EX-10.3 3 ck1005276-ex103_61.htm EX-10.3 ck1005276-ex103_61.htm

Exhibit 10.3

Execution Version

 

FOURTH AMENDMENT TO CREDIT AGREEMENT

This FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Fourth Amendment”), dated as of August 28, 2020 and effective as of the Effective Date (as hereinafter defined), is made and entered into by and among THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT, a federally recognized Indian Tribe and Native American sovereign nation (the “Tribe”), the MOHEGAN TRIBAL GAMING AUTHORITY, a governmental instrumentality of the Tribe (the “Borrower”), the other Loan Parties party hereto, each of the LENDERS party hereto, and CITIZENS BANK, N.A., as administrative agent (together with its successors and assigns in such capacity, the “Administrative Agent”) under the Existing Credit Agreement referred to below.

RECITALS:

WHEREAS, reference is hereby made to that certain Credit Agreement, dated as of October 14, 2016, as amended by that certain First Amendment to Credit Agreement, dated as of April 14, 2017, that certain Incremental Joinder and Second Amendment to Credit Agreement, dated as of April 12, 2018, and that certain Third Amendment to Credit Agreement, dated as of August 13, 2020 (as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”, and the Existing Credit Agreement as amended or modified by this Fourth Amendment and as it may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Amended Credit Agreement”), by and among the Tribe, the Borrower, the banks, financial institutions and other entities from time to time party thereto as lenders (including the L/C Issuer and the Swingline Lender) (collectively, the “Lenders”), the Administrative Agent, and the other parties party thereto;

WHEREAS, the Borrower has requested that the Lenders party hereto agree to amend certain provisions of the Existing Credit Agreement subject to, and in accordance with, the terms and conditions set forth herein; and

WHEREAS, the Lenders party hereto and the Administrative Agent are willing, on the terms and subject to the conditions set forth below, and in consideration of, among other things, the PIK Interest (as defined in the Amended Credit Agreement) to be provided under the Amended Credit Agreement, to enter into this Fourth Amendment and to consent to the amendments to the Existing Credit Agreement described herein.

NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1Definitions

.  Except as otherwise expressly provided herein, capitalized terms used in this Fourth Amendment (including in the Recitals and the introductory paragraph

 

 

 

 


 

 

 

 

above) shall have the meanings given in the Amended Credit Agreement, and the rules of construction set forth in the Amended Credit Agreement shall apply to this Fourth Amendment.

ARTICLE II

amendments to credit agreement

SECTION 2.1Amendments to Existing Credit Agreement

.  Effective as of the Effective Date, the Existing Credit Agreement is hereby amended  to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text), as set forth in Exhibit A hereto.

SECTION 2.2Amendments to Security Documents

.  Effective as of the Effective Date:

(a)the definition of “Excluded Assets” in each of the Security Agreement and the Pledge Agreement is hereby amended to replace the words “the CT Expo Subsidiary” with the following: “the CT Expo Subsidiary, Mohegan Earth Hotel, LLC and Mohegan Global Holding Corporation”;

(b)clause (a) of the definition of “Pledged Securities” in the Pledge Agreement is hereby amended and restated in its entirety as follows: “any and all Equity Interests issued by any Restricted Subsidiary or Unrestricted Subsidiary of a Grantor (each, a “Pledged Subsidiary”), which Restricted Subsidiaries and Unrestricted Subsidiaries existing as of the Fourth Amendment Effective Date are listed on Schedule 1 hereto, now or hereafter owned by Grantors”; and

(c)Schedule 1 of the Pledge Agreement is hereby replaced with Schedule 1 attached as Exhibit B hereto.

SECTION 2.3Amendments to Exhibits

.  Effective as of the Effective Date, the new Exhibits H, I, J and K are hereby added to the Amended Credit Agreement in the form attached to Exhibit C hereto.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

SECTION 3.1Representations and Warranties of the Tribe

.  To induce the Lenders to agree to this Fourth Amendment, the Tribe represents to the Administrative Agent and each Lender that, as of the Effective Date:

(a)the Tribe has all requisite power and authority to execute and deliver this Fourth Amendment and to perform its Obligations hereunder and under the Amended

2

 

 

 

 


 

 

 

 

Credit Agreement.  Each of this Fourth Amendment and the Amended Credit Agreement is a “Contract of The Tribal Gaming Authority” within the meaning of Section 1 of Article XIII (entitled “Tribal Gaming Authority Amendment”) of the Constitution;

(b)the execution and delivery by the Tribe of this Fourth Amendment and the performance by the Tribe of this Fourth Amendment and the Amended Credit Agreement have been duly authorized by all necessary Tribal Council, Management Board and other action, and do not:

(i)require any consent or approval not heretofore obtained of any enrolled tribal member, Tribal Council member, Management Board member, security holder or creditor;

(ii)violate or conflict with any provision of the Constitution, charter, bylaws or other governing documents of the Tribe or of Borrower;

(iii)result in or require the creation or imposition of any Lien (other than pursuant to the Security Documents) upon or with respect to any Authority Property now owned or leased or hereafter acquired;

(iv)violate any Law or Requirement of Law, including any Gaming Law, applicable to the Tribe in any material respect;

(v)constitute a “transfer of an interest” or an “obligation incurred” that is avoidable by a trustee under Section 548 of the Bankruptcy Code of the United States, as amended, or constitute a “fraudulent conveyance,” “fraudulent obligation” or “fraudulent transfer” within the meanings of the Uniform Fraudulent Conveyances Act or Uniform Fraudulent Transfer Act, as enacted in any applicable jurisdiction, or any similar Law;

(vi)result in a material breach of or default under, or would, with the giving of notice or the lapse of time or both, constitute a material breach of or default under, or cause or permit the acceleration of any obligation owed under, any mortgage, indenture or loan or credit agreement or any other Contractual Obligation to which the Tribe is a party or by which the Tribe or any of its Property is bound or affected; or

(vii)require any consent or approval of any Governmental Authority, or any notice to, registration or qualification with any Governmental Authority, not heretofore obtained or obtained concurrently with the Effective Date;

3

 

 

 

 


 

 

 

 

and the Tribe is not in violation of, or default under, any Requirement of Law or Contractual Obligation, or any mortgage, indenture, loan or credit agreement described in Section 3.1(b)(vi) of this Fourth Amendment in any respect that constitutes a Material Adverse Effect;

(c)no authorization, consent, approval, order, license or permit from, or filing, registration or qualification with, any Governmental Authority is required to authorize or permit under applicable Laws the execution and delivery by the Tribe of this Fourth Amendment or the performance by the Tribe of this Fourth Amendment and the Amended Credit Agreement, other than such as have been obtained on or prior to the date hereof;

(d)neither this Fourth Amendment, the Amended Credit Agreement nor the other Loan Documents, taken individually or as a whole, constitute “management contracts” or “management agreements” within the meaning of Section 12 of IGRA and related regulations, or deprive the Tribe and Borrower of the sole proprietary interest and responsibility of the conduct of gaming activity at Mohegan Sun;

(e)this Fourth Amendment has been executed and delivered by the Tribe.  This Fourth Amendment and the Amended Credit Agreement constitute the legal, valid and binding obligation of the Tribe, enforceable against the Tribe in accordance with their respective terms.  The provisions of Section 6.3 of this Fourth Amendment and Section 12.18 of the Amended Credit Agreement are specifically enforceable against the Tribe, Borrower and its Restricted Subsidiaries.  The waivers of sovereign immunity by the Tribe contained in this Fourth Amendment and the Amended Credit Agreement are legal, valid, binding and irrevocable;

(f)no Tribal law permits any tribal member to challenge by referendum or initiative any action of the Tribal Council authorizing and approving the execution and delivery of this Fourth Amendment (“Fourth Amendment Referendum Action”).  No Fourth Amendment Referendum Action is, to the Tribe’s knowledge, threatened or pending which would reduce the obligations of the Tribe or Borrower under this Fourth Amendment or the Amended Credit Agreement or impair the enforceability of this Fourth Amendment or the Amended Credit Agreement or the rights of the Administrative Agent and the Lenders hereunder or thereunder or cause a Material Adverse Effect;

(g)after giving effect to this Fourth Amendment, no event has occurred and is continuing or will result from the execution and delivery of this Fourth Amendment or the performance by the Tribe of its obligations hereunder or under the Amended Credit Agreement that would constitute a Default or an Event of Default; and

(h)each of the representations and warranties made by the Tribe in or pursuant to the Loan Documents to which it is a party, as amended hereby, is true and correct in all material respects on and as of the Effective Date as if made on and as of such date; provided, that, to the extent that such representations or warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date;

4

 

 

 

 


 

 

 

 

provided, further, that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language is true and correct in all respects on such respective dates.

SECTION 3.2Representations and Warranties of the Borrower and the Other Loan Parties

.  To induce the Lenders to agree to this Fourth Amendment, the Borrower and each of the other Loan Parties represent to the Administrative Agent and each Lender that, as of the Effective Date:

(a)Borrower and the other Loan Parties each have all requisite power and authority to execute and deliver this Fourth Amendment and to perform their respective Obligations hereunder and under the Amended Credit Agreement;

(b)the execution, delivery and performance by Borrower and each of the other Loan Parties of this Fourth Amendment and the performance by Borrower of the Amended Credit Agreement have been duly authorized by all necessary Tribal Council, Management Board and other action, and do not:

(i)require any consent or approval not heretofore obtained of any enrolled tribal member or Tribal Council member, Management Board member, security holder or creditor;

(ii)violate or conflict with any provision of the Constitution, charter, bylaws or other governing documents of the Tribe, Borrower or its Restricted Subsidiaries;

(iii)result in or require the creation or imposition of any Lien (other than pursuant to the Security Documents) upon or with respect to any Authority Property now owned or leased or hereafter acquired;

(iv)violate any Law or Requirement of Law, including any Gaming Law, applicable to the Tribe, Borrower or its Restricted Subsidiaries, except for such violations that could not reasonably be expected to have a Material Adverse Effect; or

(v)result in a breach of or default under, or would, with the giving of notice or the lapse of time or both, constitute a breach of or default under, or cause or permit the acceleration of any obligation owed under, any mortgage, indenture or loan or credit agreement or any other Contractual Obligation to which the Tribe, Borrower or any of its Restricted Subsidiaries is a party or by which the Tribe, Borrower, its Restricted Subsidiaries or any of their Property is bound or affected, except, in each case, to the extent that such breach, default or acceleration could not reasonably be expected to have a Material Adverse Effect;

5

 

 

 

 


 

 

 

 

(c)no authorization, consent, approval, order, license or permit from, or filing, registration or qualification with, any Governmental Authority or any other Person, in each case material to the operations of the Borrower and its Restricted Subsidiaries, is required to authorize or permit under applicable Laws the execution, delivery and performance by Borrower and its Restricted Subsidiaries of this Fourth Amendment or the performance by Borrower of the Amended Credit Agreement, other than such as have been obtained on or prior to the date hereof.  Borrower and its Restricted Subsidiaries are not in violation of any Requirement of Law, except to the extent that such violation could not reasonably be expected to have a Material Adverse Effect;

(d)this Fourth Amendment has been duly executed and delivered by Borrower and each of the other Loan Parties.  This Fourth Amendment and the Amended Credit Agreement constitute the legal, valid and binding obligations of Borrower and each of the other Loan Parties, enforceable against Borrower and the other Loan Parties in accordance with their respective terms.  The waivers of sovereign immunity of the Borrower and its Restricted Subsidiaries contained in this Fourth Amendment and the Amended Credit Agreement are legal, valid, binding and irrevocable;

(e)after giving effect to this Fourth Amendment, no event has occurred and is continuing or will result from the execution and delivery of this Fourth Amendment or the performance by the Borrower and the other Loan Parties of their obligations hereunder or under the Amended Credit Agreement that would constitute a Default or an Event of Default;

(f)immediately before and immediately after giving effect to the transactions contemplated hereby, each of the representations and warranties made by such Loan Party in or pursuant to the Loan Documents to which it is a party, as amended hereby, is true and correct in all material respects on and as of the Effective Date as if made on and as of such date; provided, that, to the extent that such representations or warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided, further, that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language is true and correct in all respects on such respective dates; except that for purposes of this Fourth Amendment, the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 8.01 of the Existing Credit Agreement; and

(g)neither this Fourth Amendment, the Amended Credit Agreement nor the other Loan Documents, taken individually or as a whole, constitute “management contracts” or “management agreements” within the meaning of Section 12 of IGRA and related regulations, or deprive the Tribe and Borrower of the sole proprietary interest and responsibility of the conduct of gaming activity at Mohegan Sun.

6

 

 

 

 


 

 

 

 

ARTICLE IV

CONDITIONS TO THE EFFECTIVE DATE

This Fourth Amendment shall become effective on the date (the “Effective Date”) on which each of the following conditions is satisfied or waived:

SECTION 4.1Execution of Counterparts

.  The Administrative Agent shall have received executed counterparts of this Fourth Amendment from the Tribe, the Borrower, the other Loan Parties, Lenders constituting the Required Lenders and the Required Covenant Lenders under and as defined in the Existing Credit Agreement and the Administrative Agent.

SECTION 4.2Fees, Costs and Expenses

.  All of the fees payable to the Fourth Amendment Arrangers (as defined below), Union Gaming Securities, LLC and Rothschild & Co US Inc. (together, the “Ad Hoc Group Financial Advisors”) on or prior to the Effective Date in connection with this Fourth Amendment in accordance with separate fee letters entered into by the Borrower and each such Fourth Amendment Arranger or Ad Hoc Group Financial Advisor and all of the reasonable and documented out‑of‑pocket costs and expenses (including the reasonable fees, expenses and disbursements of Davis, Polk & Wardwell LLP, Latham & Watkins LLP and Greenberg Traurig, LLP) incurred by the Administrative Agent, the Fourth Amendment Arrangers, the Ad Hoc Group Financial Advisors or the ad hoc group of term lenders on or prior to the Effective Date in connection with the arrangement, negotiation, preparation, execution and delivery of this Fourth Amendment shall have been paid by the Borrower in accordance with any separate fee letters with the Borrower (if any) (or, in the case of the Administrative Agent, the Amended Credit Agreement) to the extent invoiced at least one Business Day prior to the Effective Date.

The Administrative Agent shall have received for the ratable account of each Lender that has delivered its executed consent to this Fourth Amendment prior to 5:00 p.m., New York City time, on August 28, 2020 an amendment consent fee in the amount of 0.75% of such Lender’s aggregate Term A Loans and Term B Loans outstanding and Revolving Commitments (whether or not then drawn or utilized) in effect in each case immediately prior to the effectiveness of the Fourth Amendment.

SECTION 4.3No Default or Event of Default; Representations and Warranties

.

(a)The representations and warranties set forth in Article III hereof shall be true and correct as of the Effective Date.

(b)No Default or Event of Default shall have occurred and be continuing after giving effect to this Fourth Amendment on the Effective Date.

7

 

 

 

 


 

 

 

 

SECTION 4.4Tribe Financing

.  On or prior to the Effective Date, the Borrower shall have received aggregate proceeds of at least $20,000,000 from a Specified Tribal Contribution.

ARTICLE V

VALIDITY OF OBLIGATIONS AND LIENS

SECTION 5.1Validity of Loan Party Obligations

.  Borrower and each other Loan Party acknowledges and agrees that, both before and after giving effect to this Fourth Amendment, Borrower and each other Loan Party is, jointly and severally, indebted to the Lenders and the other Secured Parties for the Obligations as set forth in the Amended Credit Agreement.  The Borrower and each other Loan Party hereby ratifies and reaffirms the validity, enforceability and binding nature of such Obligations both before and after giving effect to this Fourth Amendment.

SECTION 5.2Validity of Liens and Loan Documents

.  Borrower and each other Loan Party hereby ratifies and reaffirms the validity and enforceability of the Liens and security interests granted to the Administrative Agent for the benefit of the Secured Parties to secure all of the Obligations by Borrower and each other Loan Party pursuant to the Loan Documents to which any of Borrower or such other Loan Party is a party and hereby confirms and agrees that notwithstanding the effectiveness of this Fourth Amendment, and except as expressly amended or modified by this Fourth Amendment, each such Loan Document is, and shall continue to be, in full force and effect and each is hereby ratified and confirmed in all respects.

SECTION 5.3Validity of Tribe Obligations

.  The Tribe acknowledges and agrees that, both before and after giving effect to this Fourth Amendment, the Loan Documents to which the Tribe is a party constitute the legal, valid and binding obligations of the Tribe, enforceable against the Tribe in accordance with their terms.  

ARTICLE VI

MISCELLANEOUS

SECTION 6.1Amendment, Modification and Waiver

.  This Fourth Amendment may not be amended, modified or waived except in accordance with Section 12.01 of the Amended Credit Agreement.

SECTION 6.2Entire Agreement

.  This Fourth Amendment, the Amended Credit Agreement and the other Loan Documents, constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

SECTION 6.3Governing Law; Arbitration Reference; Waiver of Right to Trial by Jury; Waiver of Sovereign Immunity; Consent to Jurisdiction; Gaming Law Limitations; Section 81

8

 

 

 

 


 

 

 

 

Compliance

.  The provisions of Section 12.17, Section 12.18, Section 12.19, Section 12.20, Section 12.21, Section 12.22 and Section 12.23 of the Existing Credit Agreement are incorporated herein by reference, mutatis mutandis.

SECTION 6.4Severability

.  If any provision of this Fourth Amendment or the other Loan Documents is held to be illegal, invalid, void or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Fourth Amendment and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which come as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 6.5Miscellaneous

.  

(a)This Fourth Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  This Fourth Amendment and any other document or instrument required to be delivered hereunder may be executed via “Docusign” or other electronic means and be transmitted by facsimile or electronic mail and shall constitute a manually-signed original for all record-keeping purposes.  The effectiveness of this Fourth Amendment and signatures hereto shall, subject to applicable Law, have the same force and effect as manually-signed originals and shall be binding on all Loan Parties, the Administrative Agent and the Lenders.

(b)Except as expressly amended or modified hereby, all of the provisions of the Existing Credit Agreement and the other Loan Documents shall remain in full force and effect except that each reference to the “Credit Agreement”, or words of like import in any Loan Document, shall mean and be a reference to the Amended Credit Agreement.  This Fourth Amendment shall be deemed a “Loan Document” as defined in the Amended Credit Agreement.  It is the intention of the parties hereto that from and after the Effective Date in no event will a Default or Event of Default be deemed to have occurred as a result of Borrower’s failure to comply with Section 8.01(b) and/or Section 9.10 of the Existing Credit Agreement, solely with respect to the fiscal quarters ending March 31, 2020 and June 30, 2020; provided that the Borrower will deliver to the Administrative Agent the financial statements described in Section 8.01(b) of the Existing Credit Agreement for the periods ended March 31, 2020 and June 30, 2020 within 5 Business Days following the Effective Date. Notwithstanding anything contained herein to the contrary, failure to deliver such financial statements in accordance with the preceding sentence prior to such date shall result in an immediate Event of Default under the Amended Credit Agreement.

(c)The Lenders party hereto, constituting the Required Lenders and the Required Covenant Lenders as of the date hereof, hereby instruct the Administrative Agent to deliver its executed signature page to this Fourth Amendment.

9

 

 

 

 


 

 

 

 

SECTION 6.6Lead Arrangers and Bookrunners

.  The Borrower has appointed (a) Citizens Bank, N.A. and (b) Credit Suisse Loan Funding LLC (collectively, the “Fourth Amendment Arrangers”) to act as joint lead arrangers and joint bookrunners for this Fourth Amendment.  Anything herein to the contrary notwithstanding, the Fourth Amendment Arrangers shall have no powers, duties or responsibilities under this Fourth Amendment or any of the other Loan Documents, except in their respective capacities, as applicable, as the Administrative Agent, a Lender or an L/C Issuer thereunder.

SECTION 6.7Acknowledgments

.  Each Lender party to this Fourth Amendment acknowledges and agrees that such Lender is automatically deemed to have consented to the terms herein by executing this Fourth Amendment.  For purposes of determining compliance with the requirements and conditions precedent specified herein, the Administrative Agent and each Lender party hereto shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or any such Lender, as applicable.  The Administrative Agent shall promptly notify the Borrower and each Lender of the Effective Date.

SECTION 6.8Post-Closing Consent Fees and Expenses

. In the event any of the fees, costs and expenses set forth in the first sentence of Section 4.2 are not invoiced at least one Business Day prior to the Effective Date, the Borrower shall pay all such fees, costs and expenses promptly (and in any event within two (2) Business Days) following receipt of an invoice therefor. The Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender that has delivered its executed consent to this Fourth Amendment after the effectiveness of this Fourth Amendment and no later than 5:00 p.m., New York City time, on September 1, 2020, an amendment consent fee in the amount of 0.75% of such Lender’s aggregate Term A Loans and Term B Loans outstanding and Revolving Commitments (whether or not then drawn or utilized) in effect in each case immediately prior to the effectiveness of the Fourth Amendment (without duplication of any fees payable pursuant to the last sentence of Section 4.2 hereof).

 

[Remainder of page intentionally left blank]

 

 

10

 

 

 

 


 

 

 

 

IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to be duly executed as of the day and year first above written, to be effective as of the Effective Date.

MOHEGAN TRIBAL GAMING AUTHORITY


By:/s/ Mario C. Kontomerkos

Name: Mario C. Kontomerkos
Title:   Chief Executive Officer

 

 

THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT (for the limited purpose of joining Sections 3.1, 5.3, 6.1, 6.3, 6.4, and 6.5 of this Fourth Amendment)


By:/s/ Ralph James Gessner Jr.

Name: Ralph James Gessner Jr.
Title:   Chairman


[Signature Page to Fourth Amendment]

 


 

 

 

 

MOHEGAN BASKETBALL CLUB LLC

MOHEGAN COMMERCIAL VENTURES PA, LLC

MOHEGAN GOLF, LLC

 

 

 

By:

/s/ Mario C. Kontomerkos
Name:Mario C. Kontomerkos
Title:President

 

DOWNS RACING, L.P.

BACKSIDE, L.P.

MILL CREEK LAND, L.P.

NORTHEAST CONCESSIONS, L.P.
By Mohegan Commercial Ventures PA, LLC, its general partner

 

 

By:

/s/ Mario C. Kontomerkos
Name:Mario C. Kontomerkos
Title:President

 

MOHEGAN VENTURES-NORTHWEST, LLC

 

 

By:

/s/ Mario C. Kontomerkos
Name:Mario C. Kontomerkos
Title:Manager

 

 

By:

/s/ Mario C Kontomerkos
Name:Mario C. Kontomerkos
Title:President


[Signature Page to Fourth Amendment]

 


 

 

 

 

CITIZENS BANK, N.A.,
as Administrative Agent

By:       /s/ Oliver Harris

Name:  Olliver Harris

Title:    Vice President


[Signature Page to Fourth Amendment]

 


 

 

 

 

The undersigned Lender hereby consents to this Fourth Amendment with respect to 100% of the commitments and outstanding principal amount of the Term A Loans, Term B Loans, Revolving Loans, Revolving Commitments, L/C Obligations and Swingline Loans, as applicable, held by such Lender on the Effective Date and authorizes and directs the Administrative Agent to consent to and execute this Fourth Amendment:

[_______________],
as a Lender

By:      

Name:  

Title:    

 

If a second signature is necessary:

 

By:      

Name:  

Title:    

 

 

 

[Signature Page to Fourth Amendment]

 


 

 

 

EXHIBIT A

 

Amended Credit Agreement

 

[See Attached]


 

 


 

EXHIBIT B

 

Schedule 1

 

Pledged

Subsidiary

Owner

Class of Equity Interest

Certificate No(s).

Number of Shares

Percentage of Ownership

Downs Racing, L.P.

Mohegan Tribal Gaming Authority

Partnership Interest

4

N/A

99.99%

Backside, L.P.

Mohegan Tribal Gaming Authority

Partnership Interest

4

N/A

99.99%

Mill Creek Land, L.P.

Mohegan Tribal Gaming Authority

Partnership Interest

4

N/A

99.99%

Northeast Concessions, L.P.

Mohegan Tribal Gaming Authority

Partnership Interest

4

N/A

99.99%

Mohegan Commercial Ventures PA, LLC

Mohegan Tribal Gaming Authority

Membership Interest

N/A

N/A

100.00%

Downs Racing, L.P.

Mohegan Commercial Ventures PA, LLC

Partnership Interest

3

N/A

0.01%

Backside, L.P.

Mohegan Commercial Ventures PA, LLC

Partnership Interest

3

N/A

0.01%

Mill Creek Land, L.P.

Mohegan Commercial Ventures PA, LLC

Partnership Interest

3

N/A

0.01%

Northeast Concessions, L.P.

Mohegan Commercial Ventures PA, LLC

Partnership Interest

3

N/A

0.01%

Mohegan Ventures-Northwest, LLC

Mohegan Tribal Gaming Authority

Membership Interest

N/A

N/A

100.00%

 

 

 

 


 

Pledged

Subsidiary

Owner

Class of Equity Interest

Certificate No(s).

Number of Shares

Percentage of Ownership

Mohegan Golf,

LLC

Mohegan Tribal Gaming Authority

Membership Interest

N/A

N/A

100.00%

Mohegan Lacrosse, LLC

Mohegan Tribal Gaming Authority

Membership Interest

N/A

N/A

100.00%

Mohegan Gaming Advisors, LLC

Mohegan Tribal Gaming Authority

Membership Interest

N/A

N/A

100.00%

MGNV Holding, LLC

Mohegan Tribal Gaming Authority

Membership Interest

N/A

N/A

100.00%

Salishan-Mohegan, LLC

Mohegan Ventures-Northwest, LLC

Membership Interest

N/A

N/A

100.00%


 

 

 

 


 

EXHIBIT C

 

[Intentionally Omitted]

 

 

 


 

 

 

 


 

Execution Version

 

Published Deal CUSIP: 608330AM8

Published CUSIP for Revolving Credit Facility: 608330AN6

Published CUSIP for Term A Facility: 608330AP1

Published CUSIP for Term B Facility: 608330AQ9

 

CREDIT AGREEMENT

Dated as of October 14, 2016,

(as conformed for the First Amendment to Credit Agreement, dated as of April 14, 2017,

the Incremental Joinder and Second Amendment to Credit Agreement, dated as of April 12, 2018,

and

the Third Amendment to Credit Agreement, dated as of August 13, 2020,

and the Fourth Amendment to Credit Agreement, dated as of August 28, 2020)

 

among

MOHEGAN TRIBAL GAMING AUTHORITY,
as the Borrower,

THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT,
as an additional party with respect to certain
representations, warranties and covenants,

CITIZENS BANK, N.A.,
as Administrative Agent,

BANK OF AMERICA, N.A.,
as Swingline Lender,

CITIZENS BANK, N.A.,
as L/C Issuer

and

The Other Lenders Party Hereto

 

CITIZENS BANK, N.A.,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
CREDIT SUISSE SECURITIES (USA) LLC, SUNTRUST ROBINSON HUMPHREY, INC., GOLDMAN SACHS BANK USA, KEYBANK NATIONAL ASSOCIATION,
CIT BANK, N.A. and FIFTH THIRD BANK,

as Joint Lead Arrangers and Joint Bookrunners for the Revolving Credit Facility and the Term A Facility

 

and

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
CITIZENS BANK, N.A., CREDIT SUISSE SECURITIES (USA) LLC, SUNTRUST ROBINSON HUMPHREY, INC., GOLDMAN SACHS BANK USA, KEYBANK NATIONAL ASSOCIATION,
CIT BANK, N.A. and FIFTH THIRD BANK,

as Joint Lead Arrangers and Joint Bookrunners for the Term B Facility

 

and

 

BANK OF AMERICA, N.A. and CREDIT SUISSE SECURITIES (USA) LLC
as Syndication Agents

 

 

 

 


 

 

and

 

SUNTRUST BANK, GOLDMAN SACHS BANK USA, KEYBANK NATIONAL ASSOCIATION, CIT BANK, N.A. and FIFTH THIRD BANK,
as Documentation Agents

 

 

 

 

 

 


 

CONTENTS

e

 

 

 

Page

 

 

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

12

 

 

 

 

 

1.01

 

Defined Terms

 

12

1.02

 

Other Interpretive Provisions

 

542

1.03

 

Accounting Terms

 

542

1.04

 

Rounding

 

552

1.05

 

References to Agreements and Laws

 

552

1.06

 

Times of Day; Rates

 

552

1.07

 

Letter of Credit Amounts

 

552

1.08

 

Certain Calculations and Tests

 

562

1.09

 

Limited Condition Transactions

 

572

 

 

 

ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

 

582

 

 

 

 

 

2.01

 

Committed Loans

 

582

2.02

 

Borrowings, Conversions and Continuations of Committed Loans.

 

592

2.03

 

Letters of Credit.

 

612

2.04

 

Swingline Loans.

 

692

2.05

 

Prepayments.

 

722

2.06

 

Termination or Reduction of Commitments

 

752

2.07

 

Repayment of Loans

 

752

2.08

 

Interest

 

762

2.09

 

Fees

 

772

2.10

 

Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate

 

782

2.11

 

Evidence of Debt

 

782

2.12

 

Payments Generally

 

792

2.13

 

Sharing of Payments

 

802

2.14

 

[Reserved]

 

812

2.15

 

Incremental Facilities

 

812

2.16

 

Cash Collateral

 

842

2.17

 

Defaulting Lenders

 

852

2.18

 

Reverse Dutch Auction Repurchases

 

882

2.19

 

Refinancing Amendments

 

892

2.20

 

Extension of Loans and Commitments

 

912

 

 

 

ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY

 

942

 

 

 

 

 

3.01

 

Taxes

 

942

3.02

 

Illegality

 

982

3.03

 

Inability to Determine Rates

 

992

3.04

 

Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans

 

1002

3.05

 

Compensation for Losses

 

1012

3.06

 

Matters Applicable to all Requests for Compensation

 

1022

3.07

 

Survival

 

1022

 

 

 

i


TABLE OF CONTENTS

Page

 

ARTICLE IV CONDITIONS PRECEDENT TO CLOSING DATE AND CREDIT

EXTENSIONS

 

1022

 

 

 

 

 

4.01

 

Conditions to Closing Date

 

1022

4.02

 

Conditions to all Credit Extensions

 

1082

 

 

 

ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE TRIBE

 

1082

 

 

 

 

 

5.01

 

Existence and Qualification; Power; Compliance With Laws

 

1092

5.02

 

Authority; Compliance With Other Agreements and Instruments and Government Regulations

 

1092

5.03

 

No Governmental Approvals Required

 

1102

5.04

 

The Nature of Borrower

 

1102

5.05

 

No Management Contract

 

1102

5.06

 

Real Property

 

1102

5.07

 

Binding Obligations

 

1102

5.08

 

No Default

 

1112

5.09

 

Disclosure

 

1112

5.10

 

Gaming Laws

 

1112

5.11

 

Arbitration

 

1112

5.12

 

Recourse Obligations

 

1112

5.13

 

No Pending Referendum

 

1112

5.14

 

Allocation Plan

 

1112

5.15

 

Indian Lands

 

1122

 

 

 

ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER

 

1122

 

 

 

 

 

6.01

 

Existence, Qualification and Power

 

1122

6.02

 

Authorization; No Contravention

 

1122

6.03

 

Governmental Authorization; Other Consents

 

1132

6.04

 

Binding Effect

 

1132

6.05

 

Financial Statements; No Material Adverse Effect

 

1132

6.06

 

Litigation

 

1142

6.07

 

No Default

 

1142

6.08

 

Ownership of Property; Liens

 

1142

6.09

 

Environmental Compliance

 

1152

6.10

 

Insurance

 

1152

6.11

 

Taxes

 

1152

6.12

 

ERISA Compliance

 

1152

6.13

 

Subsidiaries

 

1152

6.14

 

Margin Regulations; Investment Company Act

 

1152

6.15

 

Disclosure

 

1162

6.16

 

Intellectual Property; Licenses, Etc

 

1162

6.17

 

Security Documents

 

1162

6.18

 

OFAC

 

1172

6.19

 

Anti-Corruption Laws

 

1172

6.20

 

EEA Financial Institutions

 

1172

ii

 


TABLE OF CONTENTS

Page

 

6.21

 

[Reserved].

 

1172

6.22

 

Designated Senior Indebtedness

 

1172

6.23

 

Tribal Court Enforcement

 

1172

6.24

 

Deposit Accounts

 

1172

6.25

 

No Licensure Required

 

1182

6.26

 

Solvency

 

1182

 

 

 

ARTICLE VII COVENANTS OF THE TRIBE

 

1182

 

 

 

 

 

7.01

 

Ownership and Operation of Mohegan Sun

 

1182

7.02

 

Sovereign Immunity; Jurisdiction and Venue

 

1182

7.03

 

The Lease and the Landlord Consent

 

1192

7.04

 

Preservation of Existence; Operation

 

1192

7.05

 

Prohibited Transactions

 

1192

7.06

 

Amendments to Material Laws and Agreements

 

1192

7.07

 

Impairment of Contracts; Imposition of Governmental Charges

 

1202

7.08

 

Segregation of Property

 

1202

7.09

 

Trust Property

 

1202

7.10

 

Liens on Authority Property

 

1202

7.11

 

Bankruptcy Matters

 

1212

7.12

 

Challenges by the Tribe

 

1212

7.13

 

Access to Lands of the Tribe

 

1212

7.14

 

Compliance with Law

 

1222

7.15

 

Impairment of Contracts

 

1222

 

 

 

ARTICLE VIII AFFIRMATIVE COVENANTS  OF BORROWER

 

1222

 

 

 

 

 

8.01

 

Financial Statements

 

1222

8.02

 

Certificates; Other Information

 

1222

8.03

 

Notices

 

1242

8.04

 

Preservation of Existence, Etc

 

1252

8.05

 

Maintenance of Properties

 

1252

8.06

 

Maintenance of Insurance

 

1262

8.07

 

Compliance with Laws

 

1262

8.08

 

Books and Records

 

1262

8.09

 

Inspection Rights

 

1272

8.10

 

Use of Proceeds

 

1272

8.11

 

Environmental Covenant

 

1272

8.12

 

[Reserved].

 

1282

8.13

 

Additional Subsidiaries and Collateral

 

1282

8.14

 

Maintenance of Ratings

 

1292

8.15

 

Anti-Corruption Laws

 

1292

8.16

 

Payment of Taxes and Obligations

 

1292

8.17

 

Operating Accounts

 

1292

8.18

 

Continual Operation of Mohegan Sun

 

1292

iii

 


TABLE OF CONTENTS

Page

 

8.19

 

Defense of Loan Documents

 

1302

8.20

 

Post-Closing Covenants

 

1302

 

 

 

ARTICLE IX NEGATIVE COVENANTS

 

1302

 

 

 

 

 

9.01

 

Liens

 

1302

9.02

 

Investments

 

1322

9.03

 

Indebtedness

 

1342

9.04

 

Fundamental Changes

 

1362

9.05

 

Dispositions

 

1372

9.06

 

Restricted Payments

 

1382

9.07

 

Change in Nature of Business

 

1402

9.08

 

Transactions with Affiliates

 

1402

9.09

 

Negative Pledges and Other Contractual Restrictions

 

1402

9.10

 

Financial Covenants

 

1412

9.11

 

Use of Proceeds

 

1422

9.12

 

Certain Prepayments of Indebtedness

 

1422

9.13

 

Sanctions

 

1432

9.14

 

Anti-Corruption Laws

 

1432

9.15

 

WNBA Subsidiary Operations and Indebtedness

 

1432

9.16

 

CT Expo Subsidiary Operations and Indebtedness

 

1432

9.17

 

Excluded Restricted Subsidiaries Operations and Indebtedness

 

1442

9.18

 

Change in Fiscal Year

 

1442

 

 

 

ARTICLE X EVENTS OF DEFAULT AND REMEDIES

 

1442

 

 

 

 

 

10.01

 

Events of Default

 

1442

10.02

 

Remedies Upon Event of Default

 

1472

10.03

 

Application of Funds

 

1492

 

 

 

ARTICLE XI ADMINISTRATIVE AGENT

 

1502

 

 

 

 

 

11.01

 

Appointment and Authority

 

1502

11.02

 

Rights as a Lender

 

1502

11.03

 

Exculpatory Provisions

 

1512

11.04

 

Reliance by the Administrative Agent

 

1512

11.05

 

Delegation of Duties

 

1522

11.06

 

Resignation of the Administrative Agent

 

1522

11.07

 

Non-Reliance on Administrative Agent and Other Lenders

 

1532

11.08

 

No Other Duties, Etc

 

1532

11.09

 

Administrative Agent May File Proofs of Claim; Credit Bidding

 

1532

11.10

 

Collateral and Guaranty Matters

 

1552

11.11

 

Secured Hedge Agreements

 

1562

 

 

 

ARTICLE XII MISCELLANEOUS

 

1562

 

 

 

 

 

12.01

 

Amendments, Etc

 

1562

12.02

 

Notices and Other Communications; Facsimile Copies

 

1592

iv

 


TABLE OF CONTENTS

Page

 

12.03

 

No Waiver; Cumulative Remedies

 

1612

12.04

 

Attorney Costs, Expenses and Taxes

 

1612

12.05

 

Indemnification by the Borrower; Reimbursement by Lenders; Waiver

 

1622

12.06

 

Payments Set Aside

 

1632

12.07

 

Successors and Assigns

 

1642

12.08

 

Confidentiality

 

1702

12.09

 

Set-off

 

1712

12.10

 

Interest Rate Limitation

 

1712

12.11

 

Counterparts

 

1722

12.12

 

Integration

 

1722

12.13

 

Survival of Representations and Warranties

 

1722

12.14

 

Severability

 

1722

12.15

 

[Reserved]

 

1722

12.16

 

Replacement of Lenders

 

1722

12.17

 

Governing Law

 

1732

12.18

 

Arbitration Reference

 

1742

12.19

 

Waiver of Right to Trial by Jury

 

1752

12.20

 

WAIVER OF SOVEREIGN IMMUNITY; CONSENT TO JURISDICTION

 

1752

12.21

 

Lender Covenant

 

1772

12.22

 

Gaming Law Limitations

 

1772

12.23

 

Section 81 Compliance

 

1782

12.24

 

USA PATRIOT Act Notice

 

1782

12.25

 

OFAC

 

1782

12.26

 

Designation as Senior Debt

 

1792

12.27

 

Gaming Boards

 

1792

12.28

 

Gaming Regulations

 

1792

12.29

 

No Personal Liability

 

1792

12.30

 

Electronic Execution of Assignments and Certain Other Documents

 

1792

12.31

 

Entire Agreement

 

1802

12.32

 

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

 

1802

12.33

 

No Advisory or Fiduciary Responsibility

 

1802

 

 

v

 


 

CREDIT AGREEMENT

This CREDIT AGREEMENT is entered into as of October 14, 2016 (as may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT, a federally recognized Indian Tribe and Native American sovereign nation (the “Tribe”), the MOHEGAN TRIBAL GAMING AUTHORITY, a governmental instrumentality of the Tribe (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), CITIZENS BANK, N.A., as Administrative Agent, BANK OF AMERICA, N.A., as Swingline Lender, and CITIZENS BANK, N.A., as L/C Issuer.

RECITALS

A.Borrower has requested that the Lenders provide the credit facilities set forth in this Agreement to Borrower.

B.The Lenders are willing to provide such credit facilities upon the terms and subject to the conditions set forth herein.

AGREEMENT

NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants and agreements herein contained, the parties hereto agree as follows:

ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS

Defined Terms

.  As used in this Agreement, the following terms shall have the meanings set forth below:

AAA” has the meaning specified in Section 12.18(a).

Account Control Agreement” means a control agreement among Borrower or a Restricted Subsidiary, as applicable, the Administrative Agent and the depositary or securities intermediary for each Operating Account, in a form reasonably acceptable to the Administrative Agent and the Borrower and complying with the limitations in Section 12.22.

Act” has the meaning specified in Section 12.24.

Additional Lender” has the meaning specified in Section 2.15(b).

Administrative Agent” means Citizens Bank, in its capacity as administrative agent under any of the Loan Documents, together with its permitted successors and assigns.

Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 12.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

1

 


 

Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.

Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.  For the avoidance of doubt, each Governmental Component of the Tribe shall be deemed to be an Affiliate of the Tribe and each other Governmental Component of the Tribe

Agent Parties” has the meaning specified in Section 12.02(b).

Agent-Related Persons” means the Administrative Agent, together with its Affiliates (including, in the case of Citizens Bank, in its capacity as the Administrative Agent, Citizens Bank, in its capacity as Arranger), and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

Aggregate Revolving Commitments” means, at any time, the Revolving Commitments of all Revolving Lenders.  As of the Closing Date, the Aggregate Revolving Commitments are in an amount equal to $170,000,000.

Agreement” has the meaning specified in the introductory paragraph hereto.

All-In Yield” means, as to any Indebtedness, the interest margin applicable thereto; provided that (a) except to the extent paid prior to the Fourth Amendment Effective Date in respect of the Term B Facility, original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable for the account of the holders of such Indebtedness in connection with (i) the primary syndication thereof and (ii) any amendment that extends the stated maturity thereof (and not, for the avoidance of doubt, in connection with any other amendment or waiver) shall be included (with OID and, upfront and similar fees being equated to interest based on an assumed four-year life to maturity or, in the case of any Indebtedness incurred after the Fourth Amendment Effective Date, if shorter, the actual life to maturity), (b) customary arrangement or commitment fees payable to any arrangers (or their affiliates) of such Indebtedness in their capacity as such and not paid to all relevant lenders generally shall be excluded, and (c) if such Indebtedness has a LIBOR floor or base rate floor that is greater than any LIBOR floor or Base Rate floor, respectively, for the Term B Facility and such LIBOR floor or Base Rate floor is applicable at the time such Indebtedness is incurred, the amount by which such LIBOR or base rate floor for such Indebtedness exceeds the LIBOR Floor or Base Rate floor, respectively, for the Term B Facility, shall be included in the calculation of All-In Yield for such Indebtedness.

Allocation Plan” means the Mohegan Tribal Gaming Revenue Allocation Plan, last amended as of July 29, 2010, as such plan may be amended or succeeded from time to time, approved by the Bureau of Indian Affairs on July 29, 2010, relating to the application, distribution or use of revenues from class II and class III gaming (as defined in IGRA).

2

 


 

Amortization Amount” means, (a) with respect to the Term A Loans, (i) for each of the first eight Amortization Dates following the Closing Date, an amount equal to the sum of any adjustment required pursuant to Section 2.15(e) plus 3.75% of the Term A Loan Aggregate Principal Amount, (ii) for each of the ninth through twelfth Amortization Dates following the Closing Date, an amount equal to the sum of any adjustment required pursuant to Section 2.15(e) plus 2.5% of the Term A Loan Aggregate Principal Amount, and (iii) for the thirteenth Amortization Date following the Closing Date and each Amortization Date thereafter, an amount equal to the sum of any adjustment required pursuant to Section 2.15(e) plus 1.875% of the Term A Loan Aggregate Principal Amount, and (b) with respect to the Term B Loans, from and after the Second Amendment Effective Date, an amount equal to the sum of any adjustment required pursuant to Section 2.15(e) plus $2,170,352.99.

Amortization Date” means the last Business Day of each Fiscal Quarter, commencing with the last Business Day of the first full Fiscal Quarter following the Closing Date.

Applicable Rate” means:

(a)

from and after the Second Amendment Effective DateAugust 24, 2020, with respect to any Revolving Commitment, Revolving Loan and Letter of Credit Fee payable to Lenders under the Initial Revolving Credit Facility, the following rates per annum (expressed in basis points), based upon the Total Leverage Ratio as set forth below:

Applicable Rate

Pricing Level

Total Leverage Ratio

Unused Fee

Eurodollar Rate + Letters of Credit

Base Rate +

1

< 2.50x

37.5

2.00%

1.00%

2

2.50x < x < 3.00x

37.5

2.50%

1.50%

3

3.00x < x < 3.50x

37.5

3.00%

2.00%

4

3.50x < x < 4.00x

50.0

3.25%

2.25%

5

4.00x < x < 4.50x

50.0

3.50%

2.50%

6

> 4.50x

50.0

3.75%

2.75%

(b)

from and after the Second Amendment Effective DateAugust 24, 2020, with respect to any Term A Loan, the following rates(i) 6.125% per annum (expressed in basis points), based upon the Total Leverage Ratio as set forth below:in the case of Eurodollar Rate Loans and (ii) 5.125% per annum in the case of Base Rate Loans.

Applicable Rate

Pricing Level

Total Leverage Ratio

Eurodollar Rate +

Base Rate +

1

< 2.50x

2.00%

1.00%

2

2.50x < x < 3.00x

2.50%

1.50%

3

3.00x < x < 3.50x

3.00%

2.00%

4

3.50x < x < 4.00x

3.25%

2.25%

5

4.00x < x < 4.50x

3.50%

2.50%

6

4.50x < x < 5.50x

3.75%

2.75%

7

> 5.50x

4.125%

3.125%

3

 


 

 

(c)

from and after the Second Amendment Effective DateAugust 24, 2020, with respect to any Term B Loan, the following rates per annum (expressed in basis points), based upon the Total Leverage Ratio as set forth below(i) 6.375% per annum in the case of Eurodollar Rate Loans and (ii) 5.375% per annum in the case of Base Rate Loans, subject to the following adjustments:

 

 

(1)  if Borrower achieves a Debt Rating of at least B2 (Moody’s), B (S&P) or equivalent from at least two Rating Agencies (at least one of which is Moody’s or S&P) prior to the Term B Loan Repricing Date (if any), and solely for so long as the Borrower is able to maintain such Debt Rating from two Rating Agencies (at least one of which is Moody’s or S&P), the Applicable Rate with respect to Term B Loans shall be (i) in the case of Eurodollar Rate Loans, the greater of (A) (x) the Applicable Rate from time to time in effect with respect to any Term A Loans that are Eurodollar Rate Loans, minus (y) 0.50% and (B) 5.50% per annum and (ii) in the case of Base Rate Loans, the greater of (A) (x) the Applicable Rate from time to time in effect with respect to any Term A Loans that are Base Rate Loans, minus (y) 0.50% and (B) 4.50% per annum;

 

(2) if Borrower achieves a Debt Rating of at least Ba2 (Moody’s), BB (S&P) or equivalent from at least two Rating Agencies (at least one of which is Moody’s or S&P) prior to the Term B Loan Repricing Date (if any) and solely for so long as the Borrower is able to maintain such Debt Rating from two Rating Agencies (at least one of which is Moody’s or S&P), the Applicable Rate with respect to Term B Loans shall be (i) in the case of Eurodollar Rate Loans, the greater of (A) (x) the Applicable Rate from time to time in effect with respect to any Term A Loans that are Eurodollar Rate Loans, minus (y) 0.50% and (B) 4.75% per annum and (ii) in the case of Base Rate Loans, the greater of (A) (x) the Applicable Rate from time to time in effect with respect to any Term A Loans that are Base Rate Loans, minus (y) 0.50% and (B) 3.75% per annum; and

 

(3) on any Term B Loan Repricing Date, the Applicable Rate with respect to Term B Loans in effect at such time shall be increased by the Term B Loan Repricing Amount and shall be subject to no further adjustment.

 

Applicable Rate

Pricing Level

Total Leverage Ratio

Eurodollar Rate +

Base Rate +

1

< 5.50x

4.00%

3.00%

2

> 5.50x

4.375%

3.375%

 

(d)

with respect to any Incremental Term Loan, as set forth in the applicable Incremental Joinder;

4

 


 

(e)

with respect to any Other Revolving Loan or Other Term Loan, as set forth in the applicable Refinancing Amendment; and

(f)

with respect to any Extended Revolving Loan or Extended Term Loan, as set forth in the applicable Extension Amendment.

Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 8.02(b); provided, however, that (i) if a Compliance Certificate is not delivered when due in accordance with Section 8.02(b), then the highest Pricing Level shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall continue to apply until the first Business Day after the date such certificate is delivered and (ii) for the period beginning on the Closing Date and ending on the first date thereafter on which a Compliance Certificate is delivered pursuant to Section 8.02(b), the highest Pricing Level shall apply.

Any  modification of the Applicable Rate resulting from a publicly announced change in the Debt Rating shall become effective on the date of the public announcement thereof.  Any increase in the Applicable Rate resulting from the occurrence of a Term B Loan Repricing Trigger shall become effective on the Term B Loan Repricing Date.

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Arrangers” means, collectively, the Pro Rata Lead Arrangers and the Term B Lead Arrangers, in their capacities as joint lead arrangers and joint bookrunners hereunder.

Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit E or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel.

Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP; provided that Attributable Indebtedness shall not include obligations or liabilities or any Person to pay rent or other amounts under any lease, which obligations would be required to be classified as and accounted for as an operating lease under GAAP as in effect on the Closing Date, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

5

 


 

Auction” has the meaning specified in Section 2.18(a).

Auction Manager” has the meaning specified in Section 2.18(a).

Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended September 30, 2015, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.

Authority Property” means any and all now owned or hereafter acquired real, mixed and personal Property of Borrower (whether or not otherwise designated as property of Borrower) and its Restricted Subsidiaries.  “Authority Property” in any event includes, without limitation, (a) Mohegan Sun and Pocono and (b) all gaming revenues of Borrower and all gaming and other revenues of its Restricted Subsidiaries, provided that neither (i) the Property of the WNBA Subsidiary and Borrower’s ownership interests in the WNBA Subsidiary, nor (ii) the Property of any Unrestricted Subsidiaries, nor (iii) the Pennsylvania Tax Revenues, shall be considered to be Authority Property.  

Authorizing Resolutions” means (a) as to the Tribe, Resolution No. 2016-48 of the Tribal Council dated September 16, 2016 and (b) as to the Borrower, Resolution No. 2016-09 of the Management Board dated September 16, 2016.

Autoborrow Agreement” means, collectively, (i) that certain Line of Credit Agreement, dated as of the Closing Date, by and between the Borrower and the Swingline Lender and (ii) that certain Autoborrow Service Agreement, dated as of the Closing Date, by and between the Borrower and the Swingline Lender, together with all other promissory notes and other agreements between Borrower and the Swingline Lender related thereto.

Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).

Availability Period” means the period from and including the Closing Date to the earliest of (a) the latest then-effective Maturity Date for any Revolving Credit Facility, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06 and (c) the date of termination of the commitment of each Revolving Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 10.02.

Available Amount” shall mean, on any date, an amount not less than zero, equal to:

(a)

the aggregate amount of Quarterly Excess Cash Flow for each completed full Fiscal Quarter after the Closing Date (beginning, for the avoidance of doubt, with the Fiscal Quarter ending on March 31, 2017), minus the aggregate amount of Investment Returns deducted in calculating the usage of an Investment basket pursuant to the definition of “Investment” to the extent such Investment Return was included in Consolidated EBITDA for such period; plus

(b)

the amount of Investment Returns not deducted in calculating the usage of an Investment basket pursuant to the definition of “Investment” and received by the

6

 


 

Borrower and its Restricted Subsidiaries from Persons other than Loan Parties after the Closing Date to the extent not included in Consolidated EBITDA; plus

(c)

without duplication of any amounts included in clause (b) above, the amount of Investment Returns not deducted in calculating the usage of an Investment basket pursuant to the definition of “Investment” and received by the Borrower and its Restricted Subsidiaries after the Closing Date in respect of (1) Investments prior to the Closing Date in Inspire Integrated Resort Co. Ltd. and (2) Investments prior to the Closing Date in Salishan Mohegan LLC, in each case to the extent not included in Consolidated EBITDA; plus

(d)

upon the redesignation of a Subsidiary that was previously designated as an Unrestricted Subsidiary as a Restricted Subsidiary, the aggregate amount of any Investment in such Subsidiary that was made pursuant to Section 9.02 prior to such redesignation and is outstanding at the time of such redesignation; minus

(e)

the aggregate amount of any (i) Investments made pursuant to Section 9.02(j)(i), (ii) Restricted Payments made pursuant to Section 9.06(f)(i) and (iii) Junior Prepayments pursuant to Section 9.12(f)(x) (in each case, in reliance on the then-outstanding Available Amount) made since the Closing Date and on or prior to such date.

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bank of America” means Bank of America, N.A. and its successors.

Bankruptcy Code” means the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101 et seq., as amended.

Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Citizens Bank as its “prime rate” and (c) the Eurodollar Rate plus 1.00%.  The “prime rate” is a rate set by Citizens Bank based upon various factors including Citizens Bank’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Citizens Bank shall take effect at the opening of business on the day specified in the public announcement of such change.

Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.

Base Rate Loan” means a Loan that bears interest based on the Base Rate.

Borrower” has the meaning specified in the introductory paragraph hereto.

7

 


 

Borrower Materials” has the meaning specified in Section 8.02.

Borrowing” means a Committed Borrowing or a Swingline Borrowing, as the context may require.

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of New York and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.

Capital Expenditure” means any expenditure that is considered a capital expenditure under GAAP, including any amount that is required to be treated as an asset subject to a Capital Lease.

Capital Lease” means, as to any Person, a lease of any Property by that Person as lessee that is or should be recorded as a “capital lease” on the balance sheet of that Person prepared in accordance with GAAP; provided that the term “Capital Lease” shall not include any lease that would be required to be classified and accounted for as an operating lease under GAAP as existing on the Closing Date.

Capital Stock” means, with respect to any Person, any and all shares or other equivalents (however designated) of corporate stock, partnership interests, limited liability company membership interests, or any other participation, right, warrants, options or other interest in the nature of an equity interest or ownership interest in such Person, but excluding any debt security convertible or exchangeable into such equity interest or ownership interest.  For the avoidance of doubt, the Tribe’s ownership interest in the Borrower and the Borrower’s and its Restricted Subsidiaries’ ownership interest in Restricted Subsidiaries shall be deemed to be Capital Stock.

Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or the Revolving Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

Cash Equivalents” means, for any Person: (a) direct obligations of the United States, or of any agency thereof, or obligations guaranteed as to principal and interest by the United States, or by any agency thereof or issued by FNMA, FHLMC or FFCB, in either case maturing not more than one year from the date of acquisition thereof by such Person; (b) time deposits, certificates of deposit or bankers’ acceptances (including eurodollar deposits) issued by (i) any bank or trust company organized under the laws of the United States or any state thereof and having capital, surplus and undivided profits of at least $500,000,000 that is assigned at least a “B” rating by Thomson Financial Bank Watch or (ii) any Lender or bank holding company owning any Lender (in each case, at the time of acquisition); (c) commercial paper maturing not more than one year from the date of acquisition thereof by such Person and (i) issued by any Lender or bank holding

8

 


 

company owning any Lender or (ii) rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s, respectively, (in each case, at the time of acquisition); (d) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in subsections (a) above or (e) below entered into with a bank meeting the qualifications described in subsection (b) above (in each case, at the time of acquisition); (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, or by any political subdivision or taxing authority thereof or by any foreign government, and rated at least “A” by S&P or “A” by Moody’s (in each case, at the time of acquisition); (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of subsection (b) above (in each case, at the time of acquisition); (g) money market mutual funds that invest primarily in the foregoing items (determined at the time such investment in such fund is made); (h) corporate notes issued by domestic corporations that are rated at least “A” by S&P or “A” by Moody’s, in each case maturing within one year from the date of acquisition; or (i) auction rate securities including taxable municipals, taxable auction notes, and money market preferred; provided that the credit quality is consistent with subsection (h) of this definition.  

Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

Cash Management Bank” means (a) any Person that, at the time it enters into a Cash Management Agreement with a Loan Party, is a Lender, an Arranger, the Administrative Agent or an Affiliate of any of the foregoing, and (b) any Person that, on the Closing Date is a party to a Cash Management Agreement with a Loan Party, if such Person becomes a Lender, an Arranger, the Administrative Agent or an Affiliate of any of the foregoing within thirty (30) days of the Closing Date, in each case, in its capacity as a party to such Cash Management Agreement.

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Change of Control” means that the Borrower ceases to be a wholly-owned instrumentality of the Tribe, managed and controlled by the Tribe.

CIT Bank” means CIT Bank, N.A. and its successors.

9

 


 

Citizens Bank” means Citizens Bank, N.A. and its successors.

Claim” has the meaning specified in Section 12.18(a).

Closing Date” shall mean the date of this Agreement.

Closing Date Payment” shall mean the payment to the Tribe, on the date of this Agreement, of the amount necessary, not to exceed $1,750,000, to satisfy obligations in connection with the termination of the Lahaniatis Lease and the incorporation of the real property subject thereto into the Lease.

Code” means the Internal Revenue Code of 1986, as amended.

Collateral” means, collectively, the Property pledged or purported to be pledged to the Administrative Agent pursuant to the Security Documents and any additional Property pledged to the Administrative Agent pursuant to Section 8.13.  The Collateral shall not include any Protected Assets or any Excluded Assets (as defined in the Security Agreement).

Commission” means the National Indian Gaming Commission.

Commitment” means for each Lender, such Lender’s Revolving Commitment, Term A Commitment, Term B Commitment, Other Term Commitment, Extended Term Commitment or Incremental Term Loan Commitment.

Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made or otherwise held by each of the Lenders under any Term Facility pursuant to Section 2.01(b) or (c) or 2.15 or by each of the Revolving Lenders pursuant to Section 2.01(a).

Committed Loan” means a Revolving Loan or a Term Loan.

Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent  (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Compact” means the tribal-state Compact entered into between the Tribe and the State of Connecticut pursuant to IGRA, dated May 17, 1994, together with that certain Memorandum of Understanding dated May 17, 1994, as such may be amended.

Compensation Period” has the meaning specified in Section 2.12(c)(ii).

Compliance Certificate” means a certificate substantially in the form of Exhibit D.

10

 


 

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consolidated EBITDA” means, for any period, the Borrower’s and its Restricted Subsidiaries’ Consolidated Net Income for such period before (i.e., calculated without giving effect to) any of the following:  interest expense (including amortization of debt issuance costs, non-cash interest payments, the interest component of payments in respect of Capital Leases and commissions and other fees in respect of letters of credit), taxes, depreciation, amortization, non-cash rent expense, Pre-Opening Expenses, non-cash change in value of derivative instruments, interest costs associated with derivative instruments not otherwise included in interest expense, non-cash litigation accruals, charges or expenses relating to the modification or early retirement of debt, any impairment charges or asset write-offs, all non-recurring non-cash losses or expenses (or gains or income) not otherwise specified and all gains or losses in connection with a Disposition outside the ordinary course of business, acquisition and merger related charges, and extraordinary items, all as determined in accordance with GAAP, plus (a) cash dividends and distributions paid to the Borrower and its Restricted Subsidiaries from any Person that is not a Restricted Subsidiary, provided that the cumulative amount of such cash dividends and distributions included in Consolidated EBITDA shall not exceed the cumulative amount of the Borrower’s and its Restricted Subsidiaries’ share of the Consolidated EBITDA of such Person, plus (or minus) (b) any loss (or gain) of the Borrower and its Restricted Subsidiaries arising from a change in GAAP, plus (or minus) (c) any non-cash loss, costs or expenses (or non-cash gain or income) of the Borrower and its Restricted Subsidiaries resulting from adjustments to any earn out obligation or other contingent consideration and any loss or income of the Borrower and its Restricted Subsidiaries resulting from an earn out obligation or other contingent consideration being paid or no longer being contingent, plus (d) the Estimated Business Interruption Insurance for such period (notwithstanding any classification of the affected operations as discontinued operations or any disposal of such operations), plus (e) [Reserved], plus (f) non-recurring cash charges and expenses of the Borrower and its Restricted Subsidiaries (excluding fees and expenses included in clause (g) below), and costs of the Borrower and its Restricted Subsidiaries, in each case, incurred in connection with reduction-in-force, severance and similar operational restructuring programs, including without limitation, measurement period adjustments, the effects of adjustments (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries) in any line item in such Person's consolidated financial statements pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, integration costs, personnel restructuring, relocation or integration costs, one-time compensation charges and the amount of any signing, retention and completion bonuses; provided, that aggregate amount of additions made to Consolidated EBITDA for any period pursuant to clause (f) shall not exceed 10.0% of Consolidated EBITDA in the aggregate for any Test Period (after giving effect to clause (f)), plus (g) fees and expenses incurred by the Borrower and its Restricted Subsidiaries in connection with the issuance, incurrence, repayment, prepayment, refinancing, redemption or repurchase of Indebtedness of Borrower or any of its Restricted Subsidiaries and the making of Investments or Dispositions, including without limitation investment banking, brokerage and legal costs, minus (h) the Estimated Business Interruption Insurance Shortfall for such period, minus (i) business interruption insurance proceeds received during such period to the extent they represent payment of amounts previously included in Estimated Business Interruption Insurance.   If and to the extent that any non-cash litigation accruals have not been included in the computation of

11

 


 

Consolidated EBITDA, the amount of any non-appealable judgment or the cash payment in respect of any settlement or judgment in respect thereof (net of any assets acquired in connection with such settlement or judgment) in any future period shall be subtracted from Consolidated EBITDA. Notwithstanding anything to the contrary contained herein, for all purposes of this Agreement other than the determination of “Excess Cash Flow”, Consolidated EBITDA for the calendar month ending (x) March 31, 2020 shall be deemed to be $37,118,000, (y) April 30, 2020 shall be deemed to be $25,094,000, and (z) May 31, 2020 shall be deemed to be $25,987,000.

Consolidated Funded Indebtedness” means, as of any date of determination, for the Borrower and its Restricted Subsidiaries on a consolidated basis (exclusive of any Indebtedness of the Borrower’s Restricted Subsidiaries to the Borrower or another Restricted Subsidiary or any Indebtedness of the Borrower to any Restricted Subsidiary), the sum (without duplication) of (a) the outstanding principal amount of all Indebtedness for borrowed money minus the amount of any cash borrowed by the Borrower and pledged or deposited by the Borrower pursuant to Section 2.03(a)(iii) or Section 2.16 as cash collateral, (b) the aggregate amount of all Attributable Indebtedness, (c) the outstanding principal amount of all Indebtedness of the type described in clause (e) of the definition thereof, (d) the outstanding principal amount of all Indebtedness of the type described in clause (d) of the definition thereof, and (e) all Guarantees with respect to outstanding Indebtedness of the types specified in subsections (a) through (d) above of Persons other than the Borrower or any Restricted Subsidiary.  Notwithstanding the foregoing, Consolidated Funded Indebtedness shall not include (a) any Defeased Indebtedness or (b) the aggregate principal amount of Indebtedness (including any interest paid-in-kind thereon), if any, in respect of any Specified Tribal Contribution.  The amount of Consolidated Funded Indebtedness shall be deemed to be zero with respect to any letter of credit, unless and until a drawing is made with respect thereto. “Consolidated Funded Indebtedness” shall exclude the Consolidated Funded Indebtedness of each Unrestricted Subsidiary and all Subsidiaries of any Unrestricted Subsidiary.  “Consolidated Funded Indebtedness” shall exclude any Guarantee of Indebtedness at the Mohegan Sun Korea Project to the extent and for such time as the Borrower deems such Guarantee as incurred pursuant to Section 9.02(k) and Section 9.03(h).

Consolidated Net Income” means, with respect to any fiscal period, the consolidated net income from continuing operations before extraordinary or non-recurring items of Borrower and its Restricted Subsidiaries for that period, determined in accordance with GAAP; provided further that, without duplication: (a) the Consolidated Net Income of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid in cash to Borrower or any Restricted Subsidiary; and (b) the Consolidated Net Income of any Restricted Subsidiary that is not a Loan Party shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Consolidated Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders.

Constitution” means the Constitution of the Tribe adopted by the Tribe and ratified by the Tribe’s members by Tribal Referendum dated April 12, 1996, as amended August 10, 2002, as amended September 6, 2003, as amended May 2, 2004, as amended November 30, 2007, as

12

 


 

amended June 16, 2010, as amended February 23, 2014, and as it may be further amended from time to time.

Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Control” has the meaning specified in the definition of “Affiliate.”

Covenant Facility” means each Revolving Credit Facility, the Term A Facility, the Term B Facility, each Incremental Term Facility designated as a “Covenant Facility” pursuant to the Incremental Joinder for such Incremental Term Facility, each Other Term Facility designated as a “Covenant Facility” pursuant to the Refinancing Amendment for such Other Term Facility and each Extended Term Facility designated as a “Covenant Facility” pursuant to the Extension Amendment for such Extended Term Facility.

Covenant Facility Acceleration” means that (x) the Commitments under any Covenant Facility have been terminated and (y) the principal amount of all Loans under such Covenant Facility have been declared to be due and payable by the Lenders under such Facility pursuant to Section 10.02.

Covenant Lender” means a Lender under a Covenant Facility.

“COVID-19” means the novel coronavirus, SARS-CoV-2 or COVID-19 (and all related strains and sequences), including any intensification, resurgence or any evolutions or mutations thereof, and/or related or associated epidemics, pandemics, disease outbreaks or public health emergencies.

Credit Agreement Refinancing Indebtedness” means Indebtedness issued, incurred or obtained pursuant to a Refinancing Amendment (including, without limitation, Other Term Loans and Other Revolving Loans as well as any extension or renewal of any then Existing Term Loans and Revolving Commitments) in exchange for, or to extend, renew, replace or refinance, in whole or part, then Existing Term Loans or Revolving Commitments, or any then existing Credit Agreement Refinancing Indebtedness (any of the foregoing, “Refinanced Debt”); provided that (i) such Indebtedness is entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, (x) benefit equally and ratably from the Guaranty and the Collateral and (y) not have any borrower or guarantors other than the Borrower and the Guarantors or benefit from any collateral other than the Collateral, (ii) such Indebtedness has a maturity equal to or later and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt, (iii) such Indebtedness shall not have a greater principal amount than the outstanding principal amount of the Refinanced Debt (or, if purchased at a discount, such discounted amount) plus accrued interest, fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing, (iv) such Refinanced Debt shall be repaid, satisfied and discharged or constitute Defeased Indebtedness on a dollar-for-dollar basis (or at a discount), and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained, (v) the aggregate unused Revolving Commitments under such Credit Agreement Refinancing

13

 


 

Indebtedness shall not exceed the unused Revolving Commitments being replaced and (vi) the other terms of such Indebtedness shall be reasonably satisfactory to the Administrative Agent, provided, that fees and interest in respect thereof shall be determined by the Borrower and the applicable lenders.

Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

Credit Suisse” means Credit Suisse Securities (USA) LLC and its successors.

CT Expo” means an exposition and convention center construction project on or about the existing reservation of the Tribe located adjacent to Uncasville, Connecticut, which may include an exhibition hall and pre-function area, ballroom, conference rooms, entertainment and retail amenities, support and kitchen facilities and other related facilities and related fixtures, equipment and other personalty.

CT Expo Subsidiary” means a Subsidiary of the Borrower established in connection with, and in order to effectuate, acquisition, design, installation, development, construction and/or operation of the CT Expo.

“Cure Expiration Date” has the meaning specified in Section 10.04.

Customary Intercreditor Agreement” means with respect to any Indebtedness, a customary intercreditor agreement in form and substance mutually agreed by the Administrative Agent and the Borrower, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior to (or, in the case of any Indebtedness incurred pursuant to Section 9.03(q), pari passu with) the Liens on the Collateral securing the Obligations.

“Debt Rating” means, as of any date of determination, Borrower’s public corporate credit rating from S&P, public corporate family rating from Moody’s, or analogous credit rating from any other Rating Agency, in each case as determined by the applicable Rating Agency.

Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, the Tribe or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Declined Proceeds” has the meaning specified in Section 2.05(j).

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

Default Rate” means, (a) as to any Obligation other than Obligations in respect of Swingline Loans, a fluctuating interest rate per annum at all times equal to the interest rate otherwise applicable to such Obligation plus 2% per annum, and when used with respect to Obligations with respect to which no interest rate or per annum fees are specified, means an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans plus 2%

14

 


 

per annum, in each case to the fullest extent permitted by applicable laws and (b) as to any Obligations in respect of Swingline Loans, the applicable rate provided under the Autoborrow Agreement.

Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this subsection (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) as of the applicable date of determination such Lender, or a direct or indirect parent company of such Lender, (i) is the subject of a proceeding under any Debtor Relief Law, (ii) has had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, which appointment is then in effect, or (iii) is the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of subsections (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.  

Defeased Indebtedness” means Indebtedness (a) that has been defeased in accordance with the terms of the indenture or other agreement under which it was issued, (b) that has been called for redemption and for which funds sufficient to redeem such Indebtedness have been set

15

 


 

aside in a separate account by the Borrower, (c) for which amounts are set aside in trust or are held by a representative of the holders of such Indebtedness or any third party escrow agent pending satisfaction or waiver of the conditions for the release of such funds, or (d) that has otherwise been defeased to the satisfaction of the Administrative Agent.

Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any Property by the Borrower or any Guarantor, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.  For the avoidance of doubt, an Extraordinary Loss shall not constitute a Disposition.

Disqualified Capital Stock” shall mean, with respect to any Person, any Capital Stock of such Person that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable or redeemable at the sole option of the holder thereof (other than solely (x) for Capital Stock that is not Disqualified Capital Stock or upon a sale of assets, casualty event or a change of control, in each case, subject to the prior payment in full of the Obligations, (y) as a result of a redemption required by Gaming Law or (z) as a result of a redemption that by the terms of such Capital Stock is contingent upon such redemption not being prohibited by this Agreement), pursuant to a sinking fund obligation or otherwise (other than solely for Capital Stock that is not Disqualified Capital Stock) or exchangeable or convertible into debt securities of the issuer thereof at the sole option of the holder thereof, in whole or in part, on or prior to the date that is 181 days after the latest Maturity Date then in effect at the time of issuance thereof.

Documentation Agents” means SunTrust Bank, Goldman, KeyBank, CIT Bank and Fifth Third Bank.

Dollar” and “$” mean lawful money of the United States.

Earth Hotel Lease” means that certain sublease dated February 1, 2015, by and between the Borrower and Mohegan Tribal Finance Authority, including all exhibits and schedules attached thereto.

ECF Percentage” means, for any fiscal year, commencing with the fiscal year ended September 30, 2017, (a) 50% if the Total Leverage Ratio as of the last day of such fiscal year is greater than 4.50 to 1.00, (b) 25% if the Total Leverage Ratio as of the last day of such fiscal year is equal to or less than 4.50 to 1.00 and greater than 3.50 to 1.00 and (c) 0% if the Total Leverage Ratio as of the last day of such fiscal year is equal to or less than 3.50 to 1.00.

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in subsection (a) of this definition, or (c) any financial institution established in an EEA Member

16

 


 

Country which is a Subsidiary of an institution described in subsections (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any member of the European Union, Iceland, Liechtenstein and Norway.

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 12.07(b)(iii) or (iv) (as applicable) and Section 12.07(b)(v) (subject to such consents, if any, as may be required under Section 12.07(b)(iii) or (iv) (as applicable)).

Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

ERISA” means the Employee Retirement Income Security Act of 1974.

ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under

17

 


 

Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

Estimated Business Interruption Insurance” means an estimate of the amount (determined in good faith by senior management of the Borrower, notwithstanding the failure of any designation by applicable insurance carriers as to how much of any expected recovery is attributable to business interruption coverage as opposed to other types of coverage) of business interruption insurance the Borrower and the Restricted Subsidiaries expect to collect with respect to any applicable period; provided that such amount (a) shall not be taken in account for any period after two years following the date of the event giving rise to the claim under the relevant business interruption insurance, and (b) shall not exceed the sum of (i) the excess of (A) the applicable casualty property’s historical Consolidated EBITDA for the four fiscal quarters most recently ended prior to such date for which internal financial reports are available for that property ending prior to the date of the business interruption (or annualized if such property has less than four full quarters of operations) over (B) the actual Consolidated EBITDA generated by such property for such four fiscal quarter period, and (ii) the amount of insurance proceeds not reflected in subsection (i) that the Borrower expects to collect as a reimbursement in respect of expenses incurred at that property with respect to such period (provided that the amount included pursuant to this subsection (ii) shall not exceed the amount of the other expenses incurred at that property that are actually included in calculating the Borrower and its Restricted Subsidiaries’ Consolidated Net Income for such fiscal quarter).

Estimated Business Interruption Insurance Shortfall” shall mean, for any period in which it is ultimately determined that the amount of insurance proceeds payable in respect of an event for which Estimated Business Interruption Insurance amounts were previously included in Consolidated EBITDA are less than the amount of Estimated Business Interruption Insurance that were previously included in Consolidated EBITDA for such event, an amount equal to such shortfall.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

Eurodollar Rate” means:

(a) for any Interest Period with respect to a Eurodollar Rate Loan, the offered rate for deposits of U.S. Dollars for a term coextensive with the designated Interest Period which the ICE Benchmark Administration (or any successor administrator of London Interbank Offered Rates (“LIBOR”)) fixes as its LIBOR rate as of 11:00 a.m. London time on the day which is two London Banking Days prior to the beginning of such Interest Period; and  

(b)  for any interest calculation with respect to a Base Rate Loan on any date, the offered rate for deposits of U.S. Dollars for a one month term which the ICE Benchmark Administration (or any successor administrator of LIBOR rates) fixes as its LIBOR rate as of 11:00 a.m. London time on the day which is two London Banking Days prior to such date;

provided, further, that (i) when used in connection with the Term A Facility and the Term B Facility, the Eurodollar Rate shall in no event be less than 1.00% per annum, and (ii) when used

18

 


 

in no event shallconnection with the Initial Revolving Credit Facility, the Eurodollar Rate shall in no event be less than 0.000.75% per annum.

If for any reason the Administrative Agent cannot determine such offered rate fixed by the then current administrator of LIBOR rates, the Administrative Agent may, in its sole but reasonable discretion, use an alternative method to select a rate calculated by the Administrative Agent to reflect its cost of funds.

Eurodollar Rate Loan” means a Committed Loan that bears interest at a rate based on the Eurodollar Rate.

Event of Default” has the meaning specified in Section 10.01.

Excess Cash Flow” means, for any period, without duplication,

(a)

Consolidated EBITDA for such period; minus,

(b)

the sum (for such period) of (in each case, to the extent not deducted in the calculation of Consolidated EBITDA):

 

(i)

Interest Charges actually paid in cash by Borrower and its Restricted Subsidiaries,

 

(ii)

the sum of (x) cash Maintenance Capital Expenditures incurred by Borrower and its Restricted Subsidiaries during such period plus (y) other cash Capital Expenditures incurred by Borrower and its Restricted Subsidiaries during such period plus (z) cash expenditures in respect of Investments made pursuant to Sections 9.02(f), (j)(ii), (k) (to the extent made in cash, including cash payments with respect to Guarantees), (m) (if the CT Expo Subsidiary is an Unrestricted Subsidiary at the time of such Investment) and (o);

 

(iii)

cash payments of Priority Distributions,

 

(iv)

the aggregate principal amount of (1) all mandatory prepayments and scheduled repayments of any Indebtedness of the Borrower and its Restricted Subsidiaries during such period (other than any mandatory prepayment required pursuant to Section 2.05(f) due to the existence of Excess Cash Flow) and (2) all voluntary prepayments of Indebtedness of the Borrower and its Restricted Subsidiaries during such period (other than (x) any voluntary prepayment or repurchase of term or revolving Indebtedness deducted (or that will be deducted) from the amount of any mandatory prepayment required pursuant to Section 2.05(f) pursuant to clauses (ii) and (iii) thereof, (y) any voluntary prepayment of revolving Indebtedness, except to the extent any related commitment is permanently reduced in connection with such prepayment and (z) any voluntary prepayments made with the Available Amount pursuant to Section 9.12(f)(x)),

 

(v)

[Reserved],

19

 


 

 

(vi)

state or federal income taxes paid (or to be paid) in cash by Borrower and its Restricted Subsidiaries on a consolidated basis with respect to such period; provided, that with respect to any such amounts to be paid after the close of such period, any amount so deducted shall not be deducted again in calculating Excess Cash Flow for a subsequent period,

 

(vii)

cash costs incurred during such period in respect of (A) Pre-Opening Expenses and (B) fees and expenses in connection with the issuance, incurrence, repayment, prepayment, refinancing, redemption or repurchase of Indebtedness of, and the making of Investments or Dispositions by, Borrower or any of its Restricted Subsidiaries, including without limitation investment banking, brokerage and legal costs, minus

(c)

the Estimated Business Interruption Insurance for such period (notwithstanding any classification of the affected operations as discontinued operations or any disposal of such operations) to the extent such Estimated Business Interruption Insurance increased Consolidated EBITDA for such period and was not received in cash in such period, minus

(d)

cash costs incurred during such period to the extent such amounts were added back to Consolidated Net Income in calculating Consolidated EBITDA pursuant to clause (f) of the definition thereof, plus

(e)

the sum (for such period) of all amounts referred to in clauses (b)(ii), (iii), (iv) or (vii) above to the extent funded with the proceeds of the issuance or incurrence of Indebtedness (excluding proceeds of Revolving Loans), the proceeds of the sale or issuance of Capital Stock or the proceeds of, any sale, transfer or other disposition to any person other than a Subsidiary of any asset or assets (or insurance proceeds or other compensation arising from any loss, damage, destruction or condemnation of any asset or assets) (but only to the extent that such sale, transfer or other disposition did not increase Consolidated EBITDA), plus

(f)

(i) any business interruption insurance received in cash and not included in Consolidated EBITDA for such period and (ii) the amount of any reduction to Consolidated EBITDA due to clause (h) of the definition thereof in such period, plus or minus, as the case may be

(g)

any extraordinary or non-recurring cash items excluded from Consolidated EBITDA and any cash tax refunds, cash pension plan reversions, indemnity payments, purchase price adjustments or other similar cash items (but, excluding, for the avoidance of doubt, any Net Cash Proceeds resulting from an Extraordinary Loss or Disposition outside the ordinary course of business).

Excluded Restricted Subsidiary” means each of MTGA Gaming, LLC, Mohegan Ventures – Wisconsin, LLC and Wisconsin Tribal Gaming for so long as such Subsidiary is not a Guarantor.

Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the

20

 


 

Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, being engaged in a trade or business for applicable income, franchise or branch profits tax purposes in, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 12.16) or (ii) such Lender changes its lending office, except in each case to the extent that amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s  failure to comply with Section 3.01(d) and (d) any U.S. federal withholding Taxes imposed  under FATCA.

Existing Credit Agreement” means that certain Loan Agreement, dated as of November 19, 2013 (as amended and otherwise modified prior to the date hereof), among Borrower, Citizens Bank (as successor to RBS Citizens, N.A.) as administrative agent, the lenders party thereto and the other parties party thereto.

Existing Indebtedness” means the Indebtedness of the Borrower and the Restricted Subsidiaries in existence on the Closing Date, including, for the avoidance of doubt, the Existing Credit Agreement, the Existing Senior Subordinated Notes due 2018, the Existing Senior Unsecured Notes due 2021, the Existing UBS Notes and the Existing Pocono Loan.

Existing Letters of Credit” means letters of credit issued and outstanding under the Existing Credit Agreement as of the Closing Date as set forth in Schedule 2.03, which shall be deemed outstanding as Letters of Credit hereunder as of the Closing Date pursuant to Section 2.03(a).

Existing Pocono Loan” means the mortgage loan obligations of Downs Lodging, LLC pursuant to that certain credit agreement dated July 2012.

Existing Revolving Facility” has the meaning specified in Section 2.20(b).

Existing Revolving Loans” has the meaning specified in Section 2.20(b).

21

 


 

Existing Senior Subordinated Notes due 2018” means the Borrower’s 11.0% Senior Subordinated Notes due 2018, to the extent outstanding on the Closing Date.

Existing Senior Unsecured Notes due 2021” means the Borrower’s 9.75% Senior Notes due 2021, to the extent outstanding on the Closing Date.

Existing Term Facility” has the meaning specified in Section 2.20(a).

Existing Term Loans” has the meaning specified in Section 2.20(a).

Existing UBS Notes” means the Borrower’s Floating Rate Senior Notes due 2017, to the extent outstanding on the Closing Date.

Extended Loans” means Extended Revolving Loans or Extended Term Loans, as the context may require.

Extended Revolving Commitments” has the meaning specified in Section 2.20(b).

Extended Revolving Facility” has the meaning specified in Section 2.20(b).

Extended Revolving Loans” has the meaning specified in Section 2.20(b).

Extended Term Commitments” means Term Loan Commitments under an Extended Term Facility.

Extended Term Facility” has the meaning specified in Section 2.20(a).

Extended Term Loans” has the meaning specified in Section 2.20(a).

Extended Term Note” means a promissory note evidencing any Extended Term Loan issued by the Borrower to an Extending Lender.

Extending Lender” has the meaning specified in Section 2.20(c).

Extension Amendment” has the meaning specified in Section 2.20(d).

Extension Election” has the meaning specified in Section 2.20(c).

Extension Request” means a Revolving Extension Request or a Term Loan Extension Request, as applicable.

Extraordinary Loss” means any loss, destruction or damage to Property of the Borrower or any of its Subsidiaries or condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of any such Property, or confiscation or requisition of use of any such Property.

Facility” means any Term Facility or any Revolving Credit Facility, as the case may be.

22

 


 

FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantially comparable and not materially more onerous to comply with) and any current or future regulations promulgated thereunder or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of any such Sections of the Code.

Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Citizens Bank on such day on such transactions as determined by the Administrative Agent.

Fifth Third Bank” means Fifth Third Bank and its successors.

“Financial Covenant Restricted Period” means the period commencing on the Fourth Amendment Effective Date and ending on the date Borrower delivers to the Administrative Agent a Compliance Certificate certifying compliance with Sections 9.10(a), (b)(i) and (c)(i) as of the last day of the fiscal quarter of Borrower ending March 31, 2022 (or, if such Compliance Certificate is not delivered, on the date Borrower delivers to the Administrative Agent a Compliance Certificate certifying compliance with Sections 9.10(a), (b)(ii) and (c)(ii) as of the last day of the then most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 8.01(a) or (b)); provided that the Financial Covenant Restricted Period shall end prior to such date upon delivery by Borrower to the Administrative Agent of a Financial Covenant Restricted Period Termination Notice.

“Financial Covenant Restricted Period Termination Date” means the date on which the Financial Covenant Restricted Period ends pursuant to the definition thereof.

Financial Covenant Restricted Period Termination Notice” means a Compliance Certificate (a) stating that Borrower elects to terminate the Financial Covenant Restricted Period effective as of the date such Compliance Certificate is delivered and (b) certifying that Borrower is in compliance with Sections 9.10(a), (b)(ii) and (c)(ii) as of the last day of the then most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 8.01(a) or (b) (determined in accordance with the last sentence of the definition of Consolidated EBITDA to the extent applicable).

First Amendment Effective Date” means the “Effective Date” as defined in that certain First Amendment to Credit Agreement, dated as of April 14, 2017, among the Tribe, the Borrower, the other Loan Parties, the Administrative Agent, the Swingline Lender, the L/C Issuer and the Lenders party thereto.

23

 


 

Fiscal Quarter” means the fiscal quarter of Borrower consisting of a three month fiscal period ending on each March 31, June 30, September 30 and December 31.

Fiscal Year” means the fiscal year of Borrower consisting of a twelve month fiscal period ending on each September 30.

“Fitch” means Fitch Ratings, a business segment of Fitch Group, Inc. and any successor thereto.

Fixed Amounts” has the meaning specified in Section 1.08(d).

Fixed Charge Coverage Ratio” means, as of the last day of the applicable Fiscal Quarter, the ratio of:

(a)

Consolidated EBITDA for the most recently ended Test Period minus (i) the aggregate amount of any taxes on or measured by consolidated income of Borrower and its Restricted Subsidiaries for such Test Period (whether or not payable during such Test Period, and excluding any amount payable to the State of Connecticut under the Compact) to the extent not otherwise deducted in determining Consolidated EBITDA, (ii) Restricted Payments made pursuant to Section 9.06(f) that are made during such period to the extent that such Restricted Payments are not expenditures which have been deducted in computing Consolidated EBITDA for such Test Period, (iii) Priority Distributions that are made during such Test Period and (iv) Maintenance Capital Expenditures made during such Test Period; to

(b)

the sum of (i) Interest Charges to the extent payable in cash by Borrower or a Restricted Subsidiary for the most recently ended Test Period (provided that (A) for the four Fiscal Quarter period ending December 31, 2016, Interest Charges shall be equal to Interest Charges for the Fiscal Quarter ended December 31, 2016 multiplied by 4; and (B) for the four Fiscal Quarter periods ending March 31, 2017, June 30, 2017 and September 30, 2017, Interest Charges shall be an amount equal to Interest Charges determined for the period commencing with the Fiscal Quarter ending March 31, 2017 through the last day of such four Fiscal Quarter period multiplied by a factor of 4, 2 and 4/3, respectively), plus (ii) any scheduled amortization payments by Borrower or a Restricted Subsidiary with respect to Indebtedness (including Capital Leases) required to be made during such Test Period in cash (other than any such principal payments due upon the final maturity of any such Indebtedness).

Flood Determination” means, with respect to any mortgaged or to-be mortgaged property, a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Loan Party relating thereto).

Foreign Lender” means a Lender that is not a U.S. Person.  

“Fourth Amendment” means that certain Fourth Amendment to Credit Agreement, dated as of the Fourth Amendment Effective Date, among the Tribe, Borrower, the Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.

24

 


 

“Fourth Amendment Effective Date” means the “Effective Date” as defined in the Fourth Amendment.

FRB” means the Board of Governors of the Federal Reserve System of the United States.

Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Pro Rata Share of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.

Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business.

GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

Gaming” means any and all activities defined as class II or class III gaming under IGRA or authorized under the Compact.

Gaming Authority Ordinance” means Chapter 2, Article II of the Mohegan Tribe Code, also known as Ordinance No. 95-2 of the Tribe, as enacted on July 15, 1995.

Gaming Board” means, collectively, (a) the Mohegan Tribal Gaming Commission, (b) the Connecticut Division of Special Revenue, (c) the Pennsylvania Gaming Control Board, (d) the Pennsylvania State Horse Racing Commission, (e) the Commission, and (f) any other Governmental Authority that holds licensing or permit authority over gambling, gaming or casino activities conducted by the Tribe, Borrower or any Restricted Subsidiary within its jurisdiction.

Gaming Laws” means IGRA, the Gaming Ordinance, the Gaming Authority Ordinance and all other Laws pursuant to which any Gaming Board possesses licensing or permit authority over gambling, gaming or casino activities conducted by the Tribe, Borrower or any Restricted Subsidiary within its jurisdiction.

Gaming License” shall mean every license, permit, franchise or other authorization from any Gaming Board required on the date hereof or at any time thereafter to own, lease, operate or otherwise conduct the class II gaming or class III gaming activities of the Borrower or its Restricted Subsidiaries, including all licenses granted under applicable federal, tribal, state, foreign or local laws.

25

 


 

Gaming Ordinance” means Chapter 2, Article III of the Mohegan Tribe Code, also known as Ordinance 94-1 of the Tribe, as enacted on July 28, 1994.

Goldman” means Goldman Sachs Bank USA, and its successors.

Governmental Authority” means the government of the United States, the Tribe or any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Governmental Component” means with respect to the Tribe or any other government, any corporation, board, enterprise, authority, division, branch, political subdivision, agency, instrumentality or governmental component directly or indirectly owned or controlled by the Tribe or such other government.  For the avoidance of doubt, the Borrower and its Subsidiaries are Governmental Components of the Tribe.

Granting Lender” has the meaning specified in Section 12.07(g).

Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, keep well arrangements, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (excluding a Lien on the Capital Stock in any Unrestricted Subsidiary, which Lien only secures Indebtedness of such Unrestricted Subsidiary and its Subsidiaries which Indebtedness is not Guaranteed by any Loan Party).  The amount of any obligation under a Guarantee of a guarantor shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (ii) the maximum amount for which such guarantor may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guarantor may be liable are not stated or determinable, in which case the amount of such obligation shall be such guarantor’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.  The term “Guarantee” as a verb has a corresponding meaning.

26

 


 

Guarantors” means those Persons identified as a Guarantor on Schedule 6.13 and any other Subsidiary that executes a Guaranty; provided that any Guarantor that is sold or otherwise transferred to a Person other than the Borrower or a Restricted Subsidiary in a Disposition permitted by Section 9.05 or that is designated as an Unrestricted Subsidiary hereunder may be released from the Guaranty in accordance with Section 11.10 and thereafter such Person shall no longer be a “Guarantor” or a “Loan Party” for purposes of any Loan Document.

Guaranty” means the Guaranty, dated as of the date hereof, by each of the Guarantors (including any Guarantor that may become party thereto after the Closing Date pursuant to Section 8.13 hereof) and the Borrower in favor of the Administrative Agent for the ratable benefit of the Secured Parties.

Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

Hedge Bank” means (a) any Person that, at the time it enters into a Swap Contract with a Loan Party, is a Lender, an Arranger, the Administrative Agent or an Affiliate of any of the foregoing, and (b) any Person that, on the Closing Date is a party to a Swap Contract with a Loan Party, if such Person becomes a Lender, an Arranger, the Administrative Agent or an Affiliate of any of the foregoing within thirty (30) days of the Closing Date, in each case, in its capacity as a party to such Swap Contract.

Honor Date” has the meaning specified in Section 2.03(c)(i).

IGRA” means the federal Indian Gaming Regulatory Act of 1988, as amended, codified at 25 U.S.C. § 2701, et seq.

Impacted Loans” has the meaning specified in Section 3.03.

Increase Effective Date” has the meaning specified in Section 2.15(c).

Increased Revolving Commitment” has the meaning specified in Section 2.15(a).

Increased Term Loan” means each loan made to the Borrower pursuant to any Increased Term Loan Commitment.

Increased Term Loan Commitment” has the meaning specified in Section 2.15(a).

Incremental Equivalent Debt” has the meaning specified in Section 9.03(f).

Incremental Joinder” has the meaning specified in Section 2.15(d).

Incremental Loan Amount” means, as of any date of determination, an amount equal to the sum of (a) the sum of (i) $200,000,000 plus (ii) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after

27

 


 

the Closing Date (it being understood that any prepayment of Term Loans or any reduction of Revolving Commitments funded with the proceeds of, or replaced with, substantially concurrent borrowings or commitments of Credit Agreement Refinancing Indebtedness, Increased Revolving Commitments, Increased Term Loan Commitments, Incremental Term Facilities or Incremental Equivalent Debt, or with the proceeds of any other long-term Indebtedness, in each case shall not increase the calculation of the amount under this subsection (ii)), plus (iii) the cash amount paid in respect of any purchase by the Borrower of any Term Loans pursuant to an Auction (it being understood that any such purchase funded with the proceeds of substantially concurrent borrowings of Credit Agreement Refinancing Indebtedness, Increased Revolving Commitments, Increased Term Loan Commitments, Incremental Term Facilities or Incremental Equivalent Debt, or with the proceeds of any other long-term Indebtedness, in each case shall not increase the calculation of the amount under this subsection (iii)), minus (iv) the aggregate amount of any Increased Revolving Commitments, Increased Term Loan Commitments, Incremental Term Facilities or Incremental Equivalent Debt incurred in reliance on this clause (a) prior to such date of determination plus (b) any additional amount if, after giving effect thereto, the Senior Secured Leverage Ratio would not exceed 2.75 to 1.00 on a Pro Forma Basis (calculated as though (x) any such Increased Revolving Commitment, Increased Term Loan Commitment, Incremental Term Facility or Incremental Equivalent Debt were fully drawn and (y) any Incremental Equivalent Debt previously occurred and outstanding or to be incurred on such date is secured by Liens on a pari passu basis with the Liens securing the Obligations even though such Incremental Equivalent Debt is unsecured or secured on a junior basis to the Liens securing the Obligations).  In connection with any incurrence of Increased Revolving Commitments, Increased Term Loan Commitments, Incremental Term Facility and Incremental Equivalent Debt, the Borrower may elect which of subsections (a) and/or (b) above it has opted to rely upon to incur such Indebtedness and Borrower shall notify Administrative Agent of such election.  Notwithstanding the foregoing, the incurrence of Increased Term Loan Commitments and Increased Revolving Commitments pursuant to the Second Amendment on the Second Amendment Effective Date shall not constitute usage of any amounts under clause (a)(i) of this definition.

Incremental Term Facility” has the meaning specified in Section 2.15(a).

Incremental Term Lender” means each Lender that holds an Incremental Term Loan.

Incremental Term Loan” means each loan made to the Borrower pursuant to any Incremental Term Facility, including each Incremental Term Loan made pursuant to such Incremental Term Facility.

Incremental Term Loan Commitment” means the commitment of any Incremental Term Lender to make Incremental Term Loans pursuant to an Incremental Term Facility on the Increase Effective Date therefor.

Incremental Term Note” means a promissory note evidencing any Incremental Term Loan issued by the Borrower to an Incremental Term Lender.

Incurrence-Based Amounts” has the meaning specified in Section 1.08(d).

28

 


 

Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a)

all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b)

all direct or contingent obligations of such Person arising under Letters of Credit unpaid at draw, bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(c)

net obligations of such Person under any Swap Contract in respect of interest rate hedging;

(d)

all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);

(e)

indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements) (excluding a Lien on the Capital Stock in any Unrestricted Subsidiary, which Lien only secures indebtedness of such Unrestricted Subsidiary and its Subsidiaries which indebtedness is not Guaranteed by any Loan Party), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse, provided, however, that if such indebtedness has not been assumed, the amount of such indebtedness included for the purposes of this definition will be the amount equal to the lesser of the fair market value of such property and the amount of the indebtedness secured;

(f)

Capital Leases and Synthetic Lease Obligations;

(g)

[Reserved]; and

(h)

all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  The amount of any Capital Lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.  Indebtedness shall not include any Defeased Indebtedness.  The obligations of Borrower under the Priority Distribution Agreement do not constitute Indebtedness.  For the avoidance of doubt, Indebtedness excludes all leases classified as operating leases in accordance with GAAP as in effect on the Closing Date.

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

29

 


 

Indemnitee” has the meaning specified in Section 12.05.

Information” has the meaning specified in Section 12.08.

Initial Revolving Credit Facility” means the Revolving Commitments provided by the Revolving Lenders on the Closing Date.

Inspire” has the meaning specified in Section 7.16.

Interest Charges” means, with respect to any fiscal period, the sum of (a) all interest, fees, charges and related expenses payable with respect to that period to a lender in connection with borrowed money or the deferred purchase price of assets that is treated as interest in accordance with GAAP, plus (b) the portion of rent payable with respect to that fiscal period under Capital Leases that should be treated as interest in accordance with GAAP; provided however, that (x) the premium and related costs of purchases, tender offers, exchange offers and consent solicitations permitted in connection with the permitted prepayment, refinancing, repurchase or redemption of Indebtedness and the associated write off of unamortized debt issuance costs, (y) any PIK Interest and (z) any in-kind interest in respect of any Specified Tribal Contribution, in each case, shall not be considered to be “Interest Charges.”

Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the applicable Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the applicable Maturity Date; and (c) as to any Swingline Loan, as provided in the Autoborrow Agreement.

Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Committed Loan Notice or such other period (not to exceed 12 months) that is requested by the Borrower and determined by the Administrative Agent to be available in the eurodollar market and acceptable to each Lender under the applicable Facility; provided that:

(a)

any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(b)

any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c)

no Interest Period shall extend beyond the applicable Maturity Date.

30

 


 

Investment” means any direct or indirect acquisition or investment by the Borrower or any Guarantor in any other Person that is not a Guarantor prior to or substantially concurrently with such acquisition or investment, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, but, except to the extent the Borrower shall otherwise elect, reduced by the amount of any repayment, interest, return, profit, distribution, income or similar amount in respect of such Investment which has actually been received in cash or Cash Equivalents or has been converted into cash or Cash Equivalents (collectively, “Investment Returns”).

Investment Returns” has the meaning specified in the definition of Investment.

IP Rights” has the meaning specified in Section 6.16.

IRS” means the United States Internal Revenue Service.

ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

Issuer Documents” means with respect to any Letter of Credit, the Letter Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any Restricted Subsidiary) or in favor the L/C Issuer and relating to any such Letter of Credit.

Junior Prepayments” has the meaning specified in Section 9.12.

KeyBank” means KeyBank National Association, and its successors.

Lahaniatis Lease” means the Amended and Restated Lease Agreement relating to certain real property of the Tribe, dated as of July 1, 2008 by and between the Tribe and Borrower, a copy of which has been provided to the Administrative Agent.

Landlord Consent” means the consent executed by the Tribe as a part of the Leasehold Mortgage, and concurrently therewith in favor of the Administrative Agent, as it may from time to time be supplemented, modified, amended, restated or extended.

“Las Vegas Project” means that certain proposed development project consisting of the redevelopment of the existing Hard Rock Hotel and Casino in Las Vegas, Nevada under the Virgin Hotels brand, pursuant to which MGNV entered into a casino lease agreement with JC Hospitality, LLC.

31

 


 

Lawsmeans, collectively, (a) all international, foreign, Federal, tribal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, in each case to the extent binding upon any relevant Person, (b) any interpretation or administration of the items described in clause (a) by any Governmental Authority which has the binding force of law with respect to any relevant Person, and (c) all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority which any relevant Person is obligated to conform to as a matter of law.

L/C Advance” means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.

L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing.

L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

L/C Issuer” means Citizens Bank in its capacity as issuer of Letters of Credit hereunder and in its capacity as issuer of the Existing Letters of Credit, any other Revolving Lender mutually agreed by the Borrower and the Administrative Agent (and that accepts such appointment as L/C Issuer) or any successor issuer of Letters of Credit hereunder.

L/C Obligations” means, as at any date of determination, the aggregate undrawn face amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including, but without duplication, all L/C Borrowings.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

LCT Election” has the meaning specified in Section 1.09.

LCT Test Date” has the meaning specified in Section 1.09.

Lease” means that certain Amended and Restated Lease, dated October 14, 2016, by and between the Tribe and Borrower, with respect to the real property underlying Mohegan Sun and the improvements thereon.

Leasehold Mortgage” means that certain Open-End Leasehold Mortgage Deed, Assignment of Leases and Rents and Security Agreement, dated as of the date hereof, executed by the Borrower in favor of the Administrative Agent, encumbering the leasehold interest of the Borrower under the Lease to the reservation real property described on Schedule 5.06 and the related improvements and fixtures used in connection with Mohegan Sun.

Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the L/C Issuer and the Swingline Lender.

32

 


 

Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires, each reference to a Lender shall include its applicable Lending Office.

Letter of Credit” means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit.

Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

Letter of Credit Expiration Date” means the fifth Business Day prior to the latest Maturity Date then in effect for any Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).

Letter of Credit Fee” has the meaning specified in Section 2.03(h).

Letter of Credit Sublimit” means, at any time, an amount equal to $50,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facilities.

LIBOR” has the meaning specified in the definition of Eurodollar Rate.

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing).

Limited Condition Transaction” means any Investment permitted hereunder and any related incurrence of Indebtedness by the Borrower or one or more Restricted Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

“Liquidity” means, on any date of determination, an amount equal to (i) the aggregate amount of unrestricted cash and Cash Equivalents of Borrower and its Restricted Subsidiaries (whether or not subject to an Account Control Agreement) that would not appear as “restricted” on a consolidated balance sheet of Borrower or any of its Restricted Subsidiaries in accordance with GAAP (including, for the avoidance of doubt, any “cage cash” of Borrower or any of its Restricted Subsidiaries), plus (ii) the aggregate amount of unused Revolving Commitments, in each case as of such date.

Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan or a Swingline Loan.

Loan Documents” means collectively, this Agreement, the Notes, each Letter of Credit, each Issuer Document, the Autoborrow Agreement, the Security Documents, any Request for Credit Extension, the Guaranty, each Incremental Joinder, any Extension Amendment, any

33

 


 

Refinancing Amendment, each Customary Intercreditor Agreement, any other intercreditor agreement entered into hereunder and any other agreements of any type or nature heretofore or hereafter executed and delivered by Borrower, the Tribe or any of its Affiliates to the Administrative Agent or any Lender in any way relating to or in furtherance of this Agreement, in each case as the same may from time to time be supplemented, modified, amended, restated, extended or supplanted.

Loan Parties” means, collectively, the Borrower and each Guarantor.

London Banking Day” means a day on which dealings in US dollars deposits are transacted in the London interbank market.

Maintenance Capital Expenditure” means a Capital Expenditure for the maintenance, repair, restoration or refurbishment of the properties of Borrower or any of its Restricted Subsidiaries, but excluding any Capital Expenditure which adds to Mohegan Sun, Pocono or any other property owned by the Borrower or its Restricted Subsidiaries.

Management Activities” has the meaning specified in Section 12.22.

Management Board” means the Management Board of Borrower, as established pursuant to the Gaming Authority Ordinance.

Mandatory Prepayment Date” has the meaning specified in Section 2.05(j).

Master Agreement” has the meaning specified in the definition of Swap Contract.

Material Adverse Effect” means (a) a material adverse change in the business, assets, financial condition or results of operation of the Borrower and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the ability of the Loan Parties, taken as a whole, to perform their payment obligations under the Loan Documents; or (c) a material adverse effect upon the rights and remedies, taken as a whole, of the Administrative Agent and the Lenders under the Loan Documents.

Material Agreements” means, collectively, the Lease, the Earth Hotel Lease, the Compact and the Town Agreement.

Material Laws” means, collectively the Constitution, the Gaming Ordinance and accompanying gaming regulations, the Gaming Authority Ordinance, the UCC Ordinance, the Allocation Plan and each Authorizing Resolution.

Material Restricted Subsidiary” means, collectively (a) Downs Racing, L.P., a Pennsylvania limited partnership, and each other Restricted Subsidiary of Borrower which owns any interest in the principal fixed assets used in connection with the gaming, lodging and entertainment activities conducted at Mohegan Sun or Pocono (but specifically excluding any Restricted Subsidiary which is a passive landowner of property which is not actively used in such activities), and (b) as of any date of determination, any Restricted Subsidiary whose consolidated assets and operations, as of the last day of the then most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 8.01(b), account for 5% or more of

34

 


 

the consolidated total assets of Borrower and its Restricted Subsidiaries as of that date or 5% or more of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the four Fiscal Quarter period ending on that date.

Maturity Date” means (a) with respect to the Initial Revolving Credit Facility and the Term A Facility, the day immediately preceding the fifth anniversary of the Closing Date, (b) with respect to the Term B Facility, the day immediately preceding the seventh anniversary of the Closing Date, (c) with respect to any Incremental Term Facility, as set forth in the applicable Incremental Joinder, (d) with respect to any Other Term Facility or Other Revolving Credit Facility, as set forth in the applicable Refinancing Amendment and (e) with respect to any Extended Term Facility or Extended Revolving Facility, as set forth in the applicable Extension Amendment.

Maximum Rate” has the meaning specified in Section 12.10.

Merrill” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and its successors.

“MGNV” means MGNV, LLC, or its successors or assigns to the management of the Las Vegas Project.

Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.

Mohegan Gaming” means Mohegan Gaming & Hospitality, LLC, a Delaware limited liability company.

Mohegan Golf Mortgage” means that certain Open-End Mortgage Deed, Assignment of Leases and Rents and Security Agreements, dated as of the date hereof, executed by Mohegan Golf, LLC with respect to the real property described on Schedule 6.08B and the improvements and fixtures thereon.

Mohegan Sun” means the casino property and related transportation, retail, dining and entertainment facilities, including the Casino of the Sky, Casino of the Wind and Casino of the Earth, and the Sky Hotel Tower (including any future expansions thereof), owned by the Borrower commonly known as “Mohegan Sun” and located in Uncasville, Connecticut, which facilities are located upon the real property described on Schedule 5.06.

“Mohegan Sun Korea Debt” means Indebtedness of any Person in respect of or related to Inspire or the Mohegan Sun Korea Project, which Indebtedness is Guaranteed by Borrower or any Restricted Subsidiary.

“Mohegan Sun Korea Debt Trigger” has the meaning specified in Section 10.01(r).

Mohegan Sun Korea Management Agreement” has the meaning specified in Section 7.16.

35

 


 

Mohegan Sun Korea Project” means the proposed development project consisting of an integrated resort, casino and related facilities to be located in Incheon, South Korea and owned by Inspire Integrated Resort Co. Ltd., a joint venture of Mohegan Gaming Advisors, LLC, a wholly-owned Unrestricted Subsidiary of the Borrower.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

Net Cash Proceeds” means:

(a)

with respect to the incurrence or issuance of any Indebtedness by the Borrower or any of its Restricted Subsidiaries, the cash proceeds received in connection with such transaction, net of underwriting or placement agents’ fees, discounts and commissions and other reasonable and customary out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection therewith; and

(b)

with respect to any Disposition or any Extraordinary Loss, the excess, if any, of (i) the sum of cash and cash equivalents received in connection with such transaction (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and excluding business interruption and delay in completion insurance proceeds) over (ii) the sum of (A) the amount of any Indebtedness that is secured by such asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents), including Indebtedness repaid in order to obtain a necessary consent to such Disposition or Extraordinary Loss or required to be repaid by applicable law, (B) the reasonable out-of-pocket expenses incurred by the Borrower or any Subsidiary in connection with such transaction (C) all Federal, state, provincial, foreign and local taxes arising in connection with such Disposition or Extraordinary Loss that are paid or required to be accrued as a liability under GAAP by such Person or its Restricted Subsidiaries, and (D) all contractually required distributions and other payments made to minority interest holders (but excluding distributions and payments to Affiliates of such Person) in Restricted Subsidiaries of such Person as a result of such Disposition or Extraordinary Loss which would otherwise constitute Net Cash Proceeds.  

Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders or all Lenders (or all affected Lenders) of a Facility in accordance with the terms of Section 12.01 and (ii) (x) in the case of an amendment affecting only the Lenders under any Revolving Credit Facility (or all Revolving Credit Facilities), has been approved by the Required Revolving Lenders with respect

36

 


 

to such Revolving Credit Facility (or with respect to all Revolving Credit Facilities, as applicable), (y) in the case of an amendment affecting only the Lenders under a Term Facility, has been approved by the Required Term Lenders in respect of such Term Facility and (z) in the case of any other amendment, has been approved by the Required Lenders.

Non-Covenant Facility” means each Incremental Term Facility designated as a “Non-Covenant Facility” pursuant to the Incremental Joinder for such Incremental Term Facility, each Other Term Facility designated as a “Non-Covenant Facility” pursuant to the Refinancing Amendment for such Other Term Facility and each Extended Term Facility designated as a “Non-Covenant Facility” pursuant to the Extension Amendment for such Extended Term Facility.

Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).

Northeast Gaming Operations” means casino gaming operations (for the avoidance of doubt, excluding Keno lottery games outside of casino operations), projects or developments in the states of New York, Pennsylvania, Connecticut, Rhode Island, Massachusetts, New Hampshire, Vermont or Maine.  For the avoidance of doubt, “Northeast Gaming Operations” does not include hotel, retail or other non-gaming activities, whether or not co-located with casino and other gaming operations.

Note” means a Revolving Note, a Term A Note, a Term B Note, an Incremental Term Note, an Other Term Note or an Extended Term Note.

“Notice of Intent to Cure” has the meaning specified in Section 10.04.

Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Tribe or any Loan Party arising under any Loan Document, Secured Hedge Agreement, Secured Cash Management Agreement or otherwise with respect to any Loan or Letter of Credit, Swap Contract under a Secured Hedge Agreement or Secured Cash Management Agreement, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Tribe or any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that the Obligations of any Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.

OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

OID” has the meaning specified in the definition of All-in Yield.

Operating Accounts” means the deposit and securities accounts of the Borrower and the Restricted Subsidiaries (excluding the Special Purpose Restricted Subsidiaries) described on Schedule 6.24, and each other deposit, securities, savings, brokerage or similar account hereafter

37

 


 

established by the Borrower and the Restricted Subsidiaries (excluding the Special Purpose Restricted Subsidiaries), provided that Operating Accounts shall not include (i) the accounts designated on Schedule 6.24 as “Operating Account Exclusions,” (ii) any other deposit, securities, savings, brokerage or similar account hereafter established that in the aggregate for all such accounts contain less than $1,000,000 on deposit therein, (iii) any other deposit, securities, savings, brokerage or similar account hereafter existing for the purpose of collecting or disbursing funds for the payment of payroll, medical insurance and workmen’s compensation claims, tip money belonging to employees, money belonging to patrons and other disbursements of a similar nature, or accounts for the short-term investment of such funds pending their disbursement, or statutory or trust accounts (including horsemen and lottery accounts) or (iv) any other deposit, securities, savings, brokerage or similar account, the funds in which are swept at least once per day into an Operating Account subject to an Account Control Agreement and in the aggregate for all such accounts in this clause (iv) contain less than $5,000,000 on deposit therein.

Organization Documents” means, (a) with respect to the Tribe, the Constitution, (b) with respect to the Borrower, the Gaming Authority Ordinance, (c) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (d) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (e) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than any such connection arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

Other Junior Indebtedness” shall mean the Senior Unsecured Notes (and any Permitted Refinancing thereof that is not incurred under this Agreement) and Indebtedness incurred pursuant to Section 9.03(f), (i), (j), (k), (n) or (o) that is secured by a Lien on Collateral junior to the Liens securing the Obligations or that is unsecured.

Other Revolving Commitments” means Revolving Commitments that result from a Refinancing Amendment.

Other Revolving Credit Facility” means any Revolving Credit Facility consisting of Other Revolving Commitments.

Other Revolving Loans” means one or more tranches of Revolving Loans that result from a Refinancing Amendment.

38

 


 

Other Taxes means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).

Other Term Commitments” means one or more tranches of Term Loan Commitments that result from a Refinancing Amendment.

Other Term Facility” means any Term Facility consisting of Other Term Commitments and/or Other Term Loans, if any.

Other Term Lender” means a Lender in respect of Other Term Commitments and/or Other Term Loans.

Other Term Loans” means one or more tranches of Term Loans that result from a Refinancing Amendment.

Other Term Note” means a promissory note evidencing any Other Term Loan issued by the Borrower to an Other Term Lender.

Outside Affiliates” means those Affiliates of the Tribe other than Borrower and its Restricted Subsidiaries.

Outstanding Amount” means (a) with respect to Committed Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swingline Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

Ownership Interest” means, with respect to any Person, Capital Stock of such Person or any interest which carries the right to elect or appoint any members of the management board or the board of directors or other executive office of such Person.

Participant” has the meaning specified in Section 12.07(d).

Participant Register” has the meaning specified in Section 12.07(d).

PBGC” means the Pension Benefit Guaranty Corporation.

Pennsylvania Tax Revenues” means the portion of the revenues of Downs Racing, L.P. which is required to be paid to the Commonwealth of Pennsylvania as a tax under Chapter 14 of the Pennsylvania Race Horse Development and Gaming Act.

39

 


 

Pension Plan” means any employee pension benefit plan (as such term is defined in Section 3(2) of ERISA, including a Multiple Employer Plan), other than a Multiemployer Plan, that is sponsored or maintained by the Borrower or any ERISA Affiliate, or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a Multiple Employer Plan or other plan described in Section 4064(a) of ERISA, to which the Borrower or any ERISA Affiliate has made contributions at any time during the immediately preceding five plan years.

“Perfection Certificate” means a certificate substantially in the form of Exhibit J.

Permitted Acquisition” means the purchase or other acquisition after the Closing Date by a Loan Party (other than the WNBA Subsidiary) of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, or all of the Capital Stock in a Person that, upon the consummation thereof, will be a Guarantor (including as a result of a merger or consolidation); provided that, with respect to each such purchase or other acquisition:

(a)each such newly created or acquired Subsidiary (and, to the extent required by Section 8.13, each of the Subsidiaries of such created or acquired Subsidiary) shall be a Guarantor and shall have complied with the requirements of Section 8.13, within the time periods specified therein (or, as to real property collateral, deposit accounts and such other collateral as the Administrative Agent may agree, such time periods as the Administrative Agent may agree in its sole discretion);

(b)the aggregate amount of consideration (cash and noncash and including the fair market value of all Capital Stock issued or transferred to the sellers thereof, all earnouts and other contingent payment obligations to, and the aggregate amounts paid or to be paid under noncompete agreements with, the sellers thereof, and all assumptions of debt for borrowed money in connection therewith) paid during the term of this Agreement in respect of all such purchases and acquisitions shall not exceed $50,000,000; provided, the foregoing limitation shall not apply to a purchase or acquisition (and a purchase or acquisition shall not be included in such $50,000,000 limitation) if, after giving effect to the applicable purchase or acquisition, on a Pro Forma Basis (i) the Total Leverage Ratio would not exceed the lesser of (A) 4.65 to 1.00 and (B) 0.50:1.00 less than the maximum Total Leverage Ratio then permitted under Section 9.10(b) and (ii) the Senior Secured Leverage Ratio would not exceed 0.50:1.00 less than the maximum Senior Secured Leverage Ratio then permitted under Section 9.10(c);

(c)such purchase or other acquisition is not “hostile” and the acquired property, assets, business or Person is in the same line of business as the Borrower or a business substantially related or incidental thereto;

(d) (i) immediately before and after giving effect to such purchase or other acquisition, no Default or Event of Default shall have occurred and be continuing and (ii) immediately after giving effect thereto on a Pro Forma Basis as of the last day of the most recently-ended Test Period the Borrower shall be in compliance with Section 9.10 (regardless of whether any Covenant Facility is then outstanding);

40

 


 

(e)no Person acquired pursuant to, or formed to effect, a Permitted Acquisition may be designated as an Unrestricted Subsidiary simultaneously with the consummation of such Permitted Acquisition;

(f)any Person acquired pursuant to a Permitted Acquisition that will, upon the consummation thereof, become a Restricted Subsidiary of the Borrower shall be wholly-owned, directly or indirectly, by the Borrower; and

(g)the Borrower shall have delivered to the Administrative Agent, no later than five (5) Business Days after the date on which any such purchase or other acquisition is consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this definition have been satisfied or will be satisfied substantially simultaneously with the consummation of such purchase or other acquisition.

Permitted Junior Debt Conditions” means, in respect of any Indebtedness, that such Indebtedness (i) does not have a scheduled maturity date prior to the date that is 180 days after the latest Maturity Date then in effect at the time of issuance for any then-existing Facility, (ii) does not have a Weighted Average Life to Maturity that is shorter than that of any outstanding Term Loans, (iii) shall not have any scheduled principal payments or be subject to any mandatory redemption, prepayment, or sinking fund (except for customary change of control (and, in the case of convertible or exchangeable debt instruments, delisting) provisions and customary asset sale or event of loss provisions that permit application of the applicable proceeds to the payment of the Obligations prior to application to such Indebtedness) due prior to the date that is 180 days after the latest Maturity Date then in effect at the time of issuance for any then-existing Facility, (iv) is not at any time guaranteed by the Borrower or any Subsidiary of the Borrower other than the Borrower or a Guarantor, (v) has terms (excluding pricing, fees, original issue discount, rate floors, premiums, optional prepayment or optional redemption provisions) that are (as determined by the Borrower in good faith), taken as a whole, no more restrictive to the Borrower and its Restricted Subsidiaries than the terms set forth in this Agreement and (vi) to the extent secured by any Collateral, the holders of which (or their authorized representatives) shall have subordinated their Liens thereon to the Liens of the Administrative Agent securing the Obligations pursuant to a Customary Intercreditor Agreement. For the avoidance of doubt, the usual and customary terms of debt instruments issued in a registered offering or under Rule 144A of the Securities Act shall be deemed to be no more restrictive to the Borrower and its Restricted Subsidiaries than the terms set forth in this Agreement.

Permitted Junior Lien Indebtedness” means any Indebtedness of a Loan Party (and Guarantees of any Loan Party in respect thereof) that (a) is secured by the Collateral on a second priority (or other junior priority) basis to the Liens securing the Obligations and is not secured by any property or assets of Borrower or any Restricted Subsidiary other than the Collateral and (b) meets the Permitted Junior Debt Conditions.

Permitted Liens” means the Liens permitted under Section 9.01.

Permitted Open Market Purchase” means the purchase by the Borrower of Term Loans in a consensual transaction with a Lender under a Term Facility; provided that (i) the aggregate

41

 


 

principal amount (calculated on the face amount thereof) of Term Loans so purchased shall not exceed 15% of the original aggregate principal amount of all Term Facilities, (ii) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans so purchased by the Borrower shall automatically be cancelled and retired by the Borrower on the settlement date of the relevant purchase (and may not be resold) and (iii) the Borrower may not use the proceeds of any Revolving Loan to fund such purchase.

Permitted Refinancing” means, with respect to any Indebtedness, any Indebtedness incurred to refinance such Indebtedness so long as (a) any such refinancing Indebtedness shall (i) not have a stated maturity or, other than in the case of a revolving credit facility, a Weighted Average Life to Maturity that is shorter than that of the Indebtedness being refinanced, (ii) if the Indebtedness being refinanced (or the Liens securing such Indebtedness) is subordinated to the Obligations (or to the Liens securing the Obligations, if applicable) by its terms or by the terms of any agreement or instrument relating to such Indebtedness, be (and be secured by Liens, if applicable) at least as subordinate to the Obligations (or to the Liens securing the Obligations)  as the Indebtedness being refinanced (and unsecured if the refinanced Indebtedness is unsecured) and (iii) be in a principal amount that does not exceed the principal amount so refinanced (or, if purchased at a discount, such discounted amount), plus, accrued interest, plus, any customary premium or other payment required to be paid in connection with such refinancing, plus, the amount of customary fees and expenses of the Borrower or any of its Restricted Subsidiaries incurred in connection with such refinancing, plus, any unutilized commitments thereunder; (b) such Indebtedness being refinanced shall be repaid, satisfied and discharged or constitute Defeased Indebtedness, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid or provided for, on the date such Permitted Refinancing is issued, incurred or obtained; and (c) the obligors on such refinancing Indebtedness shall not include any Person that is not an obligor on the Indebtedness being refinanced; provided, that any Loan Party shall be permitted to guarantee any such refinancing Indebtedness of any other Loan Party.

Permitted Rights of Others” means Rights of Others consisting of (a) an interest (other than a legal or equitable co-ownership interest, an option or right to acquire a legal or equitable co-ownership interest and any interest of a ground lessor under a ground lease) that does not materially impair the value or use of property for the purposes for which it is or may reasonably be expected to be held, (b) an option or right to acquire a Lien that would be a Permitted Lien (other than a Lien that is a Permitted Lien as a result of this clause (b)), (c) Rights of Others pursuant to contracts in respect of Dispositions permitted hereunder, (d) the reversionary interest of a landlord under a lease of Property and (e) rights of lessors in personal Property leased by the Borrower and its Restricted Subsidiaries from such lessors.

Permitted Tribal Payments” means payments for governmental goods and services provided to Borrower or any of its Restricted Subsidiaries by the Tribe or any of its representatives, political subunits, councils, agencies, instrumentalities or subsidiaries, in each case to the extent included in the calculation of Consolidated EBITDA (including charges for utilities, police and fire department services, health and emergency medical services, gaming commission and surveillance services, gaming disputes court and legal services, workers compensation and audit committee services, human resources services, finance and information technology services, construction, development and environmental related services, rental or lease agreements, the pro rata portion of Tribal Council costs and salaries attributable to the operations of Borrower, and

42

 


 

similar pro rata costs of other tribal departments), in each case, to the extent that the costs of such departments are reasonably attributable to the operations of Borrower, provided that such payments are not duplicative of taxes imposed by the Tribe upon Borrower and its operations.

Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“PIK Interest” has the meaning specified in Section 2.08(d).

“PIK Margin” has the meaning specified in Section 2.08(d).

Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan) established by the Borrower or to which the Borrower is required to contribute on behalf of any of its employees or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, established by any ERISA Affiliate or to which any ERISA Affiliate is required to contribute on behalf of any of its employees.

Platform” has the meaning specified in Section 8.02.

Pledge Agreement” means that certain Pledge Agreement, dated as of the date hereof, by Borrower, each Guarantor (other than the WNBA Subsidiary) as of the Closing Date and each future Restricted Subsidiary that may subsequently become party thereto in favor of the Administrative Agent for the ratable benefit of the Secured Parties, with respect to all Capital Stock held by each such Loan Party in a Restricted Subsidiary (excluding any Special Purpose Restricted Subsidiary, any Tribal Entity and otherwise as provided in the definition of “Excluded Assets” therein).

Pocono” means the harness racetrack and casino known as Mohegan Sun Pocono located in Plains Township, Pennsylvania, and related assets.

Pocono Disposition” means any Disposition of all or any portion of Pocono, whether by sale of the underlying assets, the sale of Capital Stock in the Pocono Subsidiaries or otherwise; provided, that a Disposition solely of personal property located at Pocono without a concurrent sale or lease of the underlying real estate (and otherwise not as a going concern) shall not constitute a Pocono Disposition.

Pocono Mortgages” means the Open-End Mortgage and Security Agreements, dated as of the date hereof, executed by those of the Pocono Subsidiaries owning real property interests underlying Pocono with respect thereto.

Pocono Subsidiaries” means, collectively, (a) Downs Racing, L.P., a Pennsylvania limited partnership, Backside, L.P., a Pennsylvania limited partnership, Mill Creek Land, L.P., a Pennsylvania limited partnership, Northeast Concessions, L.P., a Pennsylvania limited partnership, and Mohegan Commercial Ventures PA, LLC, a Pennsylvania limited liability company, and their respective successors, and (b)  any other Persons formed as Restricted Subsidiaries of Borrower for the purpose of owning or operating Pocono or any of the businesses related thereto.

43

 


 

Pre-Opening Expenses” means, for any fiscal period, pre-opening expenses of any new hotel or gaming facility during that period, determined in accordance with GAAP.

Priority Distribution Agreement” means that certain Priority Distribution Agreement, dated as of August 1, 2001, between the Tribe and Borrower, as amended December 31, 2014 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, so long as a true, correct and complete copy of any such amendment, restatement, supplement or modification has been provided to the Administrative Agent).

Priority Distributions” means distributions or similar payments made by Borrower to the Tribe in an aggregate amount not to exceed (a)(i) during the Fiscal Year ending September 30, 2017 (inclusive of “Priority Distributions” under the Existing Credit Agreement made prior to the Closing Date), $60,000,000 and (ii) in each Fiscal Year thereafter, $60,000,000 or (b) (i) during any Fiscal Quarter in the Fiscal Year ending September 30, 2017, $15,000,000, and (ii) during each Fiscal Quarter in each Fiscal Year thereafter, $15,000,000; provided, that any such distribution or similar payment not made during the Fiscal Quarter in which it was first permitted as a Priority Distribution may be made as a Priority Distribution in any subsequent Fiscal Quarter of the applicable Fiscal Year or the following Fiscal Year (provided that if any such amount is so carried over, it will not be deemed used in the applicable subsequent Fiscal Quarter until after the making of any Priority Distributions permitted for such subsequent Fiscal Quarter).  Subject to the limitations set forth above, Priority Distributions include priority distribution payments made by the Borrower under the Priority Distribution Agreement.

Pro Forma Basis” means, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.08.

Pro Rata Lead Arrangers” means Citizens Bank, Merrill, Credit Suisse, STRH, Goldman, KeyBank, CIT Bank and Fifth Third Bank, in their capacities as joint bookrunners and joint lead arrangers for the Revolving Credit Facility and the Term A Facility.

Pro Rata Share” means:

(a)

with respect to any Commitment of a Lender (i) under any Revolving Credit Facility at any time or (ii) under any Term Facility at any time prior to the making of Term Loans under such Facility, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the respective Commitment of such Lender under such Facility at such time and the denominator of which is the amount of the aggregate amount of Commitments under such Facility at such time; provided that, with respect to subsection (i) above, if the commitment of each Revolving Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated, then the Pro Rata Share of each Revolving Lender shall be determined based on the Pro Rata Share of such Revolving Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof; and

44

 


 

(b)

in the case of any Lender under any Term Facility at any time after the making of the Term Loans thereunder, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of Term Loans and unused Term Loan Commitments under such Term Facility of such Lender and the denominator of which is the Outstanding Amount of all Term Loans and the aggregate unused Term Loan Commitments under such Facility.

Property” of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.

Protected Assets” means (i) any assets of the Tribe, or any instrumentality or subsidiary of the Tribe against which it would be a violation of federal law, applicable state law or the Compact to encumber or to enforce remedies hereunder; (ii) any real property held in trust in the name of the United States or subject to restrictions against alienation by the United States for the benefit of the Borrower or the Tribe and all improvements, fixtures and accessions affixed or attached to such real property; (iii) any deposit or securities account of the Tribe or any instrumentality or subsidiary of the Tribe, and any money, securities or other assets credited thereto, in each case (a) held for the purpose of collecting and disbursing funds for payroll, medical insurance, worker’s compensation claims and other purposes related thereto, (b) held in escrow or pursuant to a fiduciary obligation on behalf of, or for the benefit of, one or more Persons other than the Borrower or a Guarantor or (c) held for contract health or social services under federal laws or contracts; (iv) any assets of the Tribe employed in the provision of governmental services (including real property and related improvements, fixtures and accessions affixed or attached to such real property used for tribal housing, health care, education, museum or general governmental services) or containing or constituting materials of cultural significance; (v) any ownership interest in Gaming of the Tribe (but excluding any proceeds thereof); and (vi) any account receivable in respect of or other entitlement to Permitted Tribal Payments and Priority Distributions (but not, for the avoidance of doubt, any receipts or proceeds of such account receivable or entitlement to the extent not otherwise constituting a Protected Asset).

Public Lender” has the meaning specified in Section 8.02.

Quarterly Excess Cash Flow” means, for (a) any Fiscal Quarter ending December 31, March 31 or June 30, an amount equal to 50% of the Excess Cash Flow for such Fiscal Quarter and (b) any Fiscal Quarter ending September 30, an amount equal to the Year-End Available Amount Gross-Up for such Fiscal Quarter, provided, that the Quarterly Excess Cash Flow for any Fiscal Quarter shall be deemed to be zero until the financial statements required to be delivered pursuant to Section 8.01(a) or (b), as applicable, for such Fiscal Quarter, and the related Compliance Certificate required to be delivered pursuant to Section 8.02(b) for such Fiscal Quarter, have been received by the Administrative Agent.

“Rating Agency” means each of S&P, Moody’s, Fitch and any “nationally recognized statistical rating organization” (within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder).

45

 


 

Ratio Debt Threshold” means, at any time, the (a) maximum Total Leverage Ratio then applicable underspecified in Section 9.10(b)(ii) (regardless of whether any Covenant Facility is then outstanding or the Financial Covenant Restricted Period has ended), minus (b) 0.25.  As an example, at the time when the maximum Total Leverage Ratio under Section 9.10(b)(ii) is (or would, if applicable, be) 6.00 to 1.00, the Ratio Debt Threshold at such time shall be 5.75 to 1.00.

Recipient” means the Administrative Agent, any Lender, the Swingline Lender or the L/C Issuer as applicable.

Referendum Action” has the meaning specified in Section 5.13.

Refinanced Debt” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness”.

Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower executed by each of (a) the Borrower, (b) the Tribe, (c) the Administrative Agent and (d) each additional Lender and each existing Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.19 and, in the case of any Other Term Facility, which shall specify whether such Other Term Facility is a Covenant Facility or a Non-Covenant Facility.

Register” has the meaning specified in Section 12.07(c).

Reinvest” means the application of funds for any of the following purposes: (a) to reinvest in Property (other than cash, cash equivalents or securities) to be owned by the Borrower or a Restricted Subsidiary and used in a business permitted by Section 9.07, (b) to pay the costs of improving, restoring, replacing or developing any Property owned by the Borrower or a Restricted Subsidiary which is used in a business permitted by Section 9.07 or (c) to fund one or more investments in any other Person engaged primarily in a business permitted by Section 9.07 (including the acquisition from third parties of Capital Stock of such Person) as a result of which such other Person becomes a Restricted Subsidiary.  For the avoidance of doubt, funds expended by the Borrower or any of its Subsidiaries for any of the foregoing purposes after the applicable Disposition or the Extraordinary Loss, regardless of the timing of receipt of any insurance proceeds or other payment that is included in the computation of Net Cash Proceeds, shall be included in the computation of funds that have been Reinvested.

Rejection Notice” has the meaning specified in Section 2.05(j).

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

46

 


 

Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.

Required Covenant Lenders” means, as of any date of determination, Lenders (which shall include at least two Lenders, if at such time of determination there are two or more of such Lenders), holding more than 50% of the sum of (a) Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans being deemed “held” by such Revolving Lender for purposes of this definition), (b) the aggregate unused Revolving Commitments, and (c) the aggregate Outstanding Amount of all Term Loans under each Term Facility that is a Covenant Facility; provided that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Covenant Lenders.

Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Revolving Commitments; provided that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

Required Revolving Lenders” means, as of any date of determination, Revolving Lenders (which, if there are two or more Revolving Lenders, shall include at least two Revolving Lenders) holding more than 50% of the sum of (a) Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans being deemed “held” by such Revolving Lender for purposes of this definition) and (b) the aggregate unused Revolving Commitments; provided that the Commitment of, and the portion of the Total Revolving Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.

Required Term Lenders” means, with respect to any Term Facility as of any date of determination, Lenders holding more than 50% of such Term Facility on such date; provided that the portion of any such Term Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Lenders.

Requirement of Law” means, as to any Person, the Organization Documents of such Person and any Law or judgment, award, decree, writ or determination of a Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

Responsible Officer” means (a) as to the Tribe, the Chairman, Vice-Chairman and Treasurer of the Tribal Council of the Tribe, the Chief Operating Officer of the Tribe, the Chief Financial Officer of the Tribe and the Attorney General of the Tribe, (b) as to Borrower, the Chairman, Vice-Chairman and Treasurer of the Management Board, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer and the Chief Accounting Officer, and (c)

47

 


 

as to each other Loan Party, the chief executive officer, president, chief financial officer, secretary and manager of such Loan Party (or such Loan Party’s manager, sole member or general partner as applicable).  Any document delivered hereunder that is signed by a Responsible Officer of the Tribe or a Loan Party shall be conclusively presumed to have been authorized by all necessary tribal, corporate, limited liability company, partnership and/or other action on the part of the Tribe or such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Tribe or such Loan Party.

Restricted Debt Issuance” means the incurrence by the Borrower or any Restricted Subsidiary after the Closing Date of any Indebtedness that is not permitted by Section 9.03.

Restricted Payment” means (a) any transfer of cash or other Property from Borrower or any of its Restricted Subsidiaries to the Tribe or any of its members or Outside Affiliates, (b) any retirement, redemption, purchase or other acquisition for value by Borrower or any of its Restricted Subsidiaries of any Capital Stock of the Borrower or any Restricted Subsidiary from the Tribe or any of its Outside Affiliates, (c) the declaration or payment by Borrower or any of its Restricted Subsidiaries of any dividend, distribution or similar payment to the Tribe or any of its members or any of its Outside Affiliates, (d) any Investment (whether by means of loans, advances or otherwise) by Borrower or any of its Restricted Subsidiaries in Securities or other obligations of the Tribe or any of its Outside Affiliates, or (e) any other payment, assignment or transfer, whether in cash or other Property, from Borrower or any of its Restricted Subsidiaries to the Tribe or any of its members or Outside Affiliates, including the payment of any tax, fee, charge or assessment imposed by the Tribe on Borrower, its Restricted Subsidiaries, their revenues or the Authority Property; provided that none of (A) Permitted Tribal Payments, (B) the making of payments by Borrower or any of its Restricted Subsidiaries to the Tribe or any of its Affiliates or members in consideration of Property, goods and services provided to Borrower or any of its Restricted Subsidiaries by, or other contractual arrangement (including without limitation the Earth Hotel Lease) with, the Tribe or its Affiliates or members to the extent permitted by Section 9.08, (C) Specified Employee Compensation Payments, (D) the provision of services by Borrower or any of its Restricted Subsidiaries to the Tribe, its members or any of its Affiliates in the ordinary course of business in exchange for reasonable consideration to Borrower or any of its Restricted Subsidiaries, (E) payments under the Lease, (F) taxes and other charges permitted pursuant to Section 7.07, (G) assessment by the Tribe against Borrower or any of its Restricted Subsidiaries of the regulatory costs and expenses of the Tribe associated with Borrower or any of its Restricted Subsidiaries, (H) Investments in Unrestricted Subsidiaries or joint ventures of Borrower and its Restricted Subsidiaries otherwise permitted hereunder or (I) the making of Priority Distributions (subject to the limitations set forth in the definition of “Priority Distributions”), shall be considered Restricted Payments.

Restricted Subsidiary” means each Subsidiary of the Borrower that is not an Unrestricted Subsidiary.  The Borrower may at any time designate an Unrestricted Subsidiary as a Restricted Subsidiary in a written notice from the Borrower to the Administrative Agent so long as (a) no Event of Default shall have occurred and be continuing at the time and immediately after giving effect to such designation, and (b) after giving effect to such designation, the Borrower would be in compliance with Section 9.10 on a Pro Forma Basis as of the last day of the fiscal quarter most recently ended (regardless of whether any Covenant Facility is then outstanding).

48

 


 

Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01 (including Extended Revolving Commitments and Other Revolving Commitments), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swingline Loans, in an aggregate amount not to exceed the amount set forth opposite such Revolving Lenders name in the column labeled “Revolving Commitment” on Annex A-1, in any subsequent Assignment and Assumption or in any Refinancing Amendment or Extension Amendment, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

Revolving Commitment Increase Lender” has the meaning specified in Section 2.15(d).

Revolving Credit Facility” means the Initial Revolving Credit Facility, any Other Revolving Credit Facility and any Extended Revolving Facility, as the case may be.

Revolving Extension Request” has the meaning specified in Section 2.20(b).

Revolving Lender” means each Lender that holds a Revolving Commitment.

Revolving Loan” means each Loan made by a Revolving Lender under any Revolving Credit Facility.

Revolving Note” means a promissory note made by the Borrower to a Revolving Lender evidencing that Lender’s Pro Rata Share of the Aggregate Revolving Commitments, substantially in the form of Exhibit C-1, either as originally executed or as the same may from time to time be supplemented, modified, amended, renewed, extended or supplanted.

Right of Others” means, as to any Property in which a Person has an interest, (a) any legal or equitable right, title or other interest (other than a Lien) held by any other Person in or with respect to that Property, and (b) any option or right held by any other Person to acquire any right, title or other interest in or with respect to that Property, including any option or right to acquire a Lien.

“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc. and any successor thereto.

Sanction(s)” means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.

Second Amendment” means that certain Incremental Joinder and Second Amendment to Credit Agreement, dated as of April 12, 2018, among the Tribe, the Borrower, the Loan Parties party thereto, the Increased Revolving Facility Lenders party thereto, the Increased Term B Facility Lenders party thereto, each of the other Lenders party thereto, the Swingline Lender, the Administrative Agent and the L/C Issuer.

Second Amendment Effective Date” means the “Effective Date” as defined in the Second Amendment.

49

 


 

Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between a Loan Party and a Cash Management Bank.

Secured Hedge Agreement” means any Swap Contract that is entered into by and between any Loan Party and any Hedge Bank.

Secured Parties” means, collectively, the Lenders (including the L/C Issuer and the Swingline Lender), the Hedge Banks under the Secured Hedge Agreements, the Cash Management Banks under the Secured Cash Management Agreements and the Administrative Agent.

Securities” means any capital stock, shares, voting trust certificates, bonds, debentures, notes or other evidences of indebtedness, membership interests, limited partnership interests, or any warrant, option or other right to purchase or acquire any of the foregoing.

Security Agreement” means that certain Security Agreement, dated as of the date hereof, by Borrower, each Guarantor (other than the WNBA Subsidiary) as of the Closing Date and each future Restricted Subsidiary that may subsequently become party thereto in favor of Administrative Agent for the ratable benefit of the Secured Parties.

Security Documents” means, collectively, the Security Agreement, the Pledge Agreement, each Account Control Agreement, the Leasehold Mortgage, the Landlord Consent, the Pocono Mortgages, the Mohegan Golf Mortgage, each intercreditor agreement executed by the Administrative Agent hereunder (including in respect of any Permitted Junior Lien Indebtedness) and any other pledge agreement, hypothecation agreement, security agreement, account control agreement, assignment, deed of trust, mortgage or similar instrument executed by the Borrower or a Restricted Subsidiary in favor of the Administrative Agent or any Secured Party to grant or perfect a Lien to secure the Obligations.

Senior Secured Indebtedness” means, at any time, the aggregate outstanding principal amount of Consolidated Funded Indebtedness of the Borrower and of the Restricted Subsidiaries which is secured by Liens on property or assets of the Borrower or any the Restricted Subsidiaries as of such date (other than any such Indebtedness that is expressly subordinated in right of payment to the Obligations pursuant to a written agreement).

Senior Secured Leverage Ratio” means the ratio of (a) Senior Secured Indebtedness to (b) Consolidated EBITDA for the most recently ended Test Period.  Subject to Section 1.08, for purposes of determining such ratio, Senior Secured Indebtedness shall be calculated as of the last day of the applicable Test Period on a Pro Forma Basis.

Senior Unsecured Notes” means the Borrower’s 7.875% senior notes due 2024, issued pursuant to that certain indenture, dated as of the Closing Date, among the Borrower, the Tribe, the guarantors party thereto and U.S. Bank National Association, as trustee.

Solvent” and “Solvency” shall mean, for any Person on a particular date, that on such date (a) the fair value of the assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person

50

 


 

does not intend to, and does not believe that it will, incur debts and liabilities beyond such Person’s ability to pay as such debts and liabilities mature, (d) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute an unreasonably small capital and (e) such Person is able to pay its debts as they become due and payable.  For purposes of this definition, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability, without duplication.

SPC” has the meaning specified in Section 12.07(g).

Special Purpose Restricted Subsidiaries” means the WNBA Subsidiary and the CT Expo Subsidiary, to the extent and for so long as the same constitute Restricted Subsidiaries.

Specified Employee Compensation Payments” means payments to the Tribe in respect of Borrower’s executive benefit plan, in an aggregate amount not to exceed $5,000,000 per annum, that would otherwise be paid as compensation to employees of the Borrower who are participants of the plan.

Specified Reporting Default” has the meaning specified in the Third Amendment.

Specified Transaction” means (a) any incurrence or repayment of Indebtedness of the Borrower or a Restricted Subsidiary, (b) any Investment that results in a Person that is not a Subsidiary becoming a Restricted Subsidiary or an Unrestricted Subsidiary, (c) any Disposition, designation or redesignation of a Subsidiary that results in a Restricted Subsidiary ceasing to be a Restricted Subsidiary or an Unrestricted Subsidiary becoming a Restricted Subsidiary, (d) any acquisition or Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person, in each case under this subsection (d), with a fair market value of at least $10,000,000 or constituting all or substantially all of the assets of a Person or (e) the making of any Restricted Payment hereunder.

“Specified Tribal Contribution” means (i) that certain $20,000,000 investment made by the Tribe in the Borrower on the Fourth Amendment Effective Date, of which $5,000,000 was loaned to the Borrower in the form of Subordinated Indebtedness and $15,000,000 was contributed thereto (the “Fourth Amendment Effective Date Specified Tribal Contribution”) and (ii) at any time after the Fourth Amendment Effective Date, any cash contributed by the Tribe to the Borrower or its Restricted Subsidiaries or loaned thereto to the extent such loan shall be in the form of Subordinated Indebtedness; provided, (x) until the Senior Unsecured Notes are repaid, redeemed, repurchased, exchanged or otherwise satisfied in full, such Subordinated Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Senior Unsecured Notes, (y) until the Senior Unsecured Notes are repaid, redeemed, repurchased, exchanged or otherwise satisfied in full, such Subordinated Indebtedness bears interest solely in-kind and not in cash and (z) any Specified Tribal Contribution made after the Fourth Amendment Effective Date in the form of Subordinated Indebtedness shall be on substantially identical terms to the portion of the Fourth Amendment Effective Date Specified Tribal Contribution constituting Subordinated Indebtedness (other than with respect to principal amount, interest rate and maturity, but in any event subject to satisfaction of the conditions in the preceding clauses (x) and (y)).

51

 


 

Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid (as such date may be extended from time to time) including as a result of any mandatory sinking fund payment or mandatory redemption in the documentation governing such Indebtedness in effect on the date hereof or, if such Indebtedness is incurred after the date hereof, in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

STRH” means Suntrust Robinson Humphrey, Inc., and its successors.

Subordinated Indebtedness” means (i) all unsecured Indebtedness of the Borrower for money borrowed which is subordinated, upon terms reasonably satisfactory to the Administrative Agent, in right of payment to the payment in full in cash of all Obligations and (ii) the portion of the Fourth Amendment Effective Date Specified Tribal Contribution constituting Indebtedness.

Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and

52

 


 

termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in subsection (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

Swingline” means the revolving credit facility made available by the Swingline Lender pursuant to Section 2.04.

Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.04.

Swingline Lender” means Bank of America, in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder and under the Autoborrow Agreement.

Swingline Loan” has the meaning specified in Section 2.04(a).

Swingline Sublimit” means, at any time, an amount equal to $25,000,000.  The Swingline Sublimit is part of, and not in addition to, the Revolving Credit Facilities.

Syndication Agents” means Bank of America and Credit Suisse.

Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Term A Commitment” means, as to each Term A Lender, its obligation to make Term A Loans to the Borrower pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term A Lender’s name in the column labeled “Term A Commitment” on Annex A-2 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.  As of the Closing Date, the aggregate amount of the Term A Commitments is $445,000,000.

Term A Facility” means (a) on or prior to the Closing Date, the aggregate amount of the Term A Commitments at such time, and (b) thereafter, the aggregate principal amount of the Term A Loans of all Term A Lenders outstanding at such time, in each case as such amount may be increased pursuant to Section 2.15.

Term A Lender” means (a) on or prior to the Closing Date, any Lender that has a Term A Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term A Loans at such time.

53

 


 

Term A Loan” means each term loan made to the Borrower pursuant to Section 2.01(b) and each Increased Term Loan made pursuant to the Term A Facility.

Term A Loan Aggregate Principal Amount” means an amount equal to the sum of (a) the aggregate principal amount of Term A Loans outstanding on the Closing Date, plus (b) the aggregate principal amount of Increased Term Loans consisting of Term A Loans incurred by Borrower pursuant to Section 2.15 and outstanding on the applicable Increase Effective Date(s).

Term A Note” means a promissory note of the Borrower payable to any Term A Lender, substantially in the form of Exhibit C-2, evidencing the indebtedness of the Borrower to such Term A Lender resulting from the Term A Loans made by such Lender.

Term B Commitment” means, as to each Term B Lender, its obligation to make Term B Loans to the Borrower pursuant to Section 2.01(c) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term B Lender’s name in the column labeled “Term B Commitment” on Annex A-3 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.  As of the Closing Date, the aggregate amount of the Term B Commitments is $785,000,000.

Term B Facility” means (a) on or prior to the Closing Date, the aggregate amount of the Term B Commitments at such time, and (b) thereafter, the aggregate principal amount of the Term B Loans of all Term B Lenders outstanding at such time, in each case as such amount may be increased pursuant to Section 2.15.

Term B Lead Arrangers” means Merrill, Citizens Bank, Credit Suisse, STRH, Goldman, KeyBank, CIT Bank and Fifth Third Bank in their capacities as joint bookrunners and joint lead arrangers for the Term B Facility.

Term B Lender” means, at any time, any Lender that holds Term B Loans at such time.

Term B Loan” means each term loan made to the Borrower pursuant to Section 2.01(c) and each Increased Term Loan made pursuant to the Term B Facility.

 

Term B Loan Aggregate Principal Amount” means an amount equal to the sum of (a) the aggregate principal amount of Term B Loans outstanding on the Closing Date, plus (b) the aggregate principal amount of Increased Term Loans consisting of Term B Loans incurred by Borrower pursuant to Section 2.15 and outstanding on the applicable Increase Effective Date(s).Repricing Trigger” means (a) the incurrence by Borrower or its Restricted Subsidiaries of Indebtedness secured on a pari passu basis with the Term B Facility having an All-In Yield greater than the All-In Yield of the Term B Facility by more than 0.50% or (b) the amendment of any Indebtedness secured on a pari passu basis with the Term B Facility that results in such Indebtedness having an All-In Yield greater than the All-In Yield of the Term B Facility by more than 0.50%.  The amount by which the All-In Yield of such Indebtedness exceeds the All-In Yield of the Term B Facility by more than 0.50% is referred to herein as the “Term B Loan Repricing

54

 


 

Amount”.  The date on which such Indebtedness is incurred is referred to herein as the “Term B Loan Repricing Date”.

Term B Note” means a promissory note of the Borrower payable to any Term B Lender, substantially in the form of Exhibit C-3, evidencing the indebtedness of the Borrower to such Term B Lender resulting from the Term B Loans made by such Lender.

Term Facility” means the Term A Facility, the Term B Facility, any Incremental Term Facility, any Other Term Facility or any Extended Term Facility, as the case may be.

Term Loan” means a Term A Loan, a Term B Loan, an Increased Term Loan, an Incremental Term Loan, an Extended Term Loan or an Other Term Loan, as the case may be.

Term Loan Commitment” means a Term A Commitment, a Term B Commitment, an Increased Term Loan Commitment, an Incremental Term Loan Commitment, an Other Term Commitment or an Extended Term Commitment, as the case may be.

Term Loan Extension Request” has the meaning specified in Section 2.20(a).

Test Period” means, for any date of determination, the period of the four most recently ended consecutive fiscal quarters of the Borrower and its Restricted Subsidiaries for which financial statements are available.

Third Amendment” means that certain Third Amendment to Credit Agreement, dated as of August 13, 2020, among the Tribe, the Borrower, each of the Lenders party thereto and the Administrative Agent.

Threshold Amount” means $50,000,000.

Title Company” means Chicago Title Insurance Company or such other title insurance company as may be reasonably acceptable to the Administrative Agent.

Total Leverage Ratio” means as of the last day of each Fiscal Quarter the ratio of (a) Consolidated Funded Indebtedness to (b) Consolidated EBITDA for the most recently ended Test Period.  Subject to Section 1.08, for purposes of determining such ratio, the outstanding Consolidated Funded Indebtedness shall be calculated as of the last day of the applicable Test Period on a Pro Forma Basis.

Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and all L/C Obligations.

Town Agreement” means that certain Agreement, dated as of June 16, 1994, between the Tribe and the Town of Montville, Connecticut, as amended up to the Closing Date.

55

 


 

Tribal Council” means the Tribal Council of the Tribe elected in accordance with the Constitution.

Tribal Court” means any tribal court of the Tribe.

Tribal Entity” means Borrower and any other Person that conducts or manages gaming activities pursuant to IGRA.  As of the Closing Date, the only Loan Party that is a Tribal Entity is Borrower (the “Initial Tribal Entity”).  

Tribal Provisions” means Articles V and VII and Sections 12.01, 12.13, 12.14, 12.17, 12.18, 12.19, 12.20, 12.21, 12.22, 12.23, 12.24, 12.30 and 12.32.

Tribe” has the meaning specified in the introductory paragraph hereto.

Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

UCC” means the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction.

UCC Ordinance” means Chapter 7, Article III of the Mohegan Tribe Code, also known as Ordinance Number 98-7 of the Tribe.

United States” and “U.S.” mean the United States of America.

Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).

Unrestricted Subsidiary” means (1) (a) the Subsidiaries of the Borrower designated as Unrestricted Subsidiaries on Schedule 6.13 on the Closing Date; and (b) each Subsidiary of the Borrower that is so designated in a written notice from the Borrower to the Administrative Agent and any Subsidiary of an Unrestricted Subsidiary so long as after giving effect to any such designation (i) no Event of Default would exist and (ii) the Borrower would be in compliance with Section 9.10 on a Pro Forma Basis as of the last day of the fiscal quarter most recently ended (regardless of whether any Covenant Facility is then outstanding); and (2) any Subsidiary of an Unrestricted Subsidiary (unless contributed or otherwise transferred to such Unrestricted Subsidiary or any of its Subsidiaries by the Borrower or one or more of its Subsidiaries after the date of designation of the parent entity as an “Unrestricted Subsidiary” hereunder, in which case the Subsidiary so transferred would be required to be independently designated in accordance with the preceding clause (1)).  The designation of any Subsidiary as an Unrestricted Subsidiary pursuant to clause (1) of the immediately preceding sentence shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value (as determined by the Borrower in good faith) of the assets of such Subsidiary (less any liabilities of such Subsidiary, excluding the Obligations, that will not constitute liabilities of the Borrower or any Restricted Subsidiary after such designation (and including, for the avoidance of doubt, the fair market value of any Investments of such Subsidiary in its Subsidiaries)) at the time that such Subsidiary is designated as an Unrestricted Subsidiary; provided, that in the event that Salishan–Mohegan LLC shall become a Subsidiary and substantially concurrently therewith shall be designated an Unrestricted Subsidiary in accordance with the terms of this Agreement, any

56

 


 

Investments in Salishan–Mohegan LLC outstanding as of the Closing Date and still outstanding as of the date of such designation shall be excluded from such calculation and shall not be deemed to be an additional Investment in Salishan-Mohegan LLC.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.  Notwithstanding anything to the contrary contained in this Agreement, during the Financial Covenant Restricted Period, Borrower shall not be permitted to newly designate any Subsidiary as an Unrestricted Subsidiary.

Unwind Investments” means Investments by the Borrower or any Restricted Subsidiary of (a) up to $7,000,000 in Salishan-Mohegan, LLC and (b) up to $7,500,000 in Mohegan Gaming.

U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(d)(ii)(B)(III).

Weighted Average Life to Maturity” shall mean, on any date and with respect to any Indebtedness (or any applicable portion thereof), an amount equal to (a) the scheduled repayments of such Indebtedness to be made after such date, multiplied by the number of days from such date to the date of each such scheduled repayment divided by (b) the aggregate outstanding principal amount of such Indebtedness; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness being refinanced or any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended (the “Applicable Indebtedness”), the effects of any amortization or prepayments made on such Applicable Indebtedness vis-à-vis the amortization schedule prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded.

WNBA Agreements” means the WNBA Membership Agreement, dated as of January 28, 2003, between WNBA, LLC, a Delaware limited liability company, and the WNBA Subsidiary.

WNBA Subsidiary” means Mohegan Basketball Club LLC, a limited liability company formed under the Laws of the Tribe and a wholly-owned Subsidiary of Borrower, which is the owner and operator of the Women’s National Basketball Association franchise known as the Connecticut Sun.

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Year-End Available Amount Gross-Up” means, for the fourth Fiscal Quarter of each Fiscal Year, an amount equal to (a) the aggregate amount of Excess Cash Flow for the Fiscal Year ending on the last day of such Fiscal Quarter (or, in the case of the Fiscal Year ending September 30, 2017, for the period from the first day of the first full Fiscal Quarter after the Closing Date through September 30, 2017) minus (b) the aggregate Quarterly Excess Cash Flow for the first three Fiscal Quarters of such Fiscal Year (or, in the case of the determination made for the fourth Fiscal Quarter for the Fiscal Year ending September 30, 2017, each Fiscal Quarter commencing after the Closing Date except for the fourth Fiscal Quarter for such Fiscal Year) minus (c) the

57

 


 

portion of such Excess Cash Flow that has been (or is, or previously was, required to be) applied to prepay the Loans pursuant to Section 2.05(f) for such Fiscal Year minus (d) without duplication, any voluntary prepayments of Loans referenced in Section 2.05(f) that previously reduced the amount of such required prepayment pursuant to Section 2.05(f) for such Fiscal Year minus (e) without duplication, any amounts paid by the Borrower in connection with purchases of Term Loans pursuant to Auctions that previously reduced the amount of such required prepayments of Loans referenced in Section 2.05(f) for such Fiscal Year.

Other Interpretive Provisions

.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a)The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

(b)(i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

(ii)Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

(iii)The term “including” is by way of example and not limitation.

(iv)The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

(c)In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”  The word “or” is not exclusive.

(d)Unless the context otherwise requires, the expressions “payment in full” “paid in full” and any other similar terms or phrases when used with respect to the Obligations, when used in any Loan Document, shall mean the termination of all the Commitments, payment in full, in cash, of all of the Obligations (other than (x) any unasserted contingent reimbursement or indemnity obligations, (y) L/C Obligations that have been Cash Collateralized pursuant to the terms of this Agreement and (z) Obligations arising under any Secured Hedge Agreement or Secured Cash Management Agreement) and the cancellation or expiration of all Letters of Credit (other than Letters of Credit that have been Cash Collateralized pursuant to the terms of this Agreement or as to which other arrangements satisfactory to the Administrative Agent and L/C Issuer shall have been made).

(e)Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

58

 


 

Accounting Terms

.  (a) Except as otherwise specifically prescribed herein, all accounting terms used herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements.

(b)If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(c)Notwithstanding the foregoing provisions of this Section 1.03 (i) to the extent that any person or entity listed on Schedule 1.03 which the Borrower does not currently consolidate in accordance with GAAP is required to be consolidated with the Borrower for any reason other than its direct or indirect majority equity ownership, such person or entity shall be deconsolidated for purposes of calculating compliance with the financial covenants in Section 9.10 and (ii) any lease that is accounted for by any Person as an operating lease as of the Closing Date and any similar lease entered into after the Closing Date by any Person may, in the sole discretion of Borrower, be accounted for as an operating lease and not as a Capital Lease, notwithstanding any change in GAAP occurring after the Closing Date.

Rounding

.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

References to Agreements and Laws

.  Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

Times of Day; Rates

.  

(a)Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

59

 


 

(b)The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate” or with respect to any comparable or successor rate thereto.

Letter of Credit Amounts

.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time, giving effect to any draws thereunder prior to such time that may not be re-drawn; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

Certain Calculations and Tests

.  

(a)Notwithstanding anything to the contrary herein, the Total Leverage Ratio, the Senior Secured Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated in the manner prescribed by this Section 1.08; provided that notwithstanding anything to the contrary in subsections (b) or (c) of this Section 1.08 when calculating the Total Leverage Ratio, the Senior Secured Leverage Ratio and the Fixed Charge Coverage Ratio, as applicable, for purposes of determining actual compliance (and not pro forma compliance or compliance on a Pro Forma Basis) with any financial covenant pursuant to Section 9.10, the events described in this Section 1.08 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect (but, for the avoidance of doubt, such events as took place on or after the first day of the applicable Test Period but on or prior to the end of the applicable Test Period shall be given pro forma effect).

(b)For purposes of calculating the Total Leverage Ratio, the Senior Secured Leverage Ratio and the Fixed Charge Coverage Ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If, since the beginning of any applicable Test Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.08, then the Total Leverage Ratio, the Senior Secured Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated to give pro forma effect thereto in accordance with this Section 1.08.

(c)In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, prepayment, retirement, exchange, extinguishment or satisfaction and discharge) any Indebtedness included

60

 


 

in the calculations of the Total Leverage Ratio, the Senior Secured Leverage Ratio and the Fixed Charge Coverage Ratio, as the case may be (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period and/or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Total Leverage Ratio, the Senior Secured Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on (A) the last day of the applicable Test Period in the case of the Total Leverage Ratio and the Senior Secured Leverage Ratio and (B) the first day of the applicable Test Period in the case of the Fixed Charge Coverage Ratio. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Fixed Charge Coverage Ratio is made had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Indebtedness); provided that, in the case of repayment of any Indebtedness, to the extent actual interest related thereto was included during all or any portion of the applicable Test Period, the actual interest may be used for the applicable portion of such Test Period.  Interest on a Capital Lease shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capital Lease in accordance with GAAP.  Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a London interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower may designate.

(d)Notwithstanding anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence; provided that this subsection (d) shall apply solely with respect to the incurrence of Incremental Term Facilities, Increased Term Loan Commitments and Increased Revolving Commitments and Indebtedness incurred pursuant to Section 9.03(f) and shall not apply to any amounts incurred or transactions entered into (or consummated) in reliance on any provision of Article IX (other than Section 9.03(f)).

Limited Condition Transactions

.  Notwithstanding anything in this Agreement or any Loan Document to the contrary, when determining compliance with any applicable conditions to the consummation of any Limited Condition Transaction (including, without limitation, any Default or Event of Default condition), the date of determination of such applicable conditions shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”). If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the

61

 


 

other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) such applicable conditions are calculated as if such Limited Condition Transaction and other related transactions had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date for which financial statements are available to the Administrative Agent, the Borrower or Restricted Subsidiary could have taken such action on the relevant LCT Test Date in compliance with the applicable conditions thereto, such applicable conditions shall be deemed to have been complied with, unless an Event of Default pursuant to Section 10.01(a), (f) or (g) shall be continuing on the date such Limited Condition Transaction is actually consummated. For the avoidance of doubt, if an LCT Election is made, the applicable conditions thereto shall not be tested at the time of consummation of such Limited Condition Transaction.  If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated both (x) on a Pro Forma Basis assuming such Limited Condition Transaction and other related transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) on a Pro Forma Basis assuming such Limited Condition Transaction and other related transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated, and the applicable action shall only be permitted if there is sufficient availability under the applicable ratio or basket under both of the calculations pursuant to subsection (x) and (y).

ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS

Committed Loans

.  

(a)Revolving Loans.  Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make Revolving Loans to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided, however, that the aggregate amount of any Borrowing of Revolving Loans on the Closing Date may not exceed $100,000,000; provided, further, that after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all Swingline Loans shall not exceed such Lender’s Revolving Commitment.  Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01.  Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

62

 


 

(b)Term A Loans.  Subject to the terms and conditions set forth herein, each Term A Lender severally agrees to make a Term A Loan to the Borrower on the Closing Date in an aggregate amount not to exceed the amount of such Term A Lender’s Term A Commitment.  The Borrowing under the Term A Facility shall consist of Term A Loans made simultaneously by the Term A Lenders in accordance with their respective Term A Commitments.  Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed.  Term A Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

(c)Term B Loans.  Subject to the terms and conditions set forth herein, each Term B Lender severally agrees to make a Term B Loan to the Borrower on the Closing Date in an aggregate amount not to exceed the amount of such Term B Lender’s Term B Commitment.  The Borrowing under the Term B Facility shall consist of Term B Loans made simultaneously by the Term B Lenders in accordance with their respective Term B Commitments.  Amounts borrowed under this Section 2.01(c) and repaid or prepaid may not be reborrowed.  Term B Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

2.02Borrowings, Conversions and Continuations of Committed Loans.

(a)Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone, or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Committed Loan Notice.  Each such Committed Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed Loans; provided, however, that if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of “Interest Period”, the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the applicable Lenders of such request and determine whether the requested Interest Period is acceptable to all of them.  Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the applicable Lenders.  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof or such other amount as corresponds to any Term Loan amortization payment.  Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $100,000 or a whole multiple of $100,000 in excess thereof or such other amount as corresponds to any Term Loan amortization payment.  Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type

63

 


 

of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (v) the Facility pursuant to which the Borrowing is being requested, and (vi) if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

(b)Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender that holds a Commitment (or, in the case of any Facility after the making of the applicable Committed Loans, each Lender that holds any such Committed Loans) under the applicable Facility of the amount of its Pro Rata Share of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each applicable Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection.  In the case of a Committed Borrowing, each Lender that holds a Commitment under the applicable Facility shall make the amount of its Committed Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is a part of the initial Credit Extensions on the Closing Date, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Citizens Bank with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date the Committed Loan Notice with respect to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above.

(c)Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default, no Term Loans under any Term Facility may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Term Lenders under the applicable Term Facility and no Revolving Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Revolving Lenders.

(d)The Administrative Agent shall promptly notify the Borrower and the Lenders funding such Loans of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.  The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders holding such Loans of any change in the Base Rate promptly following such change.

64

 


 

(e)After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than twenty-five Interest Periods in effect with respect to Committed Loans.

(f)Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender.

2.03Letters of Credit.

(a)The Letter of Credit Commitment.

(i)Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Restricted Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Restricted Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Revolving Lender, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all Swingline Loans shall not exceed such Revolving Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.  

(ii)The L/C Issuer shall not issue any Letter of Credit, if:

(A)Subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or

65

 


 

(B)The expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all of the Revolving Lenders and the L/C Issuer have approved such expiry date or (y) such Letter of Credit is Cash Collateralized on terms and pursuant to arrangements satisfactory to the applicable L/C Issuer; provided, that in the case of any such Letter of Credit that is so Cash Collateralized, the obligations of the Revolving Lenders to participate in such Letter of Credit pursuant to this Section 2.03 shall terminate upon the Letter of Credit Expiration Date.

(iii)The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

(A)any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;

(B)the issuance of such Letter of Credit would violate any Laws or one or more policies of the L/C Issuer;

(C)except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial face amount less than $25,000;

(D)such Letter of Credit is to be denominated in a currency other than Dollars;

(E)