EXECUTION COPY
OMNIBUS TERMINATION AGREEMENT dated March 18, 1999, among the
parties set forth on Exhibit A (collectively, the "Parties").
WHEREAS, pursuant to the Amended and Restated Gaming Facility
Management Agreement dated August 30, 1995 and the Hotel/Resort
Management Agreement dated February 28, 1994 (collectively, the
"Management Agreement"), among TCA, the Mohegan Tribal Gaming
Authority ("MTGA") and The Mohegan Tribe of Indians of Connecticut
(the "Tribe"), among other things, TCA was obligated to develop
and manage the Mohegan Sun Casino complex (the "Mohegan Sun");
WHEREAS, in order to carry out its obligations under the
Management Agreement, TCA entered into certain agreements with
certain of the Parties, including the various agreements set forth
on Exhibit B (collectively, the "Agreements");
WHEREAS, the Tribe, MTGA and TCA have entered into a Relinquishment
Agreement dated as of February 7, 1998 (the "Relinquishment Agreement"),
pursuant to which the Management Agreement is to be terminated and TCA will
no longer be responsible for managing the Mohegan Sun;
WHEREAS, pursuant to the Relinquishment Agreement, TCA will be
entitled to certain payments in consideration of relinquishing its
rights under the Management Agreement (the "Relinquishment
Payments"); and
WHEREAS, as a result of the Relinquishment Agreement, and
provided that the Relinquishment Agreement is in full force and
effect as of January 1, 2000, the Parties are agreeable to
terminating certain of the Agreements in consideration of certain
payments, all as set forth herein.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein, the Parties hereby agree as follows.
1. Status Until January 1, 2000. Effective as of the date
hereof, the agreements set forth as numbers 8 and 10 of
Exhibit B shall terminate. All of the other Agreements
shall remain in full force and effect until January 1,
2000 and all fees and amounts payable under such other
Agreements for the period ending December 31, 1999 which
have not been previously paid shall be calculated by
Waterford and Sun (the "Accrued Amounts"). The Accrued
Amounts shall be paid in accordance with paragraph 6 of
this Omnibus Termination Agreement.
2. Agreement Termination. Effective January 1, 2000, provided
that on such date the Relinquishment Agreement is in full
force and effect,
A. Omnibus Financing Agreement shall terminate;
B. All obligations, rights, payments and duties under the
Completion Guarantee Agreement which may arise or which
may exist from and after January 1, 2000 shall terminate,
and in consideration of such termination, TCA shall pay
to SIHL an annual fee of $5 million for seven years,
payable in equal quarterly installments of $1,250,000 on
each of March 31, June 30, September 30 and December 31
(the "Payment Dates"), beginning March 31, 2000 and
ending December 31, 2006;
C. All obligations, rights, payments and duties under
the Management Services Agreement, the Organizational and
Administrative Agreement and the Marketing Services
Agreement which may arise or which may exist from and
after January 1, 2000 shall terminate, and in
consideration of such termination, within thirty (30)
days of each Payment Date beginning March 31, 2000 and
ending on December 31, 2014, TCA shall pay to each of
SIML and Waterford 25% of the Relinquishment Payments;
D. The Expense Letter Agreement shall terminate, and in
consideration of such termination, TCA shall first pay
the actual expenses incurred by TCA as approved from time
to time by Sun Cove and Waterford (the "Expenses") and
thereafter shall pay to each of the following parties the
following percentages of an annual fee of $2 million
dollars less the Expenses, which fee shall be payable in
equal quarterly installments on the Payment Dates
beginning March 31, 2000 and ending December 31, 2014:
Party Percentage
Sun Cove 50.0%
Xxx Xxxxxx 12.5%
Xxxx Xxxxxx 12.5%
Del X. Xxxxxx 12.5%
Xxxxxxx X. Xxxxxx, Xx. 12.5%
100.0%
3. Development Services Agreements. It is agreed that the
Agreement Relating to Development Services and the Local
Construction Services Agreement attached hereto as Exhibit C are
duly effective as of February 9, 1998.
4. Payment From Cash Flow. The Parties agree that all amounts
due under this Omnibus Termination Agreement shall only be
payable in the order set forth in paragraph 6 below, as modified
by the provisions of paragraphs 7 and 8 below, and to the extent
to which TCA has adequate cash to pay such amounts and meet its
other obligations. To the extent that TCA does not have adequate
cash to make such payments and meet its other obligations, such
amounts due under this Omnibus Termination Agreement shall be
deferred (without the accrual of interest) until TCA has
sufficient cash to pay them.
5. Releases.
A. TCA and SIML hereby mutually release and discharge one
another from or with regard to any and all suits, claims,
causes of action, damages, torts, contracts, liabilities,
costs and expenses, including, without limitation,
attorneys' fees and disbursements, of every nature and
kind (collectively, "Claims"), whether known or unknown,
whether contingent or uncontingent, which previously
existed, exists now or which may exist in the future,
arising from, relating to and/or connected in any way
with the Development Services Agreement.
X. XXXX and Xxxxxx hereby mutually release and discharge one
another from or with regard to any and all Claims of
every nature and kind, whether known or unknown, whether
contingent or uncontingent, which previously existed,
exists now or which may exist in the future, arising
from, relating to and/or connected in any way with the
Subdevelopment Services Agreement.
C. Furthermore, effective as of January 1, 2000, provided
that on such date the Relinquishment Agreement is in full
force and effect, all of the Parties to the Omnibus
Financing Agreement, the Completion Guaranty Agreement,
the Management Services Agreement, the Expense Letter
Agreement, the Organizational and Administrative
Agreement and the Marketing Services Agreement
(collectively, the "Applicable Agreements") agree to
release and forever discharge one another from or with
regard to any and all Claims of every nature and kind,
whether known or unknown, whether contingent or
uncontingent, which previously existed, exist as of
January 1, 2000 or which may arise after January 1, 2000,
relating to and/or connected in any way with the
Applicable Agreements, except that such releases and
discharges shall not release such Parties from their
respective obligations under this Omnibus Termination
Agreement.
6. Priority of Payments. TCA agrees that it will use its cash to
pay the following obligations in the following order:
FIRST, to pay the Accrued Amounts relating to the Expense
Letter Agreement and the obligations set forth in Section
2.D of this Omnibus Termination Agreement;
SECOND, to return to TCA's partners all capital
contributions made by them to TCA after September 29,
1995;
THIRD, to pay the Accrued Amounts relating to the
Completion Guarantee Agreement;
FOURTH, to make the payments set forth in Agreement
Relating to Development Services and the Local
Construction Services Agreement;
FIFTH, to make the payments set forth in Section 2.B of
this Omnibus Termination Agreement;
SIXTH, to pay the Accrued Amounts due under the
Management Services Agreement, the Organizational and
Administrative Agreement and the Marketing Services
Agreement; and
SEVENTH, to make the payments set forth in Section 2.C
of this Omnibus Termination Agreement.
After making the payments and other distributions described in
subparagraphs FIRST through SEVENTH above, but subject to
paragraphs 7 and 8 below, TCA shall disburse all of its
remaining cash to its partners as "Excess Cash" consistent with
Section 3.03a.(3) of TCA's Amended and Restated Partnership
Agreement dated September 21, 1994, as amended (the "Partnership
Agreement").
7. Special Payout From TCA. Notwithstanding the priority of
payments set forth in paragraph 6 above, on the date TCA
receives any funds from SIHL or Waterford pursuant to the last
sentence of paragraph 3 of the Completion Guarantee Agreement,
TCA shall immediately pay such amounts 50% to Sun Cove and 50%
to Waterford.
8. Income Tax Distributions. Neither Sun Cove nor Waterford
currently anticipate receipt from TCA in any year of amounts
less than the amount described in Section 3.03a.(1) of the
Partnership Agreement. However, it is agreed by the Parties
that TCA shall not be required to make any of the payments or
distributions required by this Omnibus Termination Agreement
until it has annually distributed to its partners, pro rata, at
least the amount described in Section 3.03a.(1) of the
Partnership Agreement less twice the amount of all other funds
paid or distributed to Waterford during such year pursuant to
this Omnibus Termination Agreement.
9. Conflicts. If the provisions of this Omnibus Termination
Agreement shall conflict with those of the Partnership Agreement
or any of the Agreements, then the provisions of this Omnibus
Termination Agreement shall prevail.
10. Notices. All notices hereunder shall be deemed properly given
upon (i) receipt by the addressee by personal delivery or
facsimile transmission, (ii) two (2) business days after
delivery by an overnight express delivery service for the next
business day delivery, or (iii) if mailed, upon the first to
occur of receipt or the expiration of five (5) business days
after deposit in United States Postal Service certified mail,
postage prepaid, addressed to the parties at the addresses
appearing below. Such addresses may be changed by notice given
in the same manner.
If to Xxxxxx: Del X. Xxxxxx
The Xxxxxx Companies
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
If to TCA, Waterford
or Xxxxxx: Xxx Xxxxxx
c/o LMW Investments, Inc.
000 Xxxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
With a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to SIHL, SIML,
TCA or Sun Cove: Xxxxxx ("Xxxxx") Xxxxxxx
Sun International Hotels Limited
Executive Offices, Coral Towers
Atlantis Resort, Paradise Island
Nassau, Bahamas
Telecopy: (000) 000-0000
With a copy to: Xxxxxxx Xxxxx, Esq.
Sun International Hotels Limited
Executive Offices, Coral Towers
Atlantis Resort, Paradise Island
Nassau, Bahamas
Telecopy: (000) 000-0000
11. Amendments. This Agreement may be amended or modified only by a
written instrument executed by all of the parties hereto.
12. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New
York.
13. Severability. If any provision hereof shall be judicially
determined to be illegal, or if the application thereof to any
party or in any circumstance shall, to any extent, be judicially
determined to be invalid or unenforceable, the remainder of this
Agreement, or the application of such provision to parties or in
circumstances other than those to which it has been judicially
determined to be invalid or unenforceable, shall not be affected
thereby, and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
14. Counterparts. This Agreement may be executed by facsimile and in
any number of counterparts, each of which shall constitute an
original and all of which together shall constitute one and the
same Agreement.
15. Further Assurances. The parties will execute and deliver such
further instruments and undertake such further actions as may be
required to carry out the intent and purposes of this Agreement.
16. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their
respective successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Omnibus
Termination Agreement on the day and year first above written.
SUN INTERNATIONAL HOTELS LIMITED
By:
Its:
WATERFORD GAMING, L.L.C.
By: Xxxxxx Suites, Inc.
Its: Member
By:
Its:
By: LMW Investments, Inc.
Its: Member
By:
Its:
[signatures cont'd on following page]
TRADING COVE ASSOCIATES
By: Sun Cove Limited
Its: Partner
By:
Its:
By: Waterford Gaming, L.L.C.
Its: Partner
By:
Its:
XXXXXX SUITES, INC.
By:
Its:
XXXXXX CONSTRUCTION, L.L.C.
By:
Its:
SUN INTERNATIONAL MANAGEMENT LIMITED
By:
Its:
[signatures cont'd on following page]
LMW INVESTMENTS, INC.
By:
Its:
SUN COVE LIMITED
By:
Its:
EXHIBIT A
The Parties
1. Sun International Hotels Limited, a Bahamian corporation ("SIHL")
2. Trading Cove Associates, a Connecticut general partnership ("TCA")
3. Waterford Gaming, L.L.C., a Delaware limited liability corporation
("Waterford")
4. Sun International Management Limited, a British Virgin Islands
corporation ("SIML")
5. LMW Investments, Inc., a Connecticut corporation ("LMW")
6. Sun Cove Limited, a Connecticut corporation ("Sun Cove")
7. Xxxxxx Suites, Inc., a Michigan corporation ("Xxxxxx")
8. Xxxxxx Construction, L.L.C., a Connecticut limited liability
company ("Xxxxxx")
EXHIBIT B
1. Amended and Restated Omnibus Financing Agreement dated as of September 19,
1995 among TCA, SIHL and Waterford (the "Omnibus Financing Agreement")
2. Completion Guarantee and Investment Banking and Financing Arrangement Fee
Agreement among TCA, Waterford and SIHL dated as of September 21, 1995
(the "Completion Guarantee Agreement")
3. Development Services Agreement between TCA and SIHL dated as of September
29, 1995 (the "Development Services Agreement")
4. Subdevelopment Services Agreement between SIML and Xxxxxx Construction,
L.L.C. dated as of September 29, 1995 (the "Subdevelopment Services
Agreement")
5. Organizational and Administrative Services Agreement among TCA, RJH
Development Corp., Xxxxxx and LMW dated as of February 6, 1995
(the "Organizational and Administrative Agreement")
6. Marketing Services Agreement between TCA, Sun Casino Management S. A. and
Sun Cove dated as of February 6, 1995 to which is attached Assignment and
Assumption Agreement between Sun Casino Management, S.A., Sun Cove, and
SIML dated as of September 21, 1995 (the "Marketing Services Agreement")
7. The Management Services Agreement, dated as of September 29, 1995 among
TCA, SIML, Waterford, LMW and Xxxxxx (the "Management Services Agreement")
8. Agreement With Respect to Redemption or Repurchase of Subordinated Notes
between SIHL and Waterford dated as of October 19, 1996
9. Letter Agreement dated October 19, 1996, among Sun Cove, Xxxxxx and LMW
(the "Expense Letter Agreement")
10. Memorandum of Understanding dated as of February 7, 1998, among SIHL,
Xxxxxx, LMW, and Waterford (the "Memorandum of Understanding").
