indebtedness" means any Senior Indebtedness the
original principal amount or maximum commitment of which is $50,000,000 or
more and that has been designated at the time of issuance thereof by the
Authority as "Designated Senior Indebtedness."
"Designated Senior Secured Indebtedness" means any Senior Secured
Indebtedness the original principal amount or maximum commitment of which
is $50,000,000 or more and that has been designated at the time of issuance
thereof by the Authority as "Designated Senior Secured Indebtedness."
"Disbursement Account" means the account previously established by TCA in
the Authority's name pursuant to the Gaming Management Agreement which
account TCA uses to make all required payments for operating expenses and
certain other payments relating to the existing gaming and related
operations.
"Effective Date" means the later of (a) the date the Authority receives
all Required Approvals, or (b) the date the existing Series B Senior
Secured Notes of the Authority in the original aggregate principal amount
of $175,000,000 are refinanced or repaid.
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"Facilities" means collectively the Mohegan Sun Casino and the New
Facilities, as such may be replaced or reconstructed following a casualty
loss (in whole or in part). The Facilities shall not include any other
facilities or improvements hereafter developed (by TCA or others) on lands
owned or controlled by the Authority or the Tribe or any instrumentality
thereof.
"Fiscal Year" means the fiscal year of the Authority which currently is
October 1-September 30.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession.
"Gaming" means any and all activities defined as Class III Gaming under
the IGRA or authorized under the Compact, but shall not include Class II
Gaming as defined under the IGRA.
"Gaming Management Agreement" has the meaning set forth in Recital A
hereof.
"Gross Gaming Revenue" shall mean the net win from Gaming activities
which is the difference between Gaming wins and losses before deducting
promotional allowances, costs and expenses, determined in accordance with
GAAP consistently applied.
"Guarantee" means a guaranty, direct or indirect, in any manner, of all
or any part of any indebtedness of another Person.
"Hedging Obligations" means, with respect to any Person, the obligations
of such Person under (a) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (b) other agreements or
arrangements designed to protect such Person against fluctuations in
interest rates.
"Hotel Management Agreement" has the meaning set forth in Recital A
hereof.
"IGRA" means the Indian Gaming Regulatory Act of 1988, 25 U.S.C. (S) 2701
et seq., as amended from time to time.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance
deferred and unpaid of the purchase price of any property or representing
any Hedging Obligations, except any such balance that constitutes an
accrued expense or trade payable, if and to the extent any of the foregoing
(other than letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in accordance with
GAAP consistently applied, as well as all Indebtedness of others secured by
a lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any indebtedness of any other Person. The
amount of any Indebtedness outstanding as of any date shall be (a) the
accreted value thereof, in the case of any Indebtedness issued with
original issue discount, and (b) the principal amount thereof, together
with any interest thereon that is more than thirty (30) days past due, in
the case of any other Indebtedness.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of Management Board of the Authority, (i) qualified to
perform the task for which it has been engaged and (ii) disinterested and
independent with respect to the Authority and each Affiliate of the
Authority.
"Initial Junior Payment Period" means the period commencing on the
Relinquishment Date and ending on the earlier to occur of June 30 or
December 31 following the Relinquishment Date.
"Initial Senior Payment Period" means the period commencing on the
Relinquishment Date and ending on the earlier to occur of March 31, June
30, September 30 or December 31 following the Relinquishment Date.
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"Junior Changeover Date" means the date immediately following the end of
the Initial Junior Payment Period.
"Junior Relinquishment Payment" has the meaning set forth in Section
6.1(b) below.
"MTC Court" means the Gaming Disputes Court of the Tribe.
"Marks" means any and all of the service marks, trademarks, copyrights,
trade names, patents or other similar rights or registrations, now or
hereafter held by the Tribe or the Authority or applied for in connection
therewith; including all marks which are unique to, and developed for, the
Facilities.
"Minimum Priority Distribution" means an annual minimum payment to the
Tribe from the operation of the Facilities in the amount of Fourteen
Million Dollars ($14,000,000), which shall be adjusted annually, on each
anniversary of the Relinquishment Date, to reflect the cumulative increase
in the CPI since the Relinquishment Date. One twelfth (1/12th) of the
Minimum Priority Distribution shall be paid to the Tribe within twenty-five
(25) days following the end of each calendar month following the
Relinquishment Date. Any underpayment of the Minimum Priority Distribution
in any calendar month shall be added to the Minimum Priority Distribution
due the following calendar month.
"Mohegan Sun Casino" means the existing Mohegan Sun casino and any other
lawful commercial activity operated in such casino, as used for Gaming.
"National Indian Gaming Commission" means the commission established
pursuant to 25 U.S.C. Section 2704.
"New Casino" means the new casino to the extent developed by TCA as part
of the New Facilities and any other lawful commercial activity operated in
such casino, as used for Gaming.
"New Facilities" means a new casino consisting of approximately 100,000
square feet of gaming space and related food and beverage and entertainment
facilities, a luxury hotel containing approximately 1,500 guest rooms and
related food and beverage facilities, a convention/events center with
indoor seating for approximately 10,000 patrons and 100,000 square feet of
convention space, related parking facilities and infrastructure, and
including any modifications of the foregoing elements agreed to by the
parties, to the extent such facilities are developed by TCA.
"NJ Gaming License" means Sun International's qualification as a holding
company pursuant to the New Jersey Casino Control Act.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Officer's Certificate" means a certificate signed on behalf of the
Authority by two officers of the Authority, one of whom must be the
principal executive officer, the principal financial officer, the treasurer
or the principal accounting officer of the Authority.
"Payment Blockage Notice" has the meaning set forth in Section 6.2(d)(ii)
below.
"Permitted Assignee" means Sun International, any Affiliate of Sun
International, Sun Cove Ltd., Waterford Gaming, L.L.C., LMW Investments,
Inc. and Xxxxxx Suites, Inc.
"Person" means any individual, sole proprietorship, corporation, general
partnership, limited partnership, limited liability company or partnership,
joint venture, association, joint stock company, unincorporated
association, instrumentality or other form of entity.
"Xxxxx Cash Fund" means the account previously established by TCA in the
Authority's name pursuant to the Gaming Management Agreement which is used
to maintain funds for miscellaneous small expenditures relating to the
existing gaming and related operations.
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"Principal Business" means the Class II and Class III casino gaming (as
such terms are defined in IGRA) and resort business and any activity or
business incidental, directly related or similar thereto, or any business
or activity that is a reasonable extension, development or expansion
thereof or ancillary thereto, including any hotel, retail, entertainment,
recreation or other activity or business designated to promote, market,
support, develop, construct or enhance the gaming and resort business
operated by the Authority.
"Proposed Financing" means the anticipated refinancing of certain of the
Authority's existing indebtedness, together with the Construction
Financing.
"Recommencement Month" means, following a Tolling Event, the earlier of
the month in which (i) the monthly Revenues of the Casinos equal or exceed
ninety percent (90%) of the Average Casino Revenues, (ii) the date upon
which the Authority has fully complied with the requirements set forth in
Section 7.6 below occurs, or (iii) TCA delivers written notice (which shall
be irrevocable with respect to such Tolling Event) to the Authority stating
that the current month shall be deemed the "Recommencement Month."
"Relinquishment Agreement" has the meaning set forth in the introductory
paragraph hereof.
"Relinquishment Date" means the later of (a) January 1, 2000 or (b) the
Effective Date.
"Relinquishment Payment" has the meaning set forth in Section 6.1 below.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Indebtedness.
"Required Approvals" means the approval of this Relinquishment Agreement
by the Bureau of Indian Affairs, and/or the National Indian Gaming
Commission, to the extent those agencies determine such approval may be
required by law, and the entry of a stipulated declaratory judgment by the
MTC Court upholding the validity and enforceability of this Relinquishment
Agreement.
"Revenues" means all revenues of any nature (but excluding any Class II
Gaming Revenues) derived directly or indirectly from the Facilities,
including, without limitation, Gross Gaming Revenue, hotel revenues, room
service, catering, food and beverage sales, parking revenues, ticket
revenues or other fees or receipts from the convention/events center, other
rental or other receipts from lessees, sublessees, licensees and
concessionaires (but not the gross receipts of such lessees, sublessees,
licensees or concessionaires) and proceeds of business interruption
insurance, but excluding (i) any gratuities or service charges added to a
customer's xxxx, (ii) any credits or refunds made to customers, guests or
patrons, (iii) any sales, excise, gross receipt, admission, entertainment,
tourist or other taxes or charges (or assessments equivalent thereto, or
payments made in lieu thereof) which are received from patrons and passed
on to governmental or quasi-governmental entities unrelated to the Tribe,
(iv) any federal taxes or impositions that relate to the operation of the
Facilities, which may be implemented from time to time, (v) any fire and
extended coverage insurance proceeds other than for business interruption,
(vi) any condemnation awards other than for temporary condemnation, (vii)
any proceeds of financings or refinancings, and (viii) any interest earned
on any accounts, all as determined in accordance with GAAP consistently
applied.
"Senior Changeover Date" means the date immediately following the end of
the Initial Senior Payment Period.
"Senior Indebtedness" means (a) any Indebtedness of the Authority unless
the instrument under which such Indebtedness is incurred expressly provides
that it is on parity with, or subordinated in right of payment to, the
Junior Relinquishment Payment and (b) all Obligations with respect to any
of the foregoing. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness shall not include (x) any Indebtedness of
the Authority to the Tribe or any Affiliate or instrumentality thereof
other than in respect of the Minimum Priority Distribution and (y) any
Indebtedness incurred for the purchase of goods or materials or for
services obtained in the ordinary course of the business of the Facilities
(other than with the proceeds of revolving credit borrowings permitted
hereby).
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"Senior Obligations" means Senior Indebtedness, Senior Relinquishment
Payments and interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable with respect to the Senior
Relinquishment Payments.
"Senior Relinquishment Payment" has the meaning set forth in Section
6.1(a) below.
"Senior Secured Indebtedness" means any Senior Indebtedness secured by a
security interest, mortgage or other arrangement such that the holder of
such Senior Indebtedness would be recognized as a secured creditor under
the Bankruptcy Code if the obligor of such Senior Indebtedness were a
debtor under the Bankruptcy Code.
"Senior Secured Obligations" means any Obligations with respect to Senior
Secured Indebtedness to the extent that such Obligations would be
recognized as a secured claim (assuming no election has been made under
(S) 1111 of the Bankruptcy Code) under the Bankruptcy Code if the obligor
were a debtor under the Bankruptcy Code.
"Sun International" means Sun International Hotels Limited.
"TCA" has the meaning set forth in the introductory paragraph hereof.
"Term" has the meaning set forth in Section 3 below.
"Termination Event" means the irrevocable revocation of the NJ Gaming
License.
"Tolling Event" means, following a Casualty Event, the failure of the
monthly Revenues of the Casinos to equal at least fifty percent (50%) of
the Average Casino Revenues for three (3) consecutive months.
"Tolling Period" has the meaning set forth in Section 16.14 below.
"Tribe" means the Mohegan Tribe of Indians of Connecticut, a federally
recognized Indian tribe and its permitted successors and assigns.
"Unsecured Senior Refinancing Indebtedness" means any Senior Indebtedness
other than Senior Secured Indebtedness that is issued as part of the
Proposed Financing and is underwritten or privately placed by an investment
banking firm.
"Year-End Statement" has the meaning set forth in Section 6.1(c) below.
2. Status of Management Agreements. (a) As of the Relinquishment Date, the
Authority and TCA terminate the Gaming Management Agreement and all covenants,
terms and provisions contained therein pursuant to Section 9.2 thereof,
including, without limitation, the retention of TCA as an independent
contractor for the purposes of managing the Authority's gaming operations and
all rights and responsibilities of TCA in connection with such retention under
the Gaming Management Agreement. Notwithstanding the foregoing, following the
Relinquishment Date, to the extent any claims or obligations relating to the
period prior to the Relinquishment Date pursuant to Sections 4.2.3, 4.17 or 5
of the Gaming Management Agreement arise, such of TCA's and the Authority's
obligations under such sections shall survive the termination of the Gaming
Management Agreement.
(b) As of the Effective Date, the Authority and TCA terminate all rights and
responsibilities of the Authority and TCA which may exist under the Hotel
Management Agreement.
3. Term. The "Term" of this Relinquishment Agreement shall commence on the
Effective Date and shall continue until all Relinquishment Payments have been
paid in accordance with Section 6.1 below; provided, however, that if a
Termination Event occurs on or prior to the Relinquishment Date, this
Relinquishment Agreement (and all obligations of the Authority under this
Relinquishment Agreement) shall automatically terminate and be of no further
force and effect; unless the partnership interest in TCA held by Sun Cove Ltd.
is assigned within thirty (30) days following such Termination Event to an
entity which (a) has been approved by the Authority, in the Authority's sole
and absolute discretion, and (b) otherwise satisfies the provisions of the
Gaming Management Agreement.
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4. Distributions. Within forty-five (45) days of the Relinquishment Date,
TCA shall prepare and deliver to the Authority a final statement of accounts
covering the period since the most recent operating statement prepared in
accordance with Section 4.29 of the Gaming Management Agreement through the
Relinquishment Date. Based on such final statement and in accordance with
Section 10.2 of the Gaming Management Agreement, no later than fifteen (15)
business days following the release of the accounts to the Authority pursuant
to Section 5 below, the Authority shall pay TCA those amounts to which it is
entitled under the third and fifth clauses of Section 6.4 of the Gaming
Management Agreement that have accrued for the period prior to the
Relinquishment Date but which have not been distributed. In its sole
discretion, within ninety (90) days following receipt of such final statement,
the Authority may obtain an audit of such final statement as well as the other
books and records required to be maintained by TCA pursuant to the Gaming
Management Agreement for the period from the date of the last audited
financial statements delivered thereunder through the Relinquishment Date from
a nationally recognized independent certified public accounting firm with
casino industry experience selected by the Authority.
5. Release of Accounts. On the Relinquishment Date, TCA shall release to the
Authority and relinquish any and all rights it may have under the Gaming
Management Agreement with respect to any and all accounts maintained by or on
behalf of the Tribe or the Authority, including, without limitation, the
Depository Account, the Disbursement Account, the Cash Contingency Reserve
Fund and the Xxxxx Cash Fund, and TCA shall no longer have authority or the
right or obligation to make payments into, disbursements from, or transfers
between or among such accounts. TCA shall execute any and all instruments or
documents necessary to release or transfer to the Authority full control over
all such accounts.
6. Payments.
6.1 Relinquishment Payments. The Authority shall make certain payments to
TCA (the "Relinquishment Payments"), without set-off, deduction or
counterclaim, in connection with the termination of TCA's rights under the
terms of the Gaming Management Agreement and the Hotel Management Agreement.
Subject to Section 6.2 below, the Relinquishment Payments shall be paid and
consist of those amounts computed in accordance with paragraphs (a) and (b) as
set forth below:
(a) Within twenty-five (25) days following the end of the Initial Senior
Payment Period and thereafter within twenty-five (25) days following the
end of each successive three (3) month period, commencing on the Senior
Changeover Date and ending on the day immediately preceding the fifteenth
(15th) annual anniversary of the Relinquishment Date (recognizing that the
last such period may be less than three (3) full months), the Authority
shall pay TCA an amount equal to two and one half percent (2.50%) of
Revenues for the Initial Senior Payment Period and for each successive
three (3) month period thereafter, as applicable (the "Senior
Relinquishment Payments").
(b) Within twenty-five (25) days following the end of the Initial Junior
Payment Period and thereafter within twenty-five (25) days following the
end of each successive six (6) month period, commencing on the Junior
Changeover Date and ending on the day immediately preceding the fifteenth
(15th) annual anniversary of the Relinquishment Date (recognizing that the
last such period may be less than six (6) full months), the Authority shall
pay TCA an amount equal to two and one half percent (2.50%) of Revenues for
the Initial Junior Payment Period and for each successive six (6) month
period thereafter, as applicable (the "Junior Relinquishment Payments").
(c) Within ninety (90) days following the end of the Fiscal Year in which
the Relinquishment Date occurs and thereafter following the end of each
Fiscal Year (or portion thereof) during the Term, the Authority shall
provide to TCA operating statements derived from audited financials for the
preceding Fiscal Year which include, without limitation, all Revenues
generated by the Facilities and the amount of the Relinquishment Payments
paid or payable to TCA pursuant to Sections 6.1(a) and (b) (the "Year End
Statements"). Such statements shall be prepared in accordance with GAAP,
consistently applied, and shall be certified as true and complete by
nationally recognized independent auditors selected by the Authority.
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Upon reasonable notice and at reasonable times, TCA or its duly authorized
representatives shall have on-site access to, and be entitled to photocopy,
the books and records of the Authority relating to the Facilities for the
purpose of verifying the Year End Statements.
(d) To the extent that any Relinquishment Payment (or portion thereof) is
not paid when due, such amounts shall earn interest at a rate of twelve
percent (12%) per annum from the due date thereof until the date payment is
made (or if such rate of interest is not lawful, at the maximum lawful rate
of interest).
6.2 Subordination of Relinquishment Payments. (a) TCA and the Authority
agree that each of the Junior Relinquishment Payments and each of the Senior
Relinquishment Payments are subordinated in right of payment, to the extent
and in the manner provided in this Section 6.2, to the prior payment of the
Minimum Priority Distribution (to the extent then due) and to the prior
payment of all Senior Secured Obligations (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination referred to in this sentence is for the benefit of the Tribe and
the holders of Senior Secured Indebtedness. TCA and the Authority agree that
each of the Junior Relinquishment Payments (but not the Senior Relinquishment
Payments) are subordinated in right of payment, to the extent and in the
manner provided in this Section 6.2, to the prior payment of all Senior
Obligations (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination referred to in
this sentence is for the benefit of the holders of Senior Obligations.
(b) Upon any distribution to creditors of the Authority in a liquidation of
the Authority, or of the business conducted in the Facilities, or dissolution
of the Authority, or in a bankruptcy, reorganization, insolvency, receivership
or similar proceeding relating to the Authority or the business conducted in
the Facilities, or in an assignment for the benefit of creditors or any
marshaling of the Authority's assets and liabilities:
(i) (A) the Tribe shall be entitled to receive the Minimum Priority
Distributions then due in cash before TCA shall be entitled to receive any
payment with respect to either the Senior Relinquishment Payments or the
Junior Relinquishment Payments then due, (B) the holders of Senior Secured
Indebtedness shall be entitled to receive payment in full in cash of all
Senior Secured Obligations due in respect of such Senior Secured
Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Secured
Indebtedness) before TCA shall be entitled to receive any payment with
respect to either the Senior Relinquishment Payments or the Junior
Relinquishment Payments, and (C) the holders of Senior Obligations shall be
entitled to receive payment in full in cash of such Senior Obligations
(including interest after the commencement of any such proceeding at the
rate specified in the document governing the applicable Senior Obligation)
before TCA shall be entitled to receive any payment with respect to the
Junior Relinquishment Payments; and
(ii) (A) until all Minimum Priority Distributions then due are paid in
full in cash, any payment or distribution in respect of any Relinquishment
Payment to which TCA would be entitled but for the operation of this
Section 6.2 shall be made to the Tribe, (B) if all Minimum Priority
Distributions then due are paid in full in cash and until all Senior
Secured Obligations (as provided in subsection (i) above) are paid in full
in cash, any payment or distribution in respect of any Relinquishment
Payment to which TCA would be entitled but for the operation of this
Section 6.2 shall be made to holders of Senior Secured Indebtedness, as
their interests may appear, and (C) if all Minimum Priority Distributions
then due and Senior Secured Obligations are paid in full in cash and until
all Senior Obligations (as provided in subsection (i) above) are paid in
full in cash, any payment or distribution in respect of any Junior
Relinquishment Payment to which TCA would be entitled but for the operation
of this Section 6.2 shall be made to holders of Senior Obligations, as
their interests may appear.
(c) The Authority may not make any payment or distribution to TCA in respect
of any Relinquishment Payment and may not acquire from TCA any right to any
Relinquishment Payment or any release, satisfaction, discharge or
relinquishment of any Relinquishment Payment for cash or property until all
Minimum Priority Distributions then due have been paid in full in cash if a
default in the payment of any Minimum Priority Distribution then due has
occurred.
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(d) Provided that provisions substantially equivalent to this Section 6.2(d)
prevent payments or distributions to or in respect of all Unsecured Senior
Refinancing Indebtedness, the Authority may not make any payment or
distribution to TCA in respect of any Relinquishment Payment and may not
acquire from TCA any right to any Relinquishment Payment or any release,
satisfaction, discharge or relinquishment of any Relinquishment Payment for
cash or property until all Senior Secured Obligations have been paid in full
if:
(i) a default in the payment of any principal or other Obligations with
respect to Designated Senior Secured Indebtedness occurs and is continuing
beyond any applicable grace period in the agreement, indenture or other
document governing such Designated Senior Secured Indebtedness; or
(ii) a default, other than a payment default, on Designated Senior
Secured Indebtedness occurs and is continuing that then permits holders of
the Designated Senior Secured Indebtedness to accelerate its maturity and
TCA receives a notice of the default (a "Payment Blockage Notice") from a
Representative. If TCA receives any such Payment Blockage Notice, no
subsequent Payment Blockage Notice shall be effective for purposes of this
Section 6.2(d)(ii), irrespective of the number of defaults (other than
defaults covered by clause (i) above) with respect to Designated Senior
Secured Indebtedness during such period, unless and until at least three
hundred sixty (360) days shall have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice issued under this Section
6.2(d)(ii).
(e) The Authority may not make any payment or distribution to TCA in respect
of any Junior Relinquishment Payment and may not acquire from TCA any right to
any Junior Relinquishment Payment or any release, satisfaction, discharge or
relinquishment of any Junior Relinquishment Payment for cash or property until
all Senior Obligations have been paid in full if:
(i) a default in the payment of any amounts, principal or other
Obligations with respect to Designated Senior Indebtedness or Senior
Relinquishment Payments occurs and is continuing beyond any applicable
grace period in the agreement, indenture or other document governing such
Designated Senior Indebtedness or Senior Relinquishment Payments; or
(ii) a default, other than a payment default, on Designated Senior
Indebtedness occurs and is continuing that then permits holders of the
Designated Senior Indebtedness to accelerate its maturity and TCA receives
a Payment Blockage Notice from a Representative. If TCA receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice shall be
effective for purposes of this Section 6.2(e)(ii), irrespective of the
number of defaults (other than defaults covered by clause (i) above) with
respect to Designated Senior Indebtedness during such period, unless and
until at least three hundred sixty (360) days shall have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice issued under
this Section 6.2(e)(ii).
(f) The Authority may and shall resume payments on, and distributions in
respect of, any Relinquishment Payment (or portion thereof) the payment of
which was not permitted hereby, and the Authority may take actions with
respect thereto that were not permitted hereby, upon the earlier of:
(i) the date upon which all applicable defaults that prevent such payment
or distribution are cured or waived; or
(ii) in the case of a default referred to in Section 6.2(d)(ii) or
6.2(e)(ii) hereof, one hundred seventy nine (179) days following receipt of
the applicable Payment Blockage Notice if the maturity of such Designated
Senior Secured Indebtedness or Designated Senior Indebtedness, as
applicable, has not been accelerated,
if this Section otherwise permits the payment or distribution or such action
at the time of such payment or distribution.
(g) In the event that TCA receives any payment with respect to any
Relinquishment Payment at a time when TCA has actual knowledge that such
payment is prohibited by this Section 6.2, such payment shall be held by TCA,
in trust for the benefit of, and shall be paid over forthwith and delivered,
upon written request, to: (i) the
9
Tribe (to the extent that any Minimum Priority Distribution is then due and
not paid), (ii) the holders of Senior Secured Indebtedness (to the extent that
any such payment held by TCA was in respect of a Relinquishment Payment that
was subordinated to such Senior Secured Indebtedness), as their interests may
appear, or their Representative under the indenture or other agreement (if
any) pursuant to which Senior Secured Indebtedness may have been issued, as
their respective interests may appear, and (iii) the holders of Senior
Obligations (to the extent that any such payment held by TCA was in respect of
a Junior Relinquishment Payment that was subordinated to such Senior
Obligations), as their interests may appear, or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Obligations may
have been issued or created, as their respective interests may appear, for
application to the payment, first to all Minimum Priority Distributions then
due and not paid, second, to all Senior Secured Obligations remaining unpaid
and then to all Senior Obligations remaining unpaid to the extent necessary to
pay such Senior Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the Tribe,
the holders of Senior Secured Indebtedness or the holders of Senior
Obligations or their Representatives, as the case may be.
(h) The Authority shall promptly notify TCA of any facts known to the
Authority that would cause a payment of any portion of the Relinquishment
Payments to violate this Section, but failure to give such notice shall not
affect the subordination of the Relinquishment Payments as provided in this
Section.
(i) After all Minimum Priority Distributions (to the extent then due) and
Senior Secured Obligations have been paid in full and until all Senior
Relinquishment Payments and all other Senior Indebtedness are current, TCA
shall be subrogated with respect to the Senior Relinquishment Payments
(equally and ratably with all other Senior Indebtedness pari passu with the
Senior Relinquishment Payments) to the rights of (i) the Tribe to receive
distributions applicable to Minimum Priority Distributions (to the extent then
due) to the extent that distributions otherwise payable with respect to the
Senior Relinquishment Payments have been applied to the payment of such
Minimum Priority Distributions, and (ii) holders of Senior Secured
Indebtedness to receive distributions applicable to Senior Secured Obligations
to the extent that distributions otherwise payable with respect to the Senior
Relinquishment Payments have been applied to the payment of Senior Secured
Obligations. A distribution made under this Section 6.2(i) to the Tribe or
holders of Senior Secured Indebtedness that otherwise would have been made in
respect of Senior Relinquishment Payments is not, as between the Authority and
TCA, a payment by the Authority in respect of Senior Relinquishment Payments.
(j) After all Minimum Priority Distributions (to the extent then due),
Senior Indebtedness and Senior Relinquishment Payments have been paid in full
and until all Junior Relinquishment Payments are current, TCA shall be
subrogated with respect to the Junior Relinquishment Payments (equally and
ratably with all other Indebtedness pari passu with the Junior Relinquishment
Payments) to the rights of (i) the Tribe to receive distributions applicable
to Minimum Priority Distributions (to the extent then due) to the extent that
distributions otherwise payable with respect to the Junior Relinquishment
Payments have been applied to the payment of such Minimum Priority
Distributions, (ii) holders of Senior Secured Indebtedness to receive
distributions applicable to Senior Secured Indebtedness to the extent that
distributions otherwise payable with respect to the Junior Relinquishment
Payments have been applied to the payment of Senior Secured Indebtedness, and
(iii) holders of any other Senior Indebtedness to receive distributions
applicable to any other Senior Indebtedness to the extent that distributions
otherwise payable with respect to the Junior Relinquishment Payments have been
applied to the payment of such Senior Indebtedness. A distribution made under
this Section 6.2(j) to the Tribe, holders of Senior Secured Indebtedness or
holders of other Senior Indebtedness that otherwise would have been made in
respect of Junior Relinquishment Payments is not, as between the Authority and
TCA, a payment by the Authority in respect of Junior Relinquishment Payments.
(k) This Section 6.2 defines the relative rights of TCA, the Tribe, holders
of Senior Secured Indebtedness and holders of Senior Obligations. Nothing in
this Section 6.2 shall:
(i) affect the relative rights of TCA and creditors of the Authority
other than their rights in relation to holders of Senior Secured
Indebtedness, holders of Senior Obligations and the Tribe with respect to
its rights to Minimum Priority Distributions;
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(ii) impair, as between the Authority and TCA, the obligation of the
Authority, which is absolute and unconditional, to pay the Relinquishment
Payments in accordance with the terms hereof; or
(iii) prevent TCA from exercising its available remedies upon a default
under this Relinquishment Agreement, including the right to obtain a
judgment against the Authority for failure to pay any Relinquishment
Payments when due pursuant to the provisions of Section 11 hereof, subject
to the rights of holders of Senior Secured Indebtedness, holders of Senior
Indebtedness and the Tribe to receive distributions and payments otherwise
payable to TCA as or in respect of Relinquishment Payments.
(l) No right of any holder of Senior Secured Indebtedness, any holder of
Senior Obligations or the Tribe to enforce the subordination provisions of
this Section 6.2 shall be impaired by any act or failure to act by the
Authority or TCA or by the failure of the Authority or TCA to comply with this
Section 6.2.
(m) The Authority agrees and covenants that it will not, directly or
indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise, with respect to, or otherwise become responsible
for the payment of (collectively, "incur") any Indebtedness that by its terms
is expressly subordinated in right of payment to any obligation of the
Authority (other than any subordination in right of payment to the Minimum
Priority Distributions or to Senior Secured Indebtedness) unless (i) such
Indebtedness is subordinated at least to the same extent to the right of
payment to the Senior Relinquishment Payments and (ii) such Indebtedness is
expressly not Senior Indebtedness hereunder. The Authority shall not incur any
Indebtedness that by its terms is expressly subordinated in right of payment
to any obligations of the Authority (other than any subordination in right of
payment to the Minimum Priority Distributions or to Senior Secured
Indebtedness) and which subordination terms would permit any payment on the
obligations due thereunder at a time that obligations due with respect to the
Junior Relinquishment Payments would not be payable pursuant to the terms
hereof, unless such payment was pari passu or subordinated with the Junior
Relinquishment Payment (pro rata in accordance with the respective amounts
then due).
(n) For the purposes of this Section 6.2, any Minimum Priority Distribution
shall be deemed paid for all purposes of this Section 6.2 if the Authority
lawfully may pay such Minimum Priority Distribution to the Tribe and has at
any time the funds lawfully available to pay such Minimum Priority
Distribution.
(o) The provisions of this Section 6.2 shall not be amended or modified to
affect adversely (i) the holders of Senior Secured Indebtedness, with respect
to the provisions relating to Senior Secured Obligations, without the prior
written consent of the holders of all Designated Senior Secured Indebtedness;
provided, however, that a provision may be amended or modified with respect to
any class of Senior Secured Obligations to the extent such class has given its
prior written consent to such amendment or modification, (ii) the holders of
Senior Indebtedness, with respect to the provisions relating to Senior
Obligations, without the prior written consent of the holders of all
Designated Senior Indebtedness; provided, however, that a provision may be
amended or modified with respect to any class of Senior Obligations to the
extent such class has given its prior written consent to such amendment or
modification, and (ii) the Tribe, with respect to the provisions relating to
the Minimum Priority Distribution, without the prior written consent of the
Tribe.
7. Certain Covenants of the Authority.
7.1 Payments to the Tribe. Except for the payment of (a) the Minimum
Priority Distributions, or (b) reasonable charges for utilities or other
governmental services supplied by the Tribe and used by the Authority (in an
amount not to exceed the reasonable costs of such services plus a reasonable
allowance for administrative costs), the Authority shall not make any payment
or distribution to or for the benefit of the Tribe or any Affiliate of the
Tribe or make any distribution to the members of the Tribe (i) prior to the
payment in full of Relinquishment Payments then due, or (ii) at any time if
any Relinquishment Payments are outstanding.
7.2 Affiliate Transactions. Except for the payment of (a) the Minimum
Priority Distributions, or (b) reasonable charges for utilities or other
governmental services supplied by the Tribe and used by the Authority (in an
amount not to exceed the reasonable costs of such services plus a reasonable
allowance for administrative
11
costs), the Authority shall not sell, lease, transfer or otherwise dispose of
any of its properties or assets to, or purchase any property or assets from,
or enter into or make any contract, agreement, understanding, loan, advance or
Guarantee with, or for the benefit of, the Tribe, an Affiliate of the Tribe or
an Affiliate of the Authority (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is on terms that are no
less favorable to the Authority than those that would have been obtained in a
comparable transaction by the Authority with an unrelated Person, and (ii) the
Authority delivers to TCA (a) with respect to any Affiliate Transaction
involving aggregate payments in excess of Two Million Dollars ($2,000,000), a
resolution adopted by a majority of the Management Board approving such
Affiliate Transaction and set forth in an Officer's Certificate certifying
that such Affiliate Transaction complies with clause (i) above and (b) with
respect to any Affiliate Transaction involving aggregate payments in excess of
Ten Million Dollars ($10,000,000), a written opinion as to the fairness to the
Authority from a financial point of view issued by an Independent Financial
Advisor.
7.3 Subsidiaries. The Authority will not create, acquire or own any
instrumentality, subdivisions or subunits unless the actions and assets of
such instrumentalities, subdivisions or subunits are subject to or bound by
the terms of this Relinquishment Agreement.
7.4 Business Purpose. During the Term, the Authority (or any assignee of the
Authority permitted under this Relinquishment Agreement), directly or
indirectly, shall not engage in any business or activity other than the
Principal Business.
7.5 Operation of Casinos. During the Term, the Authority shall continue to
operate (i) the Mohegan Sun Casino for the primary purpose of conducting
Gaming, substantially in accordance with the standard and character of the
operations being conducted therein on the date hereof, and (ii) the New Casino
for the primary purpose of conducting Gaming, substantially in accordance with
the standard and character of the operations conducted therein one year after
the opening of the New Casino.
7.6 Replacement or Restoration Following Casualty. If all or a portion of
the Facilities are damaged by fire or other casualty, the Authority promptly
shall cause the Facilities to be replaced or restored to substantially the
same condition as immediately prior to the occurrence of such fire or other
casualty; provided, however, that in no event shall the Authority be obligated
to expend for any replacement or restoration an amount in excess of the
insurance proceeds recovered by the Authority and allocable to the damage to
the Facilities after deduction of any amounts required to be paid to any
holder of Indebtedness. If insurance proceeds are not available to the
Authority for such replacement or restoration, the Authority shall use
reasonable efforts to obtain financing on commercially reasonable terms to
undertake such replacement or restoration of the Facilities.
8. Marks. To the extent TCA has any rights to any of the Marks or the
"Mohegan Sun" name, TCA grants to the Authority an exclusive, irrevocable,
perpetual, world-wide, royalty free license to use the Marks and the "Mohegan
Sun" name in connection with the Facilities; provided, however, that the
Authority shall only use the word "Sun" in conjunction with the Facilities and
together with the word or words "Mohegan" or "the Mohegan Tribe" and that the
Authority will not use the word "Sun" separately as a trademark or servicemark
or engage in any activity that suggests it is affiliated with Sun
International or TCA after the Relinquishment Date. TCA acknowledges that all
of the Marks might not be used in connection with the Facilities, and the
Authority shall have sole discretion to determine which Marks shall be so
used. Except as may be required by law or to describe the historical
relationship between the parties, TCA shall not use the Authority's or the
Tribe's name, or any variation thereof, directly or indirectly, in any context
without the prior written approval of the Authority, which may be withheld in
its sole and absolute discretion.
9. Non-Impairment of Agreement. The Tribe, directly or indirectly, shall not
impose any tax, levy or other monetary payment obligation on the Authority or
on any activity at the Facilities, other than (a) Minimum Priority
Distributions and (b) reasonable charges for utilities or other governmental
services supplied by the Tribe and used by the Authority (in an amount not to
exceed the reasonable costs of such services plus a reasonable allowance for
administrative costs). The Tribe shall not, directly or indirectly, take any
action, enter into any
12
agreement, amend its constitution or enact any ordinance, law, rule or
regulation that would prejudice or have a material adverse affect on the
rights of TCA under this Relinquishment Agreement. Neither the Tribe nor any
committee, agency, board or other official body of the Tribe shall, by
exercise of the police power, eminent domain or otherwise, act to modify,
amend or in any manner impair the obligations of the parties under this
Relinquishment Agreement without the written consent of TCA. Any such action
or attempted action shall be void ab initio. The Tribe acknowledges that the
MTC Court has the authority to provide equitable relief to enforce this
provision.
10. Confidential and Proprietary Information. Each party agrees to treat as
confidential all non public information received during the performance of the
Gaming Management Agreement or pursuant to this Relinquishment Agreement
regarding the other party, its organization, financial matters, marketing
plans or other affairs. Except as may be required by law, no such information
will be disclosed to any person, firm or organization without the prior
written approval of the other party. Notwithstanding the provisions of Section
22 of the Gaming Management Agreement, the Authority may retain the
confidential and proprietary information developed by TCA and relating to the
management of the existing gaming and related operations pursuant to the
Gaming Management Agreement.
11. Authority's Consent to Suit. The Authority expressly waives its immunity
from unconsented suit for the purpose of permitting a suit by TCA in any court
of competent jurisdiction, including, without limitation, the MTC Court, for
any claims by TCA for the purpose of enforcing this Relinquishment Agreement
and any judgment arising out of this Relinquishment Agreement. The Authority's
waiver of immunity from suit is specifically limited to the following actions
and judicial remedies: (a) the enforcement of the Authority's payment
obligations under this Relinquishment Agreement with an award of actual
damages in connection with any breach of the provisions hereof; provided,
however, that the court shall have no authority or jurisdiction to order
execution against any assets or revenues of the Authority except cash of the
Authority (except to the extent the Authority can demonstrate such cash was
derived from a source other than the Facilities) and undistributed and future
Revenues; and (b) an action to prohibit the Authority from taking an action
that would prevent the operation of this Relinquishment Agreement pursuant to
its terms, or that requires the Authority to specifically perform any
obligation under this Relinquishment Agreement. In no instance shall any
enforcement of any kind whatsoever be allowed against any assets of the
Authority other than the limited assets of the Authority specified in the
foregoing clause (a).
12. No Liability of the Tribe; Limited Consent To Suit. Neither the Tribe
nor any director, officer or office holder, employee, agent, representative or
member of the Authority or the Tribe, as such, shall have any liability for
any obligations of the Authority under this Relinquishment Agreement or for
any claim based upon, in respect of, or by reason of such obligations or their
creation. The only assets subject to payment or encumbrances for the payment
of obligations hereunder shall be cash of the Authority (except to the extent
the Authority can demonstrate such cash was derived from a source other than
the Facilities) and the undistributed and future Revenues of the Authority.
Notwithstanding the foregoing, the Tribe expressly waives its immunity from
unconsented suit for the limited purpose of permitting a suit by TCA in any
court of competent jurisdiction, including, without limitation, the MTC Court,
for the sole purpose of obtaining equitable relief to enforce the provisions
of Sections 9, 12 and 13 of this Relinquishment Agreement. The Tribe's waiver
of immunity from suit is specifically limited to equitable relief to enforce
the provisions of Sections 9, 12 and 13; provided, however, that the court
shall have no authority or jurisdiction to order execution against any assets
or revenues of the Tribe and in no instance shall any enforcement of any kind
whatsoever be allowed against any assets of the Tribe.
13. Government Savings Clause. This Relinquishment Agreement shall be
submitted to (a) the Bureau of Indian Affairs, and the National Indian Gaming
Commission, to the extent required by law, for appropriate action, if any, and
(b) the MTC Court for a stipulated declaratory judgment upholding its validity
and enforceability, the form of which will be mutually agreed to by the
Authority and TCA. In addition, each party agrees to pursue such actions or
judgment and execute, deliver and, if necessary, record any and all
instruments,
13
certifications, amendments, modifications and other documents as may be
required by the United States Department of the Interior, Bureau of Indian
Affairs, the office of the Field Solicitor, or any applicable statute, rule or
regulation or otherwise cooperate, as necessary, in order to effectuate,
complete, perfect, continue or preserve the respective rights, obligations and
interests of the parties to the fullest extent permitted by law; provided that
any such instrument, certification, amendment, modification or other document
shall not materially change the respective rights, remedies or obligations of
the parties under this Relinquishment Agreement or related agreements or
documents.
14. Coordination. During the period of time between the Effective Date and
the Relinquishment Date, TCA and the Authority shall cooperate with each other
(at no cost to the other) as necessary to effect an orderly transition of the
operation of the existing gaming operations to the Authority.
15. Employment Solicitation. From and after the date hereof until five (5)
years after the Relinquishment Date, neither TCA nor the Authority nor any
Affiliate of either party shall solicit, attempt to solicit or cause the
solicitation or attempted solicitation of any employee of TCA or the Authority
or any Affiliate of either party with whom TCA or the Authority or any
Affiliate of either party had contact, by virtue of their relationship
regarding the Facilities, to leave his or her employment and accept employment
with TCA or the Authority or any Affiliate of either party, as the case may
be.
16. Miscellaneous Provisions.
16.1 Authorization. The Authority and TCA represent and warrant to each
other that each has full power and authority to execute this Relinquishment
Agreement and to be bound by and perform the terms hereof. Each party shall
furnish evidence of such authority to the other. The Authority and TCA each
represent and warrant to the other that the execution, delivery and
performance of this Relinquishment Agreement shall not conflict with the terms
of their organizational documents, any agreement to which it is a party or by
which it is bound or any law, rule or regulation to which its subject.
16.2 Relationship. From and after the Relinquishment Date, TCA shall not
have any management authority or responsibilities with respect to the
Facilities. TCA and the Authority shall not be construed as joint venturers or
partners of each other by reason of this Relinquishment Agreement, and neither
shall have the power to bind or obligate the other.
16.3 Governing Law. The rights and obligations of the parties and the
interpretation and performance of this Relinquishment Agreement shall be
governed by the law of the Tribe, and, to the extent not addressed by the law
of the Tribe, by applicable federal law, and, to the extent not addressed by
the law of the Tribe or applicable federal law, the law of the State of
Connecticut without regards to its principles regarding conflicts of law.
16.4 Amendment. No modification or amendment to this Relinquishment
Agreement will be effective unless mutually agreed upon by both parties in
writing and unless such modification or amendment has received any required
regulatory approval.
14
16.5 Notices. All notices, demands, requests or other communications which
may be or are required to be given, served or sent to either party in
connection with the matters which are the subject of this Relinquishment
Agreement shall be in writing and shall be personally delivered to such party
or mailed first class, postage prepaid, or transmitted by a major overnight
commercial courier or by facsimile to the address for such party as set forth
below, or to such other address furnished by such parties for such purpose by
means of notice pursuant to this Section 16.5:
If to the Authority:
Mohegan Tribal Gaming Authority
Xxx Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chairman of the
Management Board
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Mohegan Tribal Gaming Authority
Xxx Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to TCA:
Trading Cove Associates
000 Xxxxxxxx Xxxxxxxx
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Attention: Xx. Xxx Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Sun International Hotels Limited
Xxxxx Xxxxxx
X.X. Xxx X-0000
Xxxxxxxx Xxxxxx
Nassau, The Bahamas
Attention: Xx. Xxxxxxx Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Notices delivered by mail shall be deemed given five (5) days after such
mailing. Notices given by hand delivery shall be deemed given on the date of
delivery. Notices given by overnight commercial courier shall be deemed given
on the business day immediately following transmittal, and notices delivered
by facsimile shall be deemed given on the date of transmission if the
transmission is confirmed.
16.6 Third Party Beneficiary. This Relinquishment Agreement is exclusively
for the benefit of the parties hereto and it may not be enforced by any party
other than the parties to this Relinquishment Agreement and shall not give
rise to liability to any third party other than the authorized successors and
assigns of the parties pursuant to Section 16.7.
15
16.7 Successors and Assigns. (a) The benefits and obligations of this
Relinquishment Agreement shall inure to and be binding upon the parties hereto
and their respective successors and assigns. Neither this Relinquishment
Agreement nor the rights hereunder may be assigned by TCA to any entity prior
to the Relinquishment Date. After the Relinquishment Date, neither this
Relinquishment Agreement nor the rights hereunder may be assigned by TCA to an
entity other than a Permitted Assignee, without the prior written consent of
the Authority (which may be withheld in its sole and absolute discretion) and
any required approvals by the Bureau of Indian Affairs or its authorized
representatives. Notwithstanding the foregoing, after the Relinquishment Date,
TCA or any Permitted Assignee may, without the consent of the Authority,
pledge its right to receive the Relinquishment Payments hereunder (but not
this Relinquishment Agreement itself) in connection with a bona fide
commercial financing from a financial institution, pension fund, insurance
company, pooled equity fund or other similar type of entity. In addition, on
or after December 31, 2001, TCA or its Permitted Assignees, if applicable (the
"Assignor"), may assign this Relinquishment Agreement or the rights hereunder
without the Authority's consent upon compliance with the following
requirements: (i) the Assignor shall promptly give the Authority written
notice of the terms and conditions of any proposed assignment (the "Assignment
Offer"), together with information regarding the proposed assignee and such
additional information as the Authority may reasonably request and (ii) the
Authority shall have fifteen (15) days after receipt of the Assignment Offer
to elect, by written notice delivered to Assignor within such fifteen (15) day
period to accept such Assignment Offer. If the Authority timely elects to
accept the Assignment Offer, the Authority shall have a period of sixty (60)
days following such election to close thereunder. If the Authority does not
timely elect to accept the Assignment Offer or thereafter fails to close
thereunder, then the Assignor may assign this Relinquishment Agreement for a
period of one hundred eighty (180) days thereafter to such third party in
accordance with the terms of the Assignment Offer.
(b) The Authority may, without the consent of TCA, but subject to applicable
law, assign this Relinquishment Agreement to the Tribe, another
instrumentality of the Tribe or an entity wholly owned by the Tribe if such
assignee owns or conducts the business of the Facilities and is in compliance
with Section 7.4 on the date of such assignment. In the event of any such
permitted assignment, the assigning party shall be relieved of its obligations
under this Relinquishment Agreement which accrue from and after the date of
the assignment, provided that the assignee shall assume in writing the
obligations of the assignor under this Relinquishment Agreement and agree to
perform and be bound by the terms and provisions hereof effective from and
after the date of such assignment.
16.8 Severability. The invalidity of any one or more provisions hereof or of
any other agreement or instrument given pursuant to or in connection with this
Relinquishment Agreement shall not affect the remaining portions of this
Relinquishment Agreement or any such other agreement or instrument or any part
thereof, all of which are inserted conditionally on their being held valid in
law; and in the event that one or more of the provisions contained herein or
therein should be invalid, or should operate to render this Relinquishment
Agreement or any such other agreement or instrument invalid, this
Relinquishment Agreement and such other agreements and instruments shall be
construed as if such invalid provision had not been inserted. Notwithstanding
the foregoing, the invalidity of any of Sections 2(a), 3 or 6.1 hereof shall
render the entire Relinquishment Agreement invalid.
16.9 Entire Agreement. This Relinquishment Agreement (including any exhibits
referred to herein) represents the entire agreement between the parties hereto
with respect to the subject matter hereof. No other representations,
warranties, promises or agreements, express or implied, shall exist between
the parties unless such representations, warranties, promises or agreements
are in writing and bear a date subsequent to the date of this Relinquishment
Agreement.
16.10 Headings. The headings used in this Relinquishment Agreement are for
the convenience of the parties only and shall not modify nor restrict any of
the terms or provisions hereof.
16.11 Waivers. No failure or delay by TCA or the Authority to insist upon
the strict performance of any covenant, agreement, term or condition of this
Relinquishment Agreement, or to exercise any right or remedy consequent upon
the breach thereof, shall constitute a waiver of any such breach or any
subsequent breach of
16
such covenant, agreement, term or condition. No covenant, agreement, term or
condition of this Relinquishment Agreement and no breach thereof shall be
waived, altered or modified except by written instrument. No waiver of any
breach shall affect or alter this Relinquishment Agreement, but each and every
covenant, agreement, term and condition of this Relinquishment Agreement shall
continue in full force and effect with respect to any other then existing or
subsequent breach thereof.
16.12 Periods of Time. Whenever any determination is to be made or action is
to be taken on a date specified in this Relinquishment Agreement, if such date
shall fall on a Saturday, Sunday or legal holiday under the laws of the State
of Connecticut or the Tribe, then in such event said date shall be extended to
the next day which is not a Saturday, Sunday or legal holiday.
16.13 Consents and Approvals. Where approval or consent or other action of
the Authority, or any agent or political subdivision of the Authority, is
required, such approval shall mean the written approval of the Management
Board evidenced by a duly enacted resolution thereof, or, if not provided by
resolution of the Management Board, the written approval of such other person
or entity designated by resolution of the Management Board.
16.14 Tolling of this Relinquishment Agreement. If any Tolling Event occurs,
the Authority shall give prompt notice thereof to TCA. If, within thirty (30)
days following receipt of such notice, TCA delivers written notice to the
Authority electing to implement this Section 16.14, then the Term shall be
tolled for such number of full calendar months commencing with the month
immediately following such Tolling Event and ending with (and including) the
calendar month immediately prior to the Recommencement Month (the "Tolling
Period"). The expiration of this Relinquishment Agreement (and the obligations
of the Authority to make payments of the Relinquishment Payments hereunder)
shall be extended for such number of full calendar months included in the
Tolling Period. During the Tolling Period, the Authority shall have no
obligation to make payments of any Relinquishment Payments.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Relinquishment
Agreement on and as of the date first written above.
THE AUTHORITY:
MOHEGAN TRIBAL GAMING AUTHORITY
By: _________________________________
Name: Xxxxxx Xxxxxx
Its: Chairman of the Management
Board
TCA:
TRADING COVE ASSOCIATES, a
Connecticut partnership
By: WATERFORD GAMING, L.L.C.
Its: General Partner
By: LMW INVESTMENTS, INC.
member
By: _____________________________
Name: Xxx Xxxxxx
Its: President
By: XXXXXX SUITES, INC., member
By: _____________________________
Name: Xxx Xxxxxx
Its: Vice President
By: SUN COVE LTD.
Its: General Partner
By: _________________________________
Name: Xxxxxx X. Xxxxxxx
Its: President
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JOINDER
The Mohegan Tribe of Indians of Connecticut hereby agrees to comply with
Sections 9, 12 and 13 of this Relinquishment Agreement.
Date: THE MOHEGAN TRIBE OF INDIANS OF
CONNECTICUT
By: _________________________________
Name: Xxxxxx Xxxxxx
Title: Chairman of the Management
Board
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