Exhibit 10
EXECUTION COPY
SECOND
AMENDED & RESTATED
DEVELOPMENT SERVICES AGREEMENT
THIS SECOND AMENDED & RESTATED DEVELOPMENT SERVICES AGREEMENT
(hereinafter referred to as the "Agreement") is made as of the 6th day of
February 2002 by and among the ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Band of Mohican Indians of
Wisconsin, a federally recognized Indian tribe (hereafter referred to as the
"Tribe"), the ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Tribal Gaming Authority, an instrumentality
of the Tribe, (hereinafter referred to as the "Authority"), Trading Cove New
York, LLC, a Delaware limited liability company (hereinafter referred to as
the "Developer"), Sun International North America, Inc., a Delaware
corporation (hereinafter referred to as "SINA") and Waterford Gaming Group,
LLC, a Delaware limited liability company (hereinafter referred to as
"Waterford"). SINA and Waterford are hereinafter collectively referred to as
the "Developer Guarantors".
RECITALS
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A. The Tribe is an Indian Tribe recognized by the United States of
America with a reservation located in the State of Wisconsin. The Tribe
currently owns and operates a Class III gaming facility, as defined in the
Indian Gaming Regulatory Act ("IGRA"), on its reservation in Wisconsin. The
Tribe also has a land claim pending in the State of New York, as articulated
in the action entitled The ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Community vs. The State of New
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York, et al., United States District Court, Northern District of New York,
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Docket No. 86-CV-1140 (the "Land Claim").
B. The Authority, on behalf of the Tribe, intends to develop and
operate in the State of New York a Class II and Class III gaming facility
with slot machines and table games (the "Gaming Facility"), together with
appropriate ancillary facilities including, a luxury hotel with customary
amenities, a convention/events center, food and beverage outlets, retail
facilities, parking facilities and other related infrastructure, and any
modifications of the foregoing elements (the "Ancillary Facilities"). (The
development and construction of the Gaming Facility and the Ancillary
Facilities and any "Expansions" thereto (as defined below) constructed during
the Term of this Agreement are collectively referred to herein as the
"Project"). The parties intend that the Project will be built in two or more
phases. Subject to receipt of "Required Approvals" (as defined below), the
parties agree that the initial phase of the development is anticipated to
include approximately (i) a 150,000 sq. ft. gaming area with 3,000 plus slot
machines and 190 table games, (ii) a 30,000 sq. ft. multipurpose events
center, (iii) 8,000 parking spaces, (iv) three specialty restaurants and ten
food outlets and (v) supporting Ancillary Facilities such as a central plant,
warehouse, employee support and back-of-house areas, a bus transportation
center. It is anticipated that the next phase of the Project will include a
luxury hotel, retail facilities and an Expansion of the Gaming Facility. The
Project shall be constructed on property to be acquired by the Tribe in the
State of New York in furtherance of this Agreement (the "Property") to be put
in trust for the benefit of the Tribe by the United States of America,
pursuant to the Tribe's recognized powers of self-government and the statutes
and ordinances of the Tribe. The Property will be acquired by the Tribe
through the "best interests" provisions of IGRA and/or through the settlement
of its Land Claim under IGRA (25 U.S.C.ss.2719(b)(1)(A) and (B), respectively).
C. The Authority will operate the Facilities to improve the economic
conditions of the Tribe's members and will operate the Gaming Facility in
accordance with the Compact and related agreements to be negotiated by the
Tribe with the State of New York. The Developer shall not participate in nor
have any authority regarding the operation or management of the Facilities.
D. Developer is a Delaware limited liability company whose members
consist of the Sun Cove New York, Inc., a Delaware corporation and Waterford
Development New York, LLC., a Delaware limited liability company. The
Developer, through its members, has experience and expertise related to real
estate acquisitions, financing, development, construction and operation of
gaming facilities and hotel resorts, including Native American Indian gaming
facilities and hotel resorts. The Developer has the requisite skill,
resources and experience to perform its obligations under this Agreement
E. The Tribe and the Developer entered into a Memorandum of
Understanding (the "MOU") on August 15, 2000.
F. Subject to the terms and conditions of this Agreement, the Developer
will provide to the Tribe and/or the Authority: (1) assistance in locating
and acquiring the Property, including certain funding towards the acquisition
cost of the Property, (2) certain funding of development costs associated
with the Project, (3) assistance in arranging bank and/or bond financing (the
"Senior Financing", as defined below), (4) if necessary and required by the
Senior Lenders, subordinated debt financing (the "Junior Financing", as
defined below) and/or a completion guarantee (the "Completion Guarantee", as
defined below), (5) exclusive development services related to the Project,
(6) assistance with settlement of the Tribe's New York land claim and the
Tribe's BIA fee to trust application, (7) assistance in negotiating a local
government agreement, and (8) assistance with negotiation of the Compact, all
as more particularly described in this Agreement.
G. The Tribe and Authority desire to grant the Developer the exclusive
right and obligation to provide development services in respect of the
design, construction, equipping and opening of the Project upon the terms and
conditions set forth herein; provided, however, that any decisions regarding
any future Expansions shall be made solely by the Authority.
H. It is the intent of the parties that nothing in this Agreement or
the "Financing Agreements" (as hereinafter defined) shall place at risk any
asset of a Tribal member or the Tribe's assets located in the State of
Wisconsin or any property or assets located in the State of New York which
are unrelated to the Project and this Agreement (or any income or other funds
generated from such assets).
I. The Developer Guarantors join in this Agreement for the sole
purpose of guaranteeing Developer's obligations as provided for in Section
13.21 of this Agreement.
J. The Parties entered into a Development Services Agreement on March
20, 2001, which Agreement was amended, restated and superseded by the Amended
& Restated Development Services Agreement dated October 2, 2001. This
Agreement shall amend, restate and supersede the Amended & Restated
Development Services Agreement entered into by the parties on October 2, 2001.
NOW THEREFORE, in consideration of the mutual covenants, conditions and
promises herein contained, the receipt and sufficiency of which hereby are
acknowledged, the Authority, the Tribe and the Developer agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1 Definitions. Capitalized terms used in this Agreement shall have
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the meanings set forth below:
"Affiliate" means, with respect to the Person in question, any Person
controlling, controlled by or under common control with, such Person. For
the purposes hereof, "control" means the possession, directly or indirectly,
or the power to direct or cause the direction of the management or policies
of the Person in question.
"Affiliate Transactions" has the meaning set forth in Section 10.2
below.
"Accelerated Termination Date" has the meaning set forth in Section 9.3
below.
"Agreement" shall have the meaning ascribed to it in the first
paragraph hereof and means this Agreement including, without limitation, the
Recitals, together with the Exhibits, each of which is incorporated herein
and made a part hereof, all as amended in accordance with the terms hereof.
"Ancillary Facilities" has the meaning set forth in Recital B hereof.
"Architect" means, as applicable from time to time, the Design
Architect and/or the Architect of Record for the Project engaged pursuant to
Section 4.2 below.
"Architect of Record" means the Architect selected by the Developer and
the Authority for the Project, which Architect shall be licensed to practice
by the State of New York.
"Authority" means the ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Tribal Gaming Authority, or
any other instrumentality of the Tribe with the authority to exercise the
proprietary authority of the Tribe over the gaming and/or non-gaming
facilities located on the Property in accordance with the ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Tribal Constitution, the Tribe's Gaming Ordinance, the Tribe's ordinance
establishing the Authority, the Compact, the IGRA or other applicable law, or
any successor and assignee thereto.
"Average Gaming Facility Revenues" means the average monthly Revenues
of the Gaming Facility for the twelve (12) months ending with (and including)
the month immediately prior to the month in which a Casualty Event occurs.
"Budget" means the Project Budget.
"Bureau of Indian Affairs" or "BIA" is the Bureau of Indian Affairs of
the Department of the Interior of the United States of America.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance
sheet prepared in accordance with GAAP.
"Casualty Event" means any casualty, event or occurrence that destroys
or damages the Gaming Facility.
"Class II Gaming" means Class II Gaming as that term is defined in IGRA.
"Class III Gaming" means Class III Gaming as that term is defined in
IGRA.
"Compact" means the tribal-state Compact to be entered into between the
Tribe and the State of New York pursuant to the IGRA, as the same may be
amended from time to time, or such other Compact as may be substituted
therefor.
"Comparative Month" has the meaning set forth in Section 9.1(f) below.
"Completion Date" means the date upon which the Authority receives,
with respect to each phase of the Project: (i) a certificate from the
Architect, as required pursuant to the terms of the Architect's agreement
with the Authority, certifying that the work has been substantially completed
in accordance with the Plans and Specifications therefor and all applicable
building, life/safety, environmental and other laws and regulations
applicable to the design and construction of the Project phase; (ii) a
certificate from the Developer stating that it has completed all of its
obligations hereunder; (iii) certificates of such governmental authorities,
professional designers, inspectors or consultants or opinions of counsel as
the Authority reasonably may determine to be appropriate verifying completion
of the Project phase in compliance with all Legal Requirements; and (iv) the
Project phase is fully stocked, staffed (including, without limitation,
compliance with Section 8.6 below) and ready to open to the public for
business.
"Completion Guarantee" has the meaning set forth in Section 6.3 below.
"Concept Design" has the meaning set forth in Section 4.4 below.
"Contract Documents" has the meaning set forth in Section 5.4 below.
"Contractors" has the meaning set forth in Section 5.1 below.
"Construction Financing" means the financing to be obtained by, and/or
committed to, the Authority sufficient, as reasonably determined by the
Authority, for the purposes of acquiring the Property, and the design,
construction, equipping and staffing of the Project.
"Construction Manager" means the professional employed pursuant to
Section 5.1 below.
"Design Architect" shall mean the Designer selected by the Authority to
design the Project.
"Design Consultants" shall mean the Architect and the Engineer and the
other consultants selected by the Authority to design the Project.
"Design Development Documents" has the meaning set forth in Section 4.6
below.
"Developer" has the meaning set forth in the introductory paragraph
hereof.
"Developer Fee" has the meaning set forth in Section 9.1 below.
"Developer's Financial Assistance" has the meaning set forth in Section
6.4 below.
"Director of Regulation" means the director of gaming operations
appointed by the Authority pursuant to the Tribe's Gaming Ordinance.
"Effective Date" means the later of (a) the date the Authority receives
all Required Approvals with respect to this Agreement, or (b) closing of the
financing under the Financing Agreements.
"Engineers" means professionals selected by the Authority to provide
services related to the engineering of the Project.
"Exhibits" means the exhibits attached to this Agreement.
"Expansion" or "Expansions" means any additions and/or modifications of
the Facilities.
"Facility" or "Facilities" means the Gaming Facility and the Ancillary
Facilities, including any Expansions, or as replaced or reconstructed
following a casualty loss in whole or in part.
"Financing Agreements" has the meaning set forth in Section 6.1 below.
"Fiscal Year" means any fiscal year of the Authority.
"Fiscal Quarter" means any fiscal quarter of the Authority.
"Fiscal Month" means any fiscal month of the Authority.
"Force Majeure Causes" means causes beyond the reasonable control of a
party to this Agreement, including casualties, war, insurrection, strikes,
lockouts and governmental actions, excluding governmental actions of the
Tribe or any instrumentality of the Tribe, including the Authority, and
causes which can be controlled by the expenditure of money in accordance with
good business practices.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession.
"Gaming" means any and all activities defined as Class II Gaming and
Class III Gaming under the IGRA or authorized under the Compact or any other
agreement entered into by the Tribe or the Authority with the State of New
York.
"Gaming Disputes Court" has the meaning set forth in Section 7.3 below.
"Gaming Facility" has the meaning set forth in Recital B hereof.
"Gross Gaming Revenue" shall mean the net win from Gaming, which is the
difference between Gaming wins and losses before deducting promotional
allowances, costs and expenses, determined in accordance with GAAP
consistently applied.
"Guarantee" means a guaranty, direct or indirect, in any manner, of all
or any part of any indebtedness or obligations of another Person.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (a) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (b) other
agreements or arrangements designed to protect such Person against
fluctuations in interest rates.
"Indian Gaming Regulatory Act" or "IGRA" means the Indian Gaming
Regulatory Act of 1988, 25 U.S.C. 2701, et seq., as amended from time to time.
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"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes accrued expenses or
trade payables, if and to the extent any of the foregoing (other than letters
of credit and Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP consistently applied.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Authority, (i) qualified to perform the task for
which it has been engaged and (ii) disinterested and independent with respect
to the Authority and each Affiliate of the Authority.
"Junior Financing" has the meaning set forth in Section 6.3 below.
"Key Personnel" means collectively the general manager of the Facility
and the managers of each major element of the Facilities (or the equivalent
of the foregoing positions).
"Land Claim" has the meaning set forth in Recital A hereof.
"Legal Requirements" means singularly and collectively all applicable
laws, including, without limitation, the Tribe's Gaming Ordinance, all other
laws or regulations of the Tribe, the IGRA, the Compact and applicable
federal and New York statutes, laws and regulations, and local ordinances,
codes and rules.
"Local Government Agreement" has the meaning set forth in Section
9.1(h) below.
"Master Plan" has the meaning set forth in Section 3.2.
"Memorandum of Understanding" has the meaning set forth in Recital E
hereof.
"Minimum Priority Distribution" means payments to the Tribe from the
operation of the Facilities in the annual amount of Twenty Four Million
($24,000,000.00) Dollars.
"Monthly Financial Statement" has the meaning set forth in Section
9.1(b).
"National Indian Gaming Commission" or "NIGC" means the commission
established pursuant to 25 U.S.C.ss.2704.
"Obligations" means any principal, interest, penalty, fees,
indemnifications, reimbursements and other liabilities or obligations payable
under the documentation governing any Indebtedness.
"Officer's Certificate" means a certificate signed on behalf of the
Authority by two officers of the Authority, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Authority.
"Person" means any individual, sole proprietorship, corporation,
general partnership, limited partnership, limited liability company or
partnership, joint venture, association, joint stock company, unincorporated
association, instrumentality or other form of entity.
"Plans and Specifications" means the detailed plans and specifications
for the construction of the Project prepared pursuant to Section 4.7 below.
"Principal Business" means the Class II and Class III Gaming Facility
(as such terms are defined in IGRA) and resort business and any activity or
business incidental, directly related or similar thereto, or any business or
activity that is a reasonable extension, development or expansion thereof or
ancillary thereto, including any hotel, retail, entertainment, recreation or
other activity or business designated to promote, market, support, develop,
construct or enhance the gaming and resort business operated by the Authority
at the Property.
"Project" has the meaning set forth in Recital B hereof.
"Project Budget" means the development and construction budget approved
by the Authority for any phase of the Project that includes the estimated
Project Cost, but does not include any operating budgets related to any of
the Facilities.
"Project Cost" means: all (1) costs of acquiring the Property and
preparing the Property for development of the Project, including costs and
expenses for professional services related thereto; (2) costs related to
developing, designing, constructing, equipping and furnishing the Project,
including, costs related to professional services, pre-opening costs, and
initial operating capital; (3) start up and operating costs of the Authority
until the Completion Date; and (4) financing fees and expenses, interest
payments and any scheduled principal payments, prior to the Completion Date,
allocated in accordance with GAAP, consistently applied.
"Project Development Committee" or "PDC" means the committee formed
pursuant to Section 2.2 below.
"Project Executive" has the meaning set forth in Section 2.1 below.
"Project Fund" has the meaning set forth in Section 6.1 below.
"Project Program" has the meaning set forth in Section 4.5 below, as
modified in accordance with the terms of this Agreement.
"Project Schedule" has the meaning set forth in Section 4.5 below.
"Promotional Allowances" means the retail value of hotel
accommodations, food, beverages, merchandise, chips, tokens and other
services provided to customers for promotional purposes without charge, which
retail value is included in the Revenues of the Facility. For the purposes
of this definition, "retail value" shall mean the usual and customary charge
for such service or item under the then existing circumstances.
"Property" has the meaning set forth in Recital B hereof, and any
additions thereto.
"Proposed Financing" means the anticipated financing for the Project.
"Recitals" means the language set forth in Subparagraphs A through J of
the first two pages of this Agreement, which Recitals are incorporated herein
and made a part hereof.
"Recommencement Month" means, following a Tolling Event, the earlier of
the month in which (i) the monthly Revenues of the Gaming Facility equal or
exceed ninety percent (90%) of the Average Gaming Facility Revenues, (ii) the
date upon which the Authority has fully complied with the requirements set
forth in Section 10.6 below occurs, or (iii) the Developer delivers written
notice (which shall be irrevocable with respect to such Tolling Event) to the
Authority stating that the current month shall be deemed the "Recommencement
Month".
"Required Approvals" means (1) execution and approval of the Compact
and related agreements with the State of New York; (2) execution and approval
of all applicable local government agreements; (3) approval by the BIA and
the final governmental authority of the fee to trust application; (4)
approval of this Agreement by the BIA, and/or the NIGC, to the extent those
agencies determine such approval may be required by law; (5) the entry of a
stipulated declaratory judgment by the Tribal Court upholding the validity
and enforceability of this Agreement and the Financing Agreements; (6)
approval of a land settlement agreement by the Federal Courts and the U.S.
Congress (if applicable); (7) approval of the Senior Financing and the Junior
Financing documents, the Completion Guarantee, the Financing Agreements and
any related agreements by the Authority and any other instrumentality of the
Tribe having final approval authority.
"Revenues" means all revenues of any nature derived directly or
indirectly from the Facilities, including, without limitations, Gross Gaming
Revenue, hotel revenues, room service, catering, food and beverage sales,
parking revenues, ticket revenues or other fees or receipts from the
convention/events center, other rental or other receipts from lessees,
sublessees, licensees and concessionaires (but not the gross receipts of such
lessees, sublessees, licensees or concessionaires) but excluding (i) any
gratuities or service charges added to a customer's ▇▇▇▇, (ii) any credits or
refunds made to customers, guests or patrons, (iii) Promotional Allowances up
to, but not to exceed, eight percent (8%) of Revenues, (iv) any sales,
excise, gross receipt, admission, entertainment, tourist or other taxes or
charges (or assessments equivalent thereto, or payments made in lieu thereof)
which are received from patrons and passed on to governmental or
quasi-governmental entities unrelated to the Tribe, (v) any federal, state or
local taxes or impositions that relate to the operation of the Facilities
(other than any payment or fee in lieu of taxes on Gross Gaming Revenues or
pursuant to any agreements entered into by the Authority and/or the Tribe
with such entity), which may be implemented from time to time, (vi) any fire
and extended coverage insurance proceeds other than for business
interruption, (vii) any condemnation awards other than for temporary
condemnation, and (viii) any proceeds of financings or refinancings, all as
determined in accordance with GAAP, consistently applied. For the purposes
hereof, all Revenues, except Gross Gaming Revenues, shall be computed and
accounted for at the greater of actual Revenue received or the usual and
customary charge for such service or item under the then existing
circumstances.
"Schematic Design Documents" has the meaning set forth in Section 4.5
below.
"Senior Financing" has the meaning set forth in Section 6.2 below.
"Senior Lenders" has the meaning set forth in Section 6.3 below.
"Staffing Plan" has the meaning set forth in Section 8.6 below.
"Term" has the meaning set forth in Section 9.2 below.
"Termination Fee" has the meaning set forth in Section 9.3 below.
"Termination Option" has the meaning set forth in Section 9.3 below.
"Tolling Event" means, following a Casualty Event, the failure of the
monthly Revenues of the Gaming Facility to equal at least fifty percent (50%)
of the Average Gaming Facility Revenues for three (3) consecutive Fiscal
Months.
"Tolling Period" has the meaning set forth in Section 13.20 below.
"Tribe" means the ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Band of Mohican Indians of
Wisconsin, a federally recognized Indian tribe and its permitted successors
and assigns.
"Tribal Court" means the ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Tribal Court established by
an ordinance of the ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Tribal Council and approved by the BIA
as more fully set forth in Chapter One, ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Tribal Law, Tribal
Court Code.
"Tribe's Preference Ordinance" means the Tribe's ordinance concerning
preference in hiring, "Tribal Laws, Chapter 54," and any replacements thereof
or amendments thereto adopted from time to time, and all related or
implementing ordinances and policies of the Authority to give preference in
recruiting and hiring of employees.
"Tribe's Gaming Ordinance" means the ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Tribal Gaming
Ordinance enacted pursuant to Section 7.4 of this Agreement, and any
replacements or amendments thereto adopted from time to time, and all related
or implementing ordinances, which are enacted by the Tribe to authorize and
regulate gaming on the Property in accordance with IGRA and/or the Compact.
"Quarterly Financial Statement" has the meaning set forth in Section
9.1(c) below.
"Year-End Financial Statement" has the meaning set forth in Section
9.1(d) below.
ARTICLE 2
RETENTION OF DEVELOPER; CREATION OF THE PROJECT DEVELOPMENT COMMITTEE
AND NON-COMPETE
2.1 Retention of Developer. The Authority hereby retains the Developer, as
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its exclusive developer for the Project, to perform all required development
services relating to the programming (including concept development), design,
construction, equipping and staffing (pursuant to Section 8.6 below) of the
Project upon, and subject to, the terms and conditions, and in consideration
of the payments, hereinafter set forth. The Developer shall provide the
services as hereinafter set forth during the Term of this Agreement as
necessary to facilitate the development of the Project and shall furnish, at
its cost, a sufficient number of trained personnel, with experience on
projects of a scope and magnitude similar to the Project, including a senior
executive with sufficient development, construction and project management
experience in the gaming and resort industry to be in charge of coordinating
the development, design and construction of the Project (the "Project
Executive"). The Developer shall not participate in nor shall it have any
authority regarding the operation or management of the Facilities. Any and
all decisions regarding the design, construction and equipping of the Project
shall be made solely by the Authority.
2.2 Creation of Project Development Committee. Upon execution of
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this Agreement the Developer and the Authority shall create the Project
Development Committee for the purpose of facilitating communications between
the Authority and the Developer and coordinating the development and
construction of the Project. The PDC shall remain active during the initial
phase of the Project and shall consist of an equal number of representatives
from each of the Authority and the Developer, not to exceed six members in
total. The PDC shall be terminated sixty (60) days after the opening of the
initial phase of the Project. The PDC shall function solely as an advisory
committee to the Authority and shall have no decision-making authority
regarding of the Project. In addition, the PDC shall have no role or
authority regarding the operation or management of the Facilities.
2.3 Non-Compete. During the Term of this Agreement, the Tribe, the
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Authority and the Developer agree that no party (nor Affiliate of any party)
shall own, operate, develop or manage a gaming facility in the State of New
York other than the Gaming Facility unless each of the parties consents in
writing.
ARTICLE 3
ACQUISITION OF THE PROPERTY
3.1 Selection and Acquisition of the Property. The Developer shall
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research and review various options for the acquisition of the Property in
the State of New York. The Developer shall bring to the Tribe's and the
Authority's attention property available for purchase, together with
available information related to such property, including the property's
size, location, availability, cost, environmental conditions, zoning, and
development potential, and the parties shall mutually agree upon the best
available development site for the Project. Nothing in this Agreement shall
be construed so as to require the Developer to contribute, acquire or expend
funds on behalf of the Tribe and/or the Authority for Property acquisition
prior to the Effective Date.
3.2 Development of Master Plan for the Project. After selection of
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the Property, the Developer, upon advice of the PDC, shall develop for the
Authority's review and approval a master plan (the "Master Plan") for
development of the Project on the Property selected. The Master Plan shall
include the size and location of the Facilities, proposed schedule for
construction of the Project, various scenarios for future Expansions (if
applicable), and related information. The Master Plan approved by the
Authority shall serve as the blueprint for the Project's construction and
financing, subject to additions, deletions and alterations as may be made to
the Master Plan from time to time by the Authority.
ARTICLE 4
DESIGN OF THE PROJECT
4.1 General Supervision. The Authority shall at all times have final
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authority to approve or disapprove all contracts and other matters related to
the design, development and construction of the Project consistent with the
terms of this Agreement. The Developer shall represent the Authority and act
as the Authority's liaison with respect to the selection, direction and
management of the Architect selected pursuant to Section 4.2 and the
Contractors and/or the Construction Manager selected pursuant to Section 5.1,
and any other professionals engaged, in accordance with the terms of the
Project Program, to perform services in connection with the design and
construction of any portion of the Project; provided, however, that at all
times the Authority shall have overall contractual control over the
Architect, Construction Manager and other professionals. Subject to the
limitations described herein, the Authority appoints the Developer as its
representative under any construction management, architectural, engineering
and other agreements with development professionals to allow the Developer to
supervise, direct and administer the duties, activities and functions of the
Architect, the Construction Manager, the Design Consultants and other
development professionals. The Architect and the Contractors and/or the
Construction Manager shall review and advise the Authority and the Developer
with respect to the Project Program.
4.2 Engagement of Architect. The Authority, upon the advice and
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recommendation of the PDC, shall have sole power and authority to select and
engage an Architect(s) and/or Engineers familiar with the design of gaming
facilities and for the purpose of performing certain services in connection
with the construction of the Project, including site development. All
agreements with the Architect(s) and/or Engineers shall be in a form of
contract prepared and recommended by the Developer and recommended by the PDC
for execution by the Authority. The Authority shall compensate the
Architect(s) and/or Engineers for services rendered out of its proceeds from
the Financing Agreements obtained in connection with the Project.
4.3 Design and Construction Budget. The Developer, with the
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assistance and input of the Architect, shall draft the Project Budget for
the design, construction and the furnishing and equipping of the Project
prior to the commencement of design of the Project by any Architect. The
Project Budget shall be reviewed by the PDC and recommended to the Authority
to be approved in writing by the Authority.
The Developer may propose revisions to the Project Budget from time to
time, as necessary, to reflect any unpredicted significant changes,
variables or events or to include significant, additional, unanticipated
items of expense. The Developer may, with the approval of the Authority,
reallocate part or all of the amount budgeted with respect to any line item
to another line item and to make such other modifications to the Project
Budget as the Developer deems necessary other than increases to the overall
Project Budget amount or which require allocation of the Project Budget
contingency or which materially alter the Plans and Specifications which
have been approved by the Authority. In addition, the Developer may approve
change orders provided Developer gives the Authority prior written notice of
any proposed change order together with a copy of such order and a statement
as to whether the change order will result in a budget increase and the
Authority does not disapprove such change order in writing within fifteen
(15) days of receipt of such notice.
The Authority acknowledges that the Project Budget is intended only
to be a reasonable estimate of the Project's construction and development
costs and expenses. The Developer shall not be deemed to have made any
guarantee, warranty or representation whatsoever in connection with the
Project Budget.
4.4 Concept Design and Engineering. The Authority, based upon the
--------------------------------
recommendations of the Developer and the PDC shall have sole authority to
designate its requirements for the Project, including, but not limited to, a
program which shall set forth the Authority's objectives, schedule
requirements, design criteria, including assumptions regarding HVAC demands,
space requirements and relationships, special equipment and site requirements
(the "Concept Design"). The Architect shall review the Concept Design for the
Project.
4.5 Preliminary Program Evaluation. The Developer shall cause to be
----------------------------------
prepared for the approval of the Authority, a preliminary evaluation of the
proposed Project's program schedule (the "Project Schedule"), budget
requirements and alternative approaches to design and construction of the
Project (the "Project Program"). Based upon the Program Schedule, budget
requirements and design, the Architect shall prepare schematic design
documents consisting of drawings and other documents illustrating the scale
and relationship of the proposed Project and its components (the "Schematic
Design Documents"), as well as a preliminary estimate of construction costs
based upon the proposed area, size and scope of the Project.
4.6 Design Development. Upon final approval of the Schematic Design
--------------------
Drawings for the Project by the Authority, the Architect shall prepare for
the Developer and the Authority design development documents consisting of
drawings and other documents to fix and describe the size and character of
the Project as to architectural, structural, mechanical and electrical
systems, materials and such other elements as may be appropriate (the
"Design Development Documents"). Further, the Architect shall advise the
Developer and update any preliminary estimate of construction costs and any
budgets for furnishing equipment to the Project. The Developer shall submit
to the PDC for review and recommendation and to the Authority, for its
review and approval, finalized versions of the Design Development Documents
prepared by the Architect.
4.7 Construction. Based upon the approved Design Development
----------------
Documents and any further adjustments in the scope and quality of the
Project, or in the Project Budget approved by the Authority, the Architect
shall prepare for review by the Developer and the PDC and approval by the
Authority, construction documents consisting of preliminary drawings and
specifications setting forth the general requirements for construction of the
Facilities. It is likely that construction will commence before final
detailed plans and specifications ("Plans and Specifications") have been
completed. The Architect shall proceed with completion of the Plans and
Specifications as they relate to the construction of portions of the Project
in the order such portions are to be completed or in the order required for
sequential completion, and shall proceed with completion of all Plans and
Specifications as soon as reasonably possible given construction scheduling
and progress of the work. The Architect shall advise the Developer and the
PDC of any adjustments to previous estimates of construction cost, schedules,
and/or budgets.
4.8 Plans and Specifications. As portions of the detailed Plans and
--------------------------
Specifications are completed for segments of the construction of the Project,
the Architect shall be required to submit duplicate copies of those portions
of the Plans and Specifications to the Developer, the PDC and the Authority
periodically for their prompt review and Authority approval.
4.9 Compliance with Construction Standards, Environmental Laws and
-----------------------------------------------------------------
Regulations. The Project shall be designed and constructed so as to
------------
adequately protect the environment and the public health and safety. The
design, construction and maintenance of the Project shall, except to the
extent a particular requirement or requirements may be waived in writing by
the Authority, meet or exceed all reasonable minimum standards pertaining to
Tribal, state or local building codes, fire codes and safety and traffic
requirements (but excluding planning, zoning and land use laws, ordinances,
regulations and requirements unless applicable) which would be imposed on
the Project by applicable New York or Federal statutes or regulations or
local ordinances or codes which would be applicable if the Project were
located outside of the jurisdictional boundaries of the Tribe, even though
those requirements may not apply within the Tribe's jurisdictional
boundaries. In addition, those mitigation steps specified in the
environmental assessment and the National Environmental Policy Act ("NEPA")
documents shall be taken. To the extent that the Tribe may adopt more
stringent requirements, those requirements shall govern. The Architect's
contract shall provide that the Architect shall certify to the Authority
compliance with the NEPA and all other applicable environmental and cultural
resource laws and regulations. The Authority shall be responsible for and
shall certify to appropriate governmental agencies compliance with the NEPA
and all other applicable environmental and cultural resource laws and
regulations. Nothing in this Section 4.9 shall grant to the State of New
York or any political subdivision thereof any jurisdiction (including but
not limited to jurisdiction regarding zoning or land use) over the Property
or the development and management of the Facilities.
ARTICLE 5
CONSTRUCTION OF THE PROJECT
5.1 Selection of Contractors. The Developer shall, in consultation
--------------------------
with the PDC, initiate a selection process in order to pre-qualify
prospective contractors (the "Contractors") and/or a Construction Manager
(the "Construction Manager") in connection with the construction of the
Project. The Developer shall submit the list of pre-qualified contractors
and/or construction managers to the PDC for its review and comment.
5.2 Proposal Review and Bid Process. Subsequent to the
---------------------------------------
pre-qualification of prospective contractors and/or construction managers,
the Developer shall conduct a review of proposals for the construction of the
Project, and the Developer shall assist the Authority with negotiations prior
to the award a construction contract or contracts to the most well-qualified
Contractor or Contractors and/or Construction Manager. The Developer shall
attempt to secure at least three competitive bids for each contract (subject
to the availability of contractors willing to bid on such contract), analyze
and compare the bids and present its review and recommendations to the
Authority and the PDC for Authority approval. The successful Contractors
and/or Construction Manager shall be properly licensed in the State of New
York and shall be capable of furnishing a payment and performance bond
satisfactory to the Authority to cover the construction for which the
Contractor or Construction Manager was retained.
5.3 Contracts; Developer Prohibition. The PDC shall recommend
------------------------------------
Contractors and/or Construction Manager and the Authority shall have the sole
power and authority to enter into a construction management agreement and
related contracts, or a general contract for the construction of the Project
and in compliance with the Tribe's Preference Ordinance. The Developer shall
prepare, for review and approval by the Authority, all required contract
documents and agreements necessary for construction of the Project. The
Authority shall compensate any Contractors and Construction Manager selected
for construction of the Project from its proceeds from the Financing
Agreements and, if applicable, other construction financing obtained in
connection with the Project. The Developer, its members and their respective
Affiliates shall not bid on any aspect of the Project or be awarded any
contracts without the express written consent of the Authority (and subject
to the disclosure requirements of Section 8.3 of this Agreement).
5.4 Contract Documents. The contract documents ("Contract
----------------------
Documents") shall require the successful Construction Manager or general
contractor and all Contractors to be responsible for providing all materials,
equipment and labor necessary to construct and equip the Project as
necessary, including site development. The scope of the Contract Documents
shall require the Contractors and/or the Construction Manager to construct
the Project in accordance with the Plans and Specifications prepared by the
Architect, including any changes or modifications thereto approved by the
Authority. The Contract Documents shall provide for adequate insurance,
appropriate lien waivers, and construction schedules by which milestones,
progress payments and late penalties may be calculated.
5.5 Construction Administration. The Developer shall be responsible
-----------------------------
for all construction contract and construction management administration
during the construction phase of the Project, subject to the Authority's
overall control. The Developer shall act as the Authority's designated
representative to act on behalf of the Authority in accordance with the terms
of this Agreement in connection with any construction contracts and/or
construction management agreements. The Developer shall have control and
charge of any persons performing work on the site of the Project. The
Developer shall interpret and decide on matters concerning the performance of
any contractor, and/or Construction Manager and the requirements of the
Contract Documents. The Developer shall have the authority to reject work
that does not conform to the Contract Documents. The Developer shall conduct
inspections to determine the date or dates of substantial completion and the
date of final completion of each Facility. The Developer shall observe and
evaluate or authorize the evaluation of work performed, the review of
applications for payment for submission to the Authority and the review and
certification of the amounts due the Contractors and/or Construction Manager.
5.6 Progress Payments. The Authority shall make progress payments
-------------------
for construction performed by the Contractors on a periodic basis as payment
invoices are approved by the PDC and the Developer. Progress payments for
construction shall be funded by the Authority from Construction Financing
proceeds. The Authority shall not be required to make progress payments
unless the Contractors certify that the work has been performed in
accordance with the Plans and Specifications and that the Contractor has
satisfied all other conditions for payment set forth in the applicable
Contract Documents.
5.7 Selection of Furniture, Trade-Fixtures and Equipment. The
-----------------------------------------------------------
Developer and the PDC shall recommend to the Authority vendors for purchase
by the Authority, of furniture, trade fixtures and equipment required for
the Project.
ARTICLE 6
FUNDING REQUIREMENTS OF THE PROJECT
6.1 Authority's Funding Obligations. Subject to the terms of this
-----------------------------------
Agreement, the Developer agrees to use its best efforts to assist the
Authority in the arrangement of the financing for the design, construction,
equipping, start-up and working capital for the Project, including the Senior
Financing and the Junior Financing as set forth below (collectively, the
"Financing Agreements"). The Financing Agreements shall contain provisions
consistent with Section 12.4 of this Agreement limiting the recourse of
lenders to certain assets of the Authority. The Authority shall, after the
closing of the Senior Financing and prior to commencement of construction of
the Project, make available or otherwise cause to be established a
development fund pursuant to the Financing Agreements into which will be
deposited all of the proceeds of the financing (the "Project Fund"). The
Project Fund shall be designated exclusively for performing the Authority's
obligations under this Agreement, and for costs for any design and
construction agreements entered into, as well as any agreements for the lease
or purchase of furniture, trade fixtures and equipment for the construction
of the Project and for start-up costs and expenses of the Facilities, all in
accordance with this Agreement and the Financing Agreements. The Project
Fund shall be used to discharge the Authority's obligations under this
Agreement, any and all design, construction or related agreements entered
into for the development of the Project, including but not limited to,
reimbursement to the Developer of the Developer's Financial Assistance
provided to the Tribe and/or the Authority in accordance with Section 6.4
below, acquisition of the Property, consulting and other professional fees,
supplies, utility costs, total cost of the development and construction of
the Project, landscaping, parking, curb cuts, access enhancement, off-site
road improvement, architectural, engineering, contractors fees and costs,
furniture, signs, trade fixtures and equipment necessary for implementing the
operation of the Project, closing and financing related costs, and interest
as provided in the Financing Agreements. Additionally, the initial working
capital for the Facilities operations shall be provided from the proceeds of
the Financing Agreements. The Tribe and/or the Authority have no obligation
to fund any activities related to the Project, including without limitation,
Project Costs, except from the proceeds of Developer's Financial Assistance
and/or the Financing Agreements.
6.2 The Senior Financing. The Developer agrees to assist the
-----------------------
Authority with the Authority's efforts to obtain Bank and/or Bond Financing
for the Project (the "Senior Financing") in amounts consistent with the
Project Budgets.
In connection with Senior Financing, the Developer will:
(i)Assist and advise in developing a strategy for the Senior
Financing;
(ii) Identify possible financial sources;
(iii) Finalize a financing term sheet;
(iv) As applicable, assist in the preparation of a private
placement memorandum or information memorandum to be
distributed to a short list of financiers;
(v)As applicable, distribute the private placement memorandum
or information memorandum to a short list of financiers;
(vi) Assist and advise in making presentations with
respect to the financing to potential financiers;
(vii) Review and assist in evaluating commercial and
financial sections of various contracts and agreements and
terms of financing with financiers;
(viii) Advise and assist in selecting the final terms and
conditions with financiers and in completing appropriate
definitive financing documentation; and provide such other
non-financial assistance as the parties deem appropriate.
In connection with the Senior Financing, the Tribe and the
Authority will cooperate with the Developer's efforts. Such cooperation
shall include: (a) direct contact between the Tribe and the Authority's
senior officials, management and advisors and prospective lenders, (b)
cooperation in the preparation of an information memorandum or private
placement memorandum and other marketing materials, and (c) the hosting, with
the Developer, of one or more meetings with prospective lenders. In
addition, it is understood and agreed that, upon advice and recommendation of
the Developer and with the approval of the Authority, or at the Authority's
discretion, the Authority may retain (at the Authority's cost and expense)
the services of an investment banker and such other professional advisors as
may be necessary for the placement of the Senior Financing.
6.3 The Junior Financing and/or Completion Guarantee. In
------------------------------------------------
addition to the Senior Financing, if required by lenders of the Senior
Financing (the "Senior Lenders") in order to secure the Senior Financing, on
the Effective Date, the Developer will provide or will cause an Affiliate or
Affiliates of the Developer to provide up to One Hundred Million
($100,000,000.00) Dollars of subordinated debt financing (the "Junior
Financing") and/or a completion guarantee (the "Completion Guarantee") on the
Project subject to terms and conditions acceptable to the Developer. The
Junior Financing shall bear an interest rate of Ten Percent (10%) per annum
with interest payments only payable monthly in arrears, for a period of seven
(7) years after the opening of the Gaming Facility to the general public, and
repayment of the principal balance at the end of the seventh year after the
opening of the Gaming Facility to the general public. The Completion
Guarantee (if any) shall be in the form negotiated by Developer with the
Senior Lender and may be in the form, for example, of the completion
guarantee entered into by the Developer's Affiliate for the Mohegan Sun
Casino development in Connecticut.
Except as set forth in this Section 6.3 and in Section 13.21, the
Tribe, the Authority and the Developer agree that this Agreement shall not be
construed as implying, any form of commitment by the Developer or any of its
Affiliates to participate in or provide any financing (other than the Junior
Financing), guarantees (other than the Completion Guarantee) or credit
support or to underwrite or publicly distribute securities on behalf of the
Tribe or the Authority, or any assurance that any placement efforts will be
successful. Notwithstanding anything to the contrary herein, it is
understood that the Developer is not undertaking to provide any legal,
accounting, or tax advice in connection with its obligations hereunder, and
the Tribe and the Authority shall rely solely upon its own experts therefor.
6.4 Developer's Other Funding Obligation. (a) Financial
----------------------------------------- -----------
Assistance. The Developer will provide, in accordance with the terms and
----------
conditions of this Agreement and as reasonably determined by the parties,
financial assistance of up to Ten Million ($10,000,000.00) Dollars (the
"Developer Financial Assistance") as is reasonably necessary to assist the
Authority and the Tribe with the following pre-opening and development
matters: (i) locating, assessing, negotiating and acquiring the Property,
(ii) settlement of the Tribe's New York land claims, (iii) having the
Property taken into trust, (iv) negotiation of a Tribal/State Compact, (v)
negotiation of a local government agreement, (vii) obtaining federal, state
and local approvals and (viii) preliminary preparation of the Property for
Project development. The Tribe and the Authority acknowledge that the
Developer has incurred and/or accrued expenses of approximately $800,000
under this Section 6.4 through December 31, 2000. In addition, the Developer
will reimburse the Tribe for documented expenses incurred or accrued by the
Tribe through January 31, 2001 in the approximate amount of $125,000.The
above amounts (together with such other additional amounts agreed to by the
parties and incurred prior to the execution of this Agreement) shall be
included in the total Developer Financial Assistance expended under this
Section 6.4. The Developer agrees to provide a portion of Developer's
Financial Assistance to the Tribe and/or the Authority to be utilized by them
solely for the development purposes set forth in this Section 6.4 based upon
an approved budget and accounting controls to be negotiated and agreed to by
the parties. The Developer Financial Assistance budget and accounting
procedures shall be administered by the PDC or its appointed
representatives. Except as set forth in Section 6.4(b) below related to the
acquisition of the Property, the Developer's Financial Assistance shall be
reimbursed out of the proceeds of the Project financing in accordance with
the terms and conditions set forth in the Financing Agreements. The
provisions of the previous sentence shall survive any termination of this
Agreement. Notwithstanding the above, in the event the Authority does not
receive Project financing or the Required Approvals, as contemplated herein,
then the Developer's Financial Assistance shall be non-reimbursable. In
addition, the Developer may suspend its obligations under this Section 6.4 in
the event the Tribe fails to materially perform its obligations set forth in
Article 7 of this Agreement.
(b) The Property. As part of the Developer's Financial
-------------
Assistance to the Authority and the Tribe set forth in Section 6.4 (a) above,
the Developer on the Effective Date (or such earlier time as the Developer,
in its sole discretion, deems appropriate) will contribute the Property at
Developer's actual cost and/or funds necessary to acquire the Property in an
amount not to exceed Five Million ($5,000,000.00) Dollars. The amount
contributed by the Developer toward the purchase price of the Property will
not be reimbursable to the Developer from the proceeds of the financing or
otherwise.
ARTICLE 7
OBLIGATIONS OF THE TRIBE
7.1 Land Claim and Project Development. As a condition to the
--------------------------------------
Developer's performance of its obligations hereunder, the Tribe agrees, upon
execution of this Agreement, to utilize its best efforts, upon terms and
conditions acceptable to the Tribe, to: (a) settle its Land Claims with the
State of New York and obtain, as part of that settlement, a Compact
containing the right to develop and operate the Facilities on the Property,
(b) make application to the United States Department of the Interior for the
Property to be taken into trust by the United States for the purposes of
permitting the Tribe to develop and operate the Facilities, (c) enter into an
agreement with applicable local governing bodies providing for appropriate
incentives to permit development of the Project and (d) such other agreements
relating to the Project as may be in the Developer's and the Tribe's best
interests.
7.2 Establishment of the Authority. Within thirty (30) days of
---------------------------------
execution of this Agreement, the Tribe shall, in accordance with the Tribe's
Constitution and laws, establish the Authority (or such similar
instrumentality), which Authority shall remain in existence during the Term
of this Agreement. Prior to the establishment of the Authority, or upon
abolishment of the Authority without a successor, the Tribe shall have all of
the rights and obligations set forth in this Agreement pertaining to the
Authority. Upon its establishment, the Authority shall execute and become a
party to this Agreement.
7.3 Gaming Disputes Court. Prior to the Effective Date (and in such
-----------------------
time so as to effectuate the Required Approvals), the Tribe shall, in
accordance with the Tribe's Constitution and laws, establish a Gaming
Disputes Court with jurisdiction to hear disputes related to Gaming at the
Facility as well as other disputes related to the operation of the Facility
by the Authority and to Gaming generally. In addition, the Gaming Disputes
Court shall have jurisdiction to enter orders prohibiting the impairment of
contracts and requiring due notice of any proposed changes of any such
contracts including, but not limited to, this Agreement and the Financing
Agreements. The Gaming Disputes Court shall remain in existence during the
Term of this Agreement.
7.4 Tribal Gaming Ordinance. Prior to the Effective Date and
--------------------------
continuing during the Term hereof, the Tribe shall adopt and maintain a
Tribal Gaming Ordinance to enable the Tribe and the Authority to fulfill its
obligations under this Agreement, the Compact and any other applicable law as
required by the IGRA, which Ordinance shall be approved by the NIGC. Nothing
contained in such Tribal Gaming Ordinance, or actions taken pursuant thereto,
shall prejudice or have a material adverse effect upon Developer's rights set
forth in this Agreement; including but not limited to, the tribal gaming
license requirements of said ordinance applicable to the Developer. This
provision is not intended to relieve Developer of its obligations under
Section 8.8.
7.5 Approval of this Agreement; Stipulated Declaratory Judgment. (a)
-------------------------------------------------------------
The Tribe shall adopt a resolution approving this Agreement and authorizing
its execution by the Tribal Council President.
(b) Upon execution of this Agreement by all the parties, the
Tribe and the Authority shall file a Complaint with the Tribal Court seeking
the entry of a stipulated declaratory judgment upholding the validity and
enforceability of this Agreement, the form of which will be mutually agreed
to by the Tribe, the Authority and the Developer. The Tribe represents and
warrants that the Tribal Court has full authority under the Tribe's
Constitution and laws to enter an order upholding the validity and
enforceability of this Agreement and the Financing Agreements, and to enter
orders prohibiting the impairment of contracts and requiring due notice of
any proposed changes of any such contracts including, but not limited to,
this Agreement and the Financing Agreements.
ARTICLE 8
ADDITIONAL DUTIES AND OBLIGATIONS OF THE
AUTHORITY AND THE DEVELOPER
8.1 Employment of Other Professionals. The Authority, in
---------------------------------------
consultation with the Developer, shall select and employ other professionals,
including, without limitation, surveyors, attorneys, accountants and public
relations or advertising firms, to perform services required for the
Project.
8.2 Progress Reports and Meetings. The PDC shall have monthly
--------------------------------
meetings (and other meetings as may be needed) to discuss the progress of the
Project, including, without limitation, updates to the Project Schedule and
Project Budget, any claims or disputes, the status of the work, the
administration of the Developer's Financial Assistance budget and accounting
procedures and all other relevant items. The Developer shall submit to the
Authority monthly progress reports showing the then present status of design
and/or construction of the Project and shall meet with the Authority on a
regular basis to review the status of the Project.
8.3 Submission of Contracts. The Developer agrees promptly to submit
-----------------------
to the Authority copies of all contracts and subcontracts relating to the
Project from time to time received by the Developer and all other documents
related to the Project. The Developer, with the assistance of the general
contractor and/or the Construction Manager, shall assist the Authority in
complying with the terms of, and maintain in full force, all contracts for
design or construction of the Project and any surety bonds issued in
connection therewith. The Developer shall give the Authority immediate
notice of: (i) any fault or defect relating to construction of any Facility;
(ii) any known failure of any party to comply with the terms of any contract
or bond relating to any Facility, and shall submit to the Authority copies of
any correspondence regarding an alleged claim, fault, defect or default by
any Person in relation to any contract or agreement relating to any Facility,
together with an explanation thereof and proposed corrective steps of
nonconformance with the Plans and Specifications. All Contractors that are
members or Affiliates of the Developer must disclose said affiliation prior
to its execution of any contract related to the Project.
8.4 Permits and Licenses. Except for permitting and licensing
----------------------
requirements of the Tribe, the Developer shall advise the Authority as to all
permitting and licensing requirements for the Project, and the Authority
shall obtain or cause to be obtained all permits and licenses required for
the design, construction, equipping and opening of the Project.
8.5 Maintenance of Records. The Developer, the general contractor
-----------------------
and/or the Construction Manager and the Architect, shall maintain on the
Property (or at the Developer's offices in Waterford, Connecticut) all books
and records in connection with the design, construction, equipping and
opening of the Project, together with all documents and papers pertaining to
the Project, including, without limitation, general maintenance of such full
and detailed accounts as may be necessary for proper financial management of
the Project. All such documents shall at all times be open to the inspection
of the Authority. Copies of such documents shall be provided to the
Authority or the Authority's representative upon completion of each phase of
the Project, and the Developer shall cooperate with any audit of such books
and records. After the expiration or termination of this Agreement, the
Developer shall deliver all such books and records together with all such
related documents and papers to the Authority, and the Developer shall be
entitled to retain a copy.
8.6 Staffing of Project. (a) The Developer shall have the
-----------------------
responsibility to advise the Authority concerning the Authority's selection,
retention and training of all initial employees performing regular services
in connection with the management, operation and maintenance of the Project
on the Completion Date. No later than sixty (60) days prior to the
anticipated Completion Date of the Project (or any portion thereof that will
be opened for business), the Developer shall submit to the Authority, for its
approval, a detailed staffing plan for all personnel necessary to operate the
Project (or portion thereof) in a first class manner, which staffing plan
shall include, without limitation, organizational charts, a job
classification system with job descriptions, salary levels and wage scales
(the "Staffing Plan"). The Staffing Plan shall be subject to the Authority's
review and approval (which approval may be withheld in its sole and absolute
discretion) and to compliance with the Tribe's Preference Ordinance.
(b) All prospective employees shall be subject to the Authority's
approval, which approval may be withheld in the Authority's sole and absolute
discretion. All Key Personnel and any and all other employees as required by
the Director of Regulation of the Authority shall be subject to background
checks to be performed by the Authority (and the Authority shall have the
right to reject any candidate for any position based on the results
thereof). In order to maximize the benefits of the Project to the Tribe and
the Authority, the Tribe's Preference Ordinance shall apply to the
recruitment and training of candidates for employment by the Authority, to
the extent such preference is consistent with applicable law in all job
categories of the Project, including, without limitation, management
positions. The Developer shall, pursuant to the direction of the Authority,
supervise all activities determined necessary by the Authority to recruit and
train Tribal members, and other qualified persons who meet the tribal
preference, including, without limitation, providing job fairs for members of
the Tribe and clearly specifying the tribal preference in all job
advertisements.
(c) Notwithstanding anything contained herein to the contrary, all
decisions with respect to the management, operation and maintenance of the
Facilities (or portion thereof) shall be made exclusively by the Authority.
8.7 Suitability/Licensing Requirements. Subject to the provisions of
------------------------------------
this Section 8.7 and Section 7.4 of this Agreement, the Developer and any
successors or assigns of the Developer shall: (i) be subject to the
regulatory power of the Authority as set forth in the Tribal Gaming
Ordinance, (ii) demonstrate its suitability for a gaming license from the
Authority and (iii) maintain that suitability throughout the term of this
Agreement. At the time of execution of this Agreement, Developer has
demonstrated to the satisfaction of the Tribe and the Authority that
Developer's affiliates, including Trading Cove Associates, and their
respective principals hold Gaming Services Registrations issued by the
Division of Special Revenue for the State of Connecticut (the "Gaming
Registrations"), and that SINA and certain of its affiliates, and their
respective principals have been qualified for licensure in conjunction with
casino gaming licenses issued by the State of New Jersey and/or the
Commonwealth of The Bahamas (the "Gaming Licenses"). Since the principals of
Developer and Developer's affiliated entities have successfully completed
background checks and have been qualified for licensure as part of the
process for granting the above Gaming Registrations and Gaming Licenses, the
Tribe and the Authority acknowledge and agree, at the time of execution of
this Agreement, that Developer is a suitable company with whom to engage in
gaming related activities under the Tribe's current gaming regulations
applicable to the Tribe's gaming operations in the State of Wisconsin, and is
deemed eligible for a tribal gaming license when the Tribal Gaming Ordinance
licensing process is in place. The licensing process set forth in the Tribal
Gaming Ordinance shall not be stricter than the certification requirements
currently in effect under the Tribe's Wisconsin licensing process. Continued
suitability for a tribal gaming license under the Tribal Gaming Ordinance
during the term of this Agreement is a material condition of this Agreement.
ARTICLE 9
COMPENSATION TO THE DEVELOPER & TERM OF AGREEMENT
9.1 Developer Fee. As compensation to the Developer for the
---------------
Developer's services performed hereunder related to the Project, the
Authority shall make certain payments to the Developer ("the Developer Fee,"
as defined below in Section 9.1(a)), without set-off, deduction or
counterclaim (except as may be required to satisfy an arbitration award in
favor of the Tribe and/or the Authority against the Developer entered
pursuant to the provisions of Section 12.2 of this Agreement). The
Developer Fee shall be paid and consist of those amounts computed in
accordance with paragraph (a) as set forth below:
(a) Within fifteen (15) days following the end of the calendar month
in which the Gaming Facility opens and thereafter within fifteen (15) days
following the end of each successive calendar month during the Term hereof,
the Authority shall pay the Developer an amount equal to five percent (5.0%)
of Revenues from the Facilities received during the preceding month (the
"Developer Fee").
(b) Within fifteen (15) days following the end of each Fiscal Month
during the Term hereof, the Authority shall provide to the Developer
operating financial statements derived from the preceding Fiscal Month which
include, without limitation, all Revenues generated by the Facilities and the
amount of the Developer Fee paid or payable to the Developer pursuant to
Section 9.1(a) (the "Monthly Financial Statements"). Such statements shall
be prepared in accordance with GAAP, consistently applied, and shall be
certified as true and complete by the Authority. Upon reasonable notice and
at reasonable times, the Developer, or its duly authorized representatives,
shall have on-site access to, and be entitled to photocopy, the books and
records of the Authority relating to the Facilities for the purpose of
verifying the Monthly Financial Statements. In addition, the Developer shall
have the right, at the Developer's expense, to audit these financial
statements by examination of all or any part of the books and records of the
Authority or the Facility, as the Developer, in its sole discretion, may
require.
(c) Within forty-five (45) days following the end of each Fiscal
Quarter during the Term, the Authority shall provide to the Developer
operating financial statements for the preceding Fiscal Quarter which have
been reviewed by nationally recognized independent auditors selected by the
Authority which include, without limitation, all Revenues generated by the
Facilities and the amount of the Developer Fee paid or payable to the
Developer pursuant to Section 9.1(a) (the "Quarterly Financial Statements").
Such statements shall be prepared in accordance with GAAP, consistently
applied, and shall be certified as true and complete by the Authority. Upon
reasonable notice and at reasonable times, the Developer, or its duly
authorized representatives, shall have on-site access to, and be entitled to
photocopy, the books and records of the Authority relating to the Facilities
for the purpose of verifying the Quarterly Financial Statements. In
addition, the Developer shall have the right, at the Developer's expense, to
audit these financial statements by examination of all or any part of the
books and records of the Authority or the Facility, as the Developer, in its
sole discretion, may require.
(d) Within ninety (90) days following the end of each Fiscal Year (or
portion thereof) during the Term, the Authority shall provide to the
Developer operating statements derived from audited financials for the
preceding Fiscal Year which include, without limitation, all Revenues
generated by the Facilities and the amount of the Developer Fee paid or
payable to the Developer pursuant to Sections 9. 1 (a) (the "Year End
Financial Statements"). Such statements shall be prepared in accordance with
GAAP, consistently applied, and shall be certified as true and complete by
the Authority and by nationally recognized independent auditors selected by
the Authority. Upon reasonable notice and at reasonable times, the
Developer, or its duly authorized representatives, shall have on-site access
to, and be entitled to photocopy, the books and records of the Authority
relating to the Facilities for the purpose of verifying the Year End
Financial Statements. In addition, the Developer shall have the right, at
the Developer's expense, to audit the financial statements by examination of
all or any part of the books and records of the Authority or the Facility,
as the Developer, in its sole discretion, may require.
(e) To the extent that the Developer Fee (or portion thereof) is not
paid when due, such amounts shall earn interest at a rate of twelve percent
(12%) per annum from the due date thereof until the date payment is made (or
if such rate of interest is not lawful, at the maximum lawful rate of
interest). This Section 9.1(e) shall not apply to any payment of the
Developer Fee that has been delayed on account of the payment of any Minimum
Priority Distribution under Section 10.1 of this Agreement.
(f) In the event that (i) a Casualty Event shall have occurred, (ii)
the Developer has not elected to declare a Tolling Event pursuant to Section
13.20 hereof, and (iii) Revenues for any month in which a Casualty Event
continues are less than the Gaming Facility Revenues for the same month of
the preceding year (the "Comparative Month"), then all proceeds from
business interruption insurance shall be paid to Developer by the Authority
until the entire amount of the Developer Fee (based on the Comparative
Month) due each month during the period of the Casualty Event is paid.
(g) The Authority shall provide to the Developer, solely for
informational purposes, annual capital and operating budgets for the
Facilities and any revisions thereto it being understood and agreed that
Developer shall have no role or decision-making authority with respect to
such budgets. Such budgets shall be provided to the Developer within five
(5) days of the Authority's approval of same, but in no event later than
December 1st of the preceding year.
(h) Notwithstanding the provisions of Section 9.1(a) above, the
Developer, in each year of the Term hereof during which direct impact
payments are due under the Local Government Agreement as defined below),
shall reimburse the Tribe or the Authority (as applicable) for fifty percent
(50%) of the direct impact payments (up to a maximum annual reimbursement of
Three Million ($3,000,000.00) Dollars) required to be paid by the Tribe or
the Authority to the County of ▇▇▇▇▇▇▇▇, pursuant to Sections 4 (b) or (c) of
the agreement between the Tribe and the County dated as of the 24th day of
January, 2002 (the "Local Government Agreement"), such reimbursement being
made by reducing the amount of the Developer Fee due and payable in the last
month of the quarter in which the direct impact mitigation payment is due and
this Section is applicable. For example, if the Tribe makes direct payments
of $3.75 million quarterly to the County under the Local Government Agreement
(for a total of $15 million annually), the Developer's Fee will be reduced by
$1.875 million in the 1st quarter and by $1.125 in the 2nd quarter (for a
total annual amount of $3 million).
9.2 Term. The term of this Agreement shall commence on the date
----
first above written, and shall continue for a period of twenty (20) years
after the opening of the Gaming Facility to the general public (the "Term");
provided, however, that this Agreement shall remain in full force and effect
until all Developer Fees have been paid in accordance with this Article 9.
9.3 Tribe's Termination Option. Notwithstanding any other
provisions of this Agreement, the Tribe, the Authority and the Developer
agree that at the sole option of the Tribe and the Authority, but subject to
satisfaction of all of the conditions set forth below, all of the rights of
the Developer pursuant to this Agreement may be purchased and terminated by
the Tribe and the Authority (the "Termination Option"), on a date specified
by the Tribe and the Authority, which date shall not be before the last day
of the eighty-fourth (84th) full calendar month following the first full
month after the opening of the Gaming Facility to the general public (the
"Accelerated Termination Date"). In order to effectively exercise the
Termination Option, the Tribe and the Authority shall comply with the
provisions set forth in Sections 9.3 (a), (b), (c), (d) and (e) below
including, without limitation, the payment to Developer of a commercially
reasonable termination fee to be negotiated by the parties or as determined
in accordance with the procedures set forth below in Section 9.3 (i) (the
"Termination Fee"). In order to receive the Termination Fee on the
Accelerated Termination Date, the Developer shall provide to the Tribe and
the Authority, the full release specified in Section 9.3 (f) below.
(a) Subject to the procedure set forth below in Section 9.3
(i), the Tribe and the Authority shall give joint notice to the
Developer of their exercise of the Termination Option not less than
60 days (nor more than 120 days) prior to the Accelerated
Termination Date which date shall be set forth in the notice. The
Termination Option notice shall include documentation prepared by
the Tribe's and the Authority's financial advisor specifying the
Tribe's and the Authority's proposed Termination Fee that the Tribe
and the Authority believe is commercially reasonable and the reasons
supporting such opinion including the factors analyzed in arriving
at the proposed Termination Fee and the method of calculation.
(b) The Tribe and the Authority shall fully pay and satisfy all
of the indebtedness evidenced by any Junior Financing provided by
Developer (or any Developer Guarantor) to the Tribe and/or the
Authority pursuant to Section 6.3 of this Agreement, including
principal, accrued, fees and other charges due pursuant to any of
such Junior Financing on or before the Accelerated Termination Date.
(c) The Tribe and the Authority shall obtain and deliver to
Developer on or before the Accelerated Termination Date releases
from all Senior Lenders to any Completion Guarantees provided by
Developer (or any Developer Guarantor) pursuant to Section 6.3 of
this Agreement in conjunction with any Senior Financing entered into
by the Tribe or the Authority pursuant to Article 6 of this
Agreement, which releases shall be in form and substance reasonably
satisfactory to Developer and the Developer Guarantors, and fully
release both the Developer and each Developer Guarantor from any and
all Completion Guarantees they may have provided under this
Agreement.
(d) The Tribe and the Authority shall tender to the Developer
and each Developer Guarantor a full release dated as of the
Accelerated Termination Date, in form and substance reasonably
satisfactory to Developer and each Developer Guarantor, of all of
Developer's and Developer Guarantor's obligations pursuant to this
Agreement, and any and all claims, whether asserted or unasserted,
known or unknown, liquidated or contingent, which the Tribe or the
Authority or any of their respective shareholders, directors,
officers, members, governmental agencies or affiliates may have or
be entitled to assert against Developer or any Developer Guarantor
or any of their respective shareholders, directors, officers,
agents, employees, members or affiliates, related to the Agreement
and any and all events occurring on or before the Accelerated
Termination Date.
(e) The Tribe and the Authority shall pay on or before the
Accelerated Termination Date (i) all amounts due to Developer
pursuant to this Agreement including any outstanding Developer Fees
accruing through the Accelerated Termination Date (which the
Developer shall be permitted to audit in advance of the Accelerated
Termination date) and (ii) the Termination Fee.
(f) In exchange for the Termination Fee, the Developer and each
Guarantor shall tender to the Tribe and the Authority a full release
dated as of the Accelerated Termination Date, in form and substance
reasonably satisfactory to the Tribe and the Authority, of all of
Tribe's and the Authority's obligations pursuant to this Agreement,
and any and all claims, whether asserted or unasserted, known or
unknown, liquidated or contingent, which the Developer or the
Developer Guarantors or any of their respective shareholders,
directors, officers, agents, employees, members or affiliates, may
have or be entitled to assert against the Tribe or the Authority or
any of their respective shareholders, directors, officers, members,
governmental agencies or affiliates related to the Agreement and any
and all events occurring on or before the Accelerated Termination
Date.
(g) Developer shall on or before the Accelerated Termination
Date surrender possession of any offices or other portions of the
Project previously occupied by Developer and shall remove from the
Project, without causing any damage thereto, any furniture,
fixtures, equipment or other items of personal property owned
exclusively by Developer (all files pertaining to the Project to
remain the property of the Authority and remain at the Project).
Any such personal property not so removed from the Project by the
Accelerated Termination Date shall be conclusively presumed to have
been abandoned by Developer and title thereto shall thereupon pass
to the Authority without any cost.
(h) If the Tribe and the Authority fail to satisfy any of the
conditions set forth in Sections 9.3 (a), (b), (c), (d) and (e) on
or before the Accelerated Termination Date, then the attempted
exercise of the Termination Option shall be null and void and the
remainder of this Agreement shall continue in effect according to
its terms; provided however, that if such failure is a result of a
failure to satisfy the conditions of Section 9.3 (b) or (c) or a
failure to obtain the requisite financing necessary to pay the
Termination Fee pursuant to Section 9.3 (e), the Tribe and the
Authority shall have one (1) additional opportunity to exercise the
Termination Option during the Term of this Agreement in accordance
with this Section 9.3. If the Developer or any Developer Guarantor
fails to provide the full release specified by Section 9.3 (f) on
the Accelerated Termination Date such failure shall not render the
Termination Option null and void, but rather the Termination Fee
shall be escrowed with the Tribe and/or the Authority's lender until
such time as Developer's (and Developer Guarantors') full release is
received.
(i) Within thirty (30) days of receipt of the Tribe's and the
Authority's Termination Option notice specified in Section 9.3 (a)
above, the Developer shall provide to the Tribe and the Authority
documentation prepared by the Developer's financial advisor
specifying the Developer's proposed Termination Fee that Developer
believes is commercially reasonable and the reasons supporting such
opinion including the factors analyzed in arriving at the proposed
Termination Fee and the method of calculation. Within thirty (30)
days following receipt of the documentation provided by Developer to
the Tribe and the Authority, the parties agree to meet informally
with their respective financial advisors in an effort to arrive at a
Termination Fee that is acceptable to both parties. In the event
the parties are unable to agree upon an acceptable Termination Fee,
the parties agree to select a mutually agreeable representative from
an investment-banking firm which person shall act as an arbitrator
of the dispute. If the parities are unable to agree upon the person
to act as arbitrator, each party shall select one arbitrator and
those two arbitrators so selected shall select a third arbitrator.
The three arbitrators shall then act as an arbitration panel. The
arbitrator (or arbitrator panel) so selected shall establish an
expedited schedule of dates and rules that the parties agree to
follow that shall allow the arbitrator to, within forty-five (45)
days of appointment, (i) receive written submissions from each party
supporting that party's position, (ii) convene a hearing at which
each party shall be entitled to articulate their respective
positions, (iii) receive post-hearing written submissions from the
parties and (iv) render an decision establishing the Termination Fee
that the parties agree shall be binding and non-appealable. The
parties agree that the above procedure shall replace the procedures
set forth in Section 12.3 of this Agreement with respect to disputes
concerning the determination of the Termination Fee, but that the
arbitrator's decision shall be enforceable in accordance with the
provisions of Article 12 of this Agreement.
ARTICLE 10
CERTAIN COVENANTS OF THE AUTHORITY
10.1 Payments to the Tribe. (a) Other than the Minimum Priority
---------------------
Distribution set forth in Section 10.1(b) below, the Authority shall not make
any payment or distribution to or for the benefit of the Tribe, any Affiliate
of the Tribe, or make any distribution to members of the Tribe (i) prior to
the payment in full of the Developer Fees then due, or (ii) at anytime if any
Developer Fees are outstanding.
(b) Minimum Priority Distribution. Within fifteen (15) days
--------------------------------
following the end of the calendar month in which the Gaming Facility opens
and thereafter within fifteen (15) days following the end of each successive
month during the Term hereof, the Authority shall pay to the Tribe one
twelfth (1/12) of the Minimum Priority Distribution from the Revenues of the
Facilities, to the extent available. Any underpayment of the Minimum
Priority Distribution in any calendar month shall be added to the Minimum
Priority Distribution due the following calendar month. The Developer Fee
shall be subordinate in all respects to the payment of the Minimum Priority
Distribution.
10.2 Affiliate Transactions. The Authority shall not sell, lease,
-----------------------
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make any contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of the Tribe, an Affiliate of the Tribe or an Affiliate of the Authority
(each of the foregoing, an "Affiliate Transaction"), unless (i) such
Affiliate Transaction is on terms that are no less favorable to the Authority
than those that would have been obtained in a comparable transaction by the
Authority with an unrelated Person, and (ii) the Authority delivers to the
Developer (a) with respect to any Affiliate Transaction involving aggregate
payments in excess of Two Million Dollars ($2,000,000), a resolution adopted
by the Authority approving such Affiliate Transaction and set forth in an
Officer's Certificate a certification that such Affiliate Transaction
complies with clause (i) above, and (b) with respect to any Affiliate
Transaction involving aggregate payments in excess of Ten Million Dollars
($10,000,000), a written opinion as to the fairness to the Authority from a
financial point of view issued by an Independent Financial Advisor.
10.3 Subsidiaries. The Authority will not create, acquire or own any
------------
instrumentality, subdivisions or subunits unless the actions and assets of
such instrumentalities, subdivisions or subunits are subject to or bound by
the terms of this Agreement.
10.4 Business Purpose. During the Term, the Authority (or any assignee
----------------
of the Authority permitted under this Agreement), directly or indirectly,
shall not engage in any business or activity other than the Principal
Business.
10.5 Operation of Gaming Facility. During the Term, the Authority
------------------------------
shall operate the Gaming Facility for the primary purpose of conducting
Gaming, in accordance with all applicable Compact provisions, related
agreements and regulations. The Developer shall not participate in nor have
any authority regarding the operation or management of the Gaming Facility.
10.6 Replacement or Restoration Following Casualty. If all or a
-------------------------------------------------
portion of the Facilities are damaged by fire or other casualty, the
Authority promptly shall cause the Facilities to be replaced or restored to
substantially the same condition (or better) as immediately prior to the
occurrence of such fire or other casualty; provided, however, that in no
event shall the Authority be obligated to expend for any replacement or
restoration an amount in excess of the insurance proceeds recovered by the
Authority and allocable to the damage to the Facilities after deduction of
any amounts required to be paid to any holder of Indebtedness. If insurance
proceeds are not available to the Authority for such replacement or
restoration, the Authority shall use reasonable efforts to obtain financing
on commercially reasonable terms (including terms which provide recourse
only to cash of the Authority and undistributed and future revenues of the
Authority) to undertake such replacement or restoration of the Facilities.
ARTICLE 11
TERMINATION
11.1 Material Breach. This Agreement may only be terminated by the
----------------
Authority or the Developer if the other party commits any material breach or
fails to perform any material duty or obligation of this Agreement, except as
otherwise provided in Section 9.3 of this Agreement. Upon learning of a
material breach or default, the non-breaching party shall send written notice
of: (i) any monetary material breach or default to the breaching party
within ten (10) days of learning of the breach, and (ii) any non-monetary
material breach within thirty (30) days of learning of the breach. If the
breaching party fails to cure the material breach or default within
forty-five (45) days of receipt of such written notice from the non-breaching
party, the non-breaching party may terminate this Agreement by providing the
defaulting party with a notice of termination (which shall be immediately
effective). Notwithstanding the above, the Tribe and the Authority shall have
no right to terminate this Agreement for any reason after the Completion Date
of the first phase of the Gaming Facility; provided, however, that if the
Developer acts in bad faith or is grossly negligent with respect to
Developer's obligations to perform development services related to Expansions
of the Project after the Completion Date of the first phase of the Project,
unreasonably refuses to perform any material development services related to
future Expansions of the Project after being reasonably directed to do so by
the Authority or fails to continue to meet the suitability requirements for
licensure pursuant to Section 8.7 of this Agreement: then (i) the Authority,
subject to the provisions of Article 12 of this Agreement, as its sole remedy
under this Agreement, may terminate Developer's exclusive rights to perform
development services related to Expansions of the Project as set forth in
Recital F, and (ii) Developer shall be paid a Developer Fee for the remainder
of the Term of this Agreement in an annual amount equal to the amount earned
by Developer under this Agreement in the calendar year immediately preceding
the termination of Developer's future services (e.g., if Developer's annual
Developer Fee in the calendar year immediately preceding the termination of
Developer's exclusive development rights is $20 million, the annual Developer
Fee payable to Developer for each year (or portion thereof) of the remainder
of the Term of the Agreement would be $20 million, prorated for any partial
year).
11.2 Failure of Tribe to Obtain Required Approvals. The failure of
-------------------------------------------------
the Tribe and/or the Authority to obtain the Required Approvals by December
31, 2002 shall be grounds for termination of this Agreement by the Developer
upon written notice to the Tribe and/or the Authority. Neither the Tribe nor
the Authority has any liability for any funds expended or committed by the
Developer under this Agreement in the event of termination under this Section
11.2.
11.3 Failure to Secure Agreements Under Article 6. The failure to
-------------------------------------------------
secure the Financing Agreements and/or Completion Guaranty in accordance with
Sections 6.2 and 6.3 of this Agreement, or any one of them, by December 31,
2004, shall be grounds for termination of this Agreement by the Authority
upon written notice to the Developer. Neither the Tribe nor the Authority
has any liability for any funds expended or committed by the Developer under
this Agreement in the event of termination under this Section 11.3.
11.4 Stay of Termination Pending Arbitration. If a party shall
-------------------------------------------
exercise its right to terminate pursuant to Sections 11.1, 11.2 or 11.3
above, and there is a material dispute in arbitration with respect to the
terms of this Agreement or circumstances regarding such termination pending,
then the termination shall be stayed until such time as the issue is resolved.
ARTICLE 12
DISPUTE RESOLUTION
12.1 Authority's Limited Consent to Suit. (a) The Authority, a
---------------------------------------
subordinate economic entity chartered by the Tribe pursuant to the Tribal
Council's power under Article VII, Section 1(g) of the Tribe's Constitution,
shares the Tribe's sovereign immunity. Subject to Section 12.4 below, the
Authority (and the Tribe on behalf of the Authority) expressly waives the
Authority's immunity from unconsented suit, solely for the purpose of
permitting the Developer to seek the following actions and remedies: (i) the
enforcement of an award of actual damages by arbitration; provided, however,
that the arbitrator(s) and/or the court shall have no authority or
jurisdiction to order execution against any assets or revenues of the
Authority except those set forth in Section 12.4 below, (ii) the enforcement
of a determination by an arbitrator that prohibits the Authority from taking
an action that would prevent the operation of this Agreement or the Developer
from performing this Agreement pursuant to its terms, or that requires the
Authority to specifically perform any obligation under this Agreement, (iii)
an action to compel arbitration pursuant to Section 12.3 and/or to preserve
the status quo for forty-five (45) days during disputes as required by
Section 12.6 for which a demand notice for arbitration has been given
pursuant to Section 12.3, and (iv) an action to enforce the provisions of
Sections 13.15 and 13.18 of this Agreement during a pending dispute for which
a demand notice for arbitration has been given pursuant to Section 12.3, in
the event the Authority breaches Section 13.15 or 13.18 prior to the entry of
an arbitrator's order under Section 12.3, or if the arbitrator has refused to
issue an order under Section 12.3 regarding the enforcement of the provisions
of Section 13.15 or 13.18. The parties agree that any suit commenced
pursuant to this Section 12.1 shall be brought in: (a) the United States
District Court for the Southern District of New York (and appeals therefrom
shall be brought in the United States Circuit Court of Appeals for the Second
Circuit and the United States Supreme Court) or (b) if the United States
Federal Courts lack jurisdiction, in the Supreme Court of New York (and
appeals therefrom shall be brought in the New York State Appellate Courts)
or, (c) if none of the foregoing courts have jurisdiction, then in any court
of competent jurisdiction including, but not limited to, the Gaming Disputes
Court or Tribal Court. The Authority, subject to the provisions of this
Section 12.1, hereby: (i) accepts the exclusive jurisdiction of the
aforesaid courts, (ii) irrevocably agrees to be bound by any final judgment
(after any and all appeals) of any such court, and (iii) irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceedings
brought in any such court, and further irrevocably waives, to the fullest
extent permitted by law, any claim that any suit, action or proceedings
brought in any such court has been brought in any inconvenient forum, and
(iv) with respect to the enforcement of an award rendered in an arbitration
conducted pursuant to Section 12.3, the Authority hereby irrevocably accepts
and submits to the exclusive jurisdiction of such Court with respect to any
such action, suit or proceeding. The Authority and the Tribe, on behalf of
the Authority, expressly waive any requirement of exhaustion of tribal
remedies, and agree that they will not present any affirmative defense based
on any alleged failure to exhaust such remedies. The limited waiver contained
in this Section 12.1 shall be strictly construed as limited to the actions
and remedies contained herein against the Authority, and shall not be
construed as limiting the power of the arbitrator or the court to award
remedies provided for in this Agreement against any other Parties to this
Agreement.
(b) Service of Process. The Authority hereby appoints CSC The United
------------------
States Corporation Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, as its authorized agent on which any and all legal process may be
served in any action, suit or proceeding which is brought in any Court
referenced above. The Authority agrees that service of process upon such
agent, together with notice of such service given as provided in Section
13.6, shall be deemed to be effective service of process upon it in any
action, suit or proceeding referred to in this Section 12.1. If for any
reason such agent shall cease to be available to act as such, the Authority
agrees to designate a new agent in New York, on the terms and for the
purposes of this Section 12.1, and the Authority shall, as soon as
practicable, give notice to the other Parties of such new agent. Nothing
herein shall be deemed to limit the ability of any party hereto to serve any
such legal process in any other manner permitted by applicable law.
12.2 Tribe's Limited Consent to Suit. (a) If: (a) the Authority, or
---------------------------------
a successor entity formed pursuant to Section 13.8 of this Agreement, is no
longer in existence, or has had its authority to perform the Authority's
obligations and responsibilities under this Agreement diminished or
abolished, or (b) the arbitrator or a court compelling arbitration or
enforcing an arbitrator's award finds that the Tribe is an indispensable
party (as that term is defined in the rules of the American Arbitration
Association, the Federal Rules of Civil Procedure or the New York Rules of
Civil Procedure), so that arbitration cannot proceed unless the Tribe is
joined, or (c) the Tribe breaches the provisions of Section 13.15 or 13.18 of
this Agreement, then the Tribe expressly agrees (subject to the limitations
set forth in Section 12.4 of this Agreement) to a limited waiver of its
immunity from unconsented suit, solely for the purpose of permitting the
Developer to seek the following actions and remedies: (i) the enforcement of
an award of actual damages by arbitration; provided, however, that the
arbitrator and/or the court shall have no authority or jurisdiction to order
execution against any assets or revenues of the Tribe except those set forth
in Section 12.4 below, (ii) the enforcement of a determination by an
arbitrator that prohibits the Tribe from taking an action that would prevent
the operation of this Agreement pursuant to its terms, or that requires the
Tribe to specifically perform any obligation under this Agreement, (iii) an
action to compel arbitration pursuant to Section 12.3 and/or to preserve the
status quo for forty-five (45) days during disputes as required by Section
12.6 for which a demand notice for arbitration has been given pursuant to
Section 12.3, and (iv) an action to enforce the provisions of Sections 13.15
and 13.18 of this Agreement during a pending dispute for which a demand
notice for arbitration has been given pursuant to Section 12.3, in the event
the Tribe breaches Section 13.15 or 13.18 prior to the entry of an
arbitrator's order under Section 12.3 or if the arbitrator has refused to
issue an order under Section 12.3 enforcing the provisions of Section 13.15
or 13.18. Any action brought under this Section 12.2 shall be brought in the
courts set forth in Section 12.1. The Tribe, subject to the provisions of
this Section 12.2, hereby: (i) accepts the exclusive jurisdiction of the
aforesaid courts, (ii) irrevocably agrees to be bound by any final judgment
(after any and all appeals) of any such court, and (iii) irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceedings
brought in any such court, and further irrevocably waives, to the fullest
extent permitted by law, any claim that any suit, action or proceedings
brought in any such court has been brought in any inconvenient forum, and
(iv) with respect to the enforcement of any award rendered in an arbitration
conducted pursuant to Section 12.3, the Tribe hereby irrevocably accepts and
submits to the exclusive jurisdiction of such Court with respect to any such
action, suit or proceeding. The Tribe expressly waives any requirement of
exhaustion of tribal remedies, and agrees that it will not present any
affirmative defense based on any alleged failure to exhaust such remedies.
The Tribe's limited consent to suit is expressed by a resolution of the
Tribal Council (the "Resolution") which Resolution is attached as Exhibit A
to this Agreement and incorporated herein solely for the purpose of
referencing this Section 12.2. To the extent any inconsistency exists between
the provisions of this Section 12.2 and the Resolution, the provisions of
this Section 12.2 shall prevail. The limited waiver contained in this Section
12.2 shall be strictly construed as limited to the actions and remedies
contained herein against the Tribe, and shall not be construed as limiting
the power of the arbitrator or the court to award remedies provided for in
this Agreement against any other Parties to this Agreement.
(b) Service of Process. The Tribe hereby appoints CSC The United
--------------------
States Corporation Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, as its authorized agent on which any and all legal process may be
served in any action, suit or proceeding which is brought in any Court
referenced to above. The Tribe agrees that service of process upon such
agent, together with notice of such service given as provided in Section
13.6, shall be deemed to be effective service of process upon it in any
action, suit or proceeding referred to in this Section 12.2. If for any
reason such agent shall cease to be available to act as such, the Tribe
agrees to designate a new agent in New York, on the terms and for the
purposes of this Section 12.2, and the Tribe shall, as soon as practicable,
give notice to the other parties of such new agent. Nothing herein shall be
deemed to limit the ability of any party hereto to serve any such legal
process in any other manner permitted by applicable law.
12.3 Arbitration. All disputes, controversies, or claims arising out
-----------
of or relating to this Agreement or the termination of this Agreement shall
be settled by binding arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association and the Federal
Arbitration Act. The parties agree that binding arbitration shall be the
sole remedy as to all disputes, controversies, or claims arising out of or
relating to this Agreement, unless the parties mutually agree in writing
otherwise. The arbitrator(s) shall have no authority to award consequential,
incidental or punitive damages, or attorney's fees or costs but, shall have
the authority to award actual damages and/or equitable relief, including, but
not limited to, an emergency order for temporary or preliminary injunctive
relief entered on short notice to preserve the status quo for 45 days during
disputes as required by Section 12.6 of this Agreement, and an emergency
order for temporary or preliminary injunctive relief entered on short notice
enforcing the provisions of Sections 13.15 and 13.18 of this Agreement. In
determining any matter, the arbitrator(s) shall apply the terms of this
Agreement, including, without limitation, Sections 12.4 and 12.5, without
adding to, modifying or changing the terms in any respect, and shall apply
the laws of the State of New York. All arbitration hearings shall be held at
a place designated by the arbitrator(s) in New York, New York. Arbitration
shall be initiated by the Party making the claim by service of a demand
notice for arbitration pursuant to Section 13.6 of this Agreement within
one-hundred eighty (180) days of actual notice of the claim.
12.4 Limited Liability of the Tribe; Authority's or Tribe's Assets.
-------------------------------- -------------------------------
Nothing in this Agreement shall obligate or authorize the payment or
encumbrance of any assets or revenues of the Authority or the Tribe other
than cash of the Authority (except to the extent the Authority can
demonstrate such cash was derived from a source other than the Facilities)
and undistributed and future revenues of the Facilities. No director, officer
or office holder, employee, agent, representative or member of the Authority
or the Tribe shall have any personal liability for any obligations of either
the Tribe or the Authority under this Agreement or for any claim based upon,
in respect of, or by reason of such Agreement, or related in any manner
whatsoever to this Agreement. Except as set forth in Section 12.2 of this
Agreement, the Tribe shall not have any liability for any obligations of the
Authority under this Agreement or for any claim based upon, in respect of, or
by reason of such obligations or their creation.
12.5 Limit of Damages Payable by Developer. Notwithstanding anything
--------------------------------------
in this Agreement to the contrary, the Developer shall not be liable
hereunder for the payment of damages to the Authority in excess of the amount
of Ten Million ($10,000,000.00) Dollars.
12.6 Performance During Disputes. The parties mutually agree that
-----------------------------
during any kind of controversy, claim, disagreement or dispute, including,
without limitation, a dispute as to the validity of this Agreement, the
Authority and the Developer shall continue their performance of the
provisions of this Agreement for a period of forty-five (45) days from
receipt of a notice of material breach pursuant to Section 11.1, provided
funds necessary to pay Project costs which continue to be incurred (other
than amounts in dispute) continue to be available.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 Force Majeure Events. Notwithstanding anything in this Agreement
--------------------
to the contrary, the parties hereto shall be excused from their obligations
hereunder to the extent and for so long as such party shall be prevented from
compliance by reason of "Force Majeure Causes," provided notice of such
inability to comply is given to the other party to this Agreement within ten
(10) days after actual knowledge of the occurrence by the party giving notice
of the applicable Force Majeure Cause.
13.2 Authorization. The Parties represent and warrant to each other
-------------
that each has full power and authority to execute this Agreement and to be
bound by and perform the terms hereof. Each party shall furnish evidence of
such authority to the other. The parties each represent and warrant to the
other that the execution, delivery and performance of this Agreement shall
not conflict with the terms of their organizational documents, any agreement
to which it is a party or by which it is bound or any law, rule or regulation
to which it is subject.
13.3 Relationship. The Tribe, the Developer and the Authority shall
------------
not be construed as joint venturers or partners of each other by reason of
this Agreement, and no party shall have the power to bind or obligate another
party except as set forth in this Agreement. The Developer is retained by
the Tribe and the Authority only for the purposes and to the extent set forth
in this Agreement, and the Developer's relationship to the Tribe and the
Authority shall be that of an independent contractor.
13.4 Governing Law. The rights and obligations of the parties and the
--------------
interpretation and performance of this Agreement shall be governed by the
laws of the State of New York.
13.5 Amendment. No modification or amendment to this Agreement shall
---------
be effective unless mutually agreed upon by the parties in writing and unless
such modification or amendment has received any required regulatory approval.
13.6 Notices. All notices, demands, requests or other communications
-------
which may be or are required to be given, served or sent to any party in
connection with the matters which are the subject of this Agreement shall be
in writing and shall be personally delivered to such party or mailed first
class, certified mail, return receipt requested, postage prepaid, or
transmitted by a major overnight commercial courier or by facsimile to the
address for such party as set forth below, or to such other address furnished
by such parties for such purpose by means of notice pursuant to this Section
13.6:
If to Developer or Developer Guarantors:
c/o Trading Cove
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇-▇▇▇▇
Paradise Island
Nassau, The Bahamas
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Flexner LLP
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Tribe or the Authority:
c/o ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Band of Mohican Indians
N8476 MohHeCon ▇▇▇▇ ▇▇▇▇
▇. ▇. ▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ Chicks, Tribal President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Band of Mohican Indians
N8476 MohHeCon ▇▇▇▇ ▇▇▇▇
▇. ▇. ▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇, Tribal Attorney
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
▇▇▇▇▇▇▇▇ ▇. Arts, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
Firstar Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices delivered by mail shall be deemed given five (5) days after
such mailing. Notices given by hand delivery shall be deemed given on the
date of delivery. Notices given by overnight commercial courier shall be
deemed given on the business day immediately following transmittal, and
notices delivered by facsimile shall be deemed given on the date of
transmission if the transmission is confirmed.
13.7 Third Party Beneficiary. This Agreement is exclusively for the
------------------------
benefit of the parties hereto, and it may not be enforced by any party other
than the parties to this Agreement and shall not give rise to liability to
any third party other than the authorized successors and assigns of the
parties pursuant to Section 13.8.
13.8 Successors and Assigns. The benefits and obligations of this
------------------------
Agreement shall inure to and be binding upon the parties hereto and their
respective successors and assigns. This Agreement shall not be assigned by
the Developer or the Developer Guarantors without the prior written consent
of the Authority (which consent shall not be unreasonably withheld) and any
required approvals by the Bureau of Indian Affairs or its authorized
representatives; provided, however, that Developer shall (i) have the right
to assign the receipt of Developer Fee payments at any time without the
consent of the Authority and (ii) shall have the right to assign this
Agreement after the completion of the Project without the consent of the
Authority provided the assignee complies with the licensing provisions of
Section 8.7 of this Agreement. This Agreement shall not be assigned by the
Authority without the prior written consent of the Developer (which consent
shall not be unreasonably withheld), provided, however, that the Authority
may, without the consent of the Developer, but subject to any required
approvals of the Bureau of Indian Affairs or its authorized representative,
assign this Agreement to the Tribe, another instrumentality of the Tribe or
an entity wholly owned by the Tribe organized to conduct the Authority's
gaming enterprise and the business of the Facility if such assignment is made
after the Effective Date, provided such entity has credit worthiness equal to
or greater than the Authority. In the event of any such permitted assignment
by the Authority, the Authority's authorized assignee, or the Developer, the
assigning party shall be relieved of its obligations under this Agreement
which accrue from and after the date of the assignment, provided that the
assignee shall assume in writing the obligations of the assignor under this
Agreement and agree to perform and be bound by the terms and provisions
hereof effective from and after the date of such assignment.
13.9 Severability. The invalidity of any one or more provisions
------------
hereof or of any other agreement or instrument given pursuant to or in
connection with this Agreement shall not affect the remaining portions of
this Agreement or any such other agreement or instrument or any part thereof,
all of which are inserted conditionally on their being held valid in law; and
in the event that one or more of the provisions contained herein or therein
should be invalid, or should operate to render this Agreement or any such
other agreement or instrument invalid, the parties agree to negotiate, in
good faith, to modify or amend such invalid provision to obtain for the
parties the intended benefits of such provision (or this Agreement and such
other agreements and instruments shall be construed as if such invalid
provision had not been inserted).
13.10 Entire Agreement. This Agreement (including any exhibits
------------------
referred to herein) represents the entire agreement between the parties
hereto with respect to the subject matter hereof. No other representations,
warranties, promises or agreements, express or implied, shall exist between
the parties unless such representations, warranties, promises or agreements
are in writing and bear a date subsequent to the date of this Agreement.
13.11 Headings. The headings used in this Agreement are for the
--------
convenience of the parties only and shall not modify nor restrict any of the
terms or provisions hereof.
13.12 Waivers. No failure or delay by the Developer, the Tribe or the
-------
Authority to insist upon the strict performance of any covenant, agreement,
term or condition of this Agreement, or to exercise any right or remedy
consequent upon the breach thereof, shall constitute a waiver of any such
breach or any subsequent breach of such covenant, agreement, term, or
condition. No covenant, agreement, term or condition of this Agreement and
no breach thereof shall be waived, altered or modified except by written
instrument. No waiver of any breach shall affect or alter this Agreement,
but each and every covenant, agreement, term and condition of this Agreement
shall continue in full force and effect with respect to any other then
existing or subsequent breach thereof.
13.13 Periods of Time. Unless otherwise specified herein, all
-----------------
references to "days" shall mean calendar days. Whenever any determination is
to be made or action is to be taken on a date specified in this Agreement, if
such date shall fall on a Saturday, Sunday or legal holiday under Rule 6(a),
Federal Rules of Civil Procedures, then in such event said date shall be
extended to the next day which is not a Saturday, Sunday or legal holiday.
13.14 Consents and Approvals. Where approval or consent or other
------------------------
action of the Tribe or the Authority, or any agent or political subdivision
of the Tribe or the Authority, is required, such approval shall not be
unreasonably withheld and shall mean the written approval of the Tribe or the
Authority evidenced by a duly enacted resolution thereof, or, if not provided
by resolution of the Tribe or the Authority, the written approval of the
Tribal President or the Authority Chairperson (to the extent authorized by
such entity) or such other person or entity designated by resolution of the
Tribe or the Authority. Where approval or consent or other action of the
Developer is required, such approval shall not be unreasonably withheld and
shall mean the written approval of the members of the Developer evidenced by
a duly enacted resolution thereof, or, if not provided by resolution of the
Developer, the written approval of the managing member (to the extent
authorized by such entity) or such other person or entity designated by
resolution of the Developer. If the approval of the Developer, the Tribe or
the Authority is required hereunder, the Developer, the Tribe or the
Authority, as the case may be, shall request such approval in writing, which
request shall specify the matter as to which such approval is requested and
provide reasonable detail regarding such matter.
13.15 Government Savings Clause. This Agreement shall be submitted to
---------------------------
the Bureau of Indian Affairs for its approval pursuant to its authority under
25 U.S.C. 81 and the NIGC, to the extent required by law. In addition, each
party agrees to pursue such approval and execute, deliver, and if necessary,
record any and all additional instruments, certifications, amendments,
modifications and other documents as may be required by the United States
Department of the Interior, the BIA, the Office of the Field Solicitor, or
any applicable statute, rule or regulation in order to effectuate, complete,
perfect, continue or preserve the respective rights, obligations and interest
of the parties to the fullest extent permitted by law; provided that any such
instrument, certification, amendment, modification or other document shall
not materially change the respective rights, remedies or obligations of the
parties under this Agreement or related agreements or documents.
13.16 Termination of Prior Agreements. As of the date hereof, the
----------------------------------
Tribe, the Authority and the Developer terminate all prior agreements,
arrangements or understandings and all covenants, terms and provisions
contained therein with respect to the Project and development and
construction of facilities on the Property, including, without limitation,
the MOU.
13.17 Representation before Public Bodies. Without the prior written
-------------------------------------
consent of the Tribe or the Authority, the Developer shall have no right or
authority to represent the Authority before public and governmental bodies in
connection with any zoning, environmental, site, easement, title, design,
construction or other matter related to the Project.
13.18 Non-Impairment of Agreement. The Tribe and the Authority
-----------------------------
(as applicable), directly or indirectly, shall not impose any tax, levy or,
other monetary payment obligation on the Authority or on any activity at the
Facilities during the term of this Agreement. The Tribe and the Authority
(as applicable) shall not, directly or indirectly, take any action, enter
into any agreement, amend its Constitution or enact or amend any ordinance,
law, rule or regulation that would prejudice or have a material adverse
affect on the rights of the Developer under this Agreement. Neither the Tribe
nor the Authority nor any committee, agency, board or other official body of
the Tribe shall, by exercise of executive action, police power, eminent
domain or otherwise, act to modify, amend or in any manner impair the
obligations of the parties under this Agreement without the written consent
of the Developer. Any such action or attempted action shall be void ab
initio. The Tribe and the Authority acknowledge that the arbitrator specified
in Section 12.3 of this Agreement and the courts specified in Sections 12.1
and 12.2 of this Agreement have the authority to provide equitable relief to
enforce the provisions of this Section 13.18.
13.19 Confidential Proprietary Information. Each party agrees to treat
--------------------------------------
as confidential all non-public information received during the performance of
this Agreement regarding the other party, its organization, financial
matters, marketing plans or other affairs. Except as may be required by law,
no such information will be disclosed to any person, firm or organization
without the prior written approval of the other party. Except as may be
required by law or regulation, the parties to this Agreement shall not issue
or make any press release or public announcement regarding the subject matter
of this Agreement or the Project without the prior written approval of the
other parties. The parties agree that the sole spokespersons under this
Agreement shall be ▇▇▇▇▇▇ Chicks, Tribal President for the Tribe, and ▇▇▇
▇▇▇▇▇▇ or ▇. ▇. ▇▇▇▇▇▇▇, Managing Members for the Developer, or their
authorized successor or representative.
13.20 Tolling of this Agreement. If any Casualty Event occurs prior
-------------------------
to completion of the Gaming Facility, the Developer shall give prompt notice
thereof to the Authority. After the Completion Date, the Authority shall
give prompt notice thereof to the Developer. If, within thirty (30) days
following receipt of such notice, the Developer delivers written notice to
the Authority electing to implement this Section 13.20, then the Term shall
be tolled for such number of full calendar months commencing with the
calendar month immediately following such Tolling Event and ending with (and
including) the calendar month immediately prior to the Recommencement Month
(the "Tolling Period"). The expiration of this Agreement (and the
obligations of the Authority to make payments of the Developer Fees
hereunder) shall be extended for such number of full calendar months included
in the Tolling Period. During the Tolling Period, the Authority shall have
no obligation to make payments of any Developer Fee.
13.21 Developer Guarantee. The Developer Guarantors hereby join in
--------------------
this Agreement for the sole purpose of guaranteeing Developer's obligations
set forth in Section 6.3 and 6.4 of this Agreement. Any action of the
Authority or the Tribe seeking to enforce the provisions of this Section
13.21 shall be brought solely pursuant to the arbitration provisions of
Section 12.3, and the Developer Guarantors hereby consent to such arbitration
proceeding.
13.22 Service of Process on Developer or the Developer Guarantors. The
------------------------------------------------------------
Developer and the Developer Guarantors hereby appoint CSC The United States
Corporation Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
as their authorized agent on which any and all legal process may be served in
any action, suit or proceeding arising out of this Agreement. The Developer
and the Developer Guarantors agree that service of process in respect of them
upon such agent, together with notice of such service given as provided in
Section 13.6, shall be deemed to be effective service of process upon them in
any action, suit or proceeding arising out of this Agreement. If for any
reason such agent shall cease to be available to act as such, the Developer
and the Developer Guarantors agree to designate a new agent in New York, on
the terms and for the purposes of this Agreement, and the Developer and the
Developer Guarantors shall, as soon as practicable, give notice to the other
parties of such new agent. Nothing herein shall be deemed to limit the
ability of any party hereto to serve any such legal process in any other
manner permitted by applicable law.
13.23 Copies. All parties to this Agreement acknowledge that they have
------
received two duplicate copies of the fully executed Agreement.
13.24 Federal Approval. This Agreement will not be enforceable unless
-----------------
and until approved by the appropriate federal authorities pursuant toss.25
▇.▇.▇.▇▇. 81 (if such approval is required), and the signature of the
approving official is affixed to this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Tribe, the Developer and the Developer
Guarantors have executed this Agreement on and as of the date first written
above, and the Authority has executed this Agreement on the date set forth
below.
THE TRIBE:
▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ BAND OF MOHICAN
INDIANS
By: ___________________________
Name: ▇▇▇▇▇▇ Chicks
Its: Tribal Council President
DEVELOPER:
TRADING COVE NEW YORK, L.L.C.
By: Waterford Development New York, L.L.C.,
Member
By: ___________________________
Name: ▇▇▇ ▇▇▇▇▇▇
Its: Chief Executive Officer
By: Sun Cove New York, Inc.,
Member
By: ___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Senior Vice President & Secretary
DEVELOPER GUARANTORS:
SUN INTERNATIONAL NORTH AMERICA, INC.
By: ____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Senior Vice President & Corporate Counsel
WATERFORD GAMING GROUP, LLC
By: ____________________________
Name: ▇▇▇ ▇▇▇▇▇▇
Its: Chief Executive Officer
Accepted and Agreed to as of this
____ day of _________, 2002 by:
THE AUTHORITY
▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ TRIBAL GAMING
AUTHORITY
By: _________________________________
Name: ▇▇▇▇▇▇ Chicks
Its: Chairperson
Date:____________ Approved Pursuant to 25 U.S.C.ss.81
United States Department of Interior
Bureau of Indian Affairs:
By:_________________________________
Name:_______________________________
Title:______________________________