Exhibit 10.11
GAMING FACILITY
DEVELOPMENT AND CONSTRUCTION
AGREEMENT
Between
TWENTY-NINE PALMS BAND OF MISSION INDIANS
and
▇▇▇▇▇ HOTELS & CASINO RESORTS
DEVELOPMENT COMPANY, LLC
April 27, 2000
Exhibit 10.11
GAMING FACILITY
DEVELOPMENT AND CONSTRUCTION AGREEMENT
THIS GAMING FACILITY DEVELOPMENT AND CONSTRUCTION AGREEMENT (this
"Agreement") is made as of the 27 day of April 2000, by and between the
TWENTY-NINE PALMS BAND OF MISSION INDIANS, a sovereign Native American nation,
with offices at ▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (the "Tribe"), and
▇▇▇▇▇ HOTELS & CASINO RESORTS DEVELOPMENT COMPANY, LLC, a Delaware limited
liability company with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ (the
"Developer" or "▇▇▇▇▇").
RECITALS:
A. The Tribe is a federally-recognized Indian Tribe which possesses
sovereign governmental powers pursuant to the Tribe's recognized powers of self
government.
B. The Tribe occupies certain property located in Coachella,
Riverside County, California, more specifically described on Exhibit A attached
hereto, as "Indian lands" pursuant to 25 U.S.C. Section 2703(4) (the
"Property"). The Tribe currently operates a Class II gaming facility on the
Property.
C. The Tribe desires to further develop the Property to promote
increased tribal economic development, self-sufficiency and strong tribal
government.
D. With the assistance of ▇▇▇▇▇, the Tribe intends to design,
finance, construct, furnish and equip a permanent Class III gaming resort on the
Property, which shall include a new casino facility, a hotel and other amenities
and the renovation of the Tribe's existing Class II gaming facility (the
"Facility").
E. The Tribe, on the same date as the date of this Agreement, has
entered into an agreement with THCR Management Services, LLC, for the management
of ongoing gaming and related non-gaming operations at the Facility (the
"Management Agreement"), subject to receipt of regulatory approvals. ▇▇▇▇▇ and
the Tribe intend, prior to the receipt of the regulatory approvals relating to
the Management Agreement: (i) to master-plan and engineer the site for the
Facility; (ii) to design the Facility; (iii) to obtain financing for the
construction of Phase I of the Facility; and (iv) to construct and equip Phase I
of the Facility, so that, when all regulatory approvals required for
effectiveness of the Management Agreement have been obtained, Phase I of the
Facility can be opened to the public.
Exhibit 10.11
F. The Tribe desires to engage ▇▇▇▇▇ exclusively to arrange
financing for the Facility, and to manage the development, design, construction,
furnishing and equipping of the Facility.
▇. ▇▇▇▇▇ has agreed to make available to the Tribe, either by
arranging financing by a bank or other source and/or by arranging a bond issue,
sufficient funds to finance the design and construction of the Facility.
Further, ▇▇▇▇▇ has agreed to pay certain on-going costs of the design and
development of the Facility prior to the closing of the Financing for the
Facility.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises herein contained, the receipt and sufficiency of which are expressly
acknowledged, the Tribe and ▇▇▇▇▇ hereby agree as follows:
ARTICLE 1
DEFINITIONS AND OBJECTIVES
1.1 Definitions. 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 Developer or the Tribe, 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 Developer or the Tribe.
"Agreement" shall mean this Development Agreement.
"Architect" shall have the meaning described in Section 3.1.
"Articles of Association" shall mean the Articles of Association of The
Twenty-Nine Palms Band of Mission Indians as adopted by the Tribe on March 1,
1972 and approved by the Secretary of the Interior.
"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.
"Compact" shall mean the Tribal-State Compact between the Tribe and the
State of California regarding Class III Gaming, executed by the Tribe on October
1, 1999 and to be executed by the State upon approval by the voters of the State
of California of Proposition 1A
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Exhibit 10.11
and approved or considered approved by the Secretary of the Interior as provided
in 25 U.S.C. Section 2710(d)(8)(A) or Section 2710(d)(8)(C) and published in the
Federal Register as provided in 25 U.S.C. Section 2710(d)(8)(D); as the same
may, from time to time, be amended, or such other Compact that may be
substituted therefor.
"Construction Committee" shall mean a committee of 3 persons designated
by the Tribal Council to function as a liaison between the Developer and the
Tribal Council and to oversee the activities of Developer pursuant to this
Agreement.
"Construction Documents" shall have the meaning described in Section
4.4.
"Development Budget" shall have the meaning described in Section 3.2.
"Developer" shall be ▇▇▇▇▇ who, subject to the approval and oversight
rights of the Tribe provided in this Agreement, shall be responsible for the
management and coordination of all aspects of the development of the Project,
including, but not limited to, responsibility for management of regulatory
approvals, budget and schedule, funding, design and engineering, construction,
furniture, fixtures and equipment, pre-opening activities.
"Effective Date" shall mean the date five (5) days following the date on
which all of the following listed conditions are satisfied:
(i) written approval of this Agreement is granted by the
Chairman of the NIGC (if required) and/or the BIA;
(ii) written approval of the Financing Agreements is granted
by the Chairman of the NIGC and/or the BIA, if required;
(iii) publication of the Compact by the Secretary of the
Interior in the Federal Register as provided in 25 U.S.C. Section 2710(d)(8)(D);
(iv) Developer has received a certified copy of the Articles
of Association, the Gaming Ordinance and the Resolutions adopted by the Tribe in
accordance with the Tribe's governing documents authorizing the execution of
this Agreement and the Financing Agreements;
(v) Developer has satisfied itself that the Articles of
Association, the Gaming Ordinance and any other codes or ordinances adopted by
the Tribe relative to the Property, the Facility or any of the documents
referenced in this Agreement do not have a material adverse effect on the
ability of THCR Management Services, LLC to operate the Facility under the
Management Agreement.
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Exhibit 10.11
"Facility" shall mean all buildings, structures and improvements located
on the Property used in connection with gaming or used for the operation of the
Tribal Enterprise, and all fixtures, Furnishings and Equipment attached to,
forming a part of, or necessary for the operation of such buildings, structures
and improvements.
"Financing" shall mean one or more loans, notes or bond offerings (and
may include as a component a tax exempt bond offering), in the aggregate
principal amount of up to, but not more than, Sixty Million ($60,000,000)
Dollars the proceeds of which shall be used to fund the costs of development,
design, construction, furnishing and equipping of Phase I of the Facility, as
well as pre-opening expenses.
"Financing Agreements" shall mean all loan agreements, indentures,
notes, security agreements and other documents to be entered into between the
Tribe and/or the Tribal Enterprise and one or more Lenders pursuant to which the
financing is issued.
"Furnishings and Equipment" shall mean all furniture, furnishings and
equipment required for the operation of the Facility, including, without
limitation:
(i) cashier, money sorting and money counting equipment,
surveillance and communication equipment and security equipment;
(ii) electronic lottery terminals, video games of chance,
table games, bingo blowers and equipment, electronic displays, Class II pull-tab
dispensers, table games, pari-mutuel betting equipment and other Class II and
Class III gaming equipment permitted pursuant to the Compact and the IGRA;
(iii) office furnishings and equipment;
(iv) specialized equipment necessary for the operation of any
portion of the Facility for accessory purposes, including equipment for
entertainment facilities, hospitality facilities, kitchens, laundries, dry
cleaning, cocktail lounges, restaurants, public rooms, commercial and parking
spaces and recreational facilities;
(v) all decor, special effects and artwork; and
(vi) all other furnishings and equipment hereafter located
and installed in or about the Facility which are used in the operation of the
Facility 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 under the IGRA.
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Exhibit 10.11
"Gaming Code" shall mean the Gaming Ordinance adopted by the Tribe and
approved by the Chairman of the NIGC regulating the conduct of gaming on tribal
lands, as amended following the passage of Proposition 1A to permit Class III
Gaming at the Facility in accordance with the Compact, together with the Tribal
Gaming Commission Rules and Regulations.
"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.
"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, codes, rules, regulations,
permits, licenses and certificates, in any way applicable to the Tribe,
Developer, the Property, the Facility and the Tribal Enterprise, including
without limitation, the IGRA, the Compact and the Gaming Code.
"Lender" shall mean the financial institution(s) or indenture trustee
identified in the Financing Agreement(s) as the "Lender" or "Trustee."
"Management Agreement" shall mean the agreement between the Tribe and
THCR Management Services, LLC, dated the same date as this Agreement.
"National Indian Gaming Commission ("NIGC")" shall mean the commission
established pursuant to 25 U.S.C. Section 2704.
"Plans and Specifications" shall mean the final Plans and Specifications
approved for the Facility as described in this Agreement.
"Project" shall have the meaning described in Section 2.3.
"Property" shall mean the Tribe's "Indian lands" consisting of
approximately 240 acres of land located at ▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, pursuant to a declaration of trust by the United
States of America dated May 18, 1978, recorded June 27, 1978 in the Official
Records of Riverside County, California in Book 1978, Page 131619, more
specifically described on Exhibit A attached hereto.
"State" shall refer to the State of California.
"Term" shall mean the term of this Agreement as described in Article 7.
"Tribal Council" shall mean the duly elected governing legislative body
of the Twenty-Nine Palms Band of Mission Indians.
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Exhibit 10.11
"Tribal Distributions" shall mean the distribution from net revenues of
the Facility made to the Tribe in the ordinary course of business and pursuant
to the Management Agreement.
"Tribal Enterprise" shall mean a business entity or instrumentality
created by the Tribe to engage in Class II and Class III Gaming at the Facility,
and which shall include any other lawful commercial activity allowed in the
Facility including, but not limited to, the sale of alcohol, tobacco, gifts and
souvenirs; or any ancillary non-Gaming activity within the Facility generally
related to Class II or Class III Gaming.
"▇▇▇▇▇," as used throughout this Agreement, shall mean only ▇▇▇▇▇ Hotels
& Casino Resorts Development Company, LLC, a Delaware limited liability company
with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇.
1.2 Independent Agreement. The objective of the Tribe and Developer
in entering into this Agreement is to provide a legally enforceable procedure
and agreement whereby the Tribe and Developer can proceed with development of
the Facility prior to the approval of the Management Agreement by the NIGC. This
is intended to be a legally enforceable agreement, independent of the Management
Agreement, enforceable between the parties as of the Effective Date regardless
of whether or not the Management Agreement is approved by the Chairman of the
NIGC.
ARTICLE 2
SCOPE OF DEVELOPMENT
2.1 Development Plan. Developer and the Construction Committee shall
prepare and finalize a development plan, including a depiction of all buildings,
roadways, parking facilities and infrastructure improvements to be constructed
upon the Property, a designation of the phase of development for each such
improvement, a schedule of critical dates for each phase of development and a
construction budget or budgets of all hard and soft costs anticipated to be
incurred in order to construct and equip each phase of the Facility, all in
accordance with the procedures provided in Article 3 of this Agreement. Prior to
the commencement of construction of the Facility, the development plan and
Development Budget shall be subject to the final approval of the Tribal Council.
2.2 Project Scope. The scope of the development project contemplated
by this Agreement (the "Project") shall be subject to the mutual approval of the
parties, but shall incorporate at a minimum the concepts outlined as Phase I in
Developer's proposal to the Tribe attached hereto as Exhibit B. Following
completion of Phase I of the Project, the parties shall proceed with the
financing and construction of additional phases of the Project at such time and
upon such additional terms as they mutually agree.
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Exhibit 10.11
2.3 Advance of Funds for Design Work. Notwithstanding any lack of
approval of the Management Agreement by the NIGC, Developer shall advance such
funds as Developer and the Construction Committee mutually agree are reasonably
necessary to proceed with site and facility planning, architectural renderings
and plans, and engineering and environmental services. Fifteen (15) days prior
to the first draw of the Financing, Developer shall provide the Construction
Committee with a final detailed schedule with totals of all reimbursable project
costs up to the date of the first draw. Developer shall be reimbursed from the
proceeds of Financing for these costs as a component of the first draw of the
Financing. In addition, the Tribe shall be entitled to reimbursement from the
proceeds of Financing for such out of pocket costs and expenses as Developer and
the Construction Committee mutually agree are reasonably necessary to proceed
with site and facility planning for the Project. Reimbursable project costs
shall include, but not be limited to, land development costs, engineering and
architectural expenses, marketing, legal and consultant costs, project
management costs, financing costs and all other pre-construction professional
costs. All such costs incurred after the availability of Financing proceeds
shall be included in monthly draws against the Financing. The Tribe and
Developer agree that such project costs shall not be subject to repayment or
reimbursement other than from the proceeds of Financing, and neither party shall
have any liability to the other for the repayment of such reimbursable project
costs.
2.4 Supply of Slot Machines. Developer shall cause a Developer
Affiliate to supply to the Tribe up to 750 slot machines, together with certain
related equipment such as stools, bases and coin sorters, all to the extent on
hand in excess inventory of a Developer Affiliate, at a price to be agreed upon
and pursuant to a separate agreement to be entered into between by the Tribe and
the Developer Affiliate. The purchase price for the slot machines and related
equipment will be by a note with a one (1) year term and the full amount due at
maturity. Upon the "effective date" of the Management Agreement as defined
therein, Developer shall cause the Developer Affiliate to forgive and discharge
the note in full.
ARTICLE 3
DESIGN PHASE
3.1 Employment of Architect. Developer shall use its experience and
professional expertise to pre-qualify architects, engineers and other design
consultants to be engaged on the project. Developer shall present to the
Construction Committee a recommendation for a Design Team to be engaged for the
design and engineering of the Facility; said Team to be headed by and managed by
Developer. Developer shall provide the Construction Committee with sufficient
information, including interviews and presentations, to allow the Construction
Committee to fully evaluate each prospective member of the Design Team. If any
member of the recommended Design Team is deemed unacceptable to the Construction
Committee for any reasonable objection, then Developer shall make additional
recommendation(s) to the Construction Committee until a full Design Team is
accepted. The Tribe shall employ such Design Team members for the purpose of
performing services in connection with the design of the Facility. The Developer
shall supervise, direct, control and
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Exhibit 10.11
administer the duties, activities and functions of the Design Team to
efficiently carry out its covenants and obligations under this Agreement.
3.2 Design and Construction Budgets. Developer, subject to the
approval of the Construction Committee, shall establish budgets (collectively
the "Development Budget") for designing, constructing, furnishing and equipping
Phase I of the Facility and related costs. Developer 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 modifications to the design of the
Facility requested and/or approved by the Tribal Council. Developer may, after
notice to and approval of the Construction Committee, not to be unreasonably
withheld, 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 Developer deems necessary or appropriate, provided that:
(i) the cumulative modifications of the Development Budget shall not, without
the Tribal Council's prior approval, exceed the approved aggregate Development
Budget, and (ii) do not otherwise conflict with the terms of this Agreement.
Development Budget adjustments which otherwise vary from the terms of this
Agreement shall require the approval of both the Tribal Council and Developer.
The Developer guarantees to the Tribe that, once the final Development Budget
has been accepted and approved by the Tribal Council, the total cost of the
Project shall not exceed the aggregate amount of the Development Budget as a
result of cost overruns or delays caused by the management and supervision of
the Project by Developer, and the Developer agrees that the quality of the
construction or furnishings shall not be sacrificed in order to maintain the
cost of the Project within the aggregate approved Development Budget. This
guaranty shall not apply to cost overruns related to force majeure events or
unforeseen site conditions.
3.3 Concept Design and Engineering. Developer shall prepare for the
review and approval of the Construction Committee, a statement of the concept
design and engineering requirements for the Facility, including, but not limited
to, planned phasing, a program of preliminary objectives, schedule requirements,
design criteria, including assumptions regarding compliance with the National
Environmental Policy Act ("NEPA"), the (to the extent applicable) California
Environmental Quality Act ("CEQA"), infrastructure, access, HVAC demands, space
requirements and relationships, special equipment and any other site
requirements.
3.4 Preliminary Program Evaluation. Developer shall prepare, or
cause to be prepared, for review and approval of the Construction Committee, a
preliminary evaluation of the proposed Project including, but not limited to,
market analysis, an Environmental Assessment demonstrating compliance with the
NEPA and (to the extent applicable, the CEQA), planned phasing, schedule and
Development Budget requirements. Based upon the agreed_upon schedule,
Development Budget requirements and conceptual design, the Design Team shall,
under the direction of Developer, prepare schematic design documents consisting
of drawings and other documents illustrating the scale and relationship of the
Facility, as well as a
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Exhibit 10.11
preliminary line-item estimate of Facility costs based upon the proposed area,
size and scope of the Facility.
3.5 Design Development. After review by the Construction Committee
and upon final approval of the schematic design documents by the Tribal Council
and Developer, the Design Team 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, the Tribe's operational requirements and such
other elements as may be appropriate. Further, the Design Team shall advise
Developer with respect to any potential variations from Development Budget
estimates. Developer shall submit to the Construction Committee, for its review
and approval, finalized versions of the design development documents prepared by
the Design Team and agreed to by Developer.
3.6 Plans and Specifications. 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 Design Team shall prepare for
approval by Developer and the Construction Committee, construction documents
consisting of detailed plans and specifications (the "Plans and Specifications")
as they relate to construction of portions of the Facility in the order such
portions are to be completed or in the order required for sequential completion,
and shall proceed with completion of all Plans and Specifications on the
schedule developed by Developer. The Design Team shall advise Developer, and
Developer shall advise the Construction Committee, of any adjustments to
previous Development Budget estimates. As portions of the detailed Plans and
Specifications are completed for segments of the Project, the Design Team shall
be required to submit duplicate copies of those portions of the Plans and
Specifications to Developer and Developer shall review said plans with the
Construction Committee for approval prior to release of such documents to
prospective bidders for bidding.
3.7 Compliance with Construction Standards, Environmental Laws and
Regulations. The Facility shall be designed and constructed so as to comply with
the NEPA (and to the extent applicable, the CEQA) and shall adequately protect
the environment and the public health and safety. The design, construction and
maintenance of the Facility shall, except to the extent a particular requirement
or requirements may be waived in writing by the Tribal Council, meet or exceed
the Uniform Building Code as well as all 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 Facility by
existing (to the extent applicable) California or Federal statutes or
regulations. 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 Facility or its
development, management and operation.
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Exhibit 10.11
ARTICLE 4
CONSTRUCTION PHASE
4.1 Selection of Contractors and Vendors. Developer shall initiate a
pre-bid selection process in order to pre-qualify all prospective contractors,
sub-contractors and vendors, which shall include a security review and
background analysis. Developer shall submit the list of pre-qualified
contractors and vendors to the Construction Committee together with
recommendations, for the Construction Committee's review, comment and approval.
Developer shall provide the Construction Committee with sufficient information
to allow the Construction Committee to fully evaluate each prospective
pre-qualified contractor and/or vendor. Special consideration shall be given in
the selection of contractors to qualified Native American owned companies and to
companies with a program for effective employment of Native American employees
and subcontractors.
4.2 Vendor Preferences. In entering contracts for the supply of
goods and services for the Facility, including the selection of contractors,
subcontractors and suppliers, Developer shall give preference to qualified
members of the Tribe, their spouses and children, and qualified business
entities certified by the Tribal Council to be controlled by members of the
Tribe. "Qualified" shall mean a member of the Tribe, a member's spouse or
children, or a business entity certified by the Tribe to be controlled by
members of the Tribe, who or which is able to provide services at competitive
prices, has demonstrated skills and abilities to perform the tasks to be
undertaken in an acceptable manner in Developer's opinion, and can meet the
reasonable bonding requirements of Developer. Developer shall provide written
notice to the Construction Committee in advance of all such contracting,
subcontracting and construction opportunities.
4.3 Proposal Review. Subsequent to the pre-qualification of
prospective contractors, Developer shall conduct a review of responsive
proposals for the various components of construction of the Project, and
Developer shall recommend to the Construction Committee the best qualified
contractor with the lowest responsible bid proposal. The recommended contractor
shall be subject to the approval of the Construction Committee, shall be
properly licensed in the State of California, shall meet the financial
capability requirements of the Tribe and Developer, and shall be capable of
furnishing a payment and performance bond satisfactory to Developer to cover the
construction for which the contractor may be retained.
4.4 Contracts. The Tribal Council on behalf of the Tribe shall enter
into construction contract or contracts (the "Construction Documents") with the
parties selected and approved in the form drafted and negotiated by Developer
and approved by the Construction Committee for each Construction Document. The
Construction Documents shall provide that work shall begin only after the
Effective Date, and the Construction Documents may provide that they shall be
canceled by either party if the Effective Date has not occurred by a specified
fixed calendar date. The selected contractor shall be compensated solely from
the Financing subject to and in accordance with the terms, conditions and
provisions of the Construction Documents and the Financing Agreements.
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Exhibit 10.11
4.5 Construction Document Provisions. The Construction Documents
shall: (i) require the successful contractors to be responsible for providing
all materials, equipment and labor necessary to construct and equip the Project
as necessary, including site development; (ii) include appropriate provisions
assuring exemption from the California sales and use tax for goods, materials
and services in the Project (to the extent said exemption is available for the
Project); (iii) require all contractors to construct the Project in accordance
with the Plans and Specifications, including any changes or modifications
thereto approved by the Tribal Council, and (iv) provide that in the event the
contractor becomes disqualified from providing construction services to the
Tribe, the contractor shall be terminated and paid only the reasonable value of
the work performed by the contractor, less the reasonable cost to the Tribe of
any delay caused by the contractor's termination . The Construction Documents
will provide appropriate insurance requirements, lien waivers and for
construction schedules by which milestones, progress payments and late
penalties, if any, may be calculated.
4.6 Construction Administration. The Construction Documents shall
provide that Developer shall be responsible for all construction administration
during the construction phase of the Project. Developer shall act as the Tribe's
designated representative and shall have full power and complete authority to
act on behalf of the Tribe in connection with the Construction Documents. To the
extent allowed by the Construction Documents, Developer shall have full 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 Construction Documents. Developer shall have the authority to reject work
which does not conform to the Construction Documents. Developer may conduct
inspections to determine the date or dates of substantial completion. Developer
shall observe and evaluate or authorize the observation and evaluation of
Project work performed.
4.7 Meetings Between Developer and Construction Committee. The
Developer and Construction Committee shall meet weekly during the construction
phase of the Facility. At such meetings, the Developer shall report to the
Construction Committee on the progress of the construction effort, including
compliance with budget and schedule requirements. In addition, the Developer and
Construction Committee shall review applications for payment for submission to
the Tribe and certification of the amounts due the contractors and/or vendors
before any such payments are made. The Developer and Construction Committee
shall work together in good faith to resolve any issues that may arise during
the design phase or construction phase of the Project with the objective that
the arbitration provisions of this Agreement shall only be used as a dispute
resolution mechanism of last resort. When addressing any issues that arise
during the Project, the parties shall favor implementation of the compromise,
modification or resolution that most closely maintains the approved Development
Budget and Project timetable.
4.8 Construction Commencement and Completion. The Construction
Documents shall contain such provisions for the protection of the Tribe and
Developer as the Tribe and Developer shall deem appropriate; shall provide that
the construction of the Project
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Exhibit 10.11
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 complete construction within such time as the Tribe and
Developer agree following the commencement of construction. All contractors
shall, at a minimum, 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 5
FURNISHINGS AND EQUIPMENT
5.1 Selection of Furnishings and Equipment. Developer shall submit
to the Construction Committee, for its review and approval, the specifications
for Furnishings, Fixtures and Equipment in compliance with industry standards.
Thereafter, Developer, shall select and procure vendors for purchase by the
Tribe of Furnishings, Fixtures and Equipment required to operate the Facility in
conformity with such specifications and any industry standards. Alternatively,
in the sole discretion of the Tribe, Developer may arrange for the procurement
of Furnishings and Equipment on lease terms as may be approved by the Tribal
Council. Any commitments for the procurement of Furnishings, Fixtures and
Equipment shall, however, become binding on the Tribe only upon or after the
Effective Date.
ARTICLE 6
DEVELOPMENT FEE
6.1 Development and Construction Administration Fee. For all
services and obligations under the Development Agreement, Developer shall
receive a development and construction administration fee (the "Development
Fee") of ten (10%) percent of the total cost of development of the Facility,
less any interest reserve, unused contingency and the development fee itself, as
provided in the Development Budget for the Project agreed to by the Tribe and
Developer and as modified from time to time by mutual agreement of the Tribe and
Developer. The Development Fee shall be payable to Developer from periodic draws
pursuant to and under the Financing Agreement.
6.2 Non-Recourse to Tribe. ▇▇▇▇▇ agrees that the Development Fee
shall be payable solely from the proceeds of Financing, and that neither the
Tribe nor the Tribal Enterprise shall have any liability for the payment of the
Development Fee other than from the proceeds of the Financing.
ARTICLE 7
TERM
7.1 Term. This Agreement shall be entered into and remain in full
force and effect from the date of execution hereof until the completion of
construction of the Project, unless earlier terminated pursuant to Article 12 of
this Agreement.
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Exhibit 10.11
7.2 Project Schedule. Developer shall use all commercially
reasonable efforts to (a) recommend a Design Team within fifteen (15) days of
the Effective Date; (b) submit design development documents to the Construction
Committee within sixty (60) days of the date the Design Team is approved; (c)
cause the Plans and Specifications to be completed within sixty (60) days of the
approval by the Construction Committee of the design development documents; (d)
arrange Financing for the Project within one hundred eighty (180) days of the
Effective Date; and (e) commence construction of the Facility within the later
of (i) thirty (30) days of the closing of the Financing, and (ii) sixty (60)
days after completion of the Plans and Specifications.
ARTICLE 8
FINANCING FOR THE PROJECT
8.1 Financing. Developer shall use all commercially reasonable
efforts to arrange Financing for the Project to fund all costs of design,
development, construction and opening of the Facility, including, but not
limited to, all planning, professional fees, development, infrastructure
improvements, construction and pre-opening costs, fees and expenses. The parties
acknowledge that the final financing commitments may not be possible until after
the total cost of the Facility is known and the preliminary design documents are
approved. The final terms of the Financing shall be subject to the approval of
the Tribal Council, which approval shall not be unreasonably withheld provided
the Financing is on terms no less favorable to the Tribe than the following:
(i) The aggregate principal amount shall be up to, but shall
not exceed, Sixty Million ($60,000,000) Dollars.
(ii) Interest shall be at a per annum variable or fixed
prevailing market rate.
(iii) The Financing shall be available at the earliest date
possible in the development process, with interest and principal repayment terms
to be ten (10) years or less, as provided in the Financing Agreements.
(iv) The Financing shall be secured solely by the revenues of
the Facility, the Tribal Enterprise's leasehold interest in the Property and the
Facility, and personal property, equipment and similar tangible assets of the
Facility or owned by the Tribal Enterprise. The Financing shall be a limited
recourse obligation of the Tribe with no recourse to general tribal assets,
including the fee interest of the Tribe in the Property, or to Tribal
Distributions or assets purchased with Tribal Distributions.
(v) The Tribe and the Tribal Enterprise shall covenant not
to encumber the Property, the Facility, the leasehold interest therein or the
revenues derived from the
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Exhibit 10.11
operation of the Facility or to incur additional debt except in accordance with
the Financing Agreements.
(vi) The Tribe shall consent to jurisdiction in state and
federal court, and to California law as the law governing the Financing
Agreements.
(vii) The Tribe and the Tribal Enterprise will make limited
waivers of sovereign immunity from unconsented suit or arbitration to permit
enforcement of the Financing Agreements in the same manner and to the extent set
forth in Section 13.3.
(viii) ▇▇▇▇▇ shall advance any funds necessary to service the
outstanding debt under the Financing Agreements to the extent revenues from the
Facility are insufficient to pay such debt service, provided, however, that
Trump's obligation to advance such funds shall not exceed, in the aggregate, the
amount of the Development Fee received by ▇▇▇▇▇ as provided in Section 6.1 of
this Agreement. Any such advance by ▇▇▇▇▇ shall be reimbursed to ▇▇▇▇▇ at such
time as the revenues of the Facility are sufficient to service the outstanding
debt under the Financing Agreements and make such reimbursement.
ARTICLE 9
EXCLUSIVITY
9.1 Exclusive Relationship with Developer. During the term of this
Agreement, or any extension hereof, Developer shall have an exclusive
relationship with the Tribe regarding the design and development of the
Facility, other than with respect to members of the Design Team and contractors
engaged by Developer.
9.2 Restrictions on Collateral Development. During the term of this
Agreement, Developer agrees that neither Developer nor a Developer Affiliate
shall develop any gaming facilities located in San Bernardino, Ventura, Los
Angeles, Orange, San Diego, Riverside, Santa ▇▇▇▇▇▇▇ or Imperial county,
California without the written consent of the Tribe. The Tribe agrees that it
shall not develop any gaming facilities other than the Facility without the
written consent of Developer.
ARTICLE 10
REPRESENTATIONS, WARRANTIES AND COVENANTS
10.1 Representations and Warranties of the Tribe. The Tribe
represents and warrants to Developer as follows:
(i) The Tribe's execution, delivery and performance of this
Agreement and all other instruments and agreements executed in connection with
this
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Exhibit 10.11
Agreement have been properly authorized by the Tribe and do not require further
Tribal approval.
(ii) This Agreement has been properly executed and, subject
to any necessary approvals of the NIGC and/or the BIA, constitutes the Tribe's
legal, valid and binding obligations, enforceable against the Tribe in
accordance with its terms.
(iii) There are no actions, suits or proceedings, pending or
threatened, against or affecting the Tribe before any court or governmental
agency of which Developer has not been advised of in writing by the Tribe and
which Developer has acknowledged.
(iv) The execution and delivery of this Agreement by the
Tribe does not, and the performance by the Tribe of the obligations to be
performed by the Tribe hereunder will not, conflict with, violate or constitute
a default under the Articles of Association or any agreement to which the Tribe
is a party.
10.2 Covenants by the Tribe. The Tribe covenants and agrees as
follows:
(i) That promptly after the execution of this Agreement, it
will take all steps necessary to adopt and will adopt the Gaming Code and that
the Gaming Code will meet the requirements of the IGRA and the applicable
regulations under the IGRA and be consistent with the provisions of this
Agreement and the Management Agreement and not adversely affect the rights of
Developer hereunder and thereunder. When adopting the Gaming Code, the Tribe
will give Developer the opportunity to review and comment on the drafts thereof.
(ii) The Tribe agrees to cooperate and to use its best
efforts to satisfy all of the conditions to the Effective Date at the earliest
possible date.
(iii) The Tribe agrees to enter into the Financing Agreements
and execute all additional agreements necessary to carry out the purposes of
this Agreement in accordance with the terms of the Compact and the Legal
Requirements pertaining to the Property.
(iv) That during the term of this Agreement, the Tribe shall
enact no amendment to the Gaming Code impacting Developer, and shall enact no
law impairing the obligations of contracts entered into in furtherance of the
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 the Tribe shall, by exercise of the police
power or otherwise, act 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. Any such action or attempted action shall be void ab initio.
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Exhibit 10.11
(v) That the Tribe will waive sovereign immunity on the
limited basis described in Section 13.3 with respect to the Financing.
(vi) That the Tribe 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 express terms, and shall take
all actions necessary to ensure that this Agreement shall remain in full force
and effect at all times, including using best efforts to obtain all necessary
approvals of the NIGC and BIA hereof.
(vii) That this Agreement, the Financing Agreements and each
other contract contemplated by this Agreement shall be specifically enforceable
in accordance with their terms.
(viii) That in its performance of this Agreement, it shall
comply with all Legal Requirements.
10.3 Representations and Warranties of Developer. Developer
represents and warrants to the Tribe as follows:
(i) Developer'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 Developer and do not require
further approval.
(ii) This Agreement has been properly executed and, once
approved in accordance with Legal Requirements, constitutes Developer's legal,
valid and binding obligations, enforceable against Developer in accordance with
its terms.
(iii) There are no actions, suits or proceedings pending or
threatened against or affecting Developer before any court or governmental
agency that would in any material way affect Developer's ability to perform this
Agreement.
(iv) The execution and delivery of this Agreement by
Developer does not, and the performance by Developer of the obligations to be
performed by Developer hereunder will not, conflict with, violate or constitute
a default under the Operating Agreement of Developer or any agreement to which
Developer is a party.
10.4 Covenants by Developer. Developer covenants and agrees as
follows: (i) that in its performance of this Agreement, it will comply with all
Legal Requirements; (ii) that Developer 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 express terms, and shall take
all actions necessary to ensure that this Agreement shall remain in full force
and effect at all times.
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Exhibit 10.11
ARTICLE 11
EVENTS OF DEFAULT
11.1 Events of Default by the Tribe. Each of the following shall be
an "Event of Default" on the part of the Tribe:
(i) The Tribe shall materially breach any of the Tribe's
obligations under this Agreement and such breach shall continue or not be cured
within thirty (30) days after Developer gives the Tribe written notice thereof.
(ii) Any representation or warranty that the Tribe has made
under this Agreement shall prove to have been untrue when made, or is later
untrue without notice to Developer of the change in status and written
acceptance by Developer of the changed status.
(iii) The Tribe violates the provisions of Article 9 of this
Agreement.
(iv) The Tribe commits any material breach of the Management
Agreement.
If any Event of Default on the part of the Tribe occurs, Developer's obligations
under this agreement shall be terminated, and Developer may exercise any rights
and remedies available to Developer by law, equity or this Agreement.
11.2 Events of Default by Developer. Each of the following shall be
an "Event of Default" on the part of the Developer:
(i) Developer shall materially breach any of Developer's
obligations under this Agreement and such breach shall continue or not be cured
within thirty (30) days after the Tribe gives Developer written notice thereof.
(ii) Any representation or warranty that Developer has made
under this Agreement shall prove to have been untrue when made, or is later
untrue without notice to the Tribe of the change in status and written
acceptance by the Tribe of the changed status.
(iii) Developer violates the provisions of Article 9 of this
Agreement.
(iv) Developer commits any material breach under the
Management Agreement.
(v) Developer fails to qualify for a vendor's license under
or otherwise comply with the Gaming Ordinance in any material respect.
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Exhibit 10.11
If any Event of Default on the part of Developer occurs, the Tribe's obligations
under this Agreement shall be terminated, and the Tribe may exercise any rights
and remedies available to the Tribe by law, equity or this Agreement.
ARTICLE 12
TERMINATION
12.1 Voluntary Termination. This Agreement may be terminated upon the
mutual written consent and approval of the parties.
12.2 Termination for Cause. Either party may terminate this Agreement
as a result of an Event of Default by the other party, but neither party may
terminate this Agreement on grounds of material breach 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, and
either party may submit the matter to arbitration under the dispute resolution
provisions of this Agreement set forth at Article 13 hereof. The discontinuance
or correction of a material breach shall constitute a cure thereof. If Developer
terminates this Agreement because of an Event of Default on the part of the
Tribe, the Tribe agrees to repay Developer for all amounts paid or advanced by
Developer pursuant to Section 2.2 of this Agreement; and the Tribe agrees that
its obligation to repay such amounts shall be subject to Section 13.3 regarding
waiver of sovereign immunity by the Tribe and the other provisions of Article
13.
12.3 Actions in Addition to Termination. Developer and the Tribe
agree that termination of this Agreement may not be a sufficient or appropriate
remedy for material breach by either party, and further agree that pursuant to
the terms of this Agreement, each party shall have the right to pursue such
remedies (in addition to termination) at law or equity as it determines are best
able to compensate it for such breach. Each party acknowledges and agrees that
there may be irreparable harm to the other party and that damages may be
difficult to determine in the event of material breach, and that an injunction
or other equitable relief may be an appropriate remedy for such material breach.
12.4 Involuntary Termination Due to Changes in Legal Requirements. It
is the understanding and intention of the parties that the development,
construction and operation of the Facility shall conform to and comply with all
Legal Requirements. If during the term of this Agreement, the Facility or any
material aspect of Gaming is determined by the Congress of the United States,
the Department of the Interior of the United States of America, the NIGC or the
final judgment of a court of competent jurisdiction to be unlawful under federal
law, the obligations of the parties hereto shall cease, and this Agreement shall
be of no further force and effect; provided that:
(i) Developer shall have the rights described at Sections
12.6 and 12.7 of this Agreement;
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Exhibit 10.11
(ii) Developer shall retain any fees previously paid to it
pursuant to this Agreement;
(iii) the Tribe shall retain its interest in the title (and
any lease) to all Facility assets, including all fixtures, supplies and
equipment, subject to any requirements of financing arrangements.
12.5 Tribe's Right to Terminate Agreement. The Tribe may terminate
this Agreement by written notice effective upon receipt if:
(i) Any State or Federal authority where approval is
required fails to approve this Agreement or otherwise objects to the performance
by the Tribe of any obligation imposed on it under this Agreement.
(ii) The Tribe has reason to believe that the performance by
it or the Developer 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 waiver of such performance within ten
(10) days written notice by the Tribe.
(iii) Developer has failed to use all commercially reasonable
efforts to maintain the Project schedule provided in Section 7.2; provided that
the Tribe shall not have the right to terminate this Agreement as a result of
any delays caused by required approvals of the Tribe or the Construction
Committee, unforseen site conditions or force majeure events.
12.6 Developer's Right to Terminate Agreement. Developer may
terminate this Agreement by written notice effective upon receipt if:
(i) Any Tribe, State or Federal authority where approval is
required fails to approve this Agreement or otherwise objects to the performance
by Developer of any obligation imposed on it under this Agreement.
(ii) Developer has been notified by any regulatory agency
that the performance by it of any obligation imposed by this Agreement will
jeopardize the retention of any license, or approvals granted thereunder, held
by Developer or any of its Affiliates in other jurisdiction, and the Tribe
refuses to allow Developer to immediately rectify any such complaint.
(iii) Developer has reason to believe that the performance by
it or the Tribe 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 waiver of such performance within ten (10) days
written notice by Developer.
(iv) Developer, after using all commercially reasonable
efforts, has been unable to arrange Financing for the Project within 180 days of
the Effective Date.
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Exhibit 10.11
12.7 Recommencement of Operations. If gaming, or construction and
development on the Property is prohibited by Legal Requirements, or is otherwise
impossible or impractical, Developer shall have the option to continue its
interest in this Agreement and to commence or recommence the construction and
development operations if, at some point during the Term of this Agreement, such
commencement or recommencement, in the sole judgment of Developer, shall be
legally and commercially feasible.
12.7.1 If the Facility is damaged, destroyed or condemned so
that continued development and construction cannot be continued at the Facility,
the Facility shall be reconstructed if the insurance or condemnation proceeds
are sufficient to restore or replace the Facility to a condition at least
comparable to that before the casualty occurred. If the insurance proceeds or
condemnation awards are insufficient to reconstruct the Facility to such
condition, the Tribe and Developer 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 Financing Agreements
(including principal and interest); second, any other loans; third, any surplus
shall be distributed to the Tribe.
12.7.2 If, after a period of cessation of construction or
development operations on the Property, the recommencement of such construction
or development operations is possible, and if Developer has not terminated this
Agreement under the provisions of Section 12.6 of this Agreement, the period of
such cessation shall not be deemed to have been part of the term of this
Agreement and the date of expiration of the term of this Agreement shall be
extended by the number of days of such cessation period.
ARTICLE 13
DISPUTE RESOLUTION
13.1 General. The parties agree that binding arbitration shall be the
remedy for all disputes, controversies and claims arising out of this
Development Agreement, any documents referenced by any of this Agreement, 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. All initial arbitration or judicial
proceedings shall be instituted within twelve (12) months after the claim
accrues or shall be forever barred.
13.2 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 of this Agreement. If necessary, orders to compel
arbitration or enforce an arbitration award may be sought before the United
States District Court for the Central District
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Exhibit 10.11
of California and any federal court having appellate jurisdiction over said
court. If the United States District Court for the Central District of
California finds that it lacks jurisdiction, the Tribe consents to be sued in
the California State Court system.
Unless the parties agree upon the appointment of a single arbitrator, a
panel of arbitrators consisting of three (3) members shall be appointed. One (1)
member shall be appointed by the Tribe and one (1) member shall be appointed by
▇▇▇▇▇ within ten (10) working days' time following the giving of notice
submitting a dispute to arbitration. The third member shall be selected by
agreement of the other two (2) members. In the event the two (2) members cannot
agree upon the third arbitrator within fifteen (15) working days' time, then the
third arbitrator shall be chosen by the American Arbitration Association.
Alternatively, the parties may, prior to any dispute, agree in advance upon a
panel of arbitrators or a single arbitrator to which any dispute that may arise
shall be submitted for resolution pursuant to this Section 13.2.
(i) In determining any matter the arbitrators 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
California State law.
(ii) All arbitration hearings shall be held at a place
designated by the arbitrators in Los Angeles County, California.
(iii) The parties and the arbitrators shall maintain strict
confidentiality with respect to arbitration.
(iv) The arbitrators shall not have the power to award
punitive damages.
13.3 Limited Waiver of Sovereign Immunity. The Tribe does hereby
grant a limited waiver of its sovereign immunity and hereby submits to the
jurisdiction of the Federal District Court for the Central District of
California, the United States Circuit Court of Appeals for the Ninth Circuit,
and the United States Supreme Court for the purposes of compelling arbitration
in the event either party refuses to arbitrate and the enforcement of any
decision of the arbitrators; provided that in the event the United States
District Court for the Central District of California finds that it lacks
jurisdiction, the then the Tribe submits to the jurisdiction of the California
state court system for the purposes of compelling arbitration and the
enforcement of any decision of the arbitrators. The Tribe agrees to take any and
all steps necessary to confer upon any such court for the purposes set forth in
this Section personal and subject matter jurisdiction within the limited waiver
of sovereign immunity agreed to in this Section.
(i) 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, 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
- 21 -
Exhibit 10.11
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
been filed within one (1) year of the date of the final judgment.
(ii) This limited waiver is granted only to Developer and not
to any other individual or entity.
(iii) This limited waiver is specifically limited to the
following actions and judicial remedies:
(a) The enforcement of an arbitrator's award of
money damages provided that the waiver does not extend beyond the assets
specified in Subsection (iii) below. No arbitrator or court shall have any
authority or jurisdiction to order execution against any assets or revenues of
the Tribe except as provided in this Section or to award any punitive damages
against the Tribe.
(b) An action to compel or enforce arbitration or
arbitration awards or orders, including any equitable relief or specific
performance granted by the arbitrators.
(c) Damages awarded against the Tribe shall be
satisfied solely from the distributable share of net revenues of the Tribe from
the Facility, the tangible assets of the Facility and the business of the Tribal
Enterprise 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 the Tribe or the Tribe's bank
account in the normal course of business prior to the arbitration award. In no
instance shall any enforcement of any kind whatsoever be allowed against any
assets of the Tribe other than those specified in this Subsection.
(iv) The waiver granted by the Tribe under this Section 13.3
is strictly limited to disputes or disagreements arising under this Agreement
and shall not extend to any other agreement. Any limited waiver which may be
granted concerning any other agreement must be expressly contained in that
agreement, and separately authorized by a resolution of the Tribal Council.
ARTICLE 14
GENERAL
14.1 Nature of Agreement. This Agreement is not intended as and shall
not be construed as a "Management Agreement" within the meaning of the IGRA.
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Exhibit 10.11
14.2 Developer Interest. Nothing contained herein grants or is
intended to grant Developer a titled interest to the Facility, or in any way to
impair the Tribe's sole proprietary interest in the Facility.
14.3 Situs of the Agreement. This Agreement and any Interim
Promissory Note shall be deemed entered into in Los Angeles County, California.
14.4 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:
If to the Tribe, to: ▇▇▇▇ ▇▇▇▇, Chairman
Twenty-Nine Palms Band of Mission Indians
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Vice President-General Counsel
Spotlight 29 Enterprises
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇, to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and General Counsel
▇▇▇▇▇ Hotels & Casino Resorts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other different address(es) as Developer or the Tribe may specify in
writing. Any such notice shall be deemed given two (2) days following deposit in
the United States mail or upon actual delivery, whichever first occurs.
14.5 Relationship. Developer and the Tribe 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.
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Exhibit 10.11
14.6 Further Actions. The Tribe and Developer 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.
14.7 Waivers. No failure or delay by Developer or the Tribe to insist
upon the strict performance of any covenant, agreement, term or condition of
this Agreement, or to exercise any right or remedy consequent upon the breach
thereof, shall constitute a waiver of any such breach or any subsequent breach
of such covenant, agreement, term or condition. No covenant, agreement, term, or
condition of this Agreement and no breach thereof shall be waived, altered or
modified except by written instrument. No waiver of any breach shall affect or
alter this Agreement, but each and every covenant, agreement, term and condition
of this Agreement shall continue in full force and effect with respect to any
other then existing or subsequent breach thereof.
14.8 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.
14.9 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.
14.10 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.
14.11 Estoppel Certificate. Developer and the Tribe 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.
14.12 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 the Tribe 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.
14.13 Confidential Information. BOTH PARTIES agree that any
information received concerning the other party during the performance of this
Agreement, regarding the parties' organization, financial matters, marketing
plans, or other information of a proprietary nature (the "Confidential
Information"), will be treated by both parties in full confidence and except as
required to allow Developer and the Tribe to perform their respective covenants
and obligations hereunder, or in response to legal process or appropriate and
necessary inquiry, and
- 24 -
Exhibit 10.11
will not be revealed to any other persons, firms or organizations. This
provision shall survive the termination of this Agreement for a period of two
(2) years.
The obligations not to use or disclose the Confidential Information
shall not apply to Confidential Information which a) has been made previously
available to the public by the Tribe or Developer or Developer Affiliates or
becomes generally available to the public, unless the Confidential Information
being made available to the public results in a breach of this Agreement; b)
prior to disclosure to the Tribe or Developer or Developer Affiliates, was
already rightfully in any such person's possession; or c) is obtained by the
Tribe or Developer or Developer Affiliates from a third party who is lawfully in
possession of such Confidential Information, and not in violation of any
contractual, legal or fiduciary obligation to the Tribe or Developer or
Developer Affiliates, with respect to such Confidential Information and who does
not require the Tribe or Developer or Developer Affiliates to refrain from
disclosing such Confidential Information to others.
14.14 Required Amendment. 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 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 the Tribe or Developer
under this Agreement or any other agreement or document related hereto.
14.15 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 assigns. Neither Developer nor the Tribe may assign
this Agreement without the prior written consent of the other, except as
expressly provided in this Section 14.15. The Tribe shall, without the consent
of Developer, but subject to approval by the Secretary of the Interior or the
Chairman of the NIGC or his authorized representative, if required, have the
right to assign this Agreement and the assets of the Facility to the Tribal
Enterprise that assumes all of the Tribe's obligations herein. Developer shall
have the right to assign this Agreement to a Developer Affiliate. An assignment
by either party shall not prejudice the rights of the other party under this
Agreement. No assignment authorized hereunder shall be effective until all
necessary governmental approvals therefor have been obtained.
14.16 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 and shall not cause the invalidity or
unenforceability of the remainder of this Agreement. If any provision, or any
portion of any provision, of this Agreement is deemed
- 25 -
Exhibit 10.11
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 shall be declared invalid or
unenforceable, 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.
14.17 Entire Agreement. This Agreement (together with the Exhibits,
Management Agreement and License 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 development and
construction of the Facility 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 the other party which are not contained in this Agreement, the
Management Agreement, the License Agreement and the Exhibits, and stipulates
that no evidence of any promises not contained in this Agreement, the Management
Agreement, the License 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
▇▇▇▇▇ HOTELS & CASINO RESORTS
DEVELOPMENT COMPANY, LLC
By: THCR Ventures, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
TWENTY-NINE PALMS
BAND OF MISSION INDIANS
By: /s/ ▇▇▇▇ ▇▇▇▇
---------------------------------------------
▇▇▇▇ ▇▇▇▇, Chairperson
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