EXECUTION COPY
AMENDED AND RESTATED OMNIBUS FINANCING AGREEMENT dated as of
September 29, 1995, among TRADING COVE ASSOCIATES, a Connecticut general
partnership ("TCA"), SUN INTERNATIONAL HOTELS LIMITED, a Bahamian company
("Sun"), and WATERFORD GAMING, L.L.C., a Delaware limited liability company
("Waterford").
WHEREAS, TCA was formed in order to assist the Mohegan Tribe of
Indians of Connecticut (the "Tribe") in the development and management of
a casino complex in Montville Connecticut (the "Casino Complex");
WHEREAS, an affiliate of Sun and Waterford are each 50% partners in
TCA, which partnership is governed by the Amended and Restated Partnership
Agreement dated as of September 21, 1994, as further amended by the First
Amendment thereto effective November 8, 1996 (as amended, the "Partnership
Agreement");
WHEREAS, capitalized terms used herein but not defined, shall have
the meaning set forth in the Partnership Agreement;
WHEREAS, TCA has entered into an Amended and Restated Gaming
Facility Management Agreement dated September 29, 1995, with the Tribe to
develop and manage the Casino Complex and in connection therewith is entitled
to receive certain management fees (the "TCA Management Fees');
WHEREAS, the Partnership Agreement provides for the Partners
thereof to provide certain services as subcontractors to TCA in order that
TCA may fulfill its obligations under the Management Agreements;
WHEREAS, TCA has determined that in addition to the services set
forth in the Partnership Agreement, certain Partners or their affiliates will
provide additional services as subcontractors to TCA in order to enable TCA
to meet its obligations under the Management Agreements and will be compensated
therefor; and
WHEREAS, the Partners or their affiliates have entered into a
Marketing Services Agreement, Completion Guarantee and Investment Banking and
Financing Arrangement Fee Agreement, Management Services Agreement, Development
Services Agreement and an Organizational and Administrative Services Agreement
(collectively, the "Subcontract Agreements") and desire to set forth in this
Agreement the priorities of the payments due under such subcontract
agreements.
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein, TCA, Sun and Waterford agree as follows.
1. Priorities. The parties agree that payments required to be made by
TCA pursuant to the Subcontract Agreements shall only be required to
be paid from the TCA Management Fees, which payments shall be made
only to the extent funds are available to do so and shall be
prioritized as follows:
(a) First, for the period ending on November 8, 1996, a maximum sum
of $938,000 will be paid from the Management Services Fee for
expenses incurred with respect to the Casino Complex through
such date, and for the period commencing on November 9, 1996 and
ending on September 30, 1997, and for each fiscal year for the
Casino Complex thereafter, up to $2,000,000 per fiscal year for
the Casino Complex of the Management Services Fee will be paid by
TCA for expenses in accordance with that certain Letter Agreement
dated October 19, 1996, among Sun Cove Ltd., ▇▇▇▇▇▇ Suites, Inc.
("▇▇▇▇▇▇"), and LMW Investments, Inc. ("LMW");
(b) Second, to return capital contributions made by the Partners of TCA
after September 29, 1995;
(c) Third, to satisfy the obligations set forth in paragraphs
(ii), (iii), and (iv) of Section 2 of the Completion Guarantee
and Investment Banking and Financing Arrangement Fee Agreement
dated as of September 29, 1995, between TCA and Sun (the "Financing
Arrangement Agreement");
(d) Fourth, to satisfy the obligations set forth in Section 3 and in
paragraph (v) of Section 2 of the Financing Arrangement Agreement,
on a pari passu basis;
(e) Fifth, to satisfy the obligations set forth in paragraph (vi) of
Section 2 of the Financing Arrangement Agreement;
(f) Sixth, to return capital contributions made by the Partners of TCA
before September 29, 1995;
(g) Seventh, to pay the Development Services Fee as set forth in
Section 4 of the Development Services Agreement dated as of September
29, 1995, between TCA and Sun International Management Limited, a
subsidiary of Sun ("SIML");
(h) Eighth, to pay the Management Services Fee (less the amounts paid
pursuant to paragraph (a) above) as set forth in Sections 2 and 3
of the Management Services Agreement dated as of September 29, 1995,
among TCA, SIML, Waterford, LMW and ▇▇▇▇▇▇;
(i) Ninth, to satisfy the obligations set forth in paragraph (i) of
Section 2 of the Financing Arrangement Agreement;
(j) Tenth, to make payments in an amount equal to state and federal
tax obligations calculated and payable in accordance with Section
3.03 a.(1) of the Partnership Agreement;
(k) Eleventh, to pay the Organizational and Administrative Fee and the
Marketing and Casino Operations Fee on a pari passu basis, as set
forth in the Marketing Services Agreement dated as of February 6,
1995, between TCA, Sun Casino Management S.A. and Sun Cove Ltd.,
and the Organizational and Administrative Services Agreement dated
as of February 6, 1995, among TCA, LMW, ▇▇▇▇▇▇ and RJH Development
Corp.; and
(l) Twelfth, to the distribution of Excess Cash as specified in
Section 3.03a(3) of the Partnership Agreement.
2. Conflicts. If the provisions of this Agreement shall conflict with those
of the Partnership Agreement or any of the Subcontract Agreements, then
the provisions of this Agreement shall prevail.
3. 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 TCA: ▇▇▇ ▇▇▇▇▇▇
c/o LMW Investments, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
With Copy to: Honigman, Miller, ▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Att'n: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Sun: ▇▇▇▇▇▇ ("▇▇▇▇▇") ▇▇▇▇▇▇▇
Sun International Hotels Limited
Executive Offices
Coral Towers
Paradise Island, The Bahamas
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
4. Amendments. This Agreement may be amended or modified only by written
instrument executed by all of the parties hereto.
5. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York.
6. 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.
7. 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.
8. 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.
9. Restated Agreement. This Agreement amends and restates in its entirety
the Omnibus Financing Agreement dated as of September 21, 1995, between
TCA and Sun, as amended by the First Amendment thereto made October 19,
1996.
10. 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 Amended and
Restated Omnibus Financing Agreement on September 10, 1997, to be effective
as of the day and year first above written.
TRADING COVE ASSOCIATES
By: SUN COVE, LTD.,
By:/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
Title:
By: WATERFORD GAMING, L.L.C.,
By:/s/▇▇▇ ▇▇▇▇▇▇
Name:
Title:
SUN INTERNATIONAL HOTELS
LIMITED,
By:/s/▇▇▇▇▇▇▇ ▇▇▇▇▇
Name:
Title:
WATERFORD GAMING, L.L.C.,
By:/s/▇▇▇ ▇▇▇▇▇▇
Name:
Title: