Exhibit 10.3
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BETWEEN
THE PICAYUNE RANCHERIA OF THE
CHUKCHANSI INDIANS, THE CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY
AND
CASCADE ENTERTAINMENT GROUP, LLC
June 15, 2001
This Amended and Restated Development Agreement is made as of June
15, 2001, by and between THE PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS,
Coarsegold, California, (the "Tribe"), THE CHUKCHANSI ECONOMIC DEVELOPMENT
AUTHORITY, , and CASCADE ENTERTAINMENT GROUP, LLC a California Limited
Liability Company with offices at 7915 Folsom Boulevard, Sacramento,
California 95826-2611 (the "Development Manager" or "CEG"). This Amended
and Restated Agreement amends and restates in its entirety that certain
Development Agreement between the Tribe and CEG dated October 15, 1999.
RECITALS
A. The Tribe is a federally recognized Indian Tribe and has
occupied certain lands in and around what is now known as Coarsegold,
California from time immemorial.
B. Under powers granted by the Tribe's Constitution (the
"Constitution"), the Tribe has created the Chukchansi Economic Development
Authority (the "Authority"), to further the economic prosperity of the
Tribe, and has given to the Authority the sole responsibility and authority
to develop and operate Class II and Class III Gaming on behalf of the Tribe
under the Indian Gaming Regulatory Act of 1988, 25 U.S.C. ss.ss.2701 - 2721
(2000).
C. With the assistance of CEG, the Authority intends to finance,
design, construct, furnish and equip a permanent Class II and Class III
gaming facility.
D. The Tribe and the Authority possess or will acquire sovereign
governmental powers over the Property pursuant to the Tribe's recognized
powers of self government.
E. The Authority desires to use the Property to promote tribal
economic development, self-sufficiency and strong tribal government.
F. The Tribe and the Authority, on the same date as the date of
this Agreement, has have entered into an Amended and Restated Management
Agreement with CEG for the management of ongoing Gaming and related
non-Gaming operations, subject to receipt of regulatory approvals. CEG and
the Authority intend to take all steps reasonably possible prior to the
receipt of the regulatory approvals: (i) to obtain a commitment for
financing the Facility; (ii) to master-plan and engineer the site for the
Facility; (iii) to design the Facility; and (iv) to enter into contracts to
construct and equip the Facility to be effective when all regulatory
approvals have been obtained or as soon thereafter as feasible, so that the
Facility can be opened to the public as soon as possible thereafter.
G. The Authority has selected CEG to arrange financing for the
Facility, and to manage the development, design, construction, furnishing
and equipping of the Facility.
H. The Authority and CEG intend that their relationship with
regard to the preliminary development of the Facility shall be an exclusive
arrangement.
I. The Authority and CEG desire to enter into an agreement whereby
preliminary Facility design and development work (but not Facility
construction or operation) may proceed prior to receipt of regulatory
approvals whereby the exclusive nature of the relationship between CEG and
the Authority shall be preserved.
J. CEG has agreed to make available to the Authority, either by
directly lending funds or arranging a loan by a bank or other source, or by
arranging a bond issue, sufficient funds to finance the Facility. Further,
CEG has agreed to make certain other loans and to pay certain other fees to
the Tribe and/or the Authority as consideration for the exclusive right to
develop the Facility and to manage the Facility pursuant to the Management
Agreement, and for other development rights as described herein.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and promises herein contained, the receipt and sufficiency of
which are expressly acknowledged, the Tribe, the Authority and CEG hereby
agree as follows:
ARTICLE 1
DEFINITIONS AND OBJECTIVES
Section 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:
"Additional Development Land" shall have the meaning set forth in
Section 2.4 hereof.
"Affiliate" shall mean as to the Development Manager, the
Authority, 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 the Development Manager, the Authority, or the Tribe.
"Agreement" shall mean this Amended and Restated Development Agreement.
"Authority" or "Tribal Economic Development Authority" shall mean
the body corporate and politic and an instrumentality of the Tribe, and an
authorized agency of the Tribe pursuant to the Compact, created by
Resolution of the Tribal Council pursuant to powers granted to the Tribal
Council by the Constitution, vested with certain delegated governmental
powers for the purpose of furthering the economic prosperity of the Tribe
through the development and ownership of the Enterprise and related
businesses and assets, in accordance with the IGRA, the Compact, the Tribal
Gaming Code, and this Agreement.
"BIA" shall mean the Bureau of Indian Affairs under the Department
of the Interior of the United States of America.
"CEG" as used throughout this Agreement shall mean only CASCADE
ENTERTAINMENT GROUP, LLC, a California Limited Liability Company with
offices at 7915 Folsom Boulevard, Sacramento, California 95826-2611.
"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.
"Collateral Development Land" shall have the meaning set forth in
Section 2.2 hereof.
"Commencement Date" shall mean the first date that the Facility is
complete, open to the public and that Gaming is conducted in the Facility
pursuant to the terms of the Management Agreement.
"Compact" shall mean which the Tribe has negotiated and executed
with the State of California regarding Class III Gaming, and which has been
duly approved by the Secretary of the U.S. Department of the Interior
pursuant to the IGRA; as the same may, from time to time, be amended, or
such other Compact that may be substituted therefore.
"Completion Date" shall mean the date upon which CEG receives:
(i) an architect's certificate from the architect
chosen pursuant to this Agreement as having
responsibility for the design and supervision of
construction, certifying that the Facility has
been fully constructed substantially in
accordance with the Plans and Specifications;
(ii) certification from the designee of CEG having
responsibility to assure compliance with any
operational standards stating that the Facility,
as completed, is in substantial compliance with
any such standards;
(iii) a permanent or temporary certificate of
occupancy, if required, from any government
authority or authorities pursuant to whose
jurisdiction the Facility is to be constructed,
permitting the use and operation of all portions
of the Facility in accordance with this
Agreement; and
(iv) certificates of such professional designers,
inspectors or consultants or opinions of
counsel, as CEG may determine to be appropriate,
verifying construction and furnishing of the
Facility in compliance with all Legal Requirements.
"Constitution" shall mean the Constitution of THE PICAYUNE
RANCHERIA OF THE CHUKCHANSI INDIANS as approved by the Tribe, in effect on
the date of the execution by the parties of this Agreement, and as amended
by the Constitutional Amendment in accordance with this Agreement.
"Constitutional Amendment" shall mean the duly authorized, valid
and binding amendment to the Constitution, the text of which is attached
hereto as Exhibit D, which will be adopted by the Tribe in accordance with
the Management Agreement.
"Construction Documents" shall have the meaning described in
Section 5.4.
"Design Agreement" shall have the meaning described in Section 4.1.
"Design Packages" shall have the meaning described in Section 4.1.
"Development Budget" shall have the meaning described in Section4.2.
"Development Fee" shall mean the amount paid to Development
Manager pursuant to Section 3.1 of this Agreement.
"Development Manager" shall have the meaning described in the
first paragraph of this Agreement.
"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 the Management Agreement is
granted by the Chairman of the NIGC and/or the BIA;
(ii) written approval of the Loan Agreement, the
Security and Reimbursement Agreement, the Note,
and the Interim Promissory Note is granted by
the Chairman of the NIGC and/or the BIA, if
required;
(iii) written approval of a Tribal Gaming Code is
granted by the Chairman of the NIGC or the BIA;
(iv) written confirmation that the Tribe, the State
(to the extent required by the Compact), and the
NIGC, have approved background investigations of
CEG;
(v) CEG has received a certified copy of the Tribal
Gaming Code and the Tribal Resolutions adopted
by the Tribe in accordance with the Tribe's
governing documents, and a certified copy of
Resolutions of the Governing Board of the
Authority, authorizing the execution of the
Management Agreement, Loan Agreement(s),
Note(s), Interim Promissory Note(s), Security
and Reimbursement Agreement(s), and this Agreement;
(vi) CEG has satisfied itself as to the proper
ownership and control of the Property and its
suitability for construction and operation of
the Facility, and that all of the Legal
Requirements and other requirements for lawful
conduct and operation of the Enterprise in
accordance with the Management Agreement have
been met and satisfied;
(vii) for purposes of Class III Gaming, the Compact
has been signed by the Secretary of the Interior
and published in the Federal Register as
provided in 25 U.S.C. ss.2710(d)(8)(D);
(viii) the satisfactory completion of all necessary and
applicable feasibility studies required for the
development, construction and operation of the
Enterprise;
(ix) receipt by CEG of all applicable licenses for or
related to development, construction or
management of the Enterprise;
(x) receipt by CEG of the Authority's approval of
the Plans and Specifications for the Facility;
and
(xi) CEG has satisfied itself that the Tribal Gaming
Code and any other codes adopted by the Tribe
relative to any of the documents referenced in
this Agreement do not have a material adverse
effect on CEG's ability to operate the Facility
under the Management Agreement.
The Tribe and the Authority agree to cooperate and to use their
best efforts to satisfy all of the above conditions at the earliest
possible date. CEG agrees to memorialize the satisfaction of each of (vi),
(viii) and (xi), as well as the Effective Date, in writings signed by CEG
and delivered to the Tribe and the Authority.
"Engagement Fee" shall have the meaning described in Section 8.1.1.
"Enterprise" shall mean the business entity owned and operated by
the Authority and managed by CEG, 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,
provided, however, the Enterprise shall not include any hotel,
entertainment facility, or other substantial non-Gaming operation operated
under separate leasing or non-gaming management agreements, unless
otherwise agreed by the Authority.
"Facility" shall mean all buildings, structures and improvements
located on the Property used by the Enterprise or used for the operation of
the Enterprise, and all fixtures, Furnishings and Equipment attached to,
forming a part of, or necessary for the operation of the Enterprise.
"Furnishings and Equipment" shall mean all furniture, furnishings
and equipment required for the operation of the Enterprise in accordance
with the standards set forth in this Agreement, including, without
limitation:
(i) cashier, money sorting and money counting
equipment, surveillance and communication
equipment and security equipment;
(ii) electronic lottery terminals, video games of
chance, table games, bingo blowers & 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 a
Tribal-State Compact and the IGRA;
(iii) office furnishings and equipment;
(iv) specialized equipment necessary for the
operation of any portion of the Enterprise 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
Enterprise in accordance with the standards set
forth in this Agreement.
"Gaming" shall mean any and all activities defined as Class II and
Class III Gaming under the IGRA.
"Gaming Code" shall mean the Gaming Code adopted by the Tribe and
approved by the Chairman of the NIGC regulating the conduct of gaming on
tribal lands.
"Governing Board" shall mean the board of directors of the
Authority. The Governing Board shall be comprised of those persons serving
on the Tribal Council from time to time.
"IGRA" shall mean the Indian Gaming Regulatory Act of 1988, PL
100-497, 25 U.S.C. ss.2701 et. seq. as same may, from time to time, be amended.
"Interim Loan" shall mean the funds advanced to the Tribe as a
loan under the terms of one or more of the Pre-Construction Development
Credit and Reimbursement Agreement and the Interim Promissory Notes.
"Interim Promissory Note" shall have the meaning described for one
or more promissory notes to be executed by the Tribe and/or the Authority
in favor of CEG pursuant to this Agreement.
"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, the Authority, CEG, the Property, the Facility, and the
Enterprise, including without limitation, the IGRA, the Compact, and the
Tribal Gaming Code.
"Lender" shall mean the source of financing agreed upon by the
parties to provide the funding necessary to design, construct, and equip
the Facility, and provide start-up capital for the Enterprise under the
Loan Agreement. The term "Lender" shall include Manager if and to the
extent Manager shall become a source of financing under the Loan Agreement.
"Loan" shall mean the loan to the Authority to be made pursuant to
the Loan Agreement.
"Loan Agreement" shall mean the loan agreement in the original
principal amount of up to One Hundred Seventy Million Dollars
($170,000,000.00), to be entered into between the Authority and CEG or one
of its Affiliates, or between the Authority and the Lender, the proceeds of
which are to be used exclusively for the development, design, construction,
furnishing and equipping of the Facility and/or providing start-up and
working capital for the Enterprise.
"Management Agreement" shall mean the Amended and Restated
Management Agreement between the Tribe, the Authority, and CEG dated the
same date as this Agreement.
"National Indian Gaming Commission (NIGC)" shall mean the
commission established pursuant to 25 U.S.C.ss.2704.
"Native Americans" shall mean persons who are members of any
Federally recognized Indian tribe.
"Net Revenues" shall have the meaning set forth in the Management
Agreement, and shall include Net Revenues (Gaming) and Net Revenues (Other).
"Note" shall mean the promissory note or notes to be executed by
the Authority pursuant to the Loan Agreement, which shall evidence a loan
to the Authority, in an original principal amount of up to One Hundred and
Seventy Million Dollars ($170,000,000.00), from either the Lender or CEG.
"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 Exhibit B.
"Property" shall mean the Tribe's Indian Lands located on Road 417
in Coarsegold, CA, and any other parcel of land in Madera County,
California identified and mutually acknowledged in a writing executed by
the Tribe, the Authority, and CEG as suitable for development of the
Facility and operation of the Enterprise which meets the requirements of
United States of America to be accepted in trust or Indian Lands status for
the Tribe for Gaming, or other lands to be used by the Enterprise for
non-Gaming purposes.
"Reimbursable Project Costs" are those project development costs
which are included in budgets and schedules mutually approved by the Tribe
and/or the Authority and CEG, and which are advanced to the Tribe and/or
the Authority under the terms of the Security and Reimbursement Agreement
or pursuant to the Loan or Loan Agreement.
"Security and Reimbursement Agreement" shall mean that agreement
or agreements to be entered into between CEG and/or the Lender and the
Authority and/or the Tribe which shall set out the security interest of CEG
and/or the Lender and reimbursement obligation of the Authority and/or the
Tribe relating to the Interim Loan and the Interim Promissory Note(s).
"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 Tribal Council of the Picayune
Rancheria of Chukchansi Indians.
"Tribal Distributions" shall mean the unrestricted distribution
made to the Tribe and/or the Authority from the Net Revenues pursuant to
the Management Agreement and the Loan Agreement.
"Tribal Gaming Commission" shall mean the Tribal body created
pursuant to the Gaming Code to regulate the Class II and Class III Gaming
in accordance with the Compact, the IGRA and the Gaming Code.
Section 1.2. Independent Agreement. The objective of the Tribe,
the Authority, and CEG in entering into and performing this Agreement is to
provide a legally enforceable procedure and agreement pursuant to which CEG
will pay certain fees to the Tribe and/or the Authority and has made and
will make certain loans to the Tribe and/or the Authority, and whereby the
Tribe, the Authority and CEG can proceed as far as possible with
development of the Facility prior to the approval of the Management
Agreement by the NIGC so that the Facility can be opened to the public as
soon as possible after the approval of the Management Agreement by the
NIGC; and to set forth the rights and obligations of the parties if
approval of the Management Agreement by the NIGC does not occur. This is
intended to be a legally enforceable agreement, independent of the
Management Agreement, which shall become effective upon execution and
delivery by the parties, and be enforceable between the parties regardless
of whether or not this Agreement or the Management Agreement is approved by
the Chairman of the NIGC.
ARTICLE 2
SCOPE OF DEVELOPMENT
Section 2.1. Development Plan. The Development Manager has
presented to the Authority a development plan, including a schedule of
critical dates for each phase of development, a budget, and priorities. The
Authority herewith acknowledges receipt and approval of that development plan.
Section 2.1.1. Prior to the availability of proceeds from
the Loan, CEG shall advance all reasonable development expenses as
agreed upon by the parties as set forth in Exhibit A. CEG shall
maintain a detailed schedule of these expenses and shall make
written reports to the Authority monthly describing all such
expenses.
Section 2.1.2. Reimbursable Project Costs advanced by CEG
shall be reimbursed by the Tribe and/or the Authority. A schedule
of all categories of projected reimbursable Project costs, and
projected budgets for said categories shall be prepared by CEG and
included in Exhibit A. CEG shall provide the Authority with a
monthly detailed schedule with totals of all reimbursable Project
Costs for the month past within 15 days after the receipt by CEG
of all substantiating documents required from the Authority for
the prior month's reimbursements and/or advances.
Section 2.1.3. Fifteen days prior to the first draw of
the Loan, CEG shall provide the Authority with a final detailed
schedule with totals of all reimbursable Project Costs up to the
date of the first draw. At CEG's election, the Authority shall
reimburse CEG for these costs as a component of the first draw of
the Loan. Reimbursable Project Costs shall include, but not be
limited to, land acquisition costs, land development costs,
engineering and architectural expenses, marketing, Tribal Gaming
Commission costs, legal and consultant costs, project management
costs, financing costs, and all other pre-construction
professional costs. All such costs incurred after the availability
of Loan proceeds shall be included in monthly draws against the Loan.
Section 2.1.4. Engagement Fees paid by CEG to the Tribe
and/or the Authority in exchange for the exclusive right to
develop and manage the Facility shall not be reimbursable.
Section 2.2. Land Acquisition. CEG has acquired an interest in the
following undeveloped land ("Collateral Development Land"), to wit:
Tract 1: All that portion of the N 600.0 feet
------- of the East 309.0 feet of the NE 1/4 of
the NE 1/4 of the NW 1/4 lying South
and West of the Picayune Road in
Section 29, Township 8 South, Rage 21
East, MDB&M, bounded and described as
follows:
Beginning at a point on the North
Section line at the intersection of the
N.-S. 1/2 Section line of Section 29,
thence West and along the North Section
line a distance of 309 feet to a point;
thence at right angles South and
parallel to the N.-S. 1/2 Section line
a distance of 600 feet to a point;
thence at right angles East and
parallel to the North Section line of
Section 29 a distance of 309 feet to
the intersection with the N.-S. 1/2
Section line of Section 29; thence at
right angles North along the
North-South 1/2 Section line of Section
29 a distance of 600 feet, back to the
point of beginning.
Tract 2: Parcel 2 of Parcel Map 1870 as recorded
------- August 21, 1981, in Book 27 of Map at page
182 of Madera County Records.
APN: 054-330-032-000.
Tract 3: Parcel 3 of Parcel Map 1870
------- according to the map thereof recorded
August 21, 1981 in Book 27 of Maps, at
Page 182, Madera County Records, being
a portion of the NE 1/4 of Section 29,
Township 8 South, Range 21 East, Mount
Diablo Base and Meridian, according to
the official plat thereof. APN:
054-330-033-000
Tract 4: Parcel One of Parcel Map 1870 as
------- recorded in Book 27 at Page 182, Madera
County Records, being a portion of the
NE 1/4 of Section 29, Township 8 South,
Range 21 East, MDB&M. APN: 054 330 020
Tract 5: All that portion of the north 1/2 of
------- the Northwest 1/4 (N1/2 of NW 1/4 of NE
1/4) of section 29, Township 8 South,
Range 21 East, MDB&M, lying
southwesterly of County Road No. 417.
APN: 054 330 031
Tract 6: The SE 1/4 of the NW 1/4 (SE 1/4 of NW 1/4/)
------- of Section 29, Township 8 South, Range 21
East M.D.M., containing forty (40) acres,
more or less. APN: 054-330-015
Section 2.3. From and after the date on which the Tribe acquires
title to the Collateral Development Land, the Tribe shall use its best
efforts to cause the same to be transferred to the United States to be held
in Trust by the United States for the benefit of the Picayune Rancheria of
Chukchansi Indians, or to be held otherwise in such fashion as to make the
lands "Indian lands" as that term is defined in the IGRA. The cost for the
land acquisition and the Fee-to-Trust Application shall be a Reimbursable
Project Cost.
Section 2.4. Additionally, CEG shall disclose to the Tribe, in
writing, any and all interests in land in Coarsegold, California, other
than the Collateral Development Land, acquired by CEG, or by Affiliate,
after October 1, 1998 (the "Additional Development Land"); including,
without limitation as part of such disclosure, the furnishing to the Tribe
of copies of executed copies of any purchase agreement, option or similar
instruments which may have been executed and delivered in connection
therewith and copies of all collateral documents. If the Tribe finds any
Additional Development Land to be suitable for the Project, the Tribe may,
at its sole discretion, elect and require, within 90 days after any such
disclosure, that CEG or any Affiliate of CEG shall quitclaim, transfer and
assign to the Tribe an undivided one hundred percent (100%) interest in any
such land so acquired. The interest transferred shall be equal to, but not
greater than, the interest held by CEG or its Affiliate. If the interest
held by CEG or its Affiliate is limited in any way that prevents immediate
transfer of the interest to the Tribe, then CEG or its Affiliate shall
provide the Tribe with written assurances that the interest held shall be
transferred upon satisfaction of the limitations.
In the event of such transfer, the transferor shall receive as
consideration for such transfer: cash reimbursement by the Tribe or the
Authority for one hundred percent (100%) of all out-of-pocket costs,
purchase costs, and transactional costs paid and incurred by the
transferring entity prior to the date of transfer to the Tribe or the
Authority, in acquiring the interest(s) then being transferred to the Tribe
or the Authority; and any additional costs that the transferring entity
will incur subsequent to the transfer, which are related to and necessary
for the acquisition of the property and which cannot be transferred to the
Tribe or the Authority for direct payment. Such transfer(s) shall be made
to the Tribe or the Authority without warranty, representation or further
undertaking on the part of the entity required to effect such transfer.
Section 2.5. The Tribe has acquired the following described
property, to wit:
Tract 7:
--------
That portion of the North half of the Northwest quarter
of the Northeast quarter and the West half of the
Northwest quarter of the North east quarter of the
Northeast quarter of Section 29, Township 8 South, Range
21 East, MDB&M, according to the Official Plats thereof,
lying Northeasterly of the Northeasterly line of a strip
of land 50 feet in width conveyed to the County of
Madera, State of California, for highway purposes by Deed
dated September 11, 1961 and recorded in the records of
Madera County in Volume 808 of Official Records, at page 410.
EXCEPTING THEREFROM that portion of the Northeast quarter
of Section 29, Township 8 South, Range 21 East, MDB&M,
according to the Official Plat thereof described as follows:
BEGINNING at the Southeast corner of the West half of the
Northwest quarter of the Northeast quarter of the
Northeast quarter of said Section 29; thence West along
the South line of the North half of the North half of the
Northeast quarter of said Section 580.8 feet; thence
Northeasterly 600 feet, more or less, to a point in the
East line of the West half of the Northwest quarter of
the Northeast quarter of the Northeast quarter of Section
29 , located 150 feet North from the Southeast corner
thereof; thence South 150 feet to the point of beginning;
and
Tract 8:
--------
All that portion of the South half of the Northwest
quarter of the Northeast quarter and the West half of the
Southwest quarter of the Northeast quarter of the
Northeast quarter of Section 29, Township 8 South, Range
21 East, MDB&M, lying North and Northeasterly of the
North and Northeasterly boundary of County Road No. 417,
County of Madera, State of California; and
That portion of the Northeast quarter of Section 29,
Township 8 South, Range 21 East, MDB&M, according to the
Official Plat thereof described as follows:
Beginning at the Southeast corner of the West half of the
Northwest quarter of the Northeast quarter of the
Northeast quarter of said Section 29; thence West along
the South line of the North half of the North half of the
Northeast quarter of said Section, 580.8 feet; thence
Northeasterly 600 feet, more or less, to a point in the
East line of the West half of the Northwest quarter of
the Northeast quarter of the Northeast quarter of Section
29, located 150 feet North from the Southeast corner
thereof; thence South 150 feet to the point of beginning,
County of Madera, State of California.
Tract 9:
--------
Parcels 1 and 2 of Parcel Map 3244, filed for record in
the Office of the Madera County Recorder, State of
California, on February 28, 1994 in Volume 42 of Maps, at
page 46, being a portion of the Northwest 1/4 of Section
29, Township 8 South, Range 21 East, Mount Diablo Base
and Meridian.
The Tribe or the Authority shall transfer said land to the United
States to be held in trust by the United States for the benefit of the
Picayune Rancheria of Chukchansi Indians, or to be held otherwise in such
fashion as to make the lands "Indian lands" as that term is defined in the
IGRA. The costs associated with the fee to trust process shall be a
Reimbursable Project Cost.
ARTICLE 3
DEVELOPMENT MANAGEMENT FEE
Section 3.1. For all services and obligations under the
Development Agreement, the Development Manager shall receive a fee (the
"Development Fee") of 4% of the total cost of development, provided that
the Development Fee shall not exceed four million five hundred thousand
dollars ($4,500,000.00). The total cost of development shall be as defined
in the Development Budget agreed to by the Authority and CEG, and as
modified from time to time by mutual agreement of the Authority and CEG.
Section 3.2. During the Pre-Construction phase, the Development
Manager shall receive a monthly lump sum fee of $25,000, which shall be
credited against the total Development Fee. The Development Manager shall
advance funds to the Authority for payment of the lump sum monthly fee as
advances under the Interim Loan Agreement. At the commencement of construction,
payments of the Development Fee shall be in conformance with the construction
draw schedule, as mutually agreed to by the Authority and CEG.
ARTICLE 4
DESIGN PHASE
Section 4.1. Employment of Design Consultants. CEG shall use its
experience and professional expertise to pre-qualify architects, engineers,
and other design consultants to be engaged on the Project. CEG shall
present to the Authority a recommendation for a Design Team to be engaged
for the design & engineering of the Facility; said Design Team to be headed
by and managed by the Development Manager. The Development Manager shall
provide the Authority with sufficient information, including interviews and
presentations, to allow the Authority to fully evaluate each prospective
member of the Design Team. If any member of the recommended Design Team is
deemed unacceptable to the Authority for any reasonable objection, then CEG
shall make additional recommendation(s) to the Authority until a full
Design Team is accepted. The Authority shall employ such Design Team
members for the purpose of performing certain services in connection with
the design and construction of the Facility, including site development.
The Authority's agreement with the Design Team members shall be in the form
of a contract (the Design Agreement) prepared by CEG, and approved by CEG
and the Authority. The scope of the project contemplated by this Agreement,
shall be stated and established in the Design Agreement, and shall be
subject to the mutual approval of the parties, but shall incorporate at a
minimum the concepts outlined in CEG's proposal to the Authority attached
hereto as Exhibit B. The scope of design shall include, and the design
shall facilitate, the possibility of the Authority designing and
constructing a concurrent or future phased addition of a hotel, spa, resort
amenities and/or retail space. The Design Agreement shall also provide for
and establish appropriate design packages "Design Packages", each including
portions of the Project. The Design Agreement shall allow CEG, acting as
Development Manager, the right and responsibility to supervise, direct,
control and administer the duties, activities and functions of the Design
Team and to efficiently carry out its covenants and obligations under this
Agreement; but the Design Agreement shall provide that the Development
Manager will consult closely with the Authority, and that all substantial
design elements shall be subject to review and approval by the Authority.
Section 4.2. Design and Construction Budgets. The Development
Manager, subject to the approval of the Authority, shall establish budgets
(collectively the Development Budget) for designing, constructing,
furnishing and equipping the Facility, and related costs which may be
identified prior to the commencement of design by the Design Team. The
Development Budget shall reflect planned phasing, if any. The Development
Manager may, after notice to and approval by the Authority, revise the
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 concept requested and/or approved by the
Authority. CEG may, after notice to the Authority, reallocate part or all
of the amount budgeted with respect to any line item to another line item
and to make such other modifications to the Development Budget as CEG deems
necessary or appropriate, provided that: (i) the cumulative modifications
of the Development Budget for all Design Packages shall not, without the
Authority's prior approval, exceed the approved aggregate Development
Budget, and (ii) such modifications do not otherwise conflict with the
terms of this Agreement. Development Budget adjustments which otherwise
vary from the terms of the Agreement, shall require the approval of both
the Authority and CEG. The Authority and CEG acknowledge that the
Development Budget is intended only to be a reasonable estimate of Project
costs.
Section 4.3. Concept Design and Engineering. The Development
Manager shall prepare, for the review and approval of the Authority, a
statement of the concept design and engineering requirements for the
Facility, including, but not limited to, planned phasing, if any, 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.
Section 4.4. Preliminary Program Evaluation. The Development
Manager shall prepare, or cause to be prepared, for review and approval of
by the Authority, 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, if any, schedule, Development Budget requirements,
and alternative approaches to Project design and construction. Based upon
the agreed-upon schedule, Development Budget requirements and conceptual
design, the Design Team shall, under the direction of the Development
Manager, prepare schematic design documents consisting of drawings and
other documents illustrating the scale and relationship of the Facility,
and any other Enterprise components, as well as a preliminary line-item
estimate of Enterprise costs based upon the proposed area, size and scope
of the Enterprise.
Section 4.5. Design Development. After review and final approval
of the schematic design documents by the Authority and the Development
Manager, 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 and such other elements and/or Design
Packages as may be appropriate. Further, the Design Team shall advise the
Development Manager with respect to any potential variations from
Development Budget estimates. The Development Manager shall submit to the
Authority, for its review and approval, finalized versions of the design
development documents prepared by the Design Team and agreed to by CEG.
Section 4.6. 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 the Development Manager and the Authority,
construction documents consisting of preliminary drawings and
specifications setting forth the general requirements for construction of
the Project. After approval by the Development Manager and the Authority,
the Design Team at the direction of the Development Manager shall proceed
with completion of detailed 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 the Development Manager. The Design Team shall advise the
Development Manager, and the Development Manager shall advise the Authority
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 the
Development Manager and the Development Manager shall review said plans
with the Authority for approval prior to release of such documents to
prospective bidders for bidding.
Section 4.7. 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 Authority, meet or exceed all reasonable minimum standards pertaining
to the Tribe and national building codes, fire codes and safety and traffic
requirements (but excluding planning, zoning and property use laws,
ordinances, regulations and requirements), which would be imposed on the
Enterprise by existing (to the extent applicable) California or Federal
statutes or regulations. To the extent that the Tribe or the Authority may
adopt more stringent requirements, those requirements shall govern. Nothing
in this subsection shall grant to the State or any political subdivision
thereof any jurisdiction (including but not limited to, jurisdiction
regarding zoning or property use) over the Enterprise or its development,
management and operation.
Section 4.8. Advance of Funds for Design Work. Notwithstanding any
lack of approval of the Management Agreement or this Agreement by the NIGC
or the BIA, CEG shall advance as a Reimbursable Project Cost such funds as
are necessary to proceed with site and facility planning, architectural
renderings and plans, including payments to the Design Team pursuant to the
Design Agreement, engineering and environmental services, working drawings
and construction contract bidding documents, and the reimbursable project
expenses. These expenses shall be repaid to CEG, at CEG's election, at the
time the first draw is made on the Loan. After the Effective Date, the
Design Team shall be compensated for services rendered in accordance with
the Design Agreement out of Loan proceeds, subject to and in accordance
with the terms, conditions and provisions of the Loan Agreement.
ARTICLE 5
CONSTRUCTION PHASE
Section 5.1. Selection of Contractors and Vendors. The Development
Manager shall initiate a pre-bid selection process in order to pre-qualify
all prospective contractors, sub-contractors, and vendors. The Development
Manager shall submit the list of pre-qualified contractors and vendors to
the Authority, together with recommendations, for the Authority's review,
comment and approval. The Development Manager shall provide the Authority
with sufficient information to allow the Authority 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 that is acceptable to the
Authority.
Section 5.2. Vendor Preferences. In entering contracts for the
supply of goods and services for the Enterprise, including the selection of
contractors, subcontractors and suppliers, the Development Manager shall
give preference to qualified Native Americans, their spouses and children,
and qualified business entities certified by the Authority to be controlled
by members of the Tribe. Qualified shall mean a Native American or the
spouse or children of a Native American, or a business entity certified by
the Authority to be controlled by a Native American, 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
the Development Manager's opinion, and can meet the reasonable bonding
requirements of CEG. The Development Manager shall provide written notice
to the Authority in advance of all such contracting, subcontracting and
construction opportunities.
Section 5.3. Proposal Review. Subsequent to the pre-qualification
of prospective contractors, the Development Manager shall conduct a review
of responsive proposals for the various components of construction of the
Project, and the Development Manager shall recommend to the Authority the
best qualified contractor with the lowest responsible bid proposal. The
recommended contractor shall be subject to the approval of the Authority,
shall be properly licensed in the State of California, shall meet the
financial capability requirements of the Authority and the Development
Manager, and shall be capable of furnishing a payment and performance bond
satisfactory to the Development Manager and the Authority to cover the
construction for which the contractor may be retained.
Section 5.4. Contracts. The Governing Board on behalf of the
Authority shall enter into a construction contract or contracts (the
"Construction Documents") with the parties selected and approved in the
form drafted and negotiated by the Development Manager and approved by the
Governing Board 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 Loan
proceeds subject to, and in accordance with the terms, conditions and
provisions of the Construction Documents and the Loan Agreement.
Section 5.5. 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); and (iii) require all contractors
to construct the Project in accordance with the Plans and Specifications,
including any changes or modifications thereto approved by the Authority.
The Construction Documents will provide for insurance conforming to the
applicable insurance requirements of the Management Agreement, appropriate
lien waivers, and for construction schedules by which milestones, progress
payments and late penalties, if any, may be calculated.
Section 5.6. Construction Administration. The Construction
Documents shall provide that the Development Manager shall be responsible
for all construction administration during the construction phase of the
Project. The Development Manager shall act as the Authority's designated
representative and shall have full power and complete authority to act on
behalf of the Authority in connection with the Construction Documents. To
the extent allowed by the Design Agreement(s) and the Construction
Documents, the Development Manager 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. The Development Manager shall have the authority to
reject work which does not conform to the Construction Documents. The
Development Manager may conduct inspections to determine the date or dates
of substantial completion and the Completion Date. The Development Manager
shall observe and evaluate or authorize the observation and evaluation of
Project work performed, review or authorize review of applications for
payment for submission to the Authority and review or authorize review and
certification of the amounts due the contractors and/or vendors before any
such payments are made.
Section 5.7. Construction Commencement and Completion. The
Construction Documents shall contain such provisions for the protection of
the Tribe, the Authority and CEG as the parties shall deem appropriate;
shall provide that the construction of the Project shall commence on the
Effective Date following and subject to the granting of all approvals
necessary to commence construction; and shall also provide that any
contractor shall complete construction within such time as the Authority
and CEG 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 6
FURNISHINGS AND EQUIPMENT
Section 6.1. Selection of Furnishings and Equipment. The
Development Manager shall submit to the Authority, for its review and
approval, the specifications for Furnishings and Equipment in compliance
with industry standards. Thereafter, the Development Manager, shall select
and procure vendors for purchase by the Tribe of Furnishings and Equipment
required to operate the Enterprise in conformity with such specifications
and any industry standards. Alternatively, in the sole discretion of the
Authority, the Development Manager may arrange for the procurement of
Furnishings and Equipment on lease terms as may be approved by the
Authority, and as are permissible under the Loan Agreement. Any commitments
for the procurement of Furnishings and Equipment shall, however, become
binding on the Authority only upon or after the Effective Date.
ARTICLE 7
TERM
Section 7.1. Term. This Agreement shall be entered into and remain
in full force and effect from the date of execution hereof for a period
ending when the obligations of the parties under this Agreement have
expired or have been fulfilled, or until all obligations owed to CEG by the
Authority pursuant to this Agreement and any Interim Promissory Note have
been satisfied in full, whichever is later; provided, however, that nothing
herein shall prohibit CEG and the Authority from agreeing in a separate
writing that the obligations of this Agreement shall be subsumed into any
one or all of the other agreements between the parties immediately upon the
Effective Date thereof and that, at such time as the obligations hereof are
so subsumed, this Agreement shall, except to the extent contrary to the
express terms hereof, automatically terminate.
ARTICLE 8
PAYMENTS AND COMMITMENTS BY CEG
BEFORE APPROVAL OF MANAGEMENT AGREEMENT
Section 8.1. Initial Financial Commitments. In partial
consideration for the commitments made by the Tribe and the Authority to
CEG, CEG agrees to the following financial commitments to the Tribe and the
Authority:
Section 8.1.1. Engagement Fee. Concurrent with the
execution of the Memorandum of Understanding dated the 26th day of
October, 1998 as amended on the 5th day of May, 1999, CEG has paid
the Tribe an Engagement Fee of FIFTY THOUSAND DOLLARS ($50,000.00),
the receipt of which is hereby acknowledged by the Tribe.
Section 8.2. Loan Commitment. CEG shall be responsible for
arranging for a the Loan to the Authority to finance the Project. The
parties acknowledge that the final financing commitments may not be
possible until after the total cost of the Property is known and the
preliminary design documents are approved. CEG shall provide or arrange
financing to fund all costs of design, development, construction and
opening of the Facility, including but not limited to all planning,
professional fees, land acquisition costs, development, infrastructure
improvements, construction and pre-opening costs, fees and expenses on
terms no less favorable to the Authority than the following:
(i) The original principal of the Loan shall be for
an amount of up to One Hundred Seventy Million
Dollars ($170,000,000.00).
(ii) Interest shall be at a per annum rate acceptable
to the Authority, however, said acceptance shall
not be unreasonably withheld.
(iii) The Loan shall be available at the earliest date
possible in the development process, with
interest and repayment terms to be as provided
in the Loan Agreement (subject to approval by
the Authority).
(iv) The Loan shall be repayable solely out of
revenues of the Facility, the tangible assets of
the Facility, and the business of the
Enterprise. The Loan shall be a limited recourse
obligation of the Authority, with no recourse to
other tribal assets, including the Property, or
to Tribal Distributions or assets purchased with
Tribal Distributions, provided that the
Authority shall waive sovereign immunity with
respect to the Loan only to the extent provided
in Article 14 of this Agreement.
(v) The Authority and CEG shall covenant not to
encumber any of the assets of the Facility
without prior written consent of CEG and the Lender.
(vi) The Loan shall not be assignable by either CEG
or the Authority without the reasonable written
consent of the non-assigning party.
(vii) The Authority shall consent to the jurisdiction
of the Gaming Disputes Court, and to New York
law as the law governing the Loan Agreement.
(viii) The Loan may be made directly by the Lender to
the Authority, provided that the Loan is non-
limited recourse to the Authority as described
in Section 8.2.(iv) above, and otherwise
conforms with the terms set forth in this
Section 8.2.
(ix) It shall be a condition of the loan commitment
and of CEG's obligation to arrange or directly
fund the Loan that a Management Agreement
between the Tribe, the Authority, and CEG in
substantially the form of the Management
Agreement drafted and agreed to between the
Tribe, the Authority, and CEG, and this
Development Agreement, be approved by the
Chairman of the NIGC.
Section 8.3. Site Planning and Design Development. CEG shall
advance the funding for the work described in Articles 2, 3, 4, 5, and 6 of
this Agreement performed prior to the first availability of Loan proceeds
as provided in those Articles.
ARTICLE 9
PAYMENTS AND COMMITMENTS BY CEG
AFTER APPROVAL OF MANAGEMENT AGREEMENT
Section 9.1. Fees Payable By CEG to the Tribe. CEG has paid or
will pay the following non-reimbursable fees to the Tribe and/or the
Authority:
Section 9.1.1. Upon execution of this Development
Agreement and the Management Agreement dated October 15, 1999, CEG
paid to the Tribe a non-refundable Engagement Fee payment in the
sum of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00), the receipt of
which is herewith acknowledged.
Section 9.1.2. Upon approval of the Management Agreement
by the Chairman of the NIGC, CEG shall pay the Authority a
non-refundable Engagement Fee payment in the sum of TWENTY-FIVE
THOUSAND DOLLARS ($25,000.00).
Section 9.1.3. Upon the date of ground breaking and
commencement of construction of the Facility, CEG shall pay the
Authority a non-refundable Engagement Fee payment of FIFTY
THOUSAND DOLLARS ($50,000.00).
ARTICLE 10
EXCLUSIVITY
Section 10.1. Exclusivity Regarding Facility. During the term of
this Agreement, or any extension hereof, CEG shall have an exclusive
relationship with the Tribe and the Authority regarding the development of
the Facility.
Section 10.2. Restrictions on Collateral Development. During the
term of this Agreement and the Management Agreement, CEG agrees not to
develop, operate or manage any gaming and/or hotel/resort facilities within
One Hundred (100) miles of the Facility without the written consent of the
Authority. However, nothing in this Development Agreement shall prohibit
CEG from operating a gaming facility and/or hotel/resort facility on the
Buena Vista Rancheria, located in Ione, California.
ARTICLE 11
REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section 11.1. Representations and Warranties of the Tribe and the
Authority . The Tribe and the Authority represent and warrant to CEG as
follows:
(i) The Tribe's and the Authority's execution,
delivery and performance of this Agreement, the
Interim Promissory Note and all other
instruments and agreements executed in
connection with this Agreement have been
properly authorized by the Tribe and the
Authority and do not require further Tribe or
Authority approval.
(ii) This Agreement and the Interim Promissory Note,
subject to any necessary approvals of the NIGC
and/or the BIA, have been properly executed, and
once approved in accordance with Legal
Requirements constitute the Tribe's and the
Authority's legal, valid and binding
obligations, enforceable against the Tribe and
the Authority in accordance with their terms.
(iii) There are no actions, except as set forth in
Exhibit C, suits or proceedings, pending or
threatened, against or affecting the Tribe or
the Authority before any court or governmental
agency of which CEG has not been advised of in
writing by the Tribe and which CEG has
acknowledged.
(iv) The Tribe and the Authority 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.
Section 11.2. Covenants by the Tribe and the Authority. The Tribe
and the Authority covenant and agree as follows:
(i) That promptly after the execution of this
Agreement, the Tribe will take the 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 CEG hereunder and thereunder. When
adopting the Gaming Code, the Tribe will give
CEG the opportunity to review and comment on the
drafts thereof. Pursuant to the Gaming Code, the
Tribe will promptly establish the Tribe Gaming
Commission.
(ii) The Tribe and/or the Authority agrees to enter
into the Loan Agreement, and execute the Interim
Promissory Note and the Note(s) necessary to
carry out the purposes of this Agreement in
accordance with the terms of the Compact, the
Legal Requirements, and factual particulars for
development, construction and operation of the
Facility for Class III Gaming, and Class II
Gaming if applicable.
(iii) That during the term of this Agreement and the
Management Agreement, the Tribe and the
Authority 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 the
Governing Board nor any committee, agency, board
or other official body, and no officer or
official of the Tribe or the Authority 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 the Governing Board 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. However, nothing
in this Section shall prevent the Tribe or the
Authority from enforcing any of its Tribal codes
for the purposes of reasonably protecting public
health and safety and the integrity of the
gaming operations.
(iv) That the Authority will waive sovereign immunity
on the limited basis described in Article 14
with respect to the Loan.
(v) That the Authority will waive sovereign immunity
on the limited basis described in Article 14 and
enter into the Security and Reimbursement
Agreement to secure repayment of any amounts
owing to CEG pursuant to Section 13.3.
(vi) That this Agreement, the Management Agreement,
the Loan Agreement, the Note, the Interim
Promissory Notes, the Security and Reimbursement
Agreement, and each other contract contemplated
by this Agreement shall be specifically
enforceable in accordance with their terms.
(vii) That in its performance of this Agreement, the
Tribe and the Authority shall comply with all
Legal Requirements.
Section 11.3. Representations and Warranties of CEG. CEG
represents and warrants to the Tribe and the Authority as follows:
(i) CEG'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 CEG
and do not require further approval.
(ii) This Agreement has been properly executed, and
once approved in accordance with Legal
Requirements, constitutes CEG's legal, valid and
binding obligations, enforceable against CEG in
accordance with its terms.
(iii) There are no actions, suits or proceedings
pending or threatened against or affecting CEG
before any court or governmental agency that
would in any material way affect CEG's ability
to perform this Agreement.
(iv) That CEG 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.
(v) That CEG has the financial capacity to pay to
the Tribe and the Authority all fees and
payments and to make or arrange all advances and
loans described in this Agreement.
(vi) That CEG has the ability and expertise to
perform all requirements of CEG provided for in
this Development Agreement.
Section 11.4. Covenants by CEG. CEG covenants and agrees that in
its performance of this Agreement, it will comply with all Legal
Requirements.
ARTICLE 12
EVENTS OF DEFAULT
Section 12.1. Events of Default by the Tribe. CEG shall not be
obligated to pay any fees, provide the loan commitment or make any advance
on the Loan or otherwise perform its obligations under this Agreement
pursuant to this Agreement if an Event of Default, as defined below, has
occurred or if any of the representations and warranties made by the Tribe
or the Authority in this Agreement shall not be true if made on the date
such fee payment or loan advance would otherwise be made. In addition, CEG
shall not be obligated to make any loan advance to the Tribe or the
Authority pursuant to this Agreement unless and until CEG receives the duly
authorized and executed versions of the Interim Promissory Note. Each of
the following shall be an Event of Default:
(i) The Tribe or the Authority shall fail to pay
when due the Interim Promissory Note or any
other indebtedness to CEG that the Tribe or the
Authority owes or has guaranteed and such
failure shall continue for thirty (30) days
after CEG gives the Tribe or the Authority
written notice thereof.
(ii) Any event referred to in any Interim Promissory
Note that permits CEG to declare the Interim
Promissory Note due and payable shall occur.
(iii) The Tribe or the Authority shall breach any of
their obligations under this Agreement and such
breach shall not be cured within thirty (30)
days after CEG gives the Tribe and the Authority
notice thereof.
(iv) Any material representation or warranty that the
Tribe or the Authority has made under this
Agreement shall prove to have been untrue when
made, or is later untrue without notice to CEG
of the change in status and written acceptance
by CEG of the changed status.
(v) The Tribe or the Authority violates the
provisions of Article 10 of this Agreement.
(vi) The Tribe or the Authority commits any Material
Breach of the Management Agreement.
If any Event of Default described in clause (v) above occurs, CEG's
commitments under this Agreement shall automatically terminate and any
outstanding Interim Promissory Note and all of the Tribe's and the
Authority's other obligations to CEG under this Agreement shall immediately
become due and payable. If any other Event of Default occurs, CEG may, upon
written notice to the Tribe and the Authority, declare CEG's commitment to
make advances under this Agreement terminated and/or declare the principal
balance of each Interim Promissory Note and any accrued interest to be
immediately due, and CEG may exercise any other rights and remedies
available to CEG by law or agreement. The Tribe and the Authority hereby
irrevocably authorize CEG to set off all sums found to be owing pursuant to
the provisions of Article 14 by the Tribe and the Authority to CEG against
all credits the Tribe and the Authority may have with CEG, and any claims
the Tribe or the Authority may have against CEG.
Section 12.2. Events of Default by CEG. The Tribe and the
Authority shall not be obligated to perform their obligations under this
Agreement pursuant to this Agreement if an Event of Default, as defined
below, has occurred or if any of the representations and warranties made by
CEG in this Agreement would not be true if made on the date such
performance would otherwise be due. Each of the following shall be an Event
of Default:
(i) CEG shall fail to make payments (whether of
fees, advances or loans) required by this
Agreement, and such failure shall continue for
thirty (30) days after the Tribe or the
Authority gives CEG written notice thereof.
(ii) CEG shall breach any of CEG's obligations under
this Agreement and such breach shall continue or
not be cured within thirty (30) days after the
Tribe or the Authority gives CEG notice thereof.
(iii) Any material representation or warranty that CEG
has made under this Agreement shall prove to
have been untrue when made, or is later untrue
without notice to the Tribe and the Authority of
the change in status and written acceptance by
the Tribe and the Authority of the changed
status.
(iv) CEG violates the provisions of Article 10 of
this Agreement.
(v) CEG shall be in Material Breach under the
Management Agreement after any applicable cure
periods thereunder.
If any Event of Default described in clause (iv) above occurs, and in
addition to any other rights they possess pursuant to this Agreement or by
law or equity, the Tribe's and the Authority's commitments under this
Agreement shall automatically terminate. If any other Event of Default
occurs, the Tribe and the Authority may, upon written notice to CEG,
exercise any other rights and remedies available to the Tribe and the
Authority by law, equity or this Agreement.
ARTICLE 13
TERMINATION
Section 13.1. Voluntary Termination. This Agreement may be
terminated upon the mutual written consent and approval of the parties,
subject to the terms of the Loan Agreement. Notwithstanding the foregoing,
the voluntary termination of this Agreement by either of the Tribe or the
Authority shall be deemed the termination by both the Tribe and the
Authority.
Section 13.2. Termination for Cause. The Authority may terminate
this Agreement if CEG commits or allows to be committed any material breach
of this Agreement, and CEG may terminate this Agreement if the Authority or
the Tribe commits or allows to be committed any material breach of this
Agreement. A material breach of this Agreement means a failure of a party
to perform any material duty or obligation on its part for any thirty (30)
consecutive days after notice. Neither party may terminate this Agreement
on grounds of material breach (not including any Event of Default) unless
it has provided written notice to the other party of its intention to
terminate this Agreement and the defaulting party thereafter fails to cure
or take steps to substantially cure the default within thirty (30) days
following receipt of such notice. During the period specified in the notice
to terminate, a party may submit the matter to the Gaming Disputes Court
under the dispute resolution provisions of this Agreement set forth at
Article 14 hereof. The periods specified by this section shall be tolled
during the pendency of any dispute resolution proceedings under this
section. The discontinuance or correction of a material breach shall
constitute a cure thereof. In the event of any termination for cause,
regardless of fault, the Tribe and the Authority shall retain all
non-refundable fees previously paid to them pursuant to Articles 8 and 9 of
this Agreement and CEG shall retain the right to repayment of unpaid
principal and any interest on all monies loaned by it to the Tribe and the
Authority whether pursuant to this Agreement or otherwise.
Section 13.3. Termination if the Tribe or the Authority Violates
Article 10. If CEG terminates this Agreement because of a violation by the
Tribe or the Authority of Article 10, the Tribe and the Authority, in
addition to its obligations to CEG under the Interim Promissory Notes,
agrees to repay CEG for all amounts advanced by CEG to the Tribe or the
Authority, or for the Tribe or the Authority, pursuant to Article 8 and
Article 9 of this Agreement, that pursuant to this Agreement were to be
repaid out of the first draw down of the Loan; and the Tribe and the
Authority agree that their obligation to repay such amounts shall be
subject to Section 14.1 regarding waiver of sovereign immunity by the Tribe
and the Authority and the other provisions of Article 14, and a Security
and Reimbursement Agreement pursuant to Section 11.2.
Section 13.4. Actions in Addition to Termination. CEG, the
Authority, 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, including actions to require payment of monies owed subsequent to
any termination. 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.
Section 13.5. 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 Enterprise shall conform to
and comply with all Legal Requirements. If during the term of this
Agreement, the Enterprise 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) CEG shall have the rights described at Section
13.6 and 13.7 of this Agreement;
(ii) CEG, the Authority, and the Tribe shall retain
all money previously paid to them pursuant to
this Agreement;
(iii) any money loaned to the Tribe and/or the
Authority by or guaranteed by CEG or CEG
Affiliates (to the extent CEG or its Affiliates
have paid under such guarantee) or owed to CEG
or its Affiliates pursuant to the Security and
Reimbursement Agreement shall be repaid to CEG
or its Affiliates in accordance with the terms
of the Agreement; and
(iv) the Authority shall retain its interest in all
Enterprise assets, including all fixtures,
supplies and equipment, subject to the rights of
CEG under the Security and Reimbursement
Agreement and subject to the terms of applicable
financing arrangements.
Section 13.6. CEG Right to Terminate Agreement. CEG may terminate
this Agreement by written notice effective upon receipt if:
(i) Any Tribal, State or Federal authority where
approval is required fails to approve this
Agreement or otherwise objects to the
performance by CEG of any obligation imposed on
it under this Agreement.
(ii) CEG 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 CEG or any of its Affiliates
in any other jurisdiction, and the Tribe or the
Authority refuses to allow CEG to immediately
rectify any such complaint.
(iii) CEG has reason to believe that the performance
by it, the Authority, 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 CEG.
(iv) Through its own actions, the Tribe or the
Authority fails to make any payment to CEG when
due within the time specified in this Agreement.
Section 13.7. Recommencement of Operations. If gaming, or gaming
construction and development on the Property is prohibited by Legal
Requirements, or is otherwise impossible or impractical, CEG 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 CEG, shall be legally and commercially feasible.
Section 13.7.1. Repair or Replacement. If the Facility is
damaged, destroyed or condemned so that continued development and
construction of Gaming 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 CEG elects to reconstruct the Facility and if the
insurance proceeds or condemnation awards are insufficient to
reconstruct the Facility to such condition, CEG may, in its sole
discretion, supply such additional funds as are necessary to
reconstruct the Facility to such condition and such funds shall,
with the prior consent of the Authority and the BIA or NIGC, as
appropriate, constitute a loan to the Authority, secured by the
revenues from the Enterprise and repayable upon such terms as may
be agreed upon by the Authority and CEG. The loan provided for
herein shall not be subject to the ceiling set forth in this
Development Agreement. If the insurance proceeds are not
sufficient and are not used to repair the Facility, the Authority
and CEG shall jointly adjust and settle any and all claims for
such insurance proceeds or condemnation awards, and such proceeds
or award shall be applied first, to the amounts due under the Note
or Security and Reimbursement Agreement (including principal and
interest); second, any other loans; third, any surplus shall be
distributed to the Authority.
Section 13.7.2. Other Business Purposes. CEG shall have
the option to use the Facility for other purposes included in the
Enterprise and reasonably incidental to Class II and Class III
Gaming, provided the Authority has approved such purposes (which
approval shall not be unreasonably withheld). In addition to
Gaming, CEG shall obtain all approvals necessary under applicable
law.
Section 13.7.3. Tolling of the Agreement. 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 CEG has not terminated
this Agreement under the provisions of Section 13.6 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. Any reasonable payments
made to any third party to eliminate rights acquired in the
Property, the Facility or the Enterprise during the period of
cessation shall constitute Reimbursable Project Costs.
ARTICLE 14
DISPUTE RESOLUTION
Section 14.1. General. The parties agree that the Gaming Disputes
Court shall have jurisdiction to hear and decide 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 the Gaming Disputes Court 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
participation in proceedings before the Gaming Disputes Court, or to
enforce an award or order of the Gaming Disputes Court. All proceedings
before the Gaming Disputes Court brought under this Agreement shall be
instituted within twelve (12) months after the claim accrues or shall be
forever barred.
(a) Each party agrees that it will use its best
efforts to negotiate an amicable resolution of
any dispute between CEG and the Tribe or the
Authority arising from this Agreement. If the
Tribe or the Authority and CEG are unable to
negotiate an amicable resolution of a dispute
within 14 days from the date of notice of the
dispute pursuant to the notice section of this
Agreement, or such other period as the parties
mutually agree in writing, either party may
refer the matter to the Gaming Disputes Court as
provided herein.
(b) The Gaming Disputes Court shall have the power
to grant equitable and injunctive relief and
specific performance as provided in this
Agreement, the Interim Promissory Note, the
Note, the Loan Agreement (to the extent Manager
is the Lender thereunder), the Security and
Reimbursement Agreement, the Management
Agreement and/or any agreement collateral
thereto, or any notice of termination thereof,
or the Constitution, the Tribal Gaming Code, or
any rules, actions, or decisions of the Tribal
Gaming Commission pursuant thereto, including
but not limited to, the issuance, non-issuance,
condition, suspension, denial or revocation of
any license required thereunder.
(c) If necessary, orders to compel litigation before
the Gaming Disputes Court or enforce an award of
the Gaming Disputes Court may be sought before
the United States District Court for the Eastern
District of California and any Federal court
having appellate jurisdiction over said court.
If the United States District Court for the
Eastern District of California finds that it
lacks jurisdiction, the Tribe and the Authority
consent to be sued in the California State Court
system. This consent to State Court jurisdiction
shall only apply if Manager exercises reasonable
efforts to argue for the jurisdiction of the
Federal court over said matter.
(d) In determining any matter the Gaming
Disputes Court shall apply the terms of this
Agreement, without adding to, modifying or
changing the terms in any respect, and shall
apply Federal and applicable State law.
(e) All Gaming Disputes Court hearings shall be held
at a place designated by the Gaming Disputes
Court in Madera County, California.
(f) The parties shall maintain strict
confidentiality with respect to any litigation
commenced or maintained under the provisions of
this Agreement, provided that Manager or the
Tribe or the Authority may provide any notice or
information that may be required to any person
under the terms of any Loan Agreement.
14.2 Limited Waiver of Sovereign Immunity. The Tribe and the
Authority expressly and irrevocably waive their immunity from suit as
provided for and limited by this Section. This waiver is limited to the
Tribe's and the Authority's consent to all proceedings before the Gaming
Disputes Court, and actions to compel such litigation and to enforce any
awards or orders issuing from such litigation which are sought solely in
United States District Court for the Eastern District of California and any
Federal court having appellate jurisdiction over said court, provided that
if the United States District Court for the Eastern District of California
finds that it lacks jurisdiction, the Tribe and the Authority consents to
such actions in the California State Court system. This consent to State
Court jurisdiction shall only apply if CEG exercises reasonable efforts to
argue for the jurisdiction of the Federal court over said matter. The
Gaming Disputes Court shall not have the power to award punitive damages.
(a) 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
litigation or dispute resolution proceedings
then pending, all appeals therefrom, and except
as limited by this Section, to the full
satisfaction of any awards or judgments which
may issue from such proceedings, provided that
an action to collect such judgments has been
filed within one year of the date of the final
judgment.
(b) This limited waiver is granted only to CEG and
not to any other individual or entity.
(c) This limited waiver is specifically limited to
the following actions and judicial remedies:
(i) The enforcement of an award of money damages
by the Gaming Disputes Court, provided that the
waiver does not extend beyond the assets
specified in Subsection (iii) below. No court
shall have any authority or jurisdiction to
order execution against any assets or revenues
of the Tribe or the Authority except as provided
in this Section or to award any punitive damages
against the Tribe or the Authority.
(ii) An action to compel or enforce litigation
in the Gaming Disputes Court or awards or orders
resulting from such litigation.
(iii) Damages awarded against the Tribe or the
Authority shall be satisfied solely from the
distributable share of Net Revenues of the Tribe
and the Authority from the Enterprise, the
tangible assets of the facility and the business
of the 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. 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) Notwithstanding the preceding three
Subsections, the Tribe's and the Authority's
waiver in this Section 14.2 extends to any
action, order, or judgment of the Gaming
Disputes Court that provides for injunctive
and/or declaratory relief.
ARTICLE 15
GENERAL
Section 15.1. Nature of Agreement. This Agreement is not intended
as and shall not be construed as a Management Agreement within the meaning
of the IGRA.
Section 15.2. CEG Interest. Nothing contained herein grants or is
intended (i) to grant CEG a titled interest to the Facility, or (ii) in any
way to impair or diminish the Tribe's Authority's sole proprietary interest
in the Facility.
Section 15.3. Situs of the Agreement. This Agreement and any Interim
Promissory Note shall be deemed entered into in Madera County, California.
Section 15.4. Notice. Any notice required to be given pursuant to this
Agreement shall be delivered to the appropriate party by Certified Mail
Return Receipt Requested, addressed as follows:
If to the Tribe: PICAYUNE RANCHERIA OF THE
CHUKCHANSI INDIANS
P.O. Box 269
35234 Highway 41
Coarsegold, California 93614
Attn.: Tribal Chairperson
Copies to: MONTEAU, PEEBLES, & CROWELL L.L.P.
Attn: John M. Peebles, Esq.
1001 2nd Street
Sacramento, CA 95814
If to the Authority:
THECHUKCHANSI ECONOMIC DEVELOPMENT
AUTHORITY
P.O. Box 269
46575 Road 417
Coarsegold, California 93614
Attn: Chairperson
Copies to: MONTEAU, PEEBLES & CROWELL, L.L.P.
Attn: John M. Peebles, Esq.
1001 2nd Street
Sacramento, CA 95814
If to The Development Manager:
THE CASCADE GROUP, LLC
Attn: Russell S. Pratt, President
7915 Folsom Boulevard
Sacramento, California 95826-2611
Copies to: JACOBSON, BUFFALO, SCHOESSLER
& MAGNUSON, LTD.
Attn: John E. Jacobson
246 Iris Park Place
1885 University Avenue West
St. Paul, MN 55104
or to such other different address(es) as CEG, the Authority, 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.
Section 15.5. Relationship. CEG, the Authority, and the Tribe shall
not be construed as joint venturers or partners of each other by reason of
this Agreement and none shall have the power to bind or obligate the others
except as set forth in this Agreement. The Tribe and the Authority shall be
jointly and severally liable for the obligations and liabilities of the
other under this Agreement.
Section 15.6. Further Actions. The Authority, the Tribe and CEG agree
to execute all contracts, agreements and documents and to take all actions
necessary to comply with the provisions of this Agreement and the intent
hereof.
Section 15.7. Waivers. No failure or delay by CEG, the Authority 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.
Section 15.8. Captions. The captions of each article, section and
subsection contained in this Agreement are for ease of reference only and
shall not affect the interpretational meaning of this Agreement.
Section 15.9. Third Party Beneficiary. This Agreement is exclusively
for the benefit of the parties hereto and it may not be enforced by any
party other than the parties to this Agreement and shall not give rise to
liability to any third party other than the authorized successors and
assigns of the parties hereto.
Section 15.10. Survival of Covenants. Any covenant, term or provision
of this Agreement which, in order to be effective, must survive the
termination of this Agreement, shall survive any such termination.
Section 15.11. Estoppel Certificate. CEG, the Authority, and the Tribe
each agree to furnish to the other party, from time to time upon request,
an estoppel certificate in such reasonable form as the requesting party may
request stating whether there have been any defaults under this Agreement
known to the party furnishing the estoppel certificate.
Section 15.12. Periods of Time. Whenever any determination is to be
made or action is to be taken on a date specified in this Agreement, if
such date shall fall on a Saturday, Sunday or legal holiday under the laws
of 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.
Section 15.13. 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 CEG, the Authority, and the
Tribe to perform their respective covenants and obligations hereunder,
including obtaining the loan and executing the Loan Agreement, or in
response to legal process or appropriate and necessary inquiry, and 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 Authority, the Tribe or CEG or
CEG 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 Authority, the
Tribe, or CEG or CEG Affiliates, was already rightfully in any such
person's possession; or c) is obtained by the Authority, the Tribe, or CEG
or CEG Affiliates from a third party who is lawfully in possession of such
Information, and not in violation of any contractual, legal or fiduciary
obligation to the Authority, the Tribe, or CEG or CEG Affiliates, with
respect to such Confidential Information and who does not require the
Authority, the Tribe, or CEG or CEG Affiliates to refrain from disclosing
such Confidential Information to others.
Section 15.14. Government Savings Clause. Each of the parties agrees
to execute, deliver and, if necessary, record any and all additional
instruments, certifications, amendments, modifications and other documents
as may be required by the United States Department of the Interior, Bureau
of Indian Affairs, the office of the Field Solicitor, the NIGC, or any
applicable statute, rule or regulation in order to effectuate, complete,
perfect, continue or preserve the respective 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 Authority, the Tribe or CEG under
this Agreement or any other agreement or document related hereto.
Section 15.15. 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. Any assignment by the Authority
shall not prejudice the rights of CEG under this Agreement or the Lender
under the Loan Agreement. No assignment authorized hereunder shall be
effective until all necessary governmental approvals have been obtained.
Section 15.16. 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
invalid due to its scope or breadth, such provision shall be deemed valid
to the extent of the scope or breadth permitted by law. If, however, any
material part of a party's rights under this Agreement or the Management
Agreement shall be declared invalid or unenforceable (specifically
including CEG right to receive its management fees or the Authority's right
to receive payments for loans from CEG) the party whose rights have been
declared invalid or unenforceable shall have the option to terminate this
Agreement upon thirty (30) days' written notice to the other party, without
liability on the part of the terminating party, but CEG shall retain the
right to repayment of unpaid principal and interest on all monies loaned by
it to the Authority and the Tribe whether pursuant to this Agreement or
otherwise, and the Authority and the Tribe shall retain all non-refundable
fees previously paid to them pursuant to Article 8 and Article 9 of this
Agreement.
Section 15.17. Entire Agreement. This Agreement (together with the
Exhibits and Management Agreement of even date herewith) sets forth the
entire agreement between the parties hereto with respect to the subject
matter hereof. All agreements, covenants, representations, and warranties,
express or implied, oral or written, of the parties with respect to the
subject matter hereof are contained herein. No other agreements, covenants,
representations, or warranties, express or implied, oral or written have
been made by any party to the other with respect to the subject matter of
this Agreement. All prior and contemporaneous conversations, discussions,
negotiations, possible and alleged agreements and representations,
covenants and warranties with respect to the subject matter hereof, are
waived, merged herein and superseded hereby. Each party affirmatively
represents that no promises have been made to that party which are not
contained in this Agreement, the Management Agreement, and the Exhibits,
and stipulates that no evidence of any promises not contained in this
Agreement, the Management Agreement, and the Exhibits, shall be admitted
into evidence on their behalf. This Agreement shall not be supplemented,
amended or modified by any course of dealing, course of performance or uses
of trade and may only be amended or modified by a written instrument duly
executed by officers of both all parties hereto.
Section 15.18 Preparation of Agreement. This Agreement was drafted and
entered into after careful review and upon the advice of competent counsel;
it shall not be construed more strongly for or against either party.
Section 15.19 Approvals of Authority or Tribe. Where approval or
consent or other action of the Tribe or the Authority is required, such
approval shall mean the written approval of the Tribal Council or the
Governing Board, as the case may be, evidenced by a resolution thereof,
certified by a Tribal official or Authority official as having been duly
adopted, or such other person or entity designated by resolution of the
Tribal Council or the Governing Board. Any such approval, consent or action
shall not be unreasonably withheld or delayed; provided that the foregoing
does not apply where a specific provision os this Agreement allows the
Tribe or the Authority an absolute right to deny approval or consent or
withhold action. Notwithstanding the foregoing, if the approval or consent
of the Tribe or the Authority, or the delivery of notice to the Tribe or
the Authority, is required by the terms and conditions of this Agreement,
then the approval or consent of, or the delivery of notice to, either the
Tribe or the Authority shall be deemed to constitute the approval or
consent of, or delivery of notice to, both the Tribe and the Authority, and
if any inconsistent or contradictory instructions (by way of approval,
disapproval, consent or otherwise) shall be delivered by the Authority and
the Tribe, Manager shall have the right to choose (in its sole and absolute
discretion) the instruction that shall be binding upon both the Authority
and the Tribe (and the Authority and the Tribe acknowledge and agree that
Manager's choice shall be binding on them).
Section 15.20 Approvals Manager. Where approval or consent or other
action of Manager is required, such approval shall mean the written
approval of the Managing Officer. Any such approval, consent or other
action shall not be unreasonably withheld or delayed.
Section 15.21 Execution. This Agreement may be executed in six
counterparts, two to be retained by each party. Each of the six originals
is equally valid. This Agreement shall be deemed "executed" and shall be
binding upon all parties when properly executed and approved by the
Chairman of the NIGC.
Section 15.22 Attorneys' Fees. If a dispute of any type arises, or an
action is filed under this Agreement based in contract, tort or equity, or
this Agreement gives rise to any other legal proceeding between any of the
parties hereto, the prevailing party shall be entitled to recover from the
losing party reasonable attorneys' fees, costs and expenses, including, but
not limited to, expert witness fees, accounting and engineering fees, and
any other professional fees incurred in connection with the prosecution or
defense of such action, if but only if the Gaming Disputes Court determines
that the claims of the losing party were frivolous or were made in bad
faith and with the intent to harass or obstruct the prevailing party. For
purposes of this Agreement, the terms "attorneys' fees," "costs" and
"expenses" shall also include the fees and expenses incurred by counsel to
the parties hereto for photocopies, duplications, deliveries, postage,
telephone and facsimile communications, and transcripts of proceedings
relating to the action, and all fees billed for law clerks, paralegals,
librarians, secretaries and others not admitted to the bar but performing
services under the supervision of an attorney. The terms "attorneys' fees,"
"costs" and "expenses" shall also include, without limitation, fees and
costs incurred in the following proceedings: (1) mediations; (2)
arbitrations; (3) bankruptcy proceedings; (4) appeals; (5) post-judgment
motions and collection actions; and (6) garnishment, levy and debtor
examinations. The prevailing party shall also be entitled to attorneys'
fees and costs after any dismissal of an action.
Section 15.23 Performance Delayed. Neither the Tribe, the Authority,
nor the Development Manager party will be liable for any failure or delay
in the performance of its obligations hereunder which are due, in whole or
in part, directly or indirectly, to any cause beyond the reasonable control
of such party, which in the exercise of due diligence could not have been
avoided, including without limitation, fire, explosion, earthquake, storm,
flood or other weather, unavailability of necessary utilities or raw
materials, strike, lockout, unavailability of any component, activities of
a combination of workers or other labor difficulties, war, insurrection,
riot, act of God or public enemy, law, act, order, export control
regulation, proclamation decree, regulations, ordinance, or instruction of
government or other public authorities, or judgment or decree of a court of
competent jurisdiction (not arising out of any breach by such party of this
Agreement). In the event of such occurrence, the party so affected will
give prompt notice to the other parties, stating the period of time the
occurrence is expected to continue.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS
By: /s/ Dixie Jackson
----------------------------------------
Dixie Jackson, Chairperson
Attest: /s/ Belinda Jones
----------------------------------------
Secretary
CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY
By: /s/ Dixie Jackson
----------------------------------------
Dixie Jackson, Chairperson
Attest: /s/ Belinda Jones
----------------------------------------
Secretary
CASCADE ENTERTAINMENT GROUP, LLC
By: /s/ Russell S. Pratt
----------------------------------------
Russell S. Pratt, President
Attest: /s/ Kathy J. Reiner, CFO
----------------------------------------
FIRST AMENDMENT TO AMENDED AND
------------------------------
RESTATED DEVELOPMENT AGREEMENT
------------------------------
THIS FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT
AGREEMENT, dated as of July 30, 2001 (this "Amendment"), is made between
THE PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS (the "Tribe"), THE CHUKCHANSI
ECONOMIC DEVELOPMENT AUTHORITY (the "Authority") and CASCADE ENTERTAINMENT
GROUP, LLC ("CEG").
RECITALS:
WHEREAS, the Tribe and CEG entered into that certain Development
Agreement dated October 15, 1999 (the "Original Development Agreement");
WHEREAS, the Tribe, the Authority and CEG entered into that
certain Amended and Restated Development Agreement dated June 15, 2001 (the
"Development Agreement"), which amended and restated the Original
Development Agreement in its entirety;
WHEREAS, the Development Agreement contained a condition that the
Tribe amend its Constitution to, among other things, create the Gaming
Disputes Court;
WHEREAS, the Tribal Council has determined that it is in the best
interest of the Tribe and the Authority to arbitrate any disputes with CEG
and not to create the Gaming Disputes Court; and
WHEREAS, the parties hereto desire to modify the Development
Agreement upon the terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Defined Terms. All capitalized terms which are not defined within
this Amendment shall have the meanings set forth for the term in the
Development Agreement.
2. Amendment of the Development Agreement.
a. The definition "Constitutional Amendment" shall be deleted in
its entirety.
1
b. The phrase ", and as amended by the Constitutional Amendment in
accordance with this Agreement" shall be deleted from the
definition of "Constitution."
c. The phrase "and managed by CEG" shall be deleted from the
definition "Enterprise" and replaced with the phrase "or the
Tribe".
d. Section 8.2(vii) shall be deleted in its entirety and replaced
with the following: "The Authority shall consent to binding
arbitration, to the enforcement of arbitration awards in state
and federal courts, and to New York law as the law governing
the Loan Agreement."
e. Section 13.2 shall be amended by deleting the phrase "the
Gaming Disputes Court or" and replacing it with the word
"arbitration".
f. Section 14 shall be deleted in its entirety and replaced with
the following:
"14.1 General. The parties agree that binding arbitration shall be
the remedy for all disputes, controversies and claims between the Tribe and
the CEG or between the Authority and the CEG arising out of this 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 Tribe and the Authority waive any recourse to any court of
the Tribe, and agree that Tribal court procedures need not be exhausted as
a precondition to commencing or maintaining dispute resolution procedures
under this Agreement. 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 such arbitration, to aid such arbitration, or to enforce an award or
order resulting from such arbitration. All initial proceedings between the
parties before the arbitrator shall be instituted within twelve (12) months
after the claim accrues or shall be forever barred.
(a) Initial Procedure. Each party agrees that it will use its best
efforts to negotiate an amicable resolution of any dispute
between CEG and the Tribe or the Authority arising from this
Agreement.
(b) Arbitration Jurisdiction. Arbitration shall be initiated by
written notice given 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 Arbitrator shall have the power to grant
legal, equitable and injunctive relief, including preliminary
and temporary injunctive relief, and specific performance as
provided in this Agreement, the Interim Promissory Note, the Note,
the Loan Agreement (to the extent CEG is the Lender hereunder),
2
the Security and Reimbursement Agreement, the
Management Agreement and/or any agreement collateral thereto.
(c) Court Authority. If necessary, orders to compel arbitration or
aid arbitration, enforce an award of an arbitrator or provide
any necessary remedies in aid of an arbitration may be sought
before the courts of the State of California and the Federal
Courts.
(d) Choice of Law. In determining any matter, the arbitrator shall
apply the terms of this Agreement, without adding to, modifying
or changing the terms in any respect, and shall apply Federal
and applicable State law.
(e) Place of Hearing. All arbitration hearings shall be held at a
place designated by the arbitrator in Madera County,
California.
(f) Confidentiality. The parties shall maintain strict
confidentiality with respect to any arbitration commenced or
maintained under the provisions of this Agreement, provided
that CEG or the Tribe or the Authority may provide any notice
or information that may be required to any person under the
terms of any Loan Agreement.
14.2 Limited Waiver of Sovereign Immunity. The Tribe and the
Authority expressly and irrevocably waive their immunity from suit as
provided for and limited by this Section. This waiver is limited to the
Tribe's and the Authority's consent to all arbitration proceedings, and
actions to compel arbitration, to aid arbitration and to enforce any awards
or orders issuing from or connected to such arbitration which are sought in
the Courts of the State of California and the Federal Courts. The
arbitrator shall not have the power to award punitive damages.
(a) Time Period. The waiver granted herein shall commence as
of the date of this Agreement and shall continue for one
year following expiration, termination or cancellation of
this Agreement, but shall remain effective for the
duration of any arbitration or dispute resolution
proceedings then pending, all appeals therefrom,
including court procedures, and except as limited by this
Section, to the full satisfaction of any awards or
judgments which may issue from such proceedings, provided
that an action to collect such judgments has been filed
within one year of the date of the final judgment.
(b) Recipient of Waiver. This limited waiver is granted only
to CEG and its permitted assigns hereunder and not to any
other individual or entity.
(c) Limitations of Actions. This limited waiver is
specifically limited to the following actions and
judicial remedies:
(i) Damages. The enforcement of an award of money
damages by the arbitrator, provided that the
waiver does not extend beyond the assets
specified in Subsection (iii) below. No court or
arbitrator shall have any authority or
jurisdiction to order execution against any
assets or revenues of the Tribe or the Authority
except as provided in this Section or to award
any punitive damages against the Tribe or the
Authority.
3
(ii) Action to Compel Litigation. An action to
compel, aid or enforce arbitration or awards or
orders resulting from or connected to such
arbitration.
(iii) Limitation Upon Enforcement. Damages awarded
against the Tribe or the Authority shall be
satisfied solely from the distributable share of
Net Revenues of the Tribe and the Authority from
the Enterprise, the tangible assets of the
Facility and the business of the 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. 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) Extent of Waiver. Notwithstanding the preceding
three Subsections, the Tribe's and the
Authority's waiver in this Section 14.2 extends
to any action, order, or judgment of an
arbitrator or court that provides for injunctive
and/or declaratory relief."
g. Section 15.3 is amended by adding the phrase "and
governed by the laws of the State of California" at the
end thereof.
h. The address of CEG in Section 15.4 is amended to read
"CASCADE ENTERTAINMENT GROUP, LLC".
i. Section 15.13 shall be amended by inserting the phrase ",
as required in connection with any arbitration proceeding
commenced hereunder" after the phrase "and executing the
Loan Agreement," in the first paragraph thereof.
j. Section 15.22 shall be deleted in its entirety and
replaced with the following:
"If a dispute resolution proceeding is filed under this
Agreement based in contract, tort or equity, or this
Agreement gives rise to any other legal proceeding between
any of the parties hereto, the prevailing party shall be
entitled to recover from the losing party reasonable
attorneys' fees, costs and expenses, including, but not
limited to, expert witness fees, accounting and
engineering fees, and any other professional fees incurred
in connection with the prosecution or defense of such
action, if but only if an arbitrator or court (as
applicable) determines that the claims of the losing party
were frivolous or were made in bad faith and with the
intent to harass or obstruct the prevailing party. For
purposes of this Agreement, the terms "attorneys'
4
fees," "costs" and "expenses" shall also include the fees
and expenses incurred by counsel to the parties hereto for
photocopies, duplications, deliveries, postage, telephone
and facsimile communications, and transcripts of
proceedings relating to the action, and all fees billed
for law clerks, paralegals, librarians, secretaries and
others not admitted to the bar but performing services
under the supervision of an attorney. The terms
"attorneys' fees," "costs" and "expenses" shall also
include, without limitation, fees and costs incurred in
the following proceedings: (1) arbitrations; (2)
bankruptcy proceedings; (3) appeals; (4) post-judgment
motions and collection actions; and (5) garnishment, levy
and debtor examinations. The prevailing party shall also
be entitled to attorneys' fees and costs after any
dismissal of an action."
k. Exhibit D is hereby deleted in its entirety.
3. Miscellaneous.
-------------
a. Entire Agreement. This Amendment constitutes the entire
and final agreement among the parties hereto with respect
to the subject matter hereof and there are no other
agreements, understandings, undertakings, representations
or warranties among the parties hereto with respect to
the subject matter hereof except as set forth herein.
b. Counterparts. This Amendment may be executed in any
number of counterparts, all of which taken together shall
constitute one and the same agreement, and any of the
parties hereto may execute this Amendment by signing any
such counterpart.
c. Headings, Etc. Section or other headings contained in
this Amendment are for reference purposes only and shall
not in any way affect the meaning or interpretation of
this Amendment.
d. No Further Modifications. Except as modified herein, all
of the terms and conditions of the Development Agreement
shall remain in full force and effect and, as modified
hereby, each of the Tribe, the Authority and CEG confirms
and ratifies all of the terms, covenants and conditions
of the Development Agreement in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the day
and year first above written.
PICAYUNE RANCHERIA OF
CHUKCHANSI INDIANS
By /s/ Dixie Jackson
-------------------------------
Dixie Jackson, Its Chairperson
CHUKCHANSI ECONOMIC
DEVELOPMENT AUTHORITY
By /s/ Dixie Jackson
-------------------------------
Dixie Jackson, Its Chairperson
CASCADE ENTERTAINMENT GROUP, LLC
By /s/ Russell Pratt
-------------------------------
Russell Pratt, Its President
SECOND AMENDMENT TO AMENDED AND
-------------------------------
RESTATED DEVELOPMENT AGREEMENT
------------------------------
THIS SECOND AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT
AGREEMENT, dated as of August ___, 2001 (this "Amendment"), is made between
THE PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS (the "Tribe"), THE CHUKCHANSI
ECONOMIC DEVELOPMENT AUTHORITY (the "Authority") and CASCADE ENTERTAINMENT
GROUP, LLC ("CEG").
RECITALS:
WHEREAS, the Tribe and CEG entered into that certain Development
Agreement dated October 15, 1999 (the "Original Development Agreement");
WHEREAS, the Tribe, the Authority and CEG entered into that
certain Amended and Restated Development Agreement dated June 15, 2001 (the
"Development Agreement"), which amended and restated the Original
Development Agreement in its entirety;
WHEREAS, the Tribe, the Authority and CEG entered into that
certain First Amendment to Amended and Restated Development Agreement dated
July 30, 2001, which amended the Development Agreement; and
WHEREAS, the parties hereto desire to modify the Development
Agreement upon the terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Defined Terms. All capitalized terms which are not defined within
this Amendment shall have the respective meanings set forth in the
Development Agreement.
2. Amendment of the Development Agreement.
a. The definition of "Governmental Action" shall be added to
Section 1 as follows:
"Governmental Action" shall mean 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."
b. Section 14.1 shall be amended by adding the following
sentence to the end of the first paragraph thereof:
"Notwithstanding the foregoing, 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."
3. Miscellaneous.
a. Entire Agreement. This Amendment constitutes the entire
and final agreement among the parties hereto with respect
to the subject matter hereof and there are no other
agreements, understandings, undertakings, representations
or warranties among the parties hereto with respect to
the subject matter hereof except as set forth herein.
b. Counterparts. This Amendment may be executed in any
number of counterparts, all of which taken together shall
constitute one and the same agreement, and any of the
parties hereto may execute this Amendment by signing any
such counterpart.
c. Headings, Etc. Section or other headings contained in
this Amendment are for reference purposes only and shall
not in any way affect the meaning or interpretation of
this Amendment.
d. No Further Modifications. Except as modified herein, all
of the terms and conditions of the Development Agreement
shall remain in full force and effect and, as modified
hereby, each of the Tribe, the Authority and CEG confirms
and ratifies all of the terms, covenants and conditions
of the Development Agreement in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the day
and year first above written.
PICAYUNE RANCHERIA OF
CHUKCHANSI INDIANS
By /s/ Dixie Jackson
-------------------------------
Dixie Jackson, Its Chairperson
CHUKCHANSI ECONOMIC
DEVELOPMENT AUTHORITY
By /s/ Dixie Jackson
-------------------------------
Dixie Jackson, Its Chairperson
CASCADE ENTERTAINMENT GROUP, LLC
By /s/ Russell Pratt
-------------------------------
Russell Pratt, Its President
THIRD AMENDMENT TO AMENDED AND
------------------------------
RESTATED DEVELOPMENT AGREEMENT
------------------------------
THIS THIRD AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT
AGREEMENT, dated as of December 27, 2001 (this "Amendment"), is made
between THE PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS (the "Tribe"), THE
CHUKCHANSI ECONOMIC DEVELOPMENT AUTHORITY (the "Authority") and CASCADE
ENTERTAINMENT GROUP, LLC ("CEG").
RECITALS:
WHEREAS, the Tribe and CEG entered into that certain Development
Agreement dated October 15, 1999 (the "Original Development Agreement");
WHEREAS, the Tribe, the Authority and CEG entered into that
certain Amended and Restated Development Agreement dated June 15, 2001 (the
"Development Agreement"), which amended and restated the Original
Development Agreement in its entirety;
WHEREAS, the Tribe, the Authority and CEG entered into that
certain First Amendment to Amended and Restated Development Agreement dated
July 30, 2001, which amended the Development Agreement;
WHEREAS, the Tribe, the Authority and CEG entered into that
certain Second Amendment to Amended and Restated Development Agreement
dated August 27, 2001, which amended the Development Agreement; and
WHEREAS, the parties hereto desire to modify the Development
Agreement upon the terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
Defined Terms. All capitalized terms which are not defined within
this Amendment shall have the respective meanings set forth for
the term in the Development Agreement.
Amendment of the Development Agreement. Section 2.2 shall be
deleted in its entirety and replaced with the following:
Section 2.2. Land Acquisition. CEG has acquired an interest
in the following undeveloped land (Collateral Development),
to wit:
Tract 1: Parcel 1:
All that portion of the N 600.0 feet of the East
309.0 feet of the NE 1/4 of the NE 1/4 of the NW
1/4 lying South and West of the Picayune Road in
Section 29, Township 8 South, Rage 21 East,
MDB&M, bounded and described as follows:
Beginning at a point on the North Section line at
the intersection of the N.-S. 1/2 Section line of
Section 29, thence West and along the North
Section line a distance of 309 feet to a point;
thence at right angles South and parallel to the
N.-S. 1/2 Section line a distance of 600 feet to
a point; thence at right angles East and parallel
to the North Section line of Section 29 a
distance of 309 feet to the intersection with the
N.-S. 1/2 Section line of Section 29; thence at
right angles North along the North-South 1/2
Section line of Section 29 a distance of 600
feet, back to the point of beginning.
Parcel 2:
All that portion of the Northwest quarter of
Section 29, Township 8 South, Range 21 East,
Mount Diablo Base and Meridian, according to the
Official Plat thereof, described as beginning at
a point on the North Section line, which point
lies West 309.0 feet from the North quarter
corner of Section 29 thence continuing West and
along the North Section line a distance of 1089.0
feet; thence at right angles South and parallel
to the North-South half Section line a distance
of 600 feet to a point; thence at right angles
East and parallel to the North Section line a
distance of 1089.0 feet to a point on the
Southwest corner of parcel conveyed to Richard E.
Keith by deed recorded June 28, 1965 in Volume
937 Page 463, of Official Records, Madera County;
thence North and along West line of said parcel,
a distance of 600 feet to the point of beginning.
APN: 054-330-014
Tract 2: Parcel 2 of Parcel Map 1870 in the
County of Madera, State of California, per map
recorded August 21, 1981, in Book 27 of Maps at
page 182 of Madera County Records, together with
the right of access upon Parcel 1 of said Parcel
Map as reserved thereon. APN: 054-330-032-000.
Tract 3: Parcel 3 of Parcel Map 1870 in the
County of Madera, State of California, per map
recorded August 21, 1981, in Book 27 of Maps at
page 182 of Madera County Records. APN:
054-330-033-000
Tract 4: The SE 1/4 of the NW 1/4 of Section 29, Township 8
South, Range 21 East, MDB&M. APN: 054 330 020
Tract 5: Parcel 1 of Parcel Map No. 1870 according to the
map thereof recorded August 21, 1981 in Book 27
of Maps, at Page 182, Madera County Records. APN:
054-330-031
Tract 6: All that portion of the North half of the
Northwest Quarter of Northeast quarter (N 1/2 of
NW 1/4 of NE 1/4) of Section twenty-nine (29),
Township eight (8) South, Range twenty-one (21)
East, MDB&M, lying Southwesterly of County Road
No. 417. APN: 054-330-015
Miscellaneous.
Entire Agreement. This Amendment constitutes the entire
and final agreement among the parties hereto with respect
to the subject matter hereof and there are no other
agreements, understandings, undertakings, representations
or warranties among the parties hereto with respect to
the subject matter hereof except as set forth herein.
Counterparts. This Amendment may be executed in any
number of counterparts, all of which taken together shall
constitute one and the same agreement, and any of the
parties hereto may execute this Amendment by signing any
such counterpart.
Headings, Etc. Section or other headings contained in
this Amendment are for reference purposes only and shall
not in any way affect the meaning or interpretation of
this Amendment.
No Further Modifications. Except as modified herein, all
of the terms and conditions of the Development Agreement
shall remain in full force and effect and, as modified
hereby, each of the Tribe, the Authority and CEG confirms
and ratifies all of the terms, covenants and conditions
of the Development Agreement in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the day
and year first above written.
PICAYUNE RANCHERIA OF
CHUKCHANSI INDIANS
By /s/ Dixie Jackson
-------------------------------
Dixie Jackson, Its Chairperson
CHUKCHANSI ECONOMIC
DEVELOPMENT AUTHORITY
By /s/ Dixie Jackson
-------------------------------
Dixie Jackson, Its Chairperson
CASCADE ENTERTAINMENT GROUP, LLC
By /s/ Russell Pratt
-------------------------------
Russell Pratt, Its President