Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of October 8, 2002
among
The Picayune Rancheria of Chukchansi Indians
The Chukchansi Economic Development Authority
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ - Grantchester, Inc.
and
Banc of America Securities LLC
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of October 8, 2002, by and among the Picayune Rancheria of
Chukchansi Indians (the "Tribe"), a federally recognized tribe, the Chukchansi
Economic Development Authority (the "Authority"), wholly-owned unincorporated
enterprise of the Tribe and Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ - Grantchester,
Inc., a Delaware corporation and Banc of America Securities LLC, a Delaware
limited liability company (collectively, the "Initial Purchasers"), who have
agreed to purchase the Authority's 14 1/2% Series A Senior Notes due 2009 (the
"Series A Notes") pursuant to the terms and conditions set forth in the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
September 24, 2002 (the "Purchase Agreement"), by and among the Authority, the
Tribe, the, Cascade Entertainment Group, LLC, a California limited liability
company (the "Manager") and the Initial Purchasers. In order to induce the
Initial Purchasers to purchase the Series A Notes, the Authority has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchasers to purchase and pay for the Series A Notes under the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Indenture, dated as of the date hereof,
among the Authority and U.S. Bank, N.A., a national banking association, as
trustee (the "Trustee"), relating to the Series A Notes and the Series B Notes
(the "Indenture").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
AAA: As defined in Section 10(i) hereof.
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Agreement: As defined in the preamble hereto.
Applicable Courts: As defined in Section 10(f) hereof.
Authority: As defined in the preamble hereto.
Authority Assets: As defined in Section 10(e)(iv) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: means any day other than a Saturday, a Sunday or a day
on which banking institutions in the City of New York or at a place of payment
are authorized by law, regulation or executive order to remain closed.
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Chukchansi Parties: As defined in Section 10(e) hereof.
Closing Date: The date hereof.
Collateral Documents: As defined in the Indenture.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of each of the following: (a)
the filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Series B Notes to be issued in the Exchange Offer,
(b) the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less
than the period required pursuant to Section 3(b) hereof and (c) the delivery
by the Authority to the Registrar under the Indenture of Series B Notes in the
same aggregate principal amount as the aggregate principal amount of Series A
Notes tendered by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The exchange and issuance by the Authority of a
principal amount of Series B Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal
amount of Series A Notes that are tendered by such Holders in connection with
such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Governmental Action: Any resolution, ordinance, statute, regulation,
order or decision regardless of how constituted having the force of law or
legal authorization of the Tribe, the Authority or any instrumentality or
agency of the Tribe.
Holder: As defined in Section 2 hereof.
IGRA: The Indian Gaming Regulatory Act of 1988, PL 100-497, 25 U.S.C.
2701 et seq., as amended.
Indenture: As defined in the preamble hereto.
Manager: As defined in the preamble hereto.
NIGC: The National Indian Gaming Commission.
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Notes: Collectively, the Series A Notes and the Series B Notes.
Permitted Claims: As defined in Section 10(e) hereof.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof
or other entity.
Prospectus: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all exhibits to and material
incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Authority
relating to (a) an offering of Series B Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) that is filed pursuant to
the provisions of this Agreement and (ii) including the Prospectus included
therein, all amendments and supplements thereto, including post-effective
amendments, and all exhibits and material incorporated by reference therein.
Rule 144: Rule 144 promulgated under the Act.
Series A Notes: As defined in the preamble hereto.
Series B Notes: The Authority's 14 1/2% Series B Senior Notes due
2009 to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii)
as contemplated by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each (a) Series A Note, until the
earliest to occur of (i) the date on which such Series A Note is exchanged in
the Exchange Offer for a Series B Note which is entitled to be resold to the
public by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (ii) the date on which such Series A Note has been
disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Series B Notes), or (iii) the date on
which such Series A Note is distributed to the public pursuant to Rule 144
under the Act and each (b) Series B Note
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held by a Broker Dealer until the date on which such Series B Note is disposed
of by a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by
the Exchange Offer Registration Statement (including the delivery of the
Prospectus contained therein).
Trustee: As defined in the preamble hereto.
Tribe: As defined in the preamble hereto.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Authority shall (i) cause the Exchange Offer Registration
Statement to be filed with the Commission as soon as practicable after the
Closing Date, but in no event later than 90 days after the Closing Date (such
90th day being the "Filing Deadline"), (ii) use its best efforts to cause such
Exchange Offer Registration Statement to become effective at the earliest
possible time, but in no event later than 210 days after the Closing Date
(such 210th day being the "Effectiveness Deadline"), (iii) in connection with
the foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to become
effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration
and qualification of the Series B Notes to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) upon the effectiveness of such Exchange Offer Registration
Statement, commence and Consummate the Exchange Offer. The Exchange Offer
shall be on the appropriate form permitting (i) registration of the Series B
Notes to be offered in exchange for the Series A Notes that are Transfer
Restricted Securities and (ii) resales of Series B Notes by Broker-Dealers
that tendered into the Exchange Offer Series A Notes that such Broker-Dealer
acquired for its own account as a result of market-making activities or other
trading activities (other than Series A Notes acquired directly from the
Authority or any of its Affiliates) as contemplated by Section 3(c) below.
(b) The Authority shall use its best efforts to cause the Exchange
Offer Registration Statement to be effective continuously, and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in no event shall such period be less than 20
Business Days. The Authority shall cause the Exchange Offer to comply with all
applicable federal and state securities laws, and all applicable laws,
regulations and ordinances, including IGRA, and those of the NIGC, the Tribe
and the Authority. No securities other than the Series B Notes shall be
included in the Exchange Offer Registration Statement. The Authority shall use
their respective best efforts to cause the Exchange Offer to be Consummated on
the earliest practicable date after the Exchange Offer Registration Statement
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has become effective, but in no event later than 30 Business Days thereafter
(such 30th day being the "Consummation Deadline"), unless a longer period is
required by applicable federal or state securities laws.
(c) The Authority shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted
Securities that were acquired for the account of such Broker-Dealer as a
result of market-making activities or other trading activities (other than
Series A Notes acquired directly from the Authority or any Affiliate of the
Authority), may exchange such Transfer Restricted Securities pursuant to the
Exchange Offer. Such "Plan of Distribution" section shall also contain all
other information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but
such "Plan of Distribution" shall not name any such Broker-Dealer or disclose
the amount of Transfer Restricted Securities held by any such Broker-Dealer,
except to the extent required by the Commission as a result of a change in
policy, rules or regulations after the date of this Agreement. See the
Shearman & Sterling no-action letter (available July 2, 1993).
Because, pursuant to current interpretations by the Commission's
staff of Section 5 of the Act, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of any Series B Notes received by such Broker-Dealer in the Exchange
Offer, the Authority shall permit the use of the Prospectus contained in the
Exchange Offer Registration Statement by such Broker-Dealer to satisfy such
prospectus delivery requirement through the Consummation Deadline and
thereafter as provided in the remainder of this paragraph. To the extent
necessary to ensure that the prospectus contained in the Exchange Offer
Registration Statement is available for sales of Series B Notes by
Broker-Dealers that acquired Series B Notes as a result of market-making or
similar activities such that the Broker-Dealer would be required to deliver a
prospectus under the Act upon a subsequent sale or other disposition of the
Series B Notes, the Authority agrees to use its best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented,
amended and current as required by and subject to the provisions of Section
6(a) and (c) hereof and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of one year from the Consummation Deadline or
such shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold pursuant thereto. The
Authority shall provide sufficient copies of the latest version of such
Prospectus to such Broker-Dealers, promptly upon request, and in no event
later than one day after such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law or Commission policy (after the Authority has complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of
Transfer Restricted Securities shall notify the Authority within 20 Business
Days following the date the Exchange Offer is consummated that (A) such Holder
was prohibited by law or Commission policy from participating in the Exchange
Offer or (B) such Holder may not resell the Series B Notes acquired by it in the
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Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is
a Broker-Dealer and holds Series A Notes acquired directly from the Authority
or any of its Affiliates, then the Authority shall:
(x) cause to be filed, on or prior to 30 days after
the earlier of (i) the date on which the Authority determines that
the Exchange Offer Registration Statement cannot be filed as a result
of clause (a)(i) above and (ii) the date on which the Authority
receives the notice specified in clause (a)(ii) above, (such earlier
date, the "Filing Deadline"), a shelf registration statement pursuant
to Rule 415 under the Act (which may be an amendment to the Exchange
Offer Registration Statement (the "Shelf Registration Statement")),
relating to the offer and sale of Transfer Restricted Securities from
time to time in accordance with the methods of distribution set forth
in the Shelf Registration Statement and Rule 415 under the Act; and
(y) shall use its best efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days
after the obligation to file such Shelf Registration Statement arises
(such 90th day the "Effectiveness Deadline").
If, after the Authority has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Authority
is required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law or
Commission policy (i.e., clause (a)(i) above), then the filing of the Exchange
Offer Registration Statement shall be deemed to satisfy the requirements of
clause (x) above; provided that, in such event, the Authority shall remain
obligated to meet the Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Authority shall use its best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Sections 6(b) and (c) hereof and in conformity with the requirements of
this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least two years
(as extended pursuant to Section 6(c)(i)) following the Closing Date, or such
shorter period as will terminate when all Transfer Restricted Securities
covered by such Shelf Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Authority in writing, within 20 days after written receipt of
a request therefor, the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Securities shall be entitled to liquidated
damages pursuant to Section 5 hereof unless and until such Holder shall
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have provided all such information. Each selling Holder agrees to promptly
furnish additional information required to be disclosed in order to make the
information previously furnished to the Authority by such Holder not
materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation
Deadline, or (iv) any Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective or
fail to be usable in connection with resales of Transfer Restricted Securities
during the periods specified herein without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such
failure and that is itself declared effective immediately (each such event
referred to in clauses (i) through (iv) of this Section 5, a "Registration
Default"), then the Authority hereby agrees to pay to each Holder of Transfer
Restricted Securities affected thereby liquidated damages in an amount equal
to $.05 per week per $1,000 in principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
liquidated damages shall increase by an additional $.05 per week per $1,000 in
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up
to a maximum amount of liquidated damages of $.50 per week per $1,000 in
principal amount of Transfer Restricted Securities; provided that the
Authority shall in no event be required to pay liquidated damages for more
than one Registration Default at any given time. Notwithstanding anything to
the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of clause (i) above, (2) upon the effectiveness of the
Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of clause (ii) above, (3) upon
Consummation of the Exchange Offer, in the case of clause (iii) above, or (4)
upon the filing of a post-effective amendment to the Registration Statement or
an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement) to again be declared effective or made usable in the case of clause
(iv) above, the liquidated damages payable with respect to the Transfer
Restricted Securities as a result of such clauses (i), (ii), (iii), or (iv) of
this Section 5, as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture,
on each Interest Payment Date, as more fully set forth in the Indenture and
the Notes. Notwithstanding the fact that any securities for which liquidated
damages are due cease to be Transfer Restricted Securities, all obligations of
the Authority to pay liquidated damages with respect to securities shall
survive until such time as such obligations with respect to such securities
shall have been satisfied in full.
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SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Authority shall (x) comply with all applicable provisions
of Section 6(c) below, (y) use its best efforts to effect such exchange and to
permit the resale of Series B Notes by Broker-Dealers that tendered in the
Exchange Offer Series A Notes that such Broker-Dealer acquired for its own
account as a result of its market-making activities or other trading
activities (other than Series A Notes acquired directly from the Authority or
any of its Affiliates) being sold in accordance with the intended method or
methods of distribution thereof, and (z) comply with all of the following
provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the Authority
raises a substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Authority hereby agrees to seek a
no-action letter or other favorable decision from the Commission allowing
the Authority to Consummate an Exchange Offer for such Transfer Restricted
Securities. The Authority hereby agrees to pursue the issuance of such a
decision to the Commission staff level. In connection with the foregoing,
the Authority hereby agrees to take all such other actions as may be
requested by the Commission or otherwise required in connection with the
issuance of such decision, including without limitation (A) participating
in telephonic conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the Authority setting
forth the legal bases, if any, upon which such counsel has concluded that
such an Exchange Offer should be permitted and (C) diligently pursuing a
resolution (which need not be favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker-Dealer) shall furnish, upon the
written request of the Authority, prior to the Consummation of the
Exchange Offer, a written representation to the Authority (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an Affiliate of
the Authority, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any Person to participate in,
a distribution of the Series B Notes to be issued in the Exchange Offer
and (C) it is acquiring the Series B Notes in its ordinary course of
business. As a condition to its participation in the Exchange Offer, each
Holder using the Exchange Offer to participate in a distribution of the
Series B Notes shall acknowledge and agree that, if the resales are of
Series B Notes obtained by such Holder in exchange for Series A Notes
acquired directly from the Authority or an Affiliate thereof, it (1) could
not, under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling (available July 2, 1993) and similar no-action letters
(including, if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and prospectus
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delivery requirements of the Act in connection with a secondary
resale transaction and that such a secondary resale transaction must be
covered by an effective registration statement containing the selling
security holder information required by Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Authority shall provide a supplemental letter to the
Commission (A) stating that the Authority is registering the Exchange
Offer in reliance on the position of the Commission enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and Co., Inc. (available June 5, 1991) as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B) including a
representation that the Authority has not entered into any arrangement or
understanding with any Person to distribute the Series B Notes to be
received in the Exchange Offer and that, to the best of the Authority's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Series B Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Series B Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above, if
applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Authority shall:
(i) comply with all the provisions of Section 6(c) below and use
its best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof (as indicated in the information
furnished to the Authority pursuant to Section 4(b) hereof), and pursuant
thereto the Authority will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate
form under the Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of
Series A Notes covered by any Shelf Registration Statement contemplated by
this Agreement, Series B Notes having an aggregate principal amount equal
to the aggregate principal amount of Series A Notes sold pursuant to the
Shelf Registration Statement and surrendered to the Authority for
cancellation. The Authority shall register Series B Notes on the Shelf
Registration Statement for this purpose and issue the Series B Notes to
the purchaser(s) of securities subject to the Shelf Registration Statement
in the names as such purchaser(s) shall designate.
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(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement, the Authority shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable.
Upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain an untrue
statement of material fact or omit to state any material fact necessary to
make the statements therein not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Authority shall file promptly an
appropriate amendment to such Registration Statement curing such defect,
and, if Commission review is required, use their respective best efforts
to cause such amendment to be declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, and (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any other document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or that requires the making of
any additions or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop
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order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Authority shall use its best efforts
to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(v) furnish to counsel for the Holders (which counsel shall be
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ unless another firm shall be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities) in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement), which documents
will be subject to the review and comment of such counsel (on behalf of
the Holders) in connection with such sale, if any, for a period of at
least five Business Days, and the Authority shall use its best efforts to
reflect in each such document, when filed with the Commission, any such
comments that such counsel shall reasonably propose prior to the
expiration of such five Business Day period. The Authority will not file
any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all
such documents incorporated by reference) to which such counsel (on behalf
of the Holders) shall reasonably object within five Business Days after
the receipt thereof, it being understood that such counsel shall be deemed
to have reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omits to state
any material fact necessary to make the statements therein not misleading
or fails to comply with the applicable requirements of the Act;
(vi) make available, at reasonable times, for inspection by each
Holder and any attorney or accountant retained by such Holders, all
financial and other records, pertinent corporate and organizational
documents of the Authority and the Tribe and cause the Authority's
directors, officers, employees, representatives and agents to supply all
information reasonably requested by any such Holder, attorney or
accountant in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and
prior to its effectiveness, in each case, as shall be reasonably requested
by any of the
12
foregoing to conduct a reasonable investigation within the meaning of
Section 11 of the Act, provided, that such information shall be kept
confidential unless required by law or regulation to be disclosed;
(vii) if requested by any Holders in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to have
included therein, including, without limitation, information relating to
the "Plan of Distribution" of the Transfer Restricted Securities and the
use of the Registration Statement or Prospectus for market making
activities; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Authority is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(viii) furnish to each Holder in connection with such exchange
or sale, without charge, at least one copy of the Registration Statement,
as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all
exhibits, including exhibits incorporated therein by reference;
(ix) deliver to each Holder without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons may reasonably request; the
Authority hereby consents to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each selling Holder
in connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(x) upon the request of any Holder, enter into such customary
agreements (including underwriting agreements in customary form) and make
such representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably requested by
any Holder in connection with any sale or resale pursuant to any
applicable Registration Statement. In such connection, the Authority
shall:
(A) upon request of any Holder, furnish (or in the case of
paragraphs (2) and (3) below, use its best efforts to cause to be
furnished) to each Holder, upon Consummation of the Exchange Offer or
upon the effectiveness of the Shelf Registration Statement, as the
case may be:
(1) certificates, dated such date, signed on behalf of
the Authority, confirming, as of the date thereof, the matters set
forth in Section 9.1(a) of the Purchase Agreement, and such other
similar matters as such Holder may reasonably request;
13
(2) opinions, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Authority and the Tribe covering matters similar to those covered
in the opinions referred to in paragraph (h) of Section 9.1 of the
Purchase Agreement and such other matters as are customarily
included in opinions requested in underwritten offerings of such
type; and
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the case may
be, from the Authority's independent accountants, in the customary
form and covering matters of the type customarily covered in
comfort letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 9.1(j) of the Purchase
Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance
with the matters covered in clause (A) above and with any customary
conditions contained in the any agreement entered into by the
Authority pursuant to this clause (x);
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the Authority
shall not be required to register or qualify as a foreign entity where it
is not now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;
(xii) issue, upon the request of any Holders of Series A Notes
covered by any Registration Statement contemplated by this Agreement,
Series B Notes having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes surrendered to the Authority by such
Holder in exchange therefore or being sold by such Holder; such Series B
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Series A
Notes held by such Holder shall be surrendered to the Authority for
cancellation;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, (A) cooperate with the Holders to facilitate the
timely preparation and delivery of
14
certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and (B) register such Transfer
Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such
sale of Transfer Restricted Securities;
(xiv) use its best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xi) above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Trustee under
the Indenture with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with The Depository
Trust Company;
(xvi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required
by this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the
TIA; and execute, and use their respective best efforts to cause the
Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
and
(xviii) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of Section
13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of
a Transfer Restricted Security that, upon receipt of the notice referred to
in Section 6(c)(iii)(C) hereof or any notice from the Authority of the
existence of any fact or the happening of any event of the kind described
in Section 6(c)(iii)(D) hereof or, in the case of the Shelf Registration
Statement, the Authority shall issue a notice pending the announcement of a
material business transaction that the Shelf Registration Statement is
unusable (in each case, a "Suspension Notice"), such Holder shall forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
15
applicable Registration Statement until (i) such Holder has received copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(iv)
hereof, or (ii) such Holder is advised in writing by the Authority that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in
the Prospectus (in each case, the "Recommencement Date"). Each Holder
receiving a Suspension Notice hereby agrees that it shall either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Person's possession which have been replaced by the Authority with more
recently dated Prospectuses or (ii) deliver to the Authority (at the
Authority's expense) all copies, other than permanent file copies, then in
such Holder's possession of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of the
Suspension Notice. The time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the
period from and including the date of delivery of the Suspension Notice to
the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Authority's performance of or
compliance with this Agreement will be borne by the Authority, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses; (ii) all fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing
certificates for the Series B Notes to be issued in the Exchange Offer and
printing of Prospectuses whether for exchanges, sales, market-making or
otherwise), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Authority and not more than one counsel for
the Holders of Transfer Restricted Securities (which counsel for the Holders
shall be chosen by the Holders of a majority of the outstanding Transfer
Restricted Securities); (v) all fees and disbursements of independent
certified public accountants of the Authority (including the expenses of any
special audit and comfort letters required by or incident to such
performance); (vi) all rating agency fees, if any; and (vii) all fees and
expenses relating to the qualification of the Indenture under the TIA.
The Authority shall, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of their respective
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Authority, respectively.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Authority shall reimburse
the Initial Purchasers and the Holders of Transfer Restricted Securities who
are tendering Series A Notes in the Exchange Offer and/or selling or reselling
Series A Notes or Series B Notes pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or the Shelf
Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
unless another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
16
SECTION 8. INDEMNIFICATION
(a) The Authority agrees to indemnify and hold harmless the Initial
Purchasers and their respective affiliates, each Holder and each Person, if
any, who controls either of the Initial Purchasers and their respetive
affiliates or such Holder (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act), including, with respect to either of the
Initial Purchasers and their respective affiliates, or such Holder or such
controlling person, their respective directors, officers, employees,
representatives and agents, from and against any and all losses, claims,
damages, liabilities, actions, judgments, (including without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or
supplement thereto) provided by the Authority to any Holder or any prospective
purchaser of Series B Notes or registered Series A Notes, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon information relating to any of the Holders
furnished in writing to the Authority by any of the Holders.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Authority, and its
directors, officers, employees, representatives and agents, and each person,
if any, who controls (within the meaning of Section 15 of the Act or Section
20 of the Exchange Act) the Authority, to the same extent as the foregoing
indemnity from the Authority set forth in subsection (a) above, but only with
reference to information relating to such Holder furnished in writing to the
Authority by such Holder expressly for use in any Registration Statement. In
no event shall any Holder, its directors, officers, employees, representatives
or agents or any Person who controls such Holder be liable or responsible for
any amount in excess of the amount by which the total amount received by such
Holder with respect to its sale of Transfer Restricted Securities pursuant to
a Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages that such
Holder, its directors, officers, employees, representatives or agents or any
Person who controls such Holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party for contribution or otherwise under the indemnity
agreement contained in this Section 8 to the extent that the indemnifying
party is not prejudiced as a result of such failure, and the indemnifying
party shall assume the defense of such action, including the employment of
counsel reasonably satisfactory to the indemnified party and the payment of
all fees and expenses of such counsel, as incurred (except that in the case of
any action in respect of which indemnity may be sought pursuant to Sections
8(a) and 8(b), a Holder shall not be required to assume the
17
defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at
the expense of the Holder). Any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
of the indemnified party unless (i) the employment of such counsel shall
have been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party shall have failed to assume the defense of such
action or employ counsel reasonably satisfactory to the indemnified party
or (iii) the named parties to any such action (including any impleaded
parties) include both the indemnified party and the indemnifying party, and
the indemnified party shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to assume the defense of
such action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such
fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by a majority of the Holders, in the case of the
parties indemnified pursuant to Section 8(a), and by the Authority in the
case of parties indemnified pursuant to Section 8(b). The indemnifying
party shall indemnify and hold harmless the indemnified party from and
against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written
consent or (ii) effected without its written consent if the settlement is
entered into more than 20 Business Days after the indemnifying party shall
have received a request from the indemnified party for reimbursement for
the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the indemnifying party) and, prior to the date of
such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any
pending or threatened action in respect of which the indemnified party is
or could have been a party and indemnity or contribution may be or could
have been sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability on claims that are or could have
been the subject matter of such action and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities, expenses, actions or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the aggregate amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities, expenses, actions or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Authority, on the
one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Authority, on the one hand, and of the
Holder, on the other hand, in connection with the statements or omissions which
18
resulted in such losses, claims, damages, liabilities, expenses, actions
or judgments, as well as any other relevant equitable considerations. The
relative fault of the Authority, on the one hand, and of the Holder, on the
other hand, shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied
by the Authority, on the one hand, or by the Holder, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, claims, damages, liabilities and
judgments referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim.
The Authority and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities, expenses, actions or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any matter, including any action that could have given rise to
such losses, claims, damages, liabilities, expenses, actions or judgments.
Notwithstanding the provisions of this Section 8, no Holder, or its directors,
officers, employees, representatives or agents or any Person, if any, who
controls such Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder with
respect to the sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant
to this Section 8(d) are several in proportion to the respective principal
amount of Transfer Restricted Securities held by each Holder hereunder and not
joint.
SECTION 9. RULE 144A AND RULE 144
The Authority agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Authority (i) is not subject to Section 13 or 15(d) of the Exchange Act, to
make available, upon request of any Holder, to such Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule
144A(d)(4)(1) under the Act (or any successor provision thereto) in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A,
and (ii) is subject to Section 13 or 15(d) of the Exchange Act, to make all
filings required thereby in a timely manner in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144.
19
SECTION 10. MISCELLANEOUS
(a) Remedies. The Authority acknowledges and agrees that any failure
by the Authority to comply with its obligations under Sections 3 and 4 hereof
may result in material irreparable injury to the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, any Holder
may obtain such relief as may be required to specifically enforce the
Authority's obligations under Sections 3 and 4 hereof. The Authority further
agree to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Authority shall not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The Authority has
not previously entered into any agreement granting any registration rights
with respect to its securities to any Person. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Authority's securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section
5 hereof and this Section 10(c)(i), the Authority has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii)
in the case of all other provisions hereof, the Authority has obtained the
written consent of Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities (excluding Transfer Restricted Securities
held by the Authority or its Affiliates). Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose Transfer Restricted Securities are
being tendered pursuant to the Exchange Offer, and that does not affect
directly or indirectly the rights of other Holders whose Transfer Restricted
Securities are not being tendered pursuant to such Exchange Offer, may be
given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders (if other than the Initial
Purchasers) shall be third party beneficiaries to the agreements made
hereunder between the Authority, on the one hand, and the Initial Purchasers,
on the other hand, and shall have the right to enforce such agreements
directly to the extent they may deem such enforcement necessary or advisable
to protect its rights or the rights of Holders hereunder.
(e) Irrevocable Waiver of Sovereign Immunity. Each of the Tribe and
the Authority (collectively, the "Chukchansi Parties") hereby irrevocably
waives its sovereign immunity and any and all defenses based thereon with
respect to any claim, demand, dispute, action or cause of action arising
under or in any way connected with or related or incidental to this
Agreement, as the same may be amended or modified from time to time, whether
now existing or hereafter arising and whether sounding in tort, contract or
otherwise (collectively "Permitted Claims"). Such waiver shall extend (i) to
permit the interpretation, enforcement and the seeking of legal or equitable
relief and remedies (whether through an award or granting of specific
performance, injunction, mandamus, damages or otherwise) by the parties
hereto (and their successors and assigns permitted hereunder) through
arbitration proceedings as herein provided, and (ii) to permit judicial
actions to compel, enter judgment upon, enforce, modify or
20
vacate any award or interim injunctive relief related to the arbitration
proceedings in any of the Applicable Courts described in Section 10(f)
below.
In connection with the foregoing waiver of sovereign immunity by the
Authority:
(i) Duration. The duration of such waiver shall commence on the
date hereof and continue with respect to each Chukchansi Party until 180
days after all obligations of the Authority hereunder have been
completely performed and any amounts, if any, owed hereunder from the
Authority have been indefeasibly paid in full;
(ii) Grantees. The grantee(s) of the waiver are each party
hereto, together with their successors and assigns hereunder;
(iii) Scope. The scope of the waiver applies to all Permitted
Claims;
(iv) Property and Funds. The only assets or rights against which
any award, judgment or other order for relief arising from this waiver
are "Authority Assets" as defined in the Ordinance of the Picayune
Rancheria Establishing and Governing the Chukchansi Authority, whether
held in the name of the Authority, the Tribe or any branch, department,
agency, instrumentality, division, subsidiary, authority, enterprise,
corporation, business or other entity directly or indirectly owned or
controlled in whole or in part by either the Authority or the Tribe.
Notwithstanding the foregoing, any revenues or other property transferred
by the Authority to any other Chukchansi Party in compliance with the
Notes and the Collateral Documents shall, upon transfer, no longer
constitute Authority Assets;
(v) Jurisdictions. The courts with jurisdiction with respect to
the Permitted Claims are the Applicable Courts (subject to the obligation
of the Authority to submit to arbitration as provided herein); and
(vi) Governing Law. The law applicable to the waiver and the
Permitted Claims shall be the internal laws of the State of New York,
except where application of the uniform commercial code of the State of
New York will not recognize a lien and the perfection of a lien on any
Authority Assets as security for any performance of the Authority
hereunder, and the uniform commercial code of the Tribe will recognize
the lien or the perfection of the lien, in which case the law of the
Tribe, as applicable, that recognizes the lien and perfection shall
apply.
(f) Designation of Applicable Courts and Jurisdictions. Each
Chukchansi Party hereby irrevocably consents to the following courts,
jurisdictions and venues for the judicial actions described in Section 10(e)
above (the "Applicable Courts"): (i) the United States District Court for the
Southern District of New York, and all courts to which any appeal therefrom
may be available; (ii) any court of the State of New York, and all courts to
which any appeal therefrom may be available; (iii) if none of the foregoing
courts shall have or accept jurisdiction, then any other federal or state
court, and all courts to which any appeal therefrom may be available, and (iv)
if none of the foregoing courts shall have or accept jurisdiction, then
21
any court of the Tribe (in the case of any Permitted Claim to which the
Tribe or the Authority is a party).
(g) Additional Waivers as to Tribal Courts. Each of the Chukchansi
Parties hereby unconditionally and irrevocably waives the jurisdiction of any
tribal courts now or hereafter existing or created with respect to any
Permitted Claim, except as provided in clause (iv) of Section 10(f) above.
Each of the Chukchansi Parities unconditionally and irrevocably waives the
application of any rule or doctrine relating to exhaustion of tribal remedies
or comity that might otherwise require a Permitted Claim be heard in a tribal
court.
(h) Agreement not to Contest. In connection with any Permitted Claim,
each of the Chukchansi Parties agrees it will not dispute before or in any
court, arbitration panel or other forum, the validity and binding effect of
its waiver of sovereign immunity, consent to arbitration proceedings, consent
to judicial proceedings, or waivers of the right to assert application of any
rules or doctrines of exhaustion of tribal remedies or comity with respect to
tribal court, all to the extent contained herein.
(i) Arbitration. All Permitted Claims must be resolved by binding
arbitration under the commercial arbitration rules of the American Arbitration
Association (the "AAA"), as modified by this Section 10(i). Notwithstanding
any other provision of this Section 10, an arbitrator shall not have the power
to compel, negate, assume, usurp or in any manner affect any Governmental
Action unless any Governmental Action or failure to take any Governmental
Action constitutes a breach of this Agreement by the Tribe or the Authority.
(i) Commencement of Proceedings. Any party may commence an
arbitration proceeding by the filing of a Statement of Claim (within the
meaning of the AAA rules) with the AAA and serving a copy thereof on the
other parties affected by the Permitted Claim. A single arbitrator shall
hear the Permitted Claim, and shall be selected in accordance with the
rules of the AAA.
(ii) Qualification of Arbitrators. No person shall be eligible
to serve as an arbitrator if the person is related to, affiliated with or
has represented in a legal capacity any party to the arbitration
proceeding or any party to this Agreement or the Tribe. The arbitrator
shall be an attorney admitted to practice and in good standing before the
highest court of a state, who is experienced in advising clients in
connection with commercial borrowings or the issuance of debt securities.
(iii) Discovery. Any party shall be permitted to engage in any
discovery permitted under the rules of the AAA. However, all discovery
shall be completed within 90 days following the initial filing of the
Statement of Claim.
(iv) Hearing. The hearing on the arbitration shall be held in
the City of Los Angeles, California, and commence and be completed no
more than 30 days after the close of discovery, and the arbitrator shall
render an award in writing within 30 days of the completion of the
hearing, which shall contain findings of facts and conclusions of law.
The parties hereto further agree that any arbitrator
22
appointed hereunder may award interim injunctive relief before the final
arbitration award. Any controversy concerning whether an issue is
arbitrable shall be determined by the arbitrator.
(v) Enforcement. Proceedings to enter judgment upon, enforce,
modify or vacate any award or interim injunctive relief may be commenced
in any of the Applicable Courts. Any such proceedings shall be governed
(x) by the Federal Arbitration Act, if the matter will be heard in
federal court, (y) by the applicable state arbitration code, if the
matter will be heard in state court, and (z) by the arbitration code of
the Tribe, if the matter will be heard in a tribal court, provided that
the standards of review of the award in all cases shall be consistent
with the Federal Arbitration Act.
(vi) Prohibition on Punitive Damages. Each party hereto agrees
that each party has equal bargaining power and that each has freely
entered into this agreement after such consultation with its attorneys as
it has deemed advisable, and that notwithstanding any other provision
herein, no arbitrator shall have the power to award punitive damages and
any such award shall be null and void and of no effect.
(vii) Validity of Arbitration Provisions. Each party hereto
agrees that these arbitration provisions are valid, binding and
enforceable, and, to the extent permitted by law, waives any defense or
claim to the contrary.
(viii) Full faith and credit. The Chukchansi Parties and the
tribal courts of the Tribe now or hereafter existing shall give full
faith and credit to any award, order or decree rendered in any
arbitration or by any federal or state court in accordance with this
Section 10(i), and, to the extent reasonably necessary, shall issue such
orders and exercise such legal powers as may reasonably be necessary to
effectuate the same. The Tribe shall cause the police powers of the Tribe
to be available to secure and support any such enforcement efforts with
respect to the Tribe or the Authority, and all police or other law
enforcement officials of the Tribe to carry out any orders that may be
entered by the Tribe or its tribal court pursuant to this Section 10(i).
The Chukchansi Parties agree that judgment enforcement remedies generally
available throughout the State of New York may be applied on lands held
by or in trust for or under the control of the Tribe with respect to any
matter that is a proper subject of arbitration under this Section 10(i).
(j) Non-Impairment. No Chukchansi Party or any of its Affiliates
will: (i) adopt, enact, promulgate or otherwise place into effect any law or
legal requirement that impairs or interferes, or could impair or interfere, in
any manner, with any right or remedy of another party hereunder or their
successors and assigns (it being understood and agreed that any such law or
legal requirement that is adopted, enacted, promulgated or otherwise placed
into effect without the prior written consent of any affected party, successor
or assign shall be void and of no effect); or (ii) demand, impose or receive
any tax, charge, assessment, fee or other imposition or impose any regulatory
or licensing requirement against a party, their successors or assigns,
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except in connection with licensing required by the Tribal-State Gaming
Compact entered into between the Tribe and the State of California, as amended
from time to time.
(k) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier,
or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Initial Purchasers:
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ - Grantchester, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(iii) if to the Authority:
The Chukchansi Economic Development Authority
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Tribal Chairman
With a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, if telecopied; and on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
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Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(l) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties
hereto, including without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed
to permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Transfer
Restricted Securities in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Transfer Restricted
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement, including
the restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
(m) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(n) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(o) Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, SHALL GOVERN AND BE USED TO CONSTRUE THIS AGREEMENT.
(p) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(q) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
THE CHUKCHANSI ECONOMIC
DEVELOPMENT AUTHORITY, a
wholly-owned unincorporated enterprise
of the Picayune Rancheria of Chukchansi
Indians, a federally recognized tribe
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS,
a federally recognized tribe
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
Agreed and Accepted
DRESDNER KLEINWORT
▇▇▇▇▇▇▇▇▇▇▇ - GRANTCHESTER, INC.
a Delaware corporation
for itself and as Representative of the other Initial Purchaser
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
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