Development Agreement - Shingle Springs Band of Miwok Indians and Kean Argovitz Resorts-Shingle Springs LLC
DEVELOPMENT AGREEMENT
BETWEEN THE
SHINGLE SPRINGS BAND OF MIWOK INDIANS
AND
KEAN ARGOVITZ RESORTS - SHINGLE SPRINGS, LLC
DATED, AS OF JUNE 11, 1999
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TABLE OF CONTENTS
RECITALS................................................................. 1
ARTICLE 1. DEFINITIONS AND OBJECTIVES................................ 2
SECTION 1.1 DEFINITIONS............................................... 2
Agreement........................................................... 2
Architect........................................................... 2
BIA................................................................. 2
Class II Gaming..................................................... 2
Class III Gaming.................................................... 2
Commencement Date................................................... 2
Commercial Development.............................................. 3
Compact............................................................. 3
Completion Date..................................................... 3
Constitution........................................................ 3
Contract Documents.................................................. 3
Design Agreement.................................................... 3
Design Packages..................................................... 4
Development Budget.................................................. 4
Effective Date...................................................... 4
Enterprise.......................................................... 5
Tribal Council...................................................... 5
Fixtures and Equipment.............................................. 5
Gaming.............................................................. 5
Gaming Facility..................................................... 5
IGRA................................................................ 6
Interim Promissory Note............................................. 6
Legal Requirements.................................................. 6
Lender.............................................................. 6
Loan................................................................ 6
Loan Agreement...................................................... 6
Management Agreement................................................ 6
National Indian Gaming Commission (NIGC)............................ 6
Net Revenues........................................................ 6
Non-Gaming Land..................................................... 7
Note................................................................ 7
Plans and Specifications............................................ 7
Project............................................................. 7
Security and Reimbursement Agreement................................ 7
State............................................................... 7
Temporary Gaming Facility........................................... 7
Term................................................................ 7
Transition Loan..................................................... 7
Tribal Distributions................................................ 7
Tribal Lands........................................................ 7
ARTICLE 2. INDEPENDENT AGREEMENT..................................... 8
SECTION 2.1. INDEPENDENT AGREEMENT..................................... 8
ARTICLE 3. SITE ACQUISITION.......................................... 8
SECTION 3.1. SELECTION OF TRIBAL LANDS................................. 8
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SECTION 3.2. PURCHASE AGREEMENT........................................... 8
SECTION 3.3. LAND COSTS................................................... 8
SECTION 3.4. TRANSFER OF TRIBAL LANDS TO BAND............................. 9
SECTION 3.5. CONFIDENTIALITY.............................................. 9
ARTICLE 4. FEASIBILITY STUDIES.......................................... 9
SECTION 4.1. TEMPORARY GAMING FACILITY.................................... 9
SECTION 4.2. FEASIBILITY DETERMINATION.................................... 9
ARTICLE 5. DESIGN PHASE................................................. 9
SECTION 5.1. EMPLOYMENT OR ARCHITECT...................................... 9
SECTION 5.2. DESIGN AND CONSTRUCTION BUDGETS.............................. 10
SECTION 5.3. CONCEPT DESIGN AND ENGINEERING............................... 10
SECTION 5.4. PRELIMINARY PROGRAM EVALUATION............................... 11
SECTION 5.5. DESIGN DEVELOPMENT........................................... 11
SECTION 5.6. CONSTRUCTION DOCUMENTS....................................... 11
SECTION 5.7. PLANS AND SPECIFICATIONS..................................... 11
SECTION 5.8. COMPLIANCE WITH CONSTRUCTION STANDARDS, ENVIRONMENTAL LAWS
AND REGULATIONS.............................................. 12
SECTION 5.9. ADVANCE OF FUNDS FOR DESIGN WORK............................. 12
ARTICLE 6. CONSTRUCTION PHASE........................................... 12
SECTION 6.1. SELECTION OF CONTRACTOR OR CONSTRUCTION MANAGER.............. 12
SECTION 6.2. VENDOR PREFERENCES........................................... 12
SECTION 6.3. PROPOSAL REVIEW.............................................. 13
SECTION 6.4. CONTRACTS.................................................... 13
SECTION 6.5. CONTRACT DOCUMENT PROVISIONS................................. 13
SECTION 6.6. CONSTRUCTION ADMINISTRATION.................................. 13
SECTION 6.7. CONSTRUCTION COMMENCEMENT AND COMPLETION..................... 14
ARTICLE 7. FURNITURE, FIXTURES AND EQUIPMENT............................ 14
SECTION 7.1. SELECTION OF FURNITURE, FIXTURES AND EQUIPMENT............... 14
ARTICLE 8. TERM......................................................... 14
SECTION 8.1. TERM......................................................... 14
ARTICLE 9. ADVANCES BY KAR.............................................. 14
SECTION 9.1. ADVANCES BY KAR TO DRY CREEK................................. 14
SECTION 9.2. LOAN COMMITMENT.............................................. 15
SECTION 9.3. TRANSITION LOANS............................................. 17
SECTION 9.4. ADVANCES ON LOAN............................................. 17
(i) GAMING FACILITY SITE ACQUISITION FUNDS................................ 17
(ii) SITE PLANNING AND DESIGN DEVELOPMENT................................. 17
ARTICLE 10. EXCLUSIVITY.................................................. 18
SECTION 10.1. EXCLUSIVITY REGARDING GAMING FACILITY........................ 18
SECTION 10.2. EXCLUSIVITY.................................................. 18
ARTICLE 11. REPRESENTATIONS, WARRANTIES, AND COVENANTS................... 18
SECTION 11.1. REPRESENTATIONS AND WARRANTIES OF DRY CREEK.................. 18
SECTION 11.2. COVENANTS.................................................... 19
SECTION 11.3. REPRESENTATIONS AND WARRANTIES OF THE KAR.................... 20
ARTICLE 12. EVENTS OF DEFAULT............................................ 21
SECTION 12.1. EVENTS OF DEFAULT BY DRY CREEK............................... 21
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<CAPTION>
SECTION 12.2. EVENTS OF DEFAULT BY KAR..................................... 22
ARTICLE 13. TERMINATION.................................................. 23
SECTION 13.1. VOLUNTARY TERMINATION........................................ 23
SECTION 13.2. TERMINATION FOR CAUSE........................................ 23
SECTION 13.3. TERMINATION IF DRY CREEK VIOLATES ARTICLE 10................. 23
SECTION 13.4. INVOLUNTARY TERMINATION DUE TO CHANGES IN LEGAL REQUIREMENTS. 23
SECTION 13.5. REPAIR AND REPLACEMENT OF DAMAGED GAMING FACILITY............ 24
SECTION 13.6. TRIBE'S RIGHT TO TERMINATE AGREEMENT......................... 24
ARTICLE 14. DISPUTE RESOLUTION........................................... 25
14.1 GENERAL...................................................... 25
SECTION 14.2. ARBITRATION.................................................. 26
Section 14.2.1 Initiation of Arbitration and Selection of Arbitrators...... 26
(i) Choice of Law................................................... 26
(ii) Place of Hearing................................................ 26
(iii) Confidentiality................................................. 26
14.3 LIMITED WAIVER OF SOVEREIGN IMMUNITY......................... 26
(i) Time Period.......................................................... 26
(ii) Recipient of Waiver.................................................. 27
(b) Consents and Approvals.......................................... 27
(c) Injunctive Relief and Specific Performance...................... 27
(d) Action to Compel Arbitration.................................... 27
(e) Service of Process.............................................. 27
(f) Enforcement..................................................... 27
(g) Limitation Upon Enforcement..................................... 28
ARTICLE 15................................................................... 28
ARTICLE 15. GENERAL....................................................... 28
SECTION 15.1. NATURE OF AGREEMENT.......................................... 28
SECTION 15.2. KAR'S INTEREST IN THE GAMING FACILITY........................ 28
SECTION 15.3. SITUS OF THE AGREEMENT....................................... 28
SECTION 15.4. NOTICE....................................................... 28
SECTION 15.5. RELATIONSHIP................................................. 29
SECTION 15.6. FURTHER ACTIONS.............................................. 29
SECTION 15.7. WAIVERS...................................................... 29
SECTION 15.8. CAPTIONS..................................................... 30
SECTION 15.9. THIRD PARTY BENEFICIARY...................................... 30
SECTION 15.10. SURVIVAL OF COVENANTS........................................ 30
SECTION 15.11. ESTOPPEL CERTIFICATE......................................... 30
SECTION 15.12. PERIODS OF TIME.............................................. 30
SECTION 15.13. GOVERNMENTAL SAVINGS CLAUSE.................................. 30
SECTION 15.14. SUCCESSORS AND ASSIGNS....................................... 30
SECTION 15.15. SEVERABILITY................................................. 31
SECTION 15.16. ENTIRE AGREEMENT............................................. 31
ARTICLE 16. INDEMNITY.................................................... 31
SECTION 16.1. INDEMNITY.................................................... 31
EXHIBIT A. PRELIMINARY PROJECT DESCRIPTION................................... 33
EXHIBIT B. SECURITY AND REIMBURSEMENT AGREEMENT.............................. 34
RECITALS..................................................................... 34
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AGREEMENT................................................................ 35
1. Security (Collateral).......................................... 35
2. Notice of Guaranty Payments.................................... 36
3. Indemnity by DRY CREEK - Guaranty.............................. 36
4. Obligations Absolute........................................... 36
5. Rights of Guarantors........................................... 37
6. Representations and Warranties................................. 37
7. Transfer of Collateral......................................... 37
8. Events of Default.............................................. 37
9. Remedies....................................................... 38
10. Receipt of Sales Proceeds...................................... 38
11. Application of Collateral...................................... 38
12. Waivers; Modifications......................................... 38
13. Remedies Cumulative............................................ 38
14. Notices........................................................ 39
15. Successors and Assigns......................................... 40
16. Guarantors Not Bound........................................... 40
17. Severability................................................... 40
18. Further Assurances............................................. 40
19. Release........................................................ 41
20. Governing Law; Integration..................................... 41
21. Business Day Extension......................................... 41
22. Indemnification................................................ 41
24. Dispute Resolution............................................. 41
24.1. General.................................................. 41
24.2. Arbitration.............................................. 42
24.2.1. Initiation of Arbitration and Selection of
Arbitrators................................... 43
25. Limited Waiver of Sovereign Immunity........................... 43
(i) Time Period............................................. 43
(ii) Receipt of Waiver....................................... 43
(iii) Limitations of Actions.................................. 43
(a) Damages............................................ 43
(b) Consents and Approvals............................. 43
(c) Injunctive Relief and Specific Performance......... 43
(d) Action to Compel Arbitration....................... 44
(e) Service of Process................................. 44
(f) Enforcement........................................ 44
(g) Limitation......................................... 44
26. Government Savings Clause...................................... 45
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DEVELOPMENT AGREEMENT
This Development Agreement is made this 11 day of June, 1999 by and
between the SHINGLE SPRINGS BAND OF MIWOK INDIANS, A FEDERALLY RECOGNIZED
INDIAN TRIBE, ("SHINGLE SPRINGS"), P.O. Box 1340, Shingle Springs, California
95682 and KEAN ARGOVITZ RESORTS-SHINGLE SPRINGS, LLC., a Nevada limited
liability company ("KAR"), 11999 Katy Frwy., Suite 322, Houston, TX, 77079.
RECITALS
A. SHINGLE SPRINGS is a federally recognized Indian tribe recognized as
eligible by the Secretary of the Interior for the special programs and services
provided by the United States to Indians because of their status as Indians and
is recognized as possessing powers of self-government.
B. The U.S. holds land in trust for the benefit of SHINGLE SPRINGS,
pursuant to the SHINGLE SPRINGS'S recognized powers of self-government, and the
Constitution, statutes and ordinances of SHINGLE SPRINGS.
C. SHINGLE SPRINGS will possess sovereign governmental powers over the
Tribal Lands and desires to utilize the Tribal Lands to improve the economic
conditions of SHINGLE SPRINGS's members.
D. KAR has agreed to assist SHINGLE SPRINGS in acquiring additional
Tribal Lands and in financing and developing the Gaming Facility.
E. SHINGLE SPRINGS, on the same date as the date of this Development
Agreement, has entered into a Management Agreement with KAR whereby KAR,
subject to receipt of regulatory approvals, will manage the Gaming Facility
(the "Management Agreement").
F. KAR and SHINGLE SPRINGS desire to take all steps reasonably possible
prior to the receipt of the regulatory approvals (i) to obtain a preliminary
commitment for financing of the Gaming Facility, (ii) to select and develop the
site for the Gaming Facility, (iii) to design the Gaming Facility, and (iv) to
enter into contracts to construct and equip the Gaming Facility so that the
Gaming Facility can be opened to the public as soon as possible after the
receipt of all regulatory approvals.
G. SHINGLE SPRINGS has selected KAR to assist SHINGLE SPRINGS to obtain
financing for the gaming developments, and to furnish technical experience and
expertise for the development and design of the developments, and for
contracting for the construction, furnishing and equipping of the Gaming
Facility.
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H. SHINGLE SPRINGS and KAR intend that their relationship with regard to
this Development Agreement shall be exclusive.
I. SHINGLE SPRINGS and KAR desire to enter into an agreement whereby the
preliminary Gaming Facility design and development work (but not the Gaming
Facility construction or operation) may proceed prior to receipt of regulatory
approvals.
J. KAR has agreed to certain terms and has represented to SHINGLE
SPRINGS that KAR has the capabilities to provide professional management, funds
and financing necessary to develop and construct the Gaming Facility, as
defined herein, and to commence the operation of the Enterprise as outlined in
this Agreement as consideration for the exclusive right to develop and manage
the Gaming Facility pursuant to the Management Agreement, and for other
development rights as described herein.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises herein contained, the receipt and sufficiency of which are expressly
acknowledged SHINGLE SPRINGS and ("KAR") hereby agree as follows:
ARTICLE 1
DEFINITIONS AND OBJECTIVES
SECTION 1.1. DEFINITIONS. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Management Agreement. In addition to
other terms which are defined elsewhere in this Agreement, the following terms,
for purposes of this Agreement, shall have the meanings set forth in this
Section:
"AFFILIATE" means as to KAR, any corporation, partnership, limited
liability company, joint venture, trust, department or agency or individual
controlled by, under common control with, or which controls, directly or
indirectly KAR.
"AGREEMENT" shall mean this Development Agreement.
"ARCHITECT" shall have the meaning described in Section 5.1.
"BIA" shall mean the Bureau of Indian Affairs under the Department of the
Interior of the United States of America.
"CLASS II GAMING" shall mean Class II gaming as defined in the IGRA.
"CLASS III GAMING" shall mean Class III Gaming as defined in the IGRA.
"COMMENCEMENT DATE" shall mean the first date that the Gaming Facility is
complete, open to the public and that Gaming is conducted in the Gaming
Facility pursuant to the terms of the Management Agreement.
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"COMMERCIAL DEVELOPMENT" shall mean Tribal economic development projects
that are non-gaming in nature.
"COMPACT" shall mean SHINGLE SPRINGS-State Compact which SHINGLE SPRINGS
intends to negotiate and execute with the State for the conduct of Class III
Gaming, and approved pursuant to the IGRA; as the same may, from time to time,
be amended, or such other compact that may be substituted therefor.
"COMPLETION DATE" shall mean the date upon which KAR receives:
(i) an architect's certificate from the Architect chosen
pursuant to this Agreement as having responsibility for the
design and supervision of construction, equipping and
furnishing of the Gaming Facility certifying that the Gaming
Facility has been fully constructed substantially in
accordance with the Plans and Specifications;
(ii) certification from KAR or its designee, having
responsibility to assure compliance with any operational
standards stating that the Gaming Facility, as completed, is
in substantial compliance with any such standards;
(iii) a permanent or temporary certificate of occupancy, if
required, from any government authority or authorities
pursuant to whose jurisdiction the Gaming Facility is to be
constructed, permitting the use and operation of all
portions of the Gaming Facility in accordance with this
Agreement; and
(iv) certificates of such professional designers, inspectors or
consultants or opinions of counsel, as ("KAR") may determine
to be appropriate, verifying construction and furnishing of
the Gaming Facility in compliance with all Legal
Requirements.
"CONSTITUTION" shall mean the Constitution of the Shingle Springs Band of
Miwok Indians.
"CONTRACT DOCUMENTS" shall have the meaning described in Section 6.3.
"DESIGN AGREEMENT" shall have the meaning described in Section 5.1.
"DESIGN PACKAGES" shall have the meaning described in Section 5.1.
"DEVELOPMENT AGREEMENT" shall mean that certain agreement, of even date
herewith, by and between KAR and SHINGLE SPRINGS, providing the terms under
which KAR and SHINGLE SPRINGS will work exclusively together to develop certain
Commercial and Gaming Development, and KAR will advance certain specified loans
to SHINGLE SPRINGS and will cause to be financed and develop the Facility,
including without limitation, design, construction, furnishing and equipping
same.
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"DESIGN PACKAGES" shall have the meaning described in Section 5.1.
"DEVELOPMENT BUDGET" shall have the meaning described in Section 5.2.
"EFFECTIVE DATE" shall mean the date five days following the date on which
all of the following listed conditions are satisfied:
(i) written approval of the Management Agreement is granted by the
Chairperson of the NIGC;
(ii) written approval, as required by law, of the Note, the Loan
Agreement, the Security and Reimbursement Agreement and the
Interim Promissory Note, is granted by the Chairperson of the
NIGC and/or the BIA; if required
(iii) written approval of an SHINGLE SPRINGS Gaming Ordinance
("Gaming Ordinance") and of any other ordinances adopted by
SHINGLE SPRINGS relative to any of the documents referenced in
the Management Agreement in form and substance satisfactory to
KAR as required by the NIGC or the BIA;
(iv) written confirmation, if required, that SHINGLE SPRINGS, the
State, and the NIGC, have approved background investigations of
KAR and any related parties subject to background
investigations;
(v) KAR has received a certified copy of the ratifying SHINGLE
SPRINGS resolution and Ordinance adopted in accordance with
SHINGLE SPRINGS's governing documents reciting that it is the
governing law of SHINGLE SPRINGS, that this Agreement, the
Management Agreement, Loan Agreement, Note, Security and
Reimbursement Agreement and the exhibited documents attached
thereto are the legal and binding obligations of SHINGLE
SPRINGS, valid and enforceable in accordance with their terms;
(vi) KAR has satisfied itself as to the proper ownership and control
of the Tribal Lands and its suitability for construction and
operation of the contemplated Gaming Facility, and that all of
the Legal Requirements and other requirements for lawful
conduct and operation of the Enterprise in accordance with the
Management Agreement have been met and satisfied;
(vii) for purposes of Class III Gaming, the Compact has been signed
by the Secretary of the Interior and published in the Federal
Register as provided in 25 U.S.C. Section 2710(d)(8)(D);
(viii) the satisfactory completion of all necessary and applicable
feasibility
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studies required for the development, construction and operation of
the Gaming Facility;
(ix) receipt by KAR of all applicable licenses for or related to the
development, construction and operation of the Gaming Facility; and
(x) receipt by KAR of SHINGLE SPRINGS's approval of the Plans and
Specifications of the Gaming Facility.
SHINGLE SPRINGS agrees to cooperate and use its best efforts to satisfy all of
the above conditions at the earliest possible date. KAR agrees to memorialize
the satisfaction of each of (vi) and (viii), as well as the Effective Date, in
writings signed by KAR and delivered to SHINGLE SPRINGS and to the Chairperson
of the NIGC.
"ENTERPRISE" shall mean the enterprise of SHINGLE SPRINGS created to
engage in Class II and Class III Gaming at the Gaming Facility, and which shall
include any other lawful commercial activity allowed in the Gaming Facility
including, but not limited to the operation of a hotel, RV Park, retail stores,
restaurants, entertainment facilities, or the sale of fuel, food, beverages,
alcohol, tobacco, gifts, and souvenirs.
"FIXTURES AND EQUIPMENT" shall mean all furniture, fixtures and equipment
(excepting "Operating Equipment" as hereinafter defined) required for the
operation of the Enterprise in accordance with the standards set forth in this
Agreement, including, without limitation:
(i) cashier, money sorting and money counting equipment, surveillance and
communication equipment, and security equipment;
(ii) slot machines, video games of chance, table games, keno equipment and
other gaming equipment;
(iii) office furniture and equipment;
(iv) specialized equipment necessary for the operation of any portion of
the Enterprise for accessory purposes, including equipment for
kitchens, laundries, dry clearing, cocktail lounges, restaurants,
public rooms, commercial and parking spaces, and recreational
facilities; and
(v) all other furnishing and equipment hereafter located and installed in
or about the Gaming Facility which are used in the operation of the
Enterprise in accordance with the standards set forth in this
Agreement.
"GAMING" shall mean any and all activities defined as Class II and Class
III Gaming pursuant to IGRA.
"GAMING FACILITY" shall mean the buildings, structures and improvements
located on the
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Tribal Lands and all Furniture, Fixtures and Equipment attached thereto,
forming a part of, or necessary for the operation of the Enterprise.
"IGRA" shall mean the Indian Gaming Regulatory Act of 1988, PL 100-497, 25
U.S.C. Section 2701 et. seq. as same may, from time to time, be amended.
"INTERIM PROMISSORY NOTE" shall have the meaning described for one or more
promissory notes to be executed by SHINGLE SPRINGS in favor of KAR pursuant to
this Agreement, the Management Agreement which shall include but not be limited
to signing advance, tribal consultant advances, monthly advances, equity
advances, land advances and any other funds advanced to or on behalf of SHINGLE
SPRINGS.
"KAR" shall mean Kean Argovitz Resorts - Shingle Springs, LLC or it's
affiliates.
"LEGAL REQUIREMENTS" shall mean any and all present and future judicial,
administrative, and tribal rulings or decisions, and any and all present and
future federal, state, local, and tribal laws, ordinances, rules, regulations,
permits, licenses and certificates, in any way applicable to SHINGLE SPRINGS,
KAR, the Tribal Lands, the Gaming Facility, and the Enterprise, including
without limitation, the IGRA, the Compact, and SHINGLE SPRINGS's Gaming
Ordinance.
"LENDER" shall mean the financial institution agreed upon by the parties
to provide the funding necessary to design, construct, and equip the Facility,
and provide start-up capital for the Enterprise.
"LOAN" shall mean the loan to SHINGLE SPRINGS to be made pursuant to the
Loan Agreement.
"LOAN AGREEMENT" shall mean the loan agreement in a principal amount of up
to ONE HUNDRED MILLION DOLLARS ($100,000,000), to be entered into between
SHINGLE SPRINGS and KAR, or between SHINGLE SPRINGS and the Lender, but in any
event KAR will cause to be loaned the above proceeds which are to be used
exclusively for Gaming Developments, the design construction, furnishing and
equipping of the Gaming Facility and/or providing start-up and working capital
for the Enterprise.
"MANAGEMENT AGREEMENT" shall mean the agreement between SHINGLE SPRINGS and
KAR dated the same date as this Agreement pursuant to which KAR will manage the
Enterprise.
"NATIONAL INDIAN GAMING COMMISSION" ("NIGC") is the commission established
pursuant to 25 U.S.C. Section 2704.
"NET REVENUES" shall have the meaning set forth in the Management
Agreement, and shall include "Net Revenues (gaming)" and "Net Revenues (other)."
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"NON-GAMING LAND" means those lands acquired by SHINGLE SPRINGS with the
assistance of KAR which the SHINGLE SPRINGS will use for non-gaming purposes.
"NOTE" shall mean the promissory note to be executed by SHINGLE SPRINGS
pursuant to the Loan Agreement, which shall evidence a loan to SHINGLE SPRINGS,
in an amount up to ONE HUNDRED MILLION DOLLARS ($100,000,000), from either the
Lender and/or KAR.
"PLANS AND SPECIFICATIONS" shall mean the final Plans and Specifications
approved for the Gaming Facility as described in this Agreement.
"PROJECT" shall have the mean the planning, construction, and development
of the temporary and permanent Gaming Facility.
"SECURITY AND REIMBURSEMENT AGREEMENT" shall mean that agreement to be
entered into between KAR and SHINGLE SPRINGS which shall set out the security
interest of KAR and reimbursement obligation of SHINGLE SPRINGS relating to the
Loan and the Interim Promissory Note.
"STATE" shall refer to the State of California.
"SHINGLE SPRINGS" shall mean the Shingle Springs Band of Miwok Indians.
"TEMPORARY GAMING FACILITY" shall mean a class II and/or class III gaming
facility which, if deemed feasible by KAR and SHINGLE SPRINGS in the manner
described in this Agreement, may be constructed on an accelerated basis
concurrently with the construction of the permanent Gaming Facility with a goal
of opening within the first 90 to 120 days after the Effective Date. If the
parties agree that it is economically feasible, said facility may also offer
Class II gaming.
"TERM" shall mean the term of this Agreement as described in Article 8.
"TRIBAL CONSULTANTS" shall mean in this Agreement as described in Article
9, section 9.1, (iii) the Administrative Assistant to the Council and Tribal
Consulting Attorney.
"TRIBAL COUNCIL" shall mean the duly elected governing body of SHINGLE
SPRINGS.
"TRANSITION LOAN" shall have the meaning described in Section 9.3.
"TRIBAL DISTRIBUTIONS" shall have the meaning described in Section 9.2(ii).
"TRIBAL LANDS" means all lands presently and in the future held in trust
for the SHINGLE SPRINGS and all lands within the confines of the Shingle
Springs Band of Miwok Indians Rancheria and to such lands as may thereafter be
added thereto.
ARTICLE 2
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INDEPENDENT AGREEMENT
SECTION 2.1. INDEPENDENT AGREEMENT. The objective of SHINGLE SPRINGS and
KAR in entering into and performing this Agreement is to provide a legally
enforceable procedure and agreement pursuant to which KAR will make certain
loans to SHINGLE SPRINGS for the development of the Gaming Facility prior to
the approval of the Management Agreement by the NIGC and the obtaining of any
other necessary approvals so that the Project can commence operations as soon
as possible; and set forth the rights and obligations of the parties if
approval of the Management Agreement by the NIGC does not occur or if the
Project is unable to be developed for any other reason. This is intended to be
a legally enforceable agreement, independent of the Management Agreement, which
shall enter into effect when executed and delivered by the parties, and be
enforceable between the parties regardless of whether or not this Agreement or
the Management Agreement is approved by the Chairperson of the NIGC.
ARTICLE 3
SITE ACQUISITION
SECTION 3.1. SELECTION OF TRIBAL LANDS. It is unlikely that the existing
SHINGLE SPRINGS Trust Land will be used as the site for the Gaming Facility, it
is understood that additional land will be necessary because it is land locked
and it is understood that acquisition of additional land may be necessary as a
site for the Gaming Facility. Thus, as soon as reasonably possible after the
date of this Agreement, KAR shall recommend one or more sites to be acquired
for the SHINGLE SPRINGS Gaming Facility (and the Temporary Gaming Facility, if
it is determined to be feasible); and shall furnish the Tribal Council with a
site including advice as to the suitability of each site for the Gaming
Facility. It is expressly understood that SHINGLE SPRINGS and KAR shall
investigate the acquisition of sites contiguous to existing SHINGLE SPRINGS
trust land.
SECTION 3.2. PURCHASE AGREEMENT. Upon approval of acquisition of a site by
the mutual agreement of KAR and the Tribal Council, KAR shall negotiate a
purchase contract or option agreement for purchase of the site by KAR or its
designee or nominee. Upon approval of the form of Purchase or Option Agreement
proposed by KAR by the Tribal Council, KAR or its designee or nominee shall
enter into the Purchase or Option Agreement with the seller of the site. It is
mutually agreed that the site shall be transferred by KAR to the United States
to be held in trust for the benefit of SHINGLE SPRINGS upon approval of a
Tribal-State compact. The actual closing of the real estate agreement and the
transfer of title to the United States to be held in trust for the benefit of
SHINGLE SPRINGS may occur following the Effective Date, or at a time as may be
necessary to secure approval by appropriate officials or agencies of the
Management Agreement, the Compact and the approval of the Secretary of the
Interior to take the site into trust for the benefit of SHINGLE SPRINGS for
gaming purposes. All amounts so advanced by KAR shall be a part of the
Transition Loan and shall be repaid to KAR from the first proceeds of the Loan
to the extent proceeds from the Loan are available for this purpose.
SECTION 3.3. LAND COSTS. KAR will advance to SHINGLE SPRINGS up to Four
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Million Two Hundred Thousand Dollars ($4,200,000.00) to acquire land for the
gaming facility.
SECTION 3.4. TRANSFER OF TRIBAL LANDS TO BAND. On or immediately
following the Effective Date, or at such time as may be necessary to secure
approval by appropriate officials or agencies, of the Management Agreement or
the Compact and the approval of the Secretary of the Interior to take the land
into trust for the benefit of SHINGLE SPRINGS for gaming purposes, KAR or its
designee or nominee shall transfer title to the United States to be held in
trust by the United States for the benefit of SHINGLE SPRINGS for gaming
purposes. Any amounts required to be paid to effect such transfer shall be paid
by KAR and shall be a part of the development cost of the Enterprise and repaid
to KAR from the first proceeds of the Loan.
SECTION 3.5. CONFIDENTIALITY. The parties agree on a reasonable efforts
basis to keep the intended use of each site confidential until the Purchase
Agreement has been executed and delivered by all parties to the Purchase
Agreement.
ARTICLE 4
FEASIBILITY STUDIES
SECTION 4.1. FEASIBILITY STUDY. As soon as reasonably possible after the
signing of this Agreement by both parties, KAR shall perform a feasibility
study to explore the design, cost, size and projected economic benefit of the
Gaming Facility within the scope of the Enterprise. A copy of the feasibility
study shall be furnished by KAR to the Tribal Council. All actual costs
incurred by KAR to perform or cause the feasibility study to be performed shall
be included as part of the development cost of the Enterprise and repaid to KAR
as a Transition Loan or from the first proceeds of the Loan to the extent
available for this purpose.
SECTION 4.2. FEASIBILITY DETERMINATION. After said feasibility study has
been furnished to the Tribal Council, the Tribal Council and KAR shall jointly
determine the size and scope of the Gaming Facility and whether or not to
include the Temporary Gaming Facility within the Enterprise. Inclusion of the
Temporary Gaming Facility within the Enterprise shall be dependent upon an
agreement between KAR and SHINGLE SPRINGS with respect to such additional
matters as may need to be addressed in order to fully provide for said
Temporary Gaming Facility. Construction and operation of the Temporary Gaming
Facility shall in no way limit the full term of the Management Agreement for the
Gaming Facility. The terms, conditions and provisions of this Section 4.2 shall
control and take precedence over any contrary terms, conditions and provisions
contained in this Agreement.
ARTICLE 5
DESIGN PHASE
SECTION 5.1. EMPLOYMENT OF ARCHITECT. KAR and the Tribal Council shall
contract with an Architect and/or Engineer for the Enterprise. Thereafter the
Tribal Council shall, with the assistance and concurrence of KAR, negotiate and
enter into a contract in the name of SHINGLE SPRINGS, with this Architect
and/or Engineer. Provided that such company or
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individual is a duly licensed Architect and/or Engineer (the "Architect")
familiar with the design of gaming facilities. This Agreement shall be for the
purpose of performing certain services in connection with the design and
construction of the Gaming Facility (and the Temporary Gaming Facility and/or
the Bingo and Entertainment Hall, if included) including site development.
SHINGLE SPRING's agreement with the Architect shall be in the form of a contract
(the "Design Agreement") approved by KAR and the Tribal Council. The scope of
the project contemplated by this Agreement (the "Project") including the Gaming
Facility and the Temporary Facility, if included), shall be stated and
established in the Design Agreement, and shall be subject to the mutual approval
of the parties, and as agreed upon by SHINGLE SPRINGS and KAR may incorporate a
plan for the expansion of gaming and a future phased addition of a hotel, RV
park, gas station and convenience store, and theme retail space and the plans
set forth in Exhibit A hereto. The Design Agreement shall also provide for and
establish appropriate design packages ("Design Packages"), each including
portions of the Enterprise. The Design Agreement shall allow KAR the right and
responsibility to supervise, direct, control and administer the duties,
activities and functions of the Architect and to efficiently carry out its
covenants and obligations under this Agreement; but the Design Agreement shall
provide that the Architect will consult closely with SHINGLE SPRINGS and SHINGLE
SPRINGS consultants, and that major design elements shall be subject to approval
by the Tribal Council. It is contemplated the scope of the Project will be
substantially as described on Exhibit A, subject to such changes as may be
necessary or appropriate taking into account competitive conditions, financing
and other circumstances. The parties understand that market, compact,
governmental or other conditions may change and it may be necessary to expand or
decrease the scope of the project before construction is commenced.
SECTION 5.2. DESIGN AND CONSTRUCTION BUDGETS. KAR, with the assistance
and input of the Architect, shall submit to the Tribal Council, proposed budgets
(collectively the "Development Budget") for designing, constructing, furnishing
and equipping the Gaming Facility, including the Temporary Gaming Facility, if
any, and related costs which may be identified, prior to the commencement of
design by the Architect. The Development Budget shall reflect planned phasing,
if any. KAR may, after notice to and approval by the Tribal Council, revise the
aggregate Development Budget from time-to-time, as necessary or appropriate to
reflect any unpredicted changes, variables or events or to include additional
and unanticipated Project costs. KAR may, at its sole discretion after notice to
and approval by the Tribal Council, 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 Development budget as KAR deems necessary or
appropriate, provided that: (i) the cumulative modifications of the Development
Budget for all Design Packages shall not, without KAR's prior approval and the
Tribal Council's prior approval, exceed the approved aggregate Development
Budget, and (ii) such modifications do not otherwise conflict with the terms of
this Agreement shall. Development Budget adjustments which otherwise vary from
the terms of the Agreement shall, in addition to requiring KAR's approval
require the approval of the Tribal Council. SHINGLE SPRINGS acknowledges that
the Development Budget is intended only to be a reasonable estimate of Project
costs.
SECTION 5.3. CONCEPT DESIGN AND ENGINEERING. KAR, shall prepare for
the review
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and approval of the Tribal Council, a statement of requirements for the Gaming
Facility, and the Temporary Gaming Facility, if any, including, but not limited
to, planned phasing, if any, a program of preliminary objectives, schedule
requirements, design criteria, including assumptions regarding HVAC demands,
space requirements and relationships, special equipment and site requirements.
SECTION 5.4. PRELIMINARY PROGRAM EVALUATION. KAR shall prepare, for the
review and approval of the Tribal Council, a preliminary evaluation of the
proposed Project including, but not limited to a feasibility study, planned
phasing, if any, schedule, Development Budget requirements, and alternative
approaches to Project design and construction. Based upon the agreed-upon
schedule, Development Budget requirements and design, the Architect shall
prepare schematic design documents consisting of drawings and other documents
illustrating the scale and relationship of the Gaming Facility, the Temporary
Gaming Facility, if any, and any other Enterprise components, as well as a
preliminary estimate of Enterprise costs based upon the proposed area, size and
scope of the Enterprise.
SECTION 5.5. DESIGN DEVELOPMENT. Upon final approval of the schematic
design documents by the Tribal Council and KAR, the Architect shall prepare
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
and/or Design Packages as may be appropriate. Further, the Architect shall
advise KAR with respect to, and update, any Development Budget estimates. KAR
shall submit to the Tribal Council for its review and approval, finalized
versions of the design development documents prepared by the Architect and
agreed to by KAR.
SECTION 5.6. CONSTRUCTION DOCUMENTS. Based upon the approved design
development documents and any further adjustments in the scope and quality of
the Project or in the Development Budget, the Architect shall prepare for
approval by KAR and the Tribal Council, construction documents consisting of
preliminary drawings and specifications setting forth the general requirements
for construction of the Project. The Architect shall proceed with completion of
detailed plans and specifications (the "Plans and Specifications") as they
relate to construction or portions of the Gaming Facility in the order such
portions are to be completed or in the order required for sequential
completion, and shall proceed with completion for all Plans and Specifications
as soon as reasonably possible given construction scheduling and the intended
progress of Project work. The Architect shall advise the Tribal Council of any
adjustments to previous Development Budget estimates. Copies of all
construction documents and all notices of Design Budget adjustments shall be
forwarded to the Tribal Council to keep it informed of the progress of the work
and the projected costs of the Project.
SECTION 5.7. PLANS AND SPECIFICATIONS. As portions of the detailed Plans
and Specifications are completed for segments of the Project, the Architect
shall be required to submit duplicate copies of those portions of the Plans and
Specifications to KAR and to the Tribal Council (for approval prior to release
of such documents to prospective bidders for bidding and prior to commencement
of construction of such portions).
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SECTION 5.8. COMPLIANCE WITH CONSTRUCTION STANDARDS, ENVIRONMENTAL LAWS
AND REGULATIONS. The Gaming Facility 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 Gaming Facility shall, except to
the extent a particular requirement or requirements may be waived in writing by
the Tribal Council, meet or exceed all reasonable minimum standards pertaining
to SHINGLE SPRINGS and State building codes, fire codes and safety and traffic
requirements (but excluding planning, zoning and property use laws, ordinances,
regulations and requirements), which would be imposed on the Enterprise by
existing State or Federal statutes or regulations or codes which would be
applicable if the Gaming Facility were located outside of the jurisdictional
boundaries of SHINGLE SPRINGS, even though those requirements may not apply
within SHINGLE SPRINGS's jurisdictional boundaries. To the extent that SHINGLE
SPRINGS may adopt more stringent requirements, those requirements shall govern.
Nothing in this subsection shall grant to the State or any political
subdivision thereof any jurisdiction (including but not limited to,
jurisdiction regarding zoning or property use) over the Enterprise or its
development, management and operation.
SECTION 5.9. ADVANCE OF FUNDS FOR DESIGN WORK. Notwithstanding any lack of
approval of the Management Agreement or this Agreement by the NIGC, KAR shall
advance such funds as are reasonably necessary to proceed with site and
facility planning, architectural renderings and plans, including payments to
the Architect pursuant to the Design Agreement, engineering and environmental
services, working drawings and construction contract bidding documents, and the
advances shall be repaid to KAR as a Transition Loan or from the first draws
under the Loan to the extent proceeds of the Loan are available for this
purpose. After the Effective Date, the Architect shall be compensated for
services rendered in accordance with the Design Agreement out of Loan proceeds,
subject to and in accordance with the terms, conditions and provisions of the
Loan Agreement.
ARTICLE 6
CONSTRUCTION PHASE
SECTION 6.1. SELECTION OF CONTRACTOR OR CONSTRUCTION MANAGER. KAR shall,
in consultation with the Architect, initiate a pre-bid selection process in
order to pre-qualify prospective general contractors and/or construction
managers in connection with the construction of the Gaming Facility. KAR shall
submit the list of pre-qualified general contractors and/or construction
managers to the Tribal Council, together with KAR's recommendations, for its
review, comment and approval. Special consideration shall be given in the
selection of contractors and/or construction managers to companies located in
the State and companies with a proven history of effective employment of Native
American and local subcontractors. The parties will work together to strive for
maximum possible use of qualified Native American contractors and
subcontractors.
SECTION 6.2. VENDOR PREFERENCES. In entering contracts for the supply of
goods and services for the Enterprise, including the selection of contractors
and/or construction managers, subcontractors and suppliers, KAR shall give
preference to qualified Indians who reside on or near the SHINGLE SPRINGS OF
BAND OF MIWOK INDIANS Rancheria, who are able to
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provide services at competitive prices and have demonstrated skills and
abilities to perform tasks to be undertaken in an acceptable manner, in KAR's
opinion, and can meet the reasonable bidding requirements of KAR. KAR shall
provide written notice to SHINGLE SPRINGS in advance of all such contracting,
subcontracting and construction opportunities.
SECTION 6.3. PROPOSAL REVIEW. Subsequent to the pre-qualification of
prospective contractors and/or construction managers, KAR shall conduct a review
of responsive proposals for the construction of the Project, and KAR shall
negotiate and propose to the Tribal Council a construction management agreement
and/or construction contract or contracts (collectively "Contract Documents")
with a well-qualified construction manager, contractor contractors and/or
contractors subject to the approval of the Tribal Council. The successful
contractor, contractors and/or construction manager shall be properly licensed
in the State; and shall be capable of furnishing a payment and performance bond
satisfactory to KAR and Tribal Council to cover the construction for which the
contractor, contractors and/or construction manager may be retained.
SECTION 6.4. CONTRACTS. The Band shall enter into the Contract with the
parties selected and approved in the form negotiated by KAR and approved by the
Tribal Council. The Contract Documents shall provide that they may be canceled
by either party if the Effective Date has not occurred by a specified fixed
calendar date. The selected contractor, construction manager and/or other
contracting parties shall be compensated solely from the Loan proceeds subject
to, and in accordance with the terms, conditions and provisions of the Contract
Documents and the Loan Agreement.
SECTION 6.5. CONTRACT DOCUMENT PROVISIONS. The Contract Documents shall
(i) 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; (ii) shall include appropriate provisions assuring nonpayment of
State sales and use tax for goods and materials in the Project (to the extent
said exemption is available for the Project); and (iii) require said
construction manager or general contractor and all contractors to construct the
Project in accordance with the Plans and Specifications, including any changes
or modifications thereto approved by the Tribal Council. The Contract Documents
will provide for insurance conforming to the applicable insurance requirements
of the Management Agreement, appropriate lien waivers, and for construction
schedules by which milestones, progress payments and late penalties, if any, may
be calculated. Nothing in this section shall prohibit SHINGLE SPRINGS from
entering into a contract pursuant to which SHINGLE SPRINGS agrees to procure the
necessary construction materials for the project.
SECTION 6.6. CONSTRUCTION ADMINISTRATION. It is intended that the Contract
Documents shall provide that KAR shall be responsible for all construction
administration during the construction phase of the Project. KAR shall act as
SHINGLE SPRINGS's designated representative and shall have full power and
complete authority to act on behalf of SHINGLE SPRINGS in connection with the
Contract Documents. KAR shall have control and charge of any persons performing
work on the Project site, and shall interpret and decide on matters concerning
the performance of any requirements of the Contract Documents. KAR shall have
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the authority to reject work which does not conform to the Contract Documents.
KAR may conduct inspections to determine the date or dates of substantial
completion and the Completion Date. KAR shall observe and evaluate or authorize
the observation and evaluation of Project work performed, review or authorize
review of applications for payment for submission to SHINGLE SPRINGS and review
or authorize review and certification of the amounts due the contractors and/or
construction manager.
SECTION 6.7. CONSTRUCTION COMMENCEMENT AND COMPLETION. The Contract
Documents shall contain such provisions for the protection of SHINGLE SPRINGS
and KAR as SHINGLE SPRINGS and KAR shall deem appropriate; shall provide that
the construction of the Project shall commence on the Effective Date following
and subject to the granting of all approvals necessary to commence
construction; and shall also provide that any contractor shall exert its best
efforts to complete construction within such time as SHINGLE SPRINGS and KAR
agree following the commencement of construction. All contractors shall warrant
their respective portions of the work to be performed to be free of defects for
at least one year after the Completion Date.
ARTICLE 7
FURNITURE, FIXTURES AND EQUIPMENT
SECTION 7.1. SELECTION OF FURNITURE, FIXTURES AND EQUIPMENT. KAR shall
select and propose to the Tribal Council vendors for purchase by SHINGLE
SPRINGS of equipment, furniture and fixtures required to operate the
Enterprise. Alternatively, KAR may arrange for the procurement of equipment,
furniture and fixtures on lease terms as may be approved by the Tribal Council.
Any commitments for the procurement of equipment, furniture and furnishing
shall, however, become binding on SHINGLE SPRINGS only upon the Effective Date.
ARTICLE 8
TERM
SECTION 8.1. TERM. This Agreement shall enter into and remain in full
force and effect from the date of execution hereof for a period ending when the
obligations of the parties pursuant to Article 9 of this Agreement have expired
or until all obligations owed to KAR by SHINGLE SPRINGS pursuant to this
Agreement, the Management Agreement and any Interim Promissory Note have been
satisfied in full, whichever is later; provided, however, that nothing herein
shall prohibit KAR and SHINGLE SPRINGS from agreeing in a separate writing that
the obligations of this Agreement shall be subsumed into any one or all of the
other agreements between the parties immediately upon the Effective Date thereof
and that, at such time as the obligations hereof are so subsumed, this
Agreement shall, except to the extent contrary to the express terms hereof,
automatically terminate.
ARTICLE 9
ADVANCES BY KAR
SECTION 9.1. ADVANCES BY KAR TO SHINGLE SPRINGS. KAR will advance the
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following funds to SHINGLE SPRINGS.
(i) SIGNING ADVANCE. KAR will advance SHINGLE SPRINGS the sum of Two
Hundred Fifty Thousand Dollars ($250,000.00) upon the execution of this
Agreement and the Management Agreement.
(ii) TRIBAL OPERATING ADVANCES. Beginning 30 days after the execution of
this Agreement and the Management Agreement and after the initial signing
advance of $250,000.00 until the Commencement Date, KAR will advance
SHINGLE SPRINGS seventy thousand dollars ($70,000.00) per month. The
parties agree that there may also be certain unanticipated and unexpected
legal expenses of the Enterprise which may occur. In that event, upon the
approval of both KAR and SHINGLE SPRINGS, which approval shall not be
unreasonably withheld, the parties agree to increase the monthly advances
to cover those costs. The signing advance and the monthly advances to
SHINGLE SPRINGS shall include the Tribal Consultants fees.
(iii) TRIBAL CONSULTANTS. Upon execution of this Agreement and the
Management Agreement and until the Commencement Date, of the signing
advance and the monthly advances to SHINGLE SPRINGS, Five Thousand Dollars
($5,000.00) per month shall be used to pay the Shingle Springs
Administrative Assistant to the Council and Eight Thousand Six Hundred
Dollars ($8,600.00) per month will be used to pay SHINGLE SPRINGS Tribal
Consulting Attorney. There will be a three percent (3%) annual increase in
these fees. Upon execution of this Agreement and the Management Agreement
and until the Commencement Date, KAR shall advance SHINGLE SPRINGS.
Following the Commencement Date, the Tribal Consulting Attorney and the
Administrative Assistant to the Council shall become an expense of the
Enterprise and shall be for the term of this Agreement and the Management
Agreement.
Use and disbursement of the monthly advances shall be at the sole discretion of
SHINGLE SPRINGS, and KAR shall have no responsibility for such funds after
receipt thereof by SHINGLE SPRINGS. The advances will be disbursed to SHINGLE
SPRINGS as Transition Loans pursuant to Section 9.3 of this Agreement.
SECTION 9.2. LOAN COMMITMENT. KAR shall be responsible for arranging
for a development loan to SHINGLE SPRINGS to finance the development of the
Gaming Facility. Within ninety (90) days following the approval of a compact
between SHINGLE SPRINGS and the State, KAR will provide to SHINGLE SPRINGS a
preliminary conditional Letter of Commitment to fund the facility in the sum not
to exceed One Hundred Million Dollars ($100,000,000) contingent upon compliance
with all applicable federal, tribal and state laws. Within one hundred twenty
(120) days following the Effective Date, KAR shall provide a firm financing
commitment acceptable to SHINGLE SPRINGS, to finance the acquisition of the
Tribal Lands and to pay for all costs of design, development, construction and
opening of the
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Gaming Facility, including but not limited to all planning, professional fees,
land acquisition costs, development, infrastructure improvements, construction
and pre-opening costs, fees and expenses (the "Loan") on terms to SHINGLE
SPRINGS as follows:
(i) The principal of the Loan shall be for an amount up to $100
million.
(ii) The Loan shall be repayable solely out of revenues of the Gaming
Facility, as provided in the Management Contact, and shall be
a limited recourse obligation of SHINGLE SPRINGS, with no
recourse to other tribal assets, including the Tribal Lands and
the tangible assets of the Gaming Facility, or to revenues
received by SHINGLE SPRINGS after distribution from the
Enterprise ("Tribal Distributions") or to assets purchased with
Tribal Distributions, provided that SHINGLE SPRINGS shall waive
sovereign immunity with respect to the Loan only to the extent
provided in subsection (vii) of this Section.
(iii) SHINGLE SPRINGS shall covenant not to encumber any of the assets
of the Gaming Facility without KAR's prior written consent.
However, SHINGLE SPRINGS shall have the right to grant
subordinate security interests in Gaming Facility revenues, as
well as first priority security interests in any Gaming Facility
assets other than personal property purchases with the proceeds
of the Loan, but only if such security interests are granted to
secure loans made to and for the benefit of the Gaming Facility
and KAR has been given at least thirty (30) days prior
opportunity by SHINGLE SPRINGS to make such loans on similar
financial terms. For purposes of this Agreement the assets of
the Facility, as defined by Generally Accepted Accounting
Principals shall not include SHINGLE SPRING's share of the
distributable proceeds of the facility after they are
transferred to SHINGLE SPRINGS's general account.
(iv) The Loan shall not be assignable by either KAR or SHINGLE
SPRINGS without the reasonable written consent of the
non-assigning party. This restriction on assignment shall not be
construed to impede a sale of KAR to a third party.
(v) SHINGLE SPRINGS shall consent to arbitration, jurisdiction in
state and federal court, and to State law as the law governing
the Loan Agreement as provided for and limited by Article 14 of
this Agreement.
(vi) The Loan may be made directly by the Lender to SHINGLE SPRINGS,
provided that the Loan is totally non-recourse to SHINGLE
SPRINGS and otherwise conforms with the terms set forth in this
Section 9.2.
(vii) SHINGLE SPRINGS will waive sovereign immunity with respect to
the Loan to the extent set forth in Article 14: (a) if KAR makes
the Loan
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directly to SHINGLE SPRINGS, (b) if a Lender makes the Loan and
KAR subsequently becomes the holder of the Loan, and (c) to
reimburse KAR if KAR's guarantee of the Loan is called due to a
payment default by SHINGLE SPRINGS; and upon execution of the Loan
Agreement shall enter into an enforceable reimbursement agreement
with KAR secured by a first security interest in Gaming Facility
revenues (the "Security and Reimbursement Agreement") to secure
repayment of the Loan (a) if KAR makes the Loan directly to
SHINGLE SPRINGS, (b) if a Lender makes the Loan and KAR
subsequently becomes the holder of the Loan through assignment or
otherwise, to the extent of KAR's holding or participation in the
Loan, and (c) to reimburse KAR if KAR's guarantee of the Loan is
called due to a payment default by SHINGLE SPRINGS. The Security
and Reimbursement Agreement shall be in the form attached hereto
as Exhibit B.
(viii) It shall be a condition of the loan commitment that a management
agreement between SHINGLE SPRINGS and KAR in substantially the form
of the Management Agreement, and this Development Agreement, be
approved by the chairman of the NIGC.
SECTION 9.3. TRANSITION LOANS. KAR shall make loans for the purposes
and as set forth in Section 9.1 and Section 9.4 (each a "Transition Loan") to
SHINGLE SPRINGS, upon the terms set forth in the form of the promissory note
attached hereto (the "Interim Promissory Note"). Each advance of funds to
SHINGLE SPRINGS by KAR as part of any Transition Loan shall be evidenced by the
Interim Promissory Note, duly authorized and executed by SHINGLE SPRINGS,
setting forth the applicable terms of this Agreement. Payments under the
Interim Promissory Note shall be repayable as unsecured, limited recourse, with
an interest rate of a per annum variable rate no greater than the prime rate of
Chase Manhattan Bank plus two percent (2%) or KAR's cost to borrow funds,
whichever is lower, bearing obligations of SHINGLE SPRINGS payable solely out
of Gaming Facility revenues, as provided in the Management Contract, in twelve
(12) equal monthly payments commencing on the 15th day of the month after the
month in which the Commencement Date occurs.
SECTION 9.4. ADVANCES ON LOAN. KAR will provide the following funds to
SHINGLE SPRINGS as advances on the Loan to be repaid with an interest rate of a
per annum variable rate no greater than the prime rate of Chase Manhattan Bank
plus two percent (2%) or KAR's cost to borrow funds, whichever is lower:
(i) GAMING FACILITY SITE ACQUISITION FUNDS. For funding one or more
Purchase Agreements, pursuant to Section 3.2.
(ii) SITE PLANNING AND DESIGN DEVELOPMENT. KAR shall advance the
funding for the work described in Articles 4, 5, and 6 of this
Agreement performed prior to the Effective Date as provided in
those Articles.
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SECTION 9.5. CESSATION OF PAYMENTS. In the event a Tribal-State compact is
not entered into within two (2) years of the date of this Agreement, KAR, at
its sole discretion, may terminate the payments being made under this Agreement
until said compact has been completed.
ARTICLE 10
EXCLUSIVITY
SECTION 10.1. EXCLUSIVITY REGARDING GAMING FACILITY. During the term of
this Agreement, KAR shall have an exclusive relationship with SHINGLE SPRINGS
regarding the development of the Gaming Facility.
SECTION 10.2. EXCLUSIVITY. SHINGLE SPRINGS shall deal exclusively with KAR
for commercial and gaming development as set forth in Exhibit A or other
economic development that KAR deems feasible on existing or future Tribal Lands
for a period beginning on the date of execution of this Agreement and ending
upon termination of the Management Contract. Nothing contained herein shall be
deemed to restrict KAR's gaming development activities related to commercial or
Indian gaming.
ARTICLE 11
REPRESENTATIONS, WARRANTIES, AND COVENANTS
SECTION 11.1. REPRESENTATIONS AND WARRANTIES OF SHINGLE SPRINGS. SHINGLE
SPRINGS represents and warrants to KAR as follows:
(i) SHINGLE SPRINGS execution, delivery and performance of this
Agreement, the Management Agreement, and Interim Promissory
Note, and all other instruments and agreements executed in
connection with this Agreement have been properly authorized
by SHINGLE SPRINGS and do not require further approval.
(ii) This Development Agreement, the Management Agreement, and
Interim Promissory Note and all other instruments and
agreements executed in connection with this Agreement have
been properly executed, and once approved in accordance with
Legal Requirements constitute SHINGLE SPRINGS's legal, valid
and binding obligations, enforceable against SHINGLE SPRINGS
in accordance with their terms.
(iii) That with regards to the Development Agreement, the
Management Agreement, the Interim Promissory Note, and all
other instruments and agreements executed in connection with
this Agreement, that SHINGLE SPRINGS shall not act or fail
to act in any way whatsoever, directly or indirectly, to
cause these Agreements to be amended, modified, canceled, or
terminated, except pursuant to its express terms, or to
cause KAR to be unable to perform its obligations or to
develop the project as required or
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contemplated by these Agreements shall take all action necessary
to ensure that these Agreements shall remain in full force and
effect at all times.
SECTION 11.2 COVENANTS. The SHINGLE SPRINGS covenants and agrees as follows:
(i) That promptly after the execution of this Agreement SHINGLE
SPRINGS will take all steps necessary to negotiate an SHINGLE
SPRINGS-State Compact with the State of California and adopt and
obtain approval by the Chairman of the NIGC a gaming ordinance
and that will meet the requirements of IGRA and the applicable
regulations under IGRA and be consistent with the provisions of
this Agreement, the Management Agreement, the Interim Promissory
Note, and all other instruments and agreements executed in
connection with this Agreement and not adversely affect the
rights of KAR hereunder and thereunder. When adopting the Gaming
Ordinance, SHINGLE SPRINGS will give KAR the opportunity to
review and comment on the drafts thereof. Pursuant to the Gaming
Ordinance, SHINGLE SPRINGS will promptly establish SHINGLE
SPRINGS Regulatory Authority.
(ii) SHINGLE SPRINGS agrees to enter into the Loan Agreement, and
execute the Note and to take and perform such other actions as
may be necessary to carry out the purposes of this Agreement, the
Management Agreement, the Interim Promissory Note, and all other
instruments executed in connection with this Agreement and the
Related Agreements in accordance with the terms of the Compact,
the legal requirements pertaining to the Tribal Lands, and
factual particulars for development, construction and operation
of the Gaming Facility for Class II & III Gaming.
(iii) That during the term of this Development Agreement and the
Management Agreement, SHINGLE SPRINGS shall not unnecessarily or
in bad faith enact any law impairing the obligations of contracts
entered into in furtherance of the financing, development,
construction, operation and promotion of gaming on Tribal Lands.
Neither the Tribal Council nor any committee, agency, board or
other official body, and no officer or official of SHINGLE
SPRINGS shall, by exercise of the police power or otherwise, act
unnecessarily or in bad faith to modify, amend, or in any manner
impair the obligations of contracts entered into by the Tribal
Council or other parties in furtherance of the financing,
development, construction, operation, or promotion of gaming on
Tribal Lands without the written consent of the non-tribal
parties to such contracts. SHINGLE SPRINGS warrants that any
changes in Tribal law and any exercise of its police power in
these areas shall be a good faith effort to ensure that gaming is
conducted in a manner that adequately protects the environment,
the public health and safety and the integrity of the Enterprise
and to
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insure compliance with applicable law or to perform an essential
governmental function of SHINGLE SPRINGS. Any such action or
attempted action taken in violation of this warranty shall be
void ab initio.
(iv) That SHINGLE SPRINGS will waive sovereign immunity on the limited
basis described in Article 14 with respect to the Loan (a) if KAR
makes the Loan directly to SHINGLE SPRINGS, (b) if a Lender makes
the Loan and KAR subsequently becomes the holder of the Loan
through assignment or otherwise, to the extent of KAR's holding or
participation in the Loan, and (c) to reimburse KAR if KAR's
guarantee of the Loan is called due to a payment default by
SHINGLE SPRINGS; and upon the Effective Date shall enter the
Security and Reimbursement Agreement to secure repayment of the
Loan (a) if KAR makes the Loan directly to SHINGLE SPRINGS, (b) if
a Lender makes the Loan and KAR subsequently becomes the holder of
the Loan though assignment or otherwise, to the extent of KAR's
holding or participation in the Loan, (c) to reimburse KAR if
KAR's guarantee of the Loan is called due to a payment default by
SHINGLE SPRINGS;
(v) That SHINGLE SPRINGS will waive sovereign immunity on the limited
basis described in Article 14 and enter into the Security and
Reimbursement Agreement to secure repayment of any amounts owing
to KAR or its Affiliates pursuant to Section 13.3.
(vi) That this Agreement, the Management Agreement, the Loan
Agreement, the Note, the Interim Promissory Notes, the Security
and Reimbursement Agreement, and each other contract contemplated
by this Agreement shall be specifically enforceable in accordance
with their respective terms.
(vii) That in its performance of this Agreement, SHINGLE SPRINGS shall
comply with all Legal Requirements.
SECTION 11.3. REPRESENTATIONS AND WARRANTIES OF KAR. KAR represents and
warrants to SHINGLE SPRINGS as follows:
(i) KAR has the financial contacts, business acumen, experience and
capability to make or secure all advances and loans to SHINGLE
SPRINGS described in this Development Agreement.
(ii) KAR's execution, delivery and performance of this Agreement and
all other instruments and agreements executed in connection with
this Agreement have been properly authorized by KAR and do not
require further approval.
(iii) This Agreement has been properly executed, and once approved in
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accordance with Legal Requirements, constitutes KAR's legal, valid
and binding obligations are enforceable against KAR in accordance
with its terms.
(iv) There are no actions, suits or proceedings pending or threatened
against or affecting KAR before any court or governmental agency
that would in any material way affect KAR's ability to perform this
Agreement.
(v) That KAR shall not act in any way whatsoever, directly or
indirectly, to cause this Agreement to be amended, modified,
canceled, or terminated, except pursuant to its terms, and shall
take all actions necessary to ensure that this Agreement shall
remain in full force and effect at all times.
Section 11.4 COVENANTS. KAR covenants and agrees that in its performance of
this Agreement, it will comply with all Legal Requirements.
ARTICLE 12
EVENTS OF DEFAULT
SECTION 12.1. EVENTS OF DEFAULT BY SHINGLE SPRINGS. KAR shall not be
obligated to loan SHINGLE SPRINGS any monies, provide the Loan commitment or
make any advance on the Loan or otherwise perform its obligations under this
Agreement pursuant to this Agreement if an Event of Default, as defined below,
has occurred or if any of the representations and warranties made by SHINGLE
SPRINGS in this Agreement would not be true if made on the date such fee payment
or loan advance would otherwise be made. In addition, KAR shall not be obligated
to make any loan advance to SHINGLE SPRINGS pursuant to this Agreement unless
and until KAR receives the duly authorized and executed versions of the
Management Agreement, the Security and Reimbursement Agreement, and the Interim
Promissory Note. Each of the following shall be an "Event of Default":
(i) SHINGLE SPRINGS shall fail to pay when due the Interim Promissory
Note or any other indebtedness to KAR that SHINGLE SPRINGS owes or
has guaranteed and such failure shall continue for twenty (20) days
after KAR has given SHINGLE SPRINGS written notice of this Breach;
(ii) Any event referred to in any Interim Promissory Note that permits
KAR to declare the Interim Promissory Note due and payable shall
occur;
(iii) SHINGLE SPRINGS shall breach any of it's obligations under this
Agreement and such breach shall continue for twenty (20) days after
KAR gives SHINGLE SPRINGS written notice thereof.
(iv) Any representation or warranty that SHINGLE SPRINGS has made under
this Agreement or any other Related Agreement shall prove to have
been untrue when made.
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(v) SHINGLE SPRINGS violates the provisions of Article 10 of the
Agreement.
(vi) SHINGLE SPRINGS commits any material breach of the Management
Agreement or the Security and Reimbursement Agreement.
If any Event of default described in above occurs, KAR's commitments under this
Agreement shall automatically terminate and any outstanding Interim Promissory
Note and all of SHINGLE SPRINGS's other obligations to KAR under this Agreement
and the Management Agreement shall immediately become due and payable and upon
written notice to SHINGLE SPRINGS, declare KAR commitment to make advances
under this Agreement terminated and/or declare the principal balance of each
Interim Promissory Note and any accrued interest to be immediately due, and KAR
may exercise any other rights and remedies available to KAR by law or
agreement. KAR has the right to set off all sums owing by SHINGLE SPRINGS to
KAR against all credits SHINGLE SPRINGS may have with, and any claims SHINGLE
SPRINGS may have against KAR at any time after the Event of Default occurs.
SECTION 12.2 EVENTS OF DEFAULT BY KAR. SHINGLE SPRINGS shall not be
obligated to perform its obligations under this Agreement pursuant to this
Agreement if an Event of Default, as defined below, has occurred or if any of
the representations and warranties made by KAR in this Agreement would not be
true if made on the date such performance would otherwise be due. Each of the
following shall be an "Event of Default".
(i) KAR shall fail to make advances required by this Agreement, and
such failure shall continue for twenty (20) days after SHINGLE
SPRINGS gives KAR written notice thereof;
(ii) KAR shall breach any of KAR's obligations under this Agreement
and such breach shall continue for twenty (20) days after
SHINGLE SPRINGS gives KAR written notice thereof.
(iii) Any representation or warranty that KAR has made under this
Agreement or any other Related Agreement shall prove to have
been untrue when made.
(iv) KAR violates the provisions of Article 11 of this Agreement.
(v) KAR shall be in material breach under the Management Agreement.
(vi) has filed for relief under Title 11 of the United States Code or
has suffered the filing of an involuntary petition under Title 11
which is not dismissed within one (1) year after filing;
(vii) has a receiver appointed to take possession of all or
substantially all of
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KAR's property; or
(viii) has suffered an assignment for the benefit of creditors.
If any Event of Default described in clause (iv) above occurs, SHINGLE
SPRINGS's commitments under this Agreement shall automatically terminate. If
any other Event of Default occurs, SHINGLE SPRINGS may, upon written notice to
KAR, exercise any other rights and remedies available to SHINGLE SPRINGS by law
or agreement. SHINGLE SPRINGS has the right to set off all sums owing by KAR to
SHINGLE SPRINGS against all credits KAR may have with, and any claims KAR may
have against, SHINGLE SPRINGS at any time after an Event of Default occurs.
ARTICLE 13
TERMINATION
SECTION 13.1 VOLUNTARY TERMINATION. This Agreement may be terminated
upon the mutual written consent and approval of the parties.
SECTION 13.2. TERMINATION FOR CAUSE. Either party may terminate this
Agreement if the other party commits or allows to be committed any material
breach of this Agreement. A material breach of this Agreement means a failure of
either party to perform any material duty or obligation on its part for any
twenty (20) consecutive days after notice. Neither party may terminate this
Agreement on grounds of material breach (not including any Event of Default)
unless it has provided written notice to the other party of its intention to
terminate this Agreement and the defaulting party thereafter fails to cure or
take steps to substantially cure the default within thirty (30) days following
receipt of such notice. The notice shall describe in detail the nature of he
breach and the section of this Agreement alleged to have been violated. During
the periods specified in the notice to terminate, either party may submit the
matter to arbitration under Article 14 of this Agreement. The discontinuance or
correction of a material breach shall constitute a cure thereof. In the event of
any termination for cause, regardless of fault, KAR shall retain the right to
repayment of unpaid principal and any interest on all monies loaned by it to
SHINGLE SPRINGS whether pursuant to this Agreement or otherwise.
SECTION 13.3 TERMINATION IF SHINGLE SPRINGS VIOLATES ARTICLE 10. If KAR
terminates this Agreement because of a violation by SHINGLE SPRINGS of Article
10, SHINGLE SPRINGS, in addition to its obligations to KAR under the Interim
Promissory Notes, agrees to repay KAR for all amounts advanced by KAR to
SHINGLE SPRINGS, or for SHINGLE SPRINGS, pursuant to Article 9 of this
Agreement, the Management Agreement or any other Related Agreement, that
pursuant to this Agreement and SHINGLE SPRINGS agrees that its obligation to
repay such amounts shall be subject to Section 14.1 regarding waiver of
sovereign immunity by SHINGLE SPRINGS other provisions of Article 14, and a
Security and Reimbursement Agreement pursuant to Section 11.2.
SECTION 13.4 INVOLUNTARY TERMINATION DUE TO CHANGES IN LEGAL
REQUIREMENTS. It is the understanding and the intention of the parties that the
development, construction and
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operation of the Enterprise shall conform to and comply with all Legal
Requirements. If during the term of this Agreement, the Enterprise or any
material aspect of the Gaming contemplated by the parties pursuant to this
Agreement is determined by the Congress of the United States, the United States
Department of the Interior, the NIGC or the final judgment of a court of
competent jurisdiction to be unlawful, the obligations of the parties hereto
shall cease, and this Agreement shall be of no further force and effect;
provided that:
(i) Any money loaned to SHINGLE SPRINGS by or guaranteed by KAR shall
be repaid to KAR immediately from Shingle Springs share of
undistributed proceeds of the gaming Enterprise.
(ii) SHINGLE SPRINGS shall retain its interest in the title (and any
lease) to the Enterprise's assets, including all fixtures,
supplies and equipment, subject to the rights of KAR under the
Security and Reimbursement Agreement and subject to any
requirements of any financing agreements.
SECTION 13.5. REPAIR AND REPLACEMENT OF DAMAGED GAMING FACILITY. If the
Gaming Facility is damaged, destroyed or condemned so that continued
development and construction of Gaming cannot be or can no longer be continued
at the Gaming Facility, the Gaming Facility shall be reconstructed if the
insurance or condemnation proceeds are sufficient to restore or replace the
Gaming Facility to a condition at least comparable to that before the casualty
occurred. If KAR elects to reconstruct the Gaming Facility and if the insurance
proceeds or condemnation awards are insufficient to reconstruct the Gaming
Facility to such condition, KAR may, in its sole discretion, offer to loan such
additional funds as are necessary to reconstruct the Gaming Facility to such
condition and such funds shall, with the prior consent of the Tribal Council
and NIGC, as appropriate, constitute a loan to the Enterprise, secured by the
revenues from the Business and repayable upon such terms as may be agreed upon
by the Tribal Council and KAR. Any loan provided for herein shall not be
subject to the ceiling set forth in this Development Agreement. SHINGLE SPRINGS
may also, in its sole discretion provided from SHINGLE SPRINGS funds or borrow
from a third party such funds as are necessary to rebuild the Gaming Facility.
In such event, these funds shall be treated as a tribal loan to the Enterprise
and shall be repaid under such terms and conditions as the Tribal Council and
KAR may agree upon. If the insurance proceeds are not sufficient and are not
used to repair the Gaming Facility, and neither SHINGLE SPRINGS nor KAR wishes
to provide the additional funds necessary to re-build and re-open the Gaming
Facility, SHINGLE SPRINGS and KAR shall jointly adjust and settle any and all
claims for such insurance proceeds or condemnation awards, and such proceeds or
award shall be applied first, to the amounts due under the Note or Security and
Reimbursement Agreement (including principal and interest); second, to any
other loans; third, to any fees or costs owed to KAR pursuant to the Management
Agreement; fourth, any surplus shall be distributed to SHINGLE SPRINGS.
SECTION 13.6. TRIBE'S RIGHT TO TERMINATE AGREEMENT. SHINGLE SPRINGS may
terminate this Agreement by written notice effective upon receipt if:
(i) Any Federal or State authority objects to the performance by KAR
of any
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obligation imposed on it under this Agreement and KAR has not
cured the circumstance, if it is within its control to cure,
giving rise to the objection to performance within one hundred
twenty (120) days. SHINGLE SPRINGS's ability to terminate this
Agreement pursuant to this provision shall be tolled during any
contest by KAR of any such objection to its performance.
(ii) SHINGLE SPRINGS has reason to believe that the performance by
it or KAR of any obligation imposed under this Agreement may
reasonably be expected to result in the breach of any Legal
Requirement and the parties have been unable to agree upon a
waiver of such performance within twenty (20) days of written
notice given by SHINGLE SPRINGS.
(iii) KAR's failure to make any payment to SHINGLE SPRINGS when due
within the time specified in this Agreement after KAR has
received twenty 20 days written notice of its failure to pay.
ARTICLE 14
DISPUTE RESOLUTION
14.1. GENERAL. The parties agree that binding arbitration pursuant to
this Article 14 shall be the remedy for all disputes, controversies and claims
arising out of this Development Agreement, Management Agreement, the Note, Loan
Agreement, the Security and Reimbursement Agreement, any documents or
agreements references by any of these documents, any agreements collateral
thereto, or any notice of termination thereof, including without limitation,
any dispute, controversy or claim arising out of any of these agreements. The
parties intend that such arbitration shall provide final and binding resolution
of any dispute, controversy or claim, and that action in any other forum shall
be brought only if necessary to compel arbitration, or to enforce an
arbitration award or order.
(i) Each party agrees that it will use its best efforts to
negotiate an amicable resolution of any dispute between KAR and
SHINGLE SPRINGS arising from this Agreement. If SHINGLE SPRINGS
and KAR are unable to negotiate an amicable resolution of a
dispute within 14 days from the date of notice of the dispute
pursuant to the notice section of this Agreement, or such other
period as the parties mutually agree in writing, either party
may refer the matter to arbitration as provided herein.
(ii) The SHINGLE SPRINGS's election to terminate this Agreement is,
however, final and conclusive and not subject to dispute
resolution between the parties, but only if the NIGC makes a
final determination that KAR is not suitable to hold a license.
The parties recognize that minor revisions of contracts before
the NIGC is routine, and an NIGC notice requesting revisions in
the Agreement shall not be grounds for termination by SHINGLE
SPRINGS unless KAR refuses to make the changes
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necessary to obtain NIGC approval.
SECTION 14.2. ARBITRATION
SECTION 14.2.1. INITIATION OF ARBITRATION AND SELECTION OF
ARBITRATORS. Arbitration shall be initiated by written notice by one party to
the other pursuant to the notice section of this Agreement, and the Commercial
Arbitration Rules of the American Arbitration Association shall thereafter
apply. The arbitrators shall have the power to grant equitable and injunctive
relief and specific performance as provided in this Agreement. If necessary,
orders to compel arbitration or enforce an arbitration award may be sought
before the United States District Court for the Eastern District of California
and any federal court having appellate jurisdiction over said court. If the
United States District Court for the Eastern District of California finds that
it lacks jurisdiction, SHINGLE SPRINGS consents to be sued in a Court of
competent jurisdiction. The arbitrator shall be a licensed attorney,
knowledgeable in federal Indian law and selected pursuant to the Commercial
Arbitration Rules of the American Arbitration Association.
(i) CHOICE OF LAW. In determining any matter the Arbitrator shall
apply the terms of this Development Agreement, without adding to, modifying
or changing the terms in any respect, and shall apply federal and
applicable State law.
(ii) PLACE OF HEARING. All arbitration hearings shall be held at a
place designated by the arbitrator in Sacramento, California.
(iii) CONFIDENTIALITY. The parties and the arbitrator shall maintain
strict confidentiality with respect to arbitration.
14.3. LIMITED WAIVER OF SOVEREIGN IMMUNITY. SHINGLE SPRINGS expressly
and irrevocably waives its immunity from suit as provided for and limited by
this Section. This waiver is limited to SHINGLE SPRINGS's consent to all
arbitration proceedings, and actions to compel arbitration and to enforce any
awards or orders issuing from such arbitration proceedings which are sought
solely in United States District Court for the Eastern District of California
and any federal court having appellate jurisdiction over said court, provided
that if the United States District Court for the Eastern District of California
finds that it lacks jurisdiction, SHINGLE SPRINGS consents to be sued in a
Court of competent jurisdiction. The arbitrators shall not have the power to
award punitive damages.
(i) TIME PERIOD. The waiver granted herein shall commence as of
the Date of this Agreement and shall continue for one year
following expiration, termination or cancellation of this
Agreement, or termination of the Enterprise whichever is
earlier, but shall remain effective for the duration of any
arbitration, litigation or dispute resolution proceedings then
pending, all appeals therefrom, and except as limited by this
Section, to the full satisfaction of any awards or judgments
which may issue from such proceedings, provided that an action
to collect such judgments has
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been filed within one year of the date of the final judgment.
Provided however, all collection action shall terminate six
(6) years after the final judgment.
(ii) RECIPIENT OF WAIVER. This limited waiver is granted only to
KAR and the Lender.
(iii) LIMITATIONS OF ACTIONS. This limited waiver is specifically
limited to the following actions and judicial remedies:
(a) DAMAGES. The enforcement of an arbitrator's award of
money damages provided that the waiver does not extend
beyond the assets specified in Subsection (g) below. No
arbitrator or court shall have the authority or
jurisdiction to order execution against any assets or
revenues of the SHINGLE SPRINGS except as provided in
this Section or to award any punitive damages against
SHINGLE SPRINGS.
(b) CONSENTS AND APPROVALS. The enforcement of a
determination by an arbitrator that SHINGLE SPRINGS's
consent or approval has been unreasonably withheld
contrary to the terms of this Agreement.
(c) INJUNCTIVE RELIEF AND SPECIFIC PERFORMANCE. The
enforcement of a determination by an arbitrator that
prohibits SHINGLE SPRINGS from taking any action that
would prevent KAR from operating the Enterprise pursuant
to the terms of this Agreement, or that requires the
SHINGLE SPRINGS to specifically perform any obligation
under this Agreement (other than an obligation to pay
money which is protected by Subsection (g) below.
(d) ACTION TO COMPEL ARBITRATION. An action to compel or
enforce arbitration or arbitration awards or orders
pursuant to this Section.
(e) SERVICE OF PROCESS. In any litigation or arbitration
service of process on SHINGLE SPRINGS shall be effective
if made by certified mail return receipt requested to the
Chairperson of SHINGLE SPRINGS at the Address set for in
Article 15.4 below.
(f) ENFORCEMENT. If enforcement of a judicial order or
arbitration award becomes necessary by reason of failure
of one or both parties to voluntarily comply, the parties
agree that the matter may be resolved by entry of
judgment on the award and enforcement as described
herein. Without in any way limiting or expanding the
provisions of this Section, SHINGLE SPRINGS expressly
authorizes any governmental authorities which may
lawfully
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exercise the right and duty to take any action authorized or
ordered by any court to whom its sovereign immunity is waived
pursuant to this Section, including without limitation, entering
the Tribal Lands and Gaming Facility for the purpose of executing
against any property subject to a security interest or otherwise
giving effect to any judgment properly entered pursuant to this
Section; provide however, that in no instance shall any
enforcement of any kind whatsoever be allowed against any assets
of SHINGLE SPRINGS other than the limited assets of SHINGLE
SPRINGS specified in subjection (g) below.
(g) LIMITATION UPON ENFORCEMENT. Damages awarded against SHINGLE
SPRINGS or the Enterprise shall be satisfied solely from the
distributable share of Net Revenues of SHINGLE SPRINGS from the
Enterprise and the Net Revenues of, any other Commercial
Development in conjunction with KAR of the kind contemplated and
the Net Revenues of any future gaming business of any kind which
is operated by or for SHINGLE SPRINGS, whether or not operated
under this Agreement, provided, however, that this limited waiver
of sovereign immunity shall terminate with respect to the
collection of any Net Revenues transferred from the accounts of
any of these businesses to SHINGLE SPRINGS or SHINGLE SPRINGS
bank account in the normal course of business. In no instance
shall any enforcement of any kind whatsoever be allowed against
any assets of SHINGLE SPRINGS other than those specified in this
subsection.
ARTICLE 15
GENERAL
SECTION 15.1. NATURE OF AGREEMENT. This Agreement is not intended as a
Management Agreement and shall not be construed as a "management agreement"
within the meaning of the IGRA.
SECTION 15.2. KAR'S INTEREST IN THE GAMING FACILITY. Nothing contained
herein grants or is intended (i) to grant KAR a titled interest to the Gaming
Facility, or (ii) in any way to impair SHINGLE SPRING's sole proprietary
interest in the Enterprise.
SECTION 15.3. SITUS OF THE AGREEMENT. This Agreement and any Interim
Promissory Note shall be deemed entered into in California.
SECTION 15.4. NOTICE. Any notice required to be given pursuant to this
Agreement shall be delivered to the appropriate party by Certified Mail Return
Receipt Requested, addressed as follows:
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If to SHINGLE SPRINGS: Jim Adams
Shingle Springs of Band of Miwok Indians
P.O. Box 1340
Shingle Springs, California 95682
Attn.: Chairperson
Copies to:
Phillip E. Thompson
Thompson Associates
2307 Thornknoll Drive
Suite 100
Fort Washington, MD 20744
If to KAR: Kevin M. Kean
Kean Argovitz Resorts - Shingle Springs, LLC
11999 Katy Frwy., Suite 322
Houston, Texas 77079
Copies to:
Jerry Argovitz
Kean Argovitz Resorts - Shingle Springs, LLC
11999 Katy Frwy., Suite 322
Houston, TX 77079
or to such other different address(es) as KAR or SHINGLE SPRINGS may specify in
writing. Any such notice shall be deemed given two days following deposit in
the United States mail or upon actual delivery, whichever first occurs.
SECTION 15.5. RELATIONSHIP. KAR and SHINGLE SPRINGS shall not be construed
as joint venturers or partners of each other by reason of this Agreement and
neither shall have the power to bind or obligate the other except as set forth
in this Agreement.
SECTION 15.6. FURTHER ACTIONS. The SHINGLE SPRINGS and KAR agree to
execute all contracts, agreements and documents and to take all actions
necessary to comply with the provisions of this Agreement and the intent hereof.
SECTION 15.7. WAIVERS. No failure or delay by KAR or SHINGLE SPRINGS 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
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
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subsequent breach thereof.
SECTION 15.8. CAPTIONS. The captions of each article, section and
subsection contained in this Agreement are for ease of reference only and shall
not affect the interpretational meaning of this Agreement.
SECTION 15.9. 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
hereto.
SECTION 15.10. SURVIVAL OF COVENANTS. Any covenant, term or provision of
this Agreement which, in order to be effective, must survive the termination of
this Agreement, shall survive any such termination.
SECTION 15.11. ESTOPPEL CERTIFICATE. KAR and SHINGLE SPRINGS agree to
furnish to the other party, from time to time upon request, an estoppel
certificate in such reasonable form as the requesting party may request stating
whether there have been any defaults under this Agreement known to the party
furnishing the estoppel certificate.
SECTION 15.12. PERIODS OF TIME. 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 the laws of SHINGLE
SPRINGS or the State of California, then in such event said date shall be
extended to the next day which is not a Saturday, Sunday or legal holiday.
SECTION 15.13. GOVERNMENTAL SAVINGS CLAUSE. Each of the parties agrees to
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, Bureau of Indian
Affairs, the office of the Field Solicitor, the NIGC, or any applicable
statute, rule or regulation in order to effectuate, complete, perfect, continue
or preserve the respective right, obligations, liens and interests of the
parties hereto to the fullest extent permitted by law; provided, that any such
additional instrument, certification, amendment, modification or other document
shall not materially change the respective rights, remedies or obligations of
SHINGLE SPRINGS or KAR under this Agreement or any other agreement or document
related hereto.
SECTION 15.14. 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. SHINGLE SPRINGS prior written consent shall
be required for KAR to assign any of its rights, said consent shall not be
unreasonably withheld hereunder, and, if necessary the Secretary of the
Interior or the chairman of the NIGC approves, and that any such assignee
agrees to be bound by the terms and conditions of this Agreement. The
acquisition of KAR by a third party shall not constitute an assignment of this
Agreement by KAR subject to the approval of SHINGLE SPRINGS, which approval
shall not be unreasonably withheld. The SHINGLE SPRINGS shall,
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without the consent of KAR, but subject to approval by the Secretary of the
Interior or the Chairperson of the NIGC or his authorized representative, if
required, have the right to assign this Agreement and the assets of the
Enterprise to an instrumentality of the SHINGLE SPRINGS or to a corporation
wholly owned by SHINGLE SPRINGS organized to conduct the business of the
Project and Enterprise for SHINGLE SPRINGS that assumes all obligations herein.
Any assignment by the SHINGLE SPRINGS shall not prejudice the rights of KAR
under this Agreement. No assignment authorized hereunder shall be effective
until all necessary governmental approvals have been obtained.
SECTION 15.15 SEVERABILITY. If any provision, or any portion of any
provision, of this Agreement is found to be invalid or unenforceable, such
unenforceable provision, or unenforceable portion of such provision, shall be
deemed severed from the remainder of this Agreement. If any provision, or any
portion of any provision, of this Agreement is deemed invalid due to its scope
or breadth, such provision shall be deemed valid to the extent of the scope or
breadth permitted by law. If, however, any material part of a party's rights
under this Agreement or the Management Agreement shall be declared invalid or
unenforceable (specifically including KAR right to receive its management fees
or SHINGLE SPRINGS's right to receive payments for loans from KAR) the party
whose rights have been declared invalid or unenforceable shall have the option
to terminate this Agreement upon thirty (30) days' written notice to the other
party, without liability on the part of the terminating party, but KAR shall
retain the right to repayment of unpaid principal and interest on all monies
loaned to it by SHINGLE SPRINGS whether pursuant to this Agreement or
otherwise.
SECTION 15.16 ENTIRE AGREEMENT. This Agreement (together with the
Exhibits and Management Agreement of even date herewith) sets forth the entire
agreement between the parties hereto with respect to the subject matter hereof.
All agreements, covenants, representations, and warranties, express or implied,
oral or written, of the parties with respect to the subject matter hereof are
contained herein. No other agreements, covenants, representations, or
warranties, express or implied, oral or written have been made by any party to
the other with respect to the subject matter of this Agreement. All prior and
contemporaneous conversations, discussions, negotiations, possible and alleged
agreements and representations, covenants and warranties with respect to the
subject matter hereof, are waived, merged herein and superseded hereby. Each
party affirmatively represents that no promises have been made to that party
which are not contained in this Agreement, the Management Agreement, and the
Exhibits, and stipulates that no evidence of any promises not contained in this
Agreement, the Management Agreement, and the Exhibits, shall be admitted into
evidence on their behalf. This Agreement shall not be supplemented, amended or
modified by any course of dealing, course of performance or uses of trade and
may only be amended or modified by a written instrument duly executed by
officers of both parties.
ARTICLE 16
INDEMNIFICATION
SECTION 16.1 INDEMNITY. SHINGLE SPRINGS hereby agrees to indemnify and
will hold KAR harmless from and against any and all claims, demands,
liabilities, actions, damages,
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costs, charges and expenses (including attorney fees) as a consequence, direct
or indirect of SHINGLE SPRINGS's association including but not limited to Chris
Anderson, Sharp Image Gaming, Excelsior Gaming or any other party which may have
claims against SHINGLE SPRINGS. The Coushatta Indian Tribe of Louisiana and
Lakes Gaming, Inc. shall be excluded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ARTICLE 17
TRIBAL RESOLUTION
SECTION 17.1 TRIBAL RESOLUTION. SHINGLE SPRINGS Tribal Council has given
the Tribal Chairperson authority to enter into this Agreement, the Management
Agreement, the Interim Promissory Note and all other instruments and agreements
executed in connection with this Agreement.
SHINGLE SPRINGS OF BAND OF MIWOK INDIANS
By: /s/ Jim Adams
----------------------
Jim Adams, Chairman
KEAN ARGOVITZ RESORTS - SHINGLE SPRINGS, LLC.
By: /s/ Kevin M. Kean
----------------------
Kevin M. Kean, President
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EXHIBIT A
PRELIMINARY PROJECT DESCRIPTION
According to the preliminary plan, the Gaming Facility should contain the
following components in order to fully capture the potential market demand:
- 120,000 square feet of building space.
- 3,000 compacted gaming devices and 40 table games (assuming allowed by
(Compact).
- Parking garage and flat parking with 1,500 spaces.
- Specialty restaurant.
- Food buffet restaurant.
- 24 hour coffee shop.
- Snack bar.
- Retail area.
- Multi-purpose entertainment, bingo and convention facility.
- Meeting rooms.
- Child care facility.
- Video arcade facility.
- Administrative offices.
- Regulatory authority.
- 300 Room hotel with indoor pool & fitness facility.
- RV Park.
- Convenience Store/Gas Station.
- Acquire Additional land for the SHINGLE SPRINGS.
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EXHIBIT B
SECURITY AND REIMBURSEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 11 day of June, 1999 by and
among the SHINGLE SPRINGS OF BAND OF MIWOK INDIANS, a federally recognized
Indian Tribe, and its permitted successors and assigns ("SHINGLE SPRINGS") P.O.
Box 1340, SHINGLE SPRINGS, California 95682; and Kean Argovitz Resorts - Shingle
Springs, LLC., a Nevada limited liability company, with offices at 11999 Katy
Frwy., Suite 322, Houston, TX 77079 ("KAR"), referred to herein as "Guarantors".
RECITALS
A. SHINGLE SPRINGS is a federally recognized Indian tribe and possesses
sovereign governmental powers over the Tribal Lands, and is held in trust
by the United States of America for the benefit of the SHINGLE SPRINGS OF
BAND OF MIWOK INDIANS.
B. SHINGLE SPRINGS desires to build a gaming facility on the Tribal Lands
(the "Gaming Facility").
C. SHINGLE SPRINGS intends to finance construction of the Gaming Facility
with up to $100,000,000 of unsecured non-recourse debt (the "Lender
Financing").
D. ("________") has or will issue a conditional commitment for the Lender
Financing (the "Commitment"), requiring, among other things, that
Guarantors guaranty to the holders of the Lender Financing certain matters,
including the complete and unconditional guaranty of the payment of the
Lender Financing. Such guaranty is referred to as the "Guaranty".
E. The obligations of SHINGLE SPRINGS to make any payments under this
Agreement are limited to the same extent as the obligations of SHINGLE
SPRINGS are limited under the agreements and documents evidencing the
Lender Financing (the "Loan Documents"). Recourse under this Agreement is
limited to the Collateral and the proceeds, if any, realized by the
Guarantors upon the disposition thereof, and SHINGLE SPRINGS shall not be
obligated to apply any other assets or revenues to the payment or
performance of its obligations hereunder.
F. Guarantors require, as a condition to the issuance of the Guaranty, among
other things: (i) that SHINGLE SPRINGS agree to reimburse, indemnify and
hold harmless from and against all amounts Guarantor may be called on to
pay under the Guaranty; and (ii) that SHINGLE SPRINGS agrees, that all
amounts due and owing under this Agreement will be evidenced by the
agreements, instruments and documents evidencing the Lender Financing.
G. KAR and SHINGLE SPRINGS have signed an agreement of even date herewith
providing for the management of a gaming enterprise (the "Enterprise") at
the Gaming
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Facility by KAR (the "Management Agreement") (and performance of the
Management Agreement by KAR has been guaranteed by KAR and SHINGLE SPRINGS
have signed an agreement of even date regarding development, financing and
construction of the Gaming Facility (the "Development Agreement"). All
capitalized terms in this Securities and Reimbursement Agreement not
otherwise defined herein shall have the definitions set forth in the
Management Agreement.
H. Guarantors have required, as a condition to the execution by them of the
Development Agreement, that SHINGLE SPRINGS execute this Security and
Reimbursement Agreement to secure repayment to the Guarantors of certain
loans and advances to and on behalf of SHINGLE SPRINGS to be made pursuant
to the Development Agreement.
I. Guarantors and SHINGLE SPRINGS wish, by the execution hereof, to set forth
their agreements in regard to the Guaranty.
AGREEMENT
NOW THEREFORE, in consideration of TEN DOLLARS ($10.00), the issuance
of the Guaranty, and other good valuable consideration, the receipt and
sufficiency of which is acknowledged, Owner and Guarantors hereby agree as
follows:
1. SECURITY ("COLLATERAL"). As security for the full and punctual payment
and performance of SHINGLE SPRINGS's obligations under this Agreement, SHINGLE
SPRINGS irrevocably grants, pledges and assigns, subject to the terms of this
Agreement, a continuing lien on and security interest in, the distributable
share of Total Net Revenues of SHINGLE SPRINGS from the Enterprise, the
distributable share of Total Net Revenues any other Tribal gaming business of
the kind contemplated and the distributable share of Total Net Revenues of any
future gaming business of any kind which is operated by or for SHINGLE SPRINGS,
whether or not operated under an Agreement with KAR, provided, however, that
these funds shall cease to be collateral for this Agreement when they are
transferred from the accounts of any of these Businesses to SHINGLE SPRINGS or
SHINGLE SPRINGS's bank account in the normal course of business. In no instance
shall any enforcement of any kind whatsoever be allowed against any assets of
SHINGLE SPRINGS other than those specified in this subsection. Provided,
however, that the security interest and lien on the Collateral granted hereunder
(i) shall not be deemed to exist unless and until the Guaranty has been called
and the Guarantors have purchased the Lender Financing or the Guarantors has
made a loan or advance pursuant to the Development Agreement that is to be
secured by this Security and Reimbursement Agreement, SHINGLE SPRINGS recognizes
that Guarantors will be required by the holders of the Lender Financing, to
purchase the Lender Financing ("Loan Documents") on demand. SHINGLE SPRINGS
agrees if the Guaranty is called and Guarantors purchase the Lender Financing,
then all amounts from time to time owed by SHINGLE SPRINGS to Guarantors, or
either of them, under this Agreement shall thereupon be secured by this
Agreement as advances made to protect the Collateral. As an inducement to
Guarantors to deliver the Guaranty, and recognizing that Guarantors will rely
hereupon, SHINGLE SPRINGS agrees that, in the event Guarantors or any of their
affiliates acquires the Lender Financing, no defense, set-off, counterclaim or
other claim whatsoever
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(collectively "claims") will be made against Guarantors or their affiliates
based upon the acts or omissions of the Lender and/or any prior holder(s) of
the Loan Documents, and the sole remedy for such acts or omissions shall be a
separate action against the Lender and/or such holder(s) for damages.
2. NOTICE OF GUARANTY PAYMENTS. Guarantors shall notify SHINGLE SPRINGS
of each payment made under the Guaranty (each, a "Guaranty Payment," and
collectively, the "Guaranty Payments") in the manner provided in Section 14 of
this Agreement.
3. INDEMNITY BY SHINGLE SPRINGS - GUARANTY. With respect to the Loan
Documents, SHINGLE SPRINGS indemnifies Guarantors and holds Guarantors harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including without limitation all Guaranty
Payments, costs of legal contests, and all attorneys' fees and allocated costs
of internal counsel) that Guarantors, may incur or be subject to as a
consequence, direct or indirect, of the issuance, performance, or contest of
the Guaranty.
Payment of all such amounts by SHINGLE SPRINGS shall, unless otherwise
specified in this Agreement, be made as follows:
(i) The principal amounts advanced and outstanding shall be due and
payable on the maturity dates set forth in the Loan Documents,
notwithstanding any acceleration by the Lender; and one day following
the maturity of the Lender Financing; and
(ii) Interest shall be calculated daily on the principal amount owed and
outstanding from the date of its advance to the date of its repayment
at a rate equal to that set forth in the Lender Financing; and shall
be due and payable monthly on the first day of each calendar month
from the date hereof until Maturity.
4. OBLIGATIONS ABSOLUTE. The obligations of SHINGLE SPRINGS to
Guarantors are unconditional, irrevocable and continuing until paid and
performed in full, and shall be paid and performed in strict accordance with
the terms of this Agreement under all circumstances, including without
limitation, the following:
(i) Any lack of validity or enforceability of any Guaranty;
(ii) The existence of any claim, set-off, defense or other right that
SHINGLE SPRINGS may have at any time against any Guarantor, or any
affiliate of any Guarantor, or against Lender or any other lender
participating in the Lender Financing (or any persons or entities for
whom any such party may be acting), or against any other person or
entity, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction;
(i) Any other circumstance or happening whatsoever.
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5. RIGHTS OF GUARANTORS. The Guarantors, may, at any time and from time
to time, without consent of or notice to SHINGLE SPRINGS, and without incurring
responsibility to SHINGLE SPRINGS, and without impairing or releasing the
obligations of SHINGLE SPRINGS hereunder:
(i) Exercise or refrain from exercising any rights against SHINGLE
SPRINGS, the collateral (or any other collateral or guaranty which may
otherwise secure the repayment of liabilities of the Guarantors under
the Guaranty) or otherwise act or refrain from acting (or consent to
any such action or inaction); and
(ii) Apply any sums by whomsoever paid, or howsoever realized, to any
liability or liabilities of SHINGLE SPRINGS hereunder (or under any
other agreements, instruments or documents which may hereafter be
acquired to secure repayment of the liabilities of the Guarantors
under the Guaranty), regardless of what liabilities or liabilities of
SHINGLE SPRINGS remain unpaid so long as such payments are consistent
with the priority of payments set forth in the Development and
Construction Agreement and/or the Management Agreement.
6. REPRESENTATIONS AND WARRANTIES. SHINGLE SPRINGS represents and
warrants to Guarantors as follows:
(i) SHINGLE SPRINGS is a federally recognized Indian tribe recognized as
eligible by the Secretary of the Interior for the special programs and
services provided by the United States to Indians because of their
status as Indians and is recognized as possessing powers of
self-government.
(ii) SHINGLE SPRINGS has all requisite power and authority to execute,
deliver and perform this Agreement.
7. TRANSFER OF COLLATERAL. Except as to any Lender Financing, and except
as allowed pursuant to the Loan Agreement and the Development Agreement, no
Collateral shall be sold, transferred, assigned, pledged, made subject to any
other security interest, or otherwise disposed of or encumbered (each, a
"Transfer") without the express prior written consent of Guarantors. Any
Transfer in violation of this Agreement shall be null and void, ab initio.
8. EVENTS OF DEFAULT. An "Event of Default" shall exist if any of the
following shall have occurred:
(i) SHINGLE SPRINGS shall fail to comply with any of the covenants or
agreements made by it in this Agreement and such failure shall not be
remediable, or if remediable, such failure shall have continued
unremedied for ten (10) days after written notice thereof has been
given to SHINGLE SPRINGS by any Guarantor.
(ii) Any representation or warranty made by SHINGLE SPRINGS in this
Agreement
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shall fail to have been correct or shall have been misleading in any
material respect on the date made or as of the time recited; or
(iii) SHINGLE SPRINGS shall have defaulted in any of its obligations with
respect to: (1) the Loan documents and maturity of the debt
evidenced thereby shall have been accelerated; (2) the Development
Agreement or (3) any agreement entered into with respect to the
Gaming Facility by and between SHINGLE SPRINGS and any Guarantor or
affiliate of any Guarantor.
9. REMEDIES. If an Event of Default shall occur, and if the
Guarantors, or any of them, shall have purchased the Lender Financing under one
or more of the Guaranties, the Guarantors, shall have, in addition to its other
rights, all rights of the Lender under the Loan Documents. All amounts advanced
by, or on behalf of, the Guarantors, in exercising rights under this Agreement
(including but not limited to legal expenses and disbursements incurred in
connection therewith, and fees and costs of preparing for and consummating any
sale of the Collateral), together with interest thereon from the date of such
advance at the applicable rate allowed by the Loan Documents, shall be payable
by SHINGLE SPRINGS, on demand, and shall be secured by the Collateral.
10. RECEIPT OF SALES PROCEEDS. Upon any sale of the Collateral by the
Guarantors (whether by virtue of the power of sale herein granted, pursuant to
judicial process or otherwise), the receipt of the Guarantors or the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold, and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid
over the Guarantors or such officer or be answerable in any way for the
misapplication or non-application thereof.
11. APPLICATION OF COLLATERAL. All proceeds of any Collateral now or at
any time hereafter received or retained by the Guarantors pursuant to this
Agreement (including without limitation, any proceeds from the sale of the
Collateral, and all distributions, dividends and other payments received by the
Guarantors in respect of the Collateral) shall be applied: (i) first, to the
payment of any costs incurred in the enforcement of or exercise of rights under
this Agreement; (ii) second, to the payment of accrued and unpaid interest;
(iii) third, to the payment of the principal amount owned; and (iv) fourth, to
SHINGLE SPRINGS or otherwise as directed by a court of competent jurisdiction.
If obligations of SHINGLE SPRINGS are due and unpaid under more than one
Guaranty, Guarantors may apply such proceeds to the unsatisfied Guaranty in such
order as they may, in their sole discretion, determine.
12. WAIVERS; MODIFICATIONS.
(i) No failure or delay on the part of the Guarantors to insist on
strict performance in exercising any privilege, right or remedy
shall operate as a waiver thereof or a waiver of any term,
provision or condition hereof, nor shall any single or partial
exercise of any privilege, right or remedy preclude any other or
further exercise thereof or the exercise of any other privilege,
right or remedy.
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(ii) A waiver in one or more instances of any of the terms,
covenants, conditions or provisions hereof shall apply to
the particular instance or instances and at the particular
time or times only, and no such waiver shall be deemed a
continuing waive, but all of the terms, covenants, conditions
and other provisions of this Agreement shall survive and continue
to remain in full force and effect; and no waiver shall be
effective unless in writing, dated and signed by the Guarantors.
(iii) No change, amendment, modification, cancellation or discharge
hereof, shall be valid unless in writing, dated and signed by the
party against whom such change, amendment, modification,
cancellation or discharge is sought to be charged.
13. REMEDIES CUMULATIVE. All rights and remedies afforded to the
parties hereto by reason of this Agreement are separate and cumulative
remedies, and shall be in addition to all other rights and remedies in favor of
such parties existing at law or in equity or otherwise. No one of such
remedies, whether or not exercised by any such party, shall be deemed to
exclude, limit or prejudice the exercise of any other legal or equitable remedy
or remedies available to such parties so long as same fall within the scope of
those provided in the Management Agreement and/or the Development Agreement
between SHINGLE SPRINGS and Guarantors.
14. NOTICES. All notices, demands, requests, and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given: (i) when presented personally; or (ii) one (1)
business day after delivery to a commercial overnight courier service; or (iii)
three (3) business days after mailing with the United States Postal service,
postage prepaid, certified mail, return receipt requested; in each case
addressed or delivered, in the case of personal presentation, to the respective
party, as the case may be, at the following address, or such other address any
party may from time to time designate by written notice to the others as herein
required.
If to the Guarantors: Kean Argovitz Resorts - Shingle Springs, LLC
11999 Katy Frwy., Suite 322
Houston, TX 77079
Attn: Kevin Kean
With simultaneous copies to: Kean Argovitz Resorts - Shingle Springs, LLC
11999 Katy Frwy., Suite 322
Houston, TX 77079
Attn.: Dr. Jerry Argovitz
If to SHINGLE SPRINGS: Jim Adams, Chairman
Shingle Springs of Band of Miwok Indians
P.O. Box 1340
Shingle Springs, California 95682
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With simultaneous copies to: Phillip E. Thompson
Thompson Associates
2307 Thornknoll Drive
Suite 100
Fort Washington, MD 20744
15. 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 permitted assigns. SHINGLE SPRINGS's consent shall not be
required for Guarantors to assign any of their rights, interests or obligations
as Guarantors hereunder to any parent, subsidiary or affiliate of Guarantors or
their successor corporations, provided that the Secretary of the Interior
approves and that any such assignee agrees to be bound by the terms and
conditions of this Agreement. The acquisition of the Guarantors or their parent
company by a third party shall not constitute an assignment of this Agreement by
Guarantors and this Agreement shall remain in full force and effect between
SHINGLE SPRINGS and Guarantors. This Agreement may be assigned by the
Guarantors, subject to approval by SHINGLE SPRINGS, which approval shall not be
unreasonably withheld, and by the Secretary of the Interior or his authorized
representative after a complete background investigation of the proposed
assignee. SHINGLE SPRINGS shall, without the consent of the Guarantors have the
right to assign this Agreement and the assets of the Enterprise to an
instrumentality of SHINGLE SPRINGS or to a corporation wholly owned by SHINGLE
SPRINGS organized to conduct the business of the Enterprise for SHINGLE SPRINGS
that assumes all obligations herein. Any assignment by SHINGLE SPRINGS shall not
prejudice the rights of the Guarantors under this Agreement. No assignment
authorized hereunder shall be effective until all necessary government approvals
have been obtained.
16. GUARANTORS NOT BOUND. Nothing herein shall be construed to make the
Guarantors liable as partners of SHINGLE SPRINGS, and the Guarantors, by virtue
of this Agreement, shall not have any of the duties, obligations or liabilities
of a partner of SHINGLE SPRINGS.
17. SEVERABILITY. All rights, powers and remedies provided herein may be
exercised only to the extent that the exercise thereof does not violate any
applicable law, and are intended to be limited to the extent necessary so that
they will not render this Agreement invalid or unenforceable. If any one or more
of the provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, but the balance
of this Agreement shall be construed as if such invalid, illegal or
unenforceable provision or provisions had never been included.
18. FURTHER ASSURANCES. SHINGLE SPRINGS shall, at any time and from time
to time after the execution and delivery of this Agreement, within ten (10) days
after request by the Guarantors, execute, acknowledge and deliver such further
conveyances, assignments, agreements and instruments of further assurance and
other documents and do such further acts and things as the Guarantors may
reasonably request and are reasonably necessary in order to: (i) carry into
effect the purposes of this Agreement following the acquisition thereof, or (ii)
extend
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the lien of this Agreement to secure all amounts due and payable by SHINGLE
SPRINGS under this Agreement; (iii) further assure and confirm unto the
Guarantors their rights, privileges and remedies under this Agreement and under
the Loan Documents.
SHINGLE SPRINGS also authorizes the Guarantors to file financing statements
without their signatures, if lawful. If Guarantors shall file any financing
statement without the signature of SHINGLE SPRINGS, Guarantors shall deliver a
copy of such financing statement to the affected party after the filing thereof.
19. RELEASE. The lien on and security interest in all of the Collateral
shall automatically be released and terminated and no longer be of force and
effect upon absolute and unconditional release or satisfaction of the Guaranty
and payment in full of any unreimbursed loss or cost whatsoever incurred by
Guarantors pursuant thereto.
20. GOVERNING LAW; INTEGRATION. This Agreement shall be governed by and
construed enforced in accordance with the laws of the State of California
without regard to the conflicts or choice of laws rules of California State,
except to the extent provided by any mandatory provisions of applicable law.
21. BUSINESS DAY EXTENSION. In the event any time period or any date
provided in this Agreement ends or falls on a day other than a business day,
then such time period shall be deemed to end and such date shall be deemed to
fall on the next succeeding business day with the same force and effect as if
made on such other day. "Business day" shall mean each Monday through and
including Friday excluding only days upon which banks are authorized to be
closed for business in the state of California.
22. INDEMNIFICATION. SHINGLE SPRINGS shall indemnify and hold the
Guarantors harmless from and against any and all defenses, losses, expenses,
liabilities and claims arising from any breach by SHINGLE SPRINGS of its
respective obligations hereunder. SHINGLE SPRINGS shall also reimburse the
Guarantors for all costs and expenses (including fees of outside or internal
counsel) incurred by or on behalf of the Guarantors in enforcing SHINGLE
SPRINGS's obligations under this Agreement.
23. DISPUTE RESOLUTION.
23.1. GENERAL. The parties agree that binding arbitration pursuant to
this Section 24 shall be the remedy for all disputes, controversies and
claims arising out of this Agreement, the Development Agreement,
Management Agreement, the Note, Loan Agreement, any other Security and
Reimbursement Agreement, any documents or agreements referenced by any
of these documents, any agreements collateral thereto, or any notice of
termination thereof, including without limitation, any dispute,
controversy or claim arising out of any of these agreements. The
parties intend that such arbitration shall provide final and binding
resolution of any dispute, and that action in any other forum shall be
brought only if necessary to compel arbitration, or to enforce an
arbitration award
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or order.
(i) Each party agrees that it will use its best efforts to negotiate an
amicable resolution of any dispute between KAR and SHINGLE SPRINGS
arising from this Agreement. If SHINGLE SPRINGS and KAR are unable to
negotiate an amicable resolution of a dispute within 14 days from the
date of notice of the dispute pursuant to the notice section of the
Development Agreement, or such other period as the parties mutually
agree in writing, either party may refer the matter to arbitration as
provided for in this Section.
(ii) SHINGLE SPRINGS's election to terminate this Agreement is, however,
final and conclusive and not subject to dispute resolution between the
parties, but only if the NIGC makes a final determination that KAR is
not suitable to hold a license. The parties recognize that minor
revisions of contracts before the NIGC is routine, and an NIGC notice
requesting revisions in the Agreement shall not be grounds for
termination by SHINGLE SPRINGS unless KAR refuses to make the changes
necessary to obtain NIGC approval.
23.2. ARBITRATION
23.2.1 INITIATION OF ARBITRATION AND SELECTION OF ARBITRATORS. Arbitration
shall be initiated by written notice by one party to the other pursuant to
the notice section of the Development Agreement, and the Commercial
Arbitration Rules of the American Arbitration Association shall thereafter
apply. The arbitrators shall have the power to grant equitable and
injunctive relief and specific performance as provided in this Agreement.
If necessary, orders to compel arbitration or enforce an arbitration award
may be sought before the United States District Court for the Eastern
District of California and any federal court having appellate jurisdiction
over said court. If the United States District Court for the Eastern
District of California finds that it lacks jurisdiction, SHINGLE SPRINGS
consents to be sued in a court of competent jurisdiction. The arbitrator
shall be a licensed attorney knowledgeable in federal Indian law and
selected pursuant to the Commercial Arbitration Rules of the American
Arbitration Association.
(i) CHOICE OF LAW. In determining any matter the Arbitrator(s) shall apply
the terms of this Agreement, without adding to, modifying or changing
the terms in any respect, and shall apply California law.
(ii) PLACE OF HEARING. All arbitration hearings shall be held at a place
designated by the arbitrator(s) in Sacramento, California.
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(iii) CONFIDENTIALITY. The parties and the arbitrator(s) shall maintain
strict confidentiality with respect to arbitration.
24. LIMITED WAIVER OF SOVEREIGN IMMUNITY. SHINGLE SPRINGS expressly and
irrevocably waives its immunity from suit as provided for and limited by this
Section. This waiver is limited to SHINGLE SPRING's consent to all arbitration
proceedings, and actions to compel arbitration and to enforce any awards or
orders issuing from such arbitration proceedings which are sought solely in
United States District Court for the Eastern District of California and any
federal court having appellate jurisdiction over said court, provided that if
the United States District Court for the Eastern District of California finds
that it lacks jurisdiction, SHINGLE SPRINGS consents to such actions in a court
of competent jurisdiction. This consent to State Court jurisdiction shall only
apply if KAR exercises reasonable efforts to argue for the jurisdiction of the
federal court over said matter. The arbitrators shall not have the power to
award punitive damages.
(i) TIME PERIOD. The waiver granted herein shall commence as of the
Effective Date of this Agreement and shall continue for one year
following expiration, termination or cancellation of this
Agreement, or termination of the Enterprise and shall remain
effective for the duration of any arbitration, litigation or
dispute resolution proceedings then pending, all appeals
therefrom, and except as limited by this Section through the
satisfaction of any awards or judgments which may issue from such
proceedings, provided that an action to collect such judgment has
been filed within one year of the date of the final judgment.
(ii) RECIPIENT OF WAIVER. This limited waiver is granted only to KAR,
and not to any other individual or entity.
(iii) LIMITATIONS OF ACTIONS. This limited waiver is specifically
limited to the following actions and judicial remedies:
(a) DAMAGES. The enforcement of an arbitrator's award of money
damages provided that the waiver does not extend beyond the
assets specified in Subsection (o) of this Section. No
arbitrator or court shall have any authority or jurisdiction
to order execution against any assets or revenues of the
SHINGLE SPRINGS except as provide in this Subsection (o) of
this Section or to award any punitive damages against
SHINGLE SPRINGS.
(b) CONSENTS AND APPROVALS. The enforcement of a determination
by an arbitrator that SHINGLE SPRINGS's consent or approval
has been unreasonably withheld contrary to the terms of this
Agreement.
(c) INJUNCTIVE RELIEF AND SPECIFIC PERFORMANCE. The enforcement
of
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a determination by an arbitrator that prohibits SHINGLE SPRINGS from taking
any action that would prevent KAR from operating the Business pursuant to
the terms of this Agreement, or that requires SHINGLE SPRINGS to
specifically perform any obligation under this Agreement (other than an
obligation to pay money which is protected by the Limitation Upon
Enforcement Provisions of this Section.)
(d) ACTION TO COMPEL ARBITRATION. An action to compel or enforce arbitration or
arbitration awards or orders pursuant to this Section.
(e) SERVICE OF PROCESS. In any litigation or arbitration service of process
against SHINGLE SPRINGS shall be effective if made by certified mail return
receipt requested to the Chairperson of SHINGLE SPRINGS at the Address set
for in the Notices Section of the Development Agreement.
(f) ENFORCEMENT. If enforcement of a judicial order or arbitration award
becomes necessary by reason of failure of one or both parties to
voluntarily comply, the parties agree that the matter may be resolved by
entry of judgment on the award and enforcement as described herein. Without
in any way limiting or expanding the provisions of this Section, SHINGLE
SPRINGS expressly authorizes any governmental authorities which may
lawfully exercise the right and duty to take any action authorized or
ordered by any court to whom a waiver is granted pursuant to this Section,
including without limitation, entering the Tribal Lands and Gaming Facility
for the Purpose of executing against any property subject to a security
interest or otherwise giving effect to any judgment properly entered
pursuant to this Section; provide however, that in no instance shall any
enforcement of any kind whatsoever be allowed against any assets of SHINGLE
SPRINGS other than the limited assets of SHINGLE SPRINGS specified in
Subsection (g) of this Section.
(g) LIMITATION. Upon Enforcement Damages awarded against SHINGLE SPRINGS or the
Enterprise shall be satisfied solely from the distributable share of Total
Net Revenues of SHINGLE SPRINGS from the Enterprise, the distributable
share of the Total Net Revenues of any other SHINGLE SPRINGS gaming
business of the kind contemplated and the distributable share of the Net
Revenues of any future gaming business of any kind which is operated by or
for SHINGLE SPRINGS, whether or not operated under an Agreement with KAR,
provided, however, that this limited waiver of sovereign immunity shall
terminate with respect
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to the collection of any Net Revenues transferred from the
accounts of the Business to SHINGLE SPRINGS or SHINGLE
SPRINGS's bank account in the normal course of business. In no
instance shall any enforcement of any kind whatsoever be
allowed gains any assets of SHINGLE SPRINGS other than those
specified in this subsection.
25. GOVERNMENT SAVINGS CLAUSE. The parties hereto acknowledge and agree
that this Agreement is a "collateral agreement" to the Management Agreement and
the Development Agreement within the meaning of 25 U.S.C. 2710, and, together
with the Management Agreement and the Development Agreement and any other
collateral agreements thereto, is subject to the provisions of the Indian Gaming
Regulatory Act, 25 U.S.C. 2710 et seq. ("IGRA"). It is the intention of the
parties that this Agreement, the Management Agreement, the Development Agreement
and any other collateral agreements comply with all restrictions and limitations
of IGRA. Consequently, if any provision of this Agreement contravenes any
provision of IGRA, such provision shall be deemed to be modified or deleted
herefrom to the extent necessary to comply with IGRA; provided that such
modification and deletion shall not materially change the respective rights,
remedies or obligations of SHINGLE SPRINGS or the Guarantors under this
Agreement, the Management Agreement and the Development Agreement or any other
collateral agreement. Each of the parties agrees to 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, B.I.A., the NIGC, 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,
liens and interests of the parties hereto to the fullest extent permitted by
law; provided, that any such additional instrument, certification, amendment,
modification or other document shall not materially change the respective
rights, remedies or obligations of SHINGLE SPRINGS or the Guarantors under this
Agreement or any other agreement or document related hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SHINGLE SPRINGS:
SHINGLE SPRINGS OF BAND OF MIWOK INDIANS
By: /s/ Jim Adams
_______________________________
Jim Adams, Chairman
KAR:
KEAN ARGOVITZ RESORTS--SHINGLE SPRINGS, LLC.
By: /s/ Kevin Kean
_______________________________
Kevin Kean, President
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Approved pursuant to 25 U.S.C. Section 81
Approved pursuant to 25 U.S.C. Section 2710
NATIONAL INDIAN GAMING COMMISSION
By:
------------------------------
Name:
----------------------------
Title:
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46