AMENDED AND RESTATED OMNIBUS TERMINATION AGREEMENT dated as of January 1,
2000, and effective as of 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, the Tribe, MTGA and TCA entered into a Relinquishment Agreement
dated as of February 7, 1998 (the "Relinquishment Agreement"), pursuant to which
the Management Agreement was terminated and TCA no longer is responsible for
managing the Mohegan Sun;
WHEREAS, pursuant to the Relinquishment Agreement, TCA is entitled to
certain payments in consideration of relinquishing its rights under the
Management Agreement (the "Relinquishment Payments");
WHEREAS, as a result of the Relinquishment Agreement the Parties agreed to
terminate certain of the Agreements pursuant to the Omnibus Termination
Agreement dated March 18, 1999 (the "Omnibus Agreement");
WHEREAS, the Parties desire to amend and restate the Omnibus Agreement as
hereinafter set forth. The Omnibus Agreement as amended by this Amended and
Restated Omnibus Termination Agreement is hereinafter referred to as the
"Omnibus Termination Agreement."
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 March 18, 1999, 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 Cove (the "Accrued Amounts"). The Accrued Amounts shall be
paid in accordance with paragraph 7 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. The 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.
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.
D. (i) The Expense Letter Agreement shall terminate, and in consideration
of such termination, and in recognition of services previously rendered and
services which will be rendered in the future, 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 or
their designated successor(s) 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 Percentages
Sun Cove 50.0%
▇▇▇ ▇▇▇▇▇▇ 12.5%
▇▇▇▇ ▇▇▇▇▇▇ 12.5%
Del ▇. ▇▇▇▇▇▇ 12.5%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 12.5%
100.0%
(ii) For purposes hereof, the following parties hereby designate the
following as their designated successors to perform the services contemplated by
Section 2(D)(i) hereof and to receive the portion of the fee designated above
upon the death, disability or other failure or refusal of such party to provide
such services, it being understood that
(a) any of the following parties may, by written notice to TCA, change
his designated successor at any time; and
(b) if a designated successor dies or becomes unable to perform such
services without designating a successor, such designated successor shall
automatically be succeeded by his or her personal representative or the
executor of his or her estate:
Party Designated Successor
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Del ▇. ▇▇▇▇▇▇ Del ▇. ▇▇▇▇▇▇ Trust U/A/D March 14, 1989
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 50%-▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇/50%-▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3. Certain Partner Payments.
A. TCA shall pay to Sun Cove 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.
B. Within thirty (30) days of each Payment Date beginning March 31, 2000
and ending on December 31, 2014, TCA shall pay to each of Sun Cove and Waterford
25% of the Relinquishment Payments.
4. 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 and are
hereby assigned from SIML to Sun Cove as of that date.
5. 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 7 below, as modified by the provisions of paragraphs 8 and 9 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.
6. 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.
▇. ▇▇▇▇ and ▇▇▇▇▇▇ 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,
exists 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.
7. 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 3.A of this Omnibus
Termination Agreement;
SIXTH, to pay the Accrued Amounts due under the Management Services
Agreement, the Organization and Administrative Agreement and the Marketing
Services Agreement; and
SEVENTH, to make the payments set forth in Section 3.B of this Omnibus
Termination Agreement.
After making the payments and other distributions described in
subparagraphs FIRST through SEVENTH above, but subject to paragraphs 8 and 9
below, TCA shall disburse all of its remaining cash to its partners as "Excess
Cash" consistent with Section 3.03a(3) or TCA's Amended and Restated Partnership
Agreement dated September 21, 1994, as amended (the "Partnership Agreement").
8. Special Payout From TCA. Notwithstanding the priority of payments set
forth in paragraph 7 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.
9. 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.
10. 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.
11. Notices. All notices hereunder shall be deemed properly given upon (i)
receipt by the address 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 of 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 address may be changed by notice given in
the same manner.
If to ▇▇▇▇▇▇: Del ▇. ▇▇▇▇▇▇
The ▇▇▇▇▇▇ Companies
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to TCA, Waterford
or ▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇▇
c/o LMW Investments, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to SIHL, SIML,
TCA or Sun Cove: ▇▇▇▇▇▇ ("▇▇▇▇▇") ▇▇▇▇▇▇▇
Sun International Hotels Limited
Atlantis Paradise Island
Executive Offices, Coral Towers
Paradise Island
Nassau, Bahamas
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Atlantis Paradise Island
Executive Offices, Coral Towers
Paradise Island
Nassau, Bahamas
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
12. Amendments. This Agreement may be amended or modified only by a written
instrument executed by all of the parties hereto.
13. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
14. 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.
15. 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.
16. 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.
17. 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: ▇▇▇▇▇▇ Suites, Inc.
Its: Member
By: ____________________________________
Its: ______________________________
By: LMW Investments, Inc.
Its: Member
By: ____________________________________
Its: ______________________________
TRADING COVE ASSOCIATES
By: Sun Cove Limited
Its: Partner
By: ________________________________
Its: __________________________
By: Waterford Gaming, L.L.C.
Its:Partner
By: _____________________________
Its: _______________________
▇▇▇▇▇▇ SUITES, INC.
By: _____________________________________
Its: _______________________________
▇▇▇▇▇▇ CONSTRUCTION, L.L.C.
By: _____________________________________
Its: ________________________________
SUN INTERNATIONAL MANAGEMENT
LIMITED
By: _____________________________________
Its: _______________________________
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. ▇▇▇▇▇▇ Suites, Inc., a Michigan corporation ("▇▇▇▇▇▇")
8. ▇▇▇▇▇▇ Construction, L.L.C., a Connecticut limited liability company
("▇▇▇▇▇▇")
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 SIML dated as of
September 29, 1995 (the "Development Services Agreement").
4. Subdevelopment Services Agreement between SIML and ▇▇▇▇▇▇
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., ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ (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, ▇▇▇▇▇▇
and LMW (the "Expense Letter Agreement").
10. Memorandum of Understanding dated as of February 7, 1998, among
SIHL, ▇▇▇▇▇▇, LMW, and Waterford (the "Memorandum of
Understanding").